Category Archives: Courts and Judges

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.

European Holocaust had roots in Africa: Now Namibia is suing Germany

In 2014, after I published my report about Namibia, exposing the German ‘semi-denial’ that it had committed a Holocaust in its former Southwest African colony, a renowned German university sent me a letter. I paraphrase here, but the essence of the letter is kept intact:

Dear Professor Vltchek, we are impressed by your research and your conclusions, and we would like to translate and publish your groundbreaking analyses in German language. Unfortunately, we cannot afford any payment…

It was one of the major universities in the country, with tremendous budgets and an international reputation.

I replied, asking why, with all those scholars and academics, with PhDs and experts, they had never sent a team of experts to Namibia, to investigate one of the most horrid crimes committed in the 20th Century. I wanted to know, why they would suddenly want to rely on the work of a foreigner, an outsider, an internationalist who refuses to call himself an academic (for me it is now a totally discredited term). Murdering the Herero and Nama people in Southwest Africa by Germans was, after all, the key for comprehending what happened several decades later, in Europe itself, during the Holocaust that Germany went on to commit against the Jewish and Roma people.

The university never replied. I suppose they sensed that I was ‘dragging them’ into some extremely dangerous waters. They did not want to ‘be there’; they preferred the safe, calm waters, where some foreign left-wing intellectual writes something, they translate and publish it, putting a disclaimer that this doesn’t necessarily reflects the position of their respected journal and the university. As far as they were concerned, taboos should remain taboos, and the dunes of Namibia should be stirred just a little bit, for a limited intellectual discussion only. No storm, please!

*****

It doesn’t take rocket science to discover what I did in Namibia. There, I met common people, in slums and universities. I met UN experts and Namibian government officials. I undusted various archive documents. I consulted scholars in neighboring South Africa.

German tourists admiring statue of Keiser in Windhoek

In Africa, Namibian history is no secret. Nothing is taboo. This is what is common knowledge in Windhoek or in Cape Town in neighboring South Africa:

The Germans drove into the desert, and then exterminated, over 80% of the entire nation – the Herero. The Nama people lost around 50% of its population. The concentration and extermination camps were built; monstrous medical experiments on human beings were perpetrated. German ‘doctors’ including those who were working on ‘the pure race doctrine’ in Namibia (the doctrine later used by the Nazis in Europe), subsequently ‘educated’ many German racist physicians, including the notorious ‘Angel of Death’ – Mengele. The most notorious doctor, who experimented on human beings in Africa, was Eugen Fischer.

Not surprisingly, the first German governor of the colony was the father of Hitler’s deputy, Herman Goering.

The holocaust in Africa is directly connected to the holocaust in Europe.

Liberation struggle for Namibia

Almost the official, and a thousand times repeated lie related to the birth of German Nazism, a lie that is even taught in many European schools, would easily collapse like a house of cards if Namibian history were to get closely examined. The lie, in different variations, sounds like this: “Germany, deeply humiliated after WWI, facing terrible economic crises, suddenly went amok, got radicalized and ended up bringing extreme-right nationalist bigots to power.”

Do you recall the official Western line about a ‘peaceful Germany, a land of scholars and philosophers; a nation which shocked itself and the world, by suddenly turning to extreme violence and mass murder, abandoning its noble traditions?’ Such reasoning would stand only if the Others (non-white, non-Europeans), were not considered as human beings.

The Namibian holocaust (but also to some extent, the mass murder that Germany committed against the people of today’s Tanzania) shows that Germany clearly has a history of genocidal behavior, and that it committed, in the 1930’s and 1940’s, on its own continent, precisely what it had been doing much earlier, in Africa.

Obviously, all that was not just about Nazism (there were no Nazis yet, during the holocaust in Africa), but about the entire culture and mindset of the German people.

Murdering of Herero by Germans

Fortunately, the silence has not been complete. Two monstrous events have been compared and linked together. Sporadically, the truth about the Namibian horror past has been appearing, even in the mainstream press.

On 21 October 2012, the Canadian daily newspaper, The Globe and Mail, reported:

In the bush and scrub of central Namibia, the descendants of the surviving Herero live in squalid shacks and tiny plots of land. Next door, the descendants of German settlers still own vast properties of 20,000 hectares or more. It’s a contrast that infuriates many Herero, fuelling a new radicalism here.

Every year the Herero hold solemn ceremonies to remember the first genocide of history’s bloodiest century, when German troops drove them into the desert to die, annihilating 80 percent of their population through starvation, thirst, and slave labor in concentration camps. The Nama, a smaller ethnic group, lost half of their population from the same persecution.

New research suggests that the German racial genocide in Namibia from 1904 to 1908 was a significant influence on the Nazis in the Second World War. Many of the key elements of Nazi ideology – from racial science and eugenics, to the theory of Lebensraum (creating ‘living space’ through colonization) – were promoted by German military veterans and scientists who had begun their careers in South-West Africa, now Namibia, during the genocide…

In Windhoek, the capital of Namibia, a European expert working for the UN, a friend of mine, spoke to me, like almost everyone there, passionately, but without daring to reveal her name:

The first concentration camps on earth were built in this part of Africa… They were built by the British Empire in South Africa and by Germans here, in Namibia. Shark Island on the coast was the first concentration camp in Namibia, used to murder the Nama people, but now it is just a tourist destination – you would never guess that there were people exterminated there. Here in the center of Windhoek, there was another extermination camp…

Acknowledging its crimes against the Jews (but not always against the Roma people), Germany maintains as monuments, all former concentration camps, including Buchenwald and Dachau. But there is absolutely nothing it does to honor the memory of its victims in other parts of the world, particularly Africa.

Racism is one of the essential characteristics of Nazism. Isn’t it a clear expression of racism to treat the victims of the same crime differently, simply because of the color of their skin?

Monument to liberation from slavery in Windhoek (Photo by Andre Vltchek)

*****

Now the Namibian people are suing Germany in a court in New York City.

It appears they have had enough. Enough of waiting, of humiliation. For years there has been no compensation to the families of the victims, and no serious compensation to the nation.

For years, the Namibian government has been negotiating at least for the return of all skulls of the local people, which were used in German laboratories and by German scientists to prove the superiority of the white race, as well as ‘sub-humanness’ of other races, including the blacks. German colonialists decapitated countless Herero and Nama people, and at least 300 heads were transported to German laboratories for ‘scientific research’. Many were later ‘discovered’ in the Medical History Museum of the Charite hospital in Berlin, and at Freiburg University.

Insults were added to injury. Until now, the German settlers enjoy a repulsively lavish lifestyle on land that was stolen from the Herero and Nama people. Many descendants of the victims of the Southwest African holocaust are now living in overcrowded slums.

German and other Central European tourists are ‘in love with Namibia’; for its dunes, spectacular and pristine coast, as well as for the white German enclaves. I asked several of them about the past. Most of them did not know and seemed not to be interested to learn.

But the world may ‘discover’ the Namibian past, very soon, as Western imperialism is crumbling and oppressed people are rising to their feet.

Demands for compensation and acknowledgements of the horrific colonialist past are now flowing from Pakistan, India and other countries that were devastated by European racism and imperialism. The Namibian case may set the entire planet into motion, as it is almost the entire world that had been devastated by European colonialism.

The US courts may not resolve much, but what is happening there is symbolic, and just a beginning.

AFP reported on July 31st:

US District Judge Laura Taylor Swain presided over the one-hour hearing in a New York federal court but concluded the session by saying that she would not rule immediately. She also did not set a date for a decision.

The German government wants the lawsuit thrown out on the grounds of state immunity from prosecution. The Herero and Nama groups are seeking reparations for the genocide of their peoples under German colonial rule…

The Herero and Nama people brought the class-action lawsuit last year, seeking reparations over the tens of thousands killed in the massacres.

There will be no easy victory for the Herero and Nama people. They have no lobby in the United States, and even back in Namibia, they are poor. They own no international media, no international banks or corporations.

But they are right in demanding justice!

The renowned Canadian international lawyer, Christopher Black, declared for this essay:

The European colonial powers imposed their dominance over other peoples through war and terror and committed violence on a vast scale. Their actions constitute the war crime of aggression and crimes against humanity, murder assault and slavery. Many of those nations are still trying to escape and recover from the occupation and destruction imposed on them and should be compensated by those colonial powers for the damage done. Meaningless apologies are not enough. There is legal precedent for the requirement that the colonial powers pay reparations to those peoples as Germany had to do regarding its genocide against the Jews. The determination of the amount and in what form it should be paid would be a contentious issue but the victims of colonialism have a moral and legal right to compensation for the crimes committed against them and the lasting damage done.

Percentage-wise, the Herero and Nama nations lost more people than any other race, nation or ethnic group, during the entire 20th Century.

Without understanding what they suffered, what was done to them, there is no way to understand what took place right before and during World War II.

The entire anti-imperialist world has a clear obligation to support the cause of the Herero and Nama people in their quest for justice. Enough of ‘broken links’ and outright lies. Justice has to be the same for all. Nations that were, or are, victims of Western genocides, massacres and colonialist plunder, should unite and declare loudly and clearly: “Never again!”

• Originally published by New Eastern Outlook (NEO)

The Middle Man: The Jurisprudence of Justice Anthony Kennedy

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  This near-kitsch description comes from Justice Anthony Kennedy, US Supreme Court justice whose resignation sent Democrats screeching and Republicans chortling with opportunity.

There was a general registered lament from the fearful that Justice Kennedy’s retirement had ended what was, at least in some circles, a terrible period in US jurisprudence punctuated by odd moments of sensible, even delightful refrain.  It was, he relayed to President Donald Trump in a letter, “the highest of honors to serve on this Court”, and expressed “profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.”

In being nominated by President Ronald Reagan in November 1987, Kennedy came as a mere third choice in the aftermath of Justice Lewis Powell’s retirement.  Robert Bork of the US Court of Appeals for the District of Columbia Circuit failed to impress the Senate, and his nomination sank by a vote of 42 to 58.  Douglas Ginsberg came next, but fell foul because of his use of marijuana as an adult.  The whirligig of time did the rest.

It is worth iterating that Reagan was confident enough with his third choice to claim he had gotten a “true conservative”, though Kennedy seemed to induce a degree of dissatisfaction over the issue as to whether he was that true.   His tendency to seem, at least, like a compromiser did not impress some, though it did win over the centrists.

When it came to decisions, Kennedy could be relied upon to threaten those conventions held dear to progressives.  This, it was said, was simply him being the middling man, sporting a libertarian streak.  On abortion, he flirted with reasoning that came awfully close to undermining Roe v Wade, a canonical case found along the fault line of Supreme Court battles.  While a woman’s right to have an abortion remains intact, Kennedy was not one to entirely ignore a pitch at altering it.

Wobbling somewhat, he would write in a joint judgment with Justices O’Connor and David Souter permitting, for the most part, Pennsylvanian abortion laws to stand, that “men and women of good conscience” could disagree with abortion in principle, being “offensive to our most basic principles of morality, but that cannot control our decision.”  Attempts to regulate abortions prior to the foetus becoming viable would fall within the constitution’s protection as long as they did not impose an “undue burden” on the right of a woman to end her pregnancy.

In 2016, Kennedy again joined with fellow judges Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayer and Elena Kagan on the topic in Whole Woman’s Health v Hellerstedt, taking issue with parts of a Texas law which imposed onerous impediments on abortion clinics to focus in that state.

On matters of workers’ rights, he was cool, and, in some cases hostile.  Mark Kagan, in a penned peace for Jacobin, was under no illusions, remembering “Kennedy’s apparent glee in the destruction of unions.”  He cites an exchange in the case of Janus v AFSCME between Kennedy and the legal counsel for the unions. The good justice, it seemed, was missing the entire point on the issue of union influence in politics.  The result was crippling for public sector unions, barring them from charging fees for supplying bargaining services for members.

A considerable softening to Kennedy came in various decisions on the subject of gay-rights jurisprudence. These centred on old notions of discrimination, such as the 1996 case of Romer v Evans, where he formed a majority striking down an amendment to the Colorado constitution barring state and local governments from passing laws prohibiting discrimination based on sexual orientation.  “A State cannot so deem a class of persons a stranger to its own laws.”

In Obergefell v Hodges, Kennedy delivered the Court’s ruling in striking down Ohio’s ban on same-sex marriage, arguing that limiting the institution of marriage “to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.” He had etched himself into the good books of the rainbow community.

There were those ghoulish decisions that should not be forgotten, despite the effusive commentary on Kennedy’s exploits that dubbed him the “first gay justice”. He joined, for instance, the 5-4 majority upholding the death penalty for juveniles, but would then reflect, as he did in 2005, that the practice be outlawed.  He also proved vital in the handing over of the 2000 presidential election to George W. Bush, a decision that did its share of monumental damage to the Republic.

Court viewers and judiciary commenters have unduly ignored the conservative rust with the “Kennedy legacy”. A post- Kennedy world is seen in apocalyptic terms, the possible overturning of Roe v Wade, reining in efforts to challenge capital punishment, and dramatic beefing up of religious freedoms.

The fuss is not merely about the actual legacy of Justice Kennedy, which was often a case of knife-edge consequence and exaggerated efforts at being middling, but the political timing of his decision.  “This Supreme Court vacancy,” suggested Dylan Matthews, “will give Donald Trump the power to shift jurisprudence on a range of critical issues.  It could wind up being the most important part of his legacy.”

Jack Goldsmith in the Chicago Tribune was even less modest in his description of the retirement, which he sees as “the most consequential event in American jurisprudence at least since Bush v Gore in 2000 and probably since Roe v Wade in 1973.”  Such observations are best left at home. Judges do not necessarily do what their appointing masters think they will.  Not only is the law an ass; its interpreters can do a fine job of either affirming that point or moderating it.

Red Fawn Fallis and the Felony of Being Attacked by Cops

What happened to Standing Rock water protector Red Fawn Fallis is what has happened to many women political dissenters who go up against Big Government/Corporate power.  After she was viciously tackled by several police officers (caught on video), she was brought up on serious charges of harming those who harmed her.  Fallis, after months of intense corporate/military surveillance and handy informant reports, was targeted as a coordinator and a leader, a symbol and an inspiration.  For daring to make a stand for her people against the encroaching poison and destruction brought by the Dakota Access gas pipeline, she became a political prisoner.

Native-American women suffering dire consequences because of the ever-expanding needs of capitalist/white rule is nothing new.  Native-Americans have endured environmental racism for a very long time—from New England merchants to men seeking gold and to “tame” the West.  Late 20th century technology brought uranium mining and nuclear testing to the Southwest, bringing new and far-reaching disaster.  The Dakota oil pipeline, carrying explosive crude Canadian oil, goes through tribal lands, without tribal consent, potentially poisoning their water and desecrating their sacred sites.  Women have been on the frontlines of DAPL resistance, with their traditional ties to “Mother Earth” and to ancient matriarchal spiritual leadership.  But Standing Rock women resister/water protectors, faced all-out war from government/corporate forces.

In a militarized police state, colonized Native-Americans taking a stand to protect their land and water from rapacious banks and oil companies can expect what was unleashed against them.  In one battle late in 2016, troopers from North Dakota and neighboring states launched an attack against hundreds of united, unarmed Native-American protesters and their allies.  Rubber bullets, icy water cannons, concussion grenades, mace and tear gas did enormous damage.  As head of the Medic and Healer Council Linda Black Elk put it, she was attacked as part of the “continued legacy of oppression by the United States government.”  Native-American women have felt this legacy of oppression in particular ways directed at “squaws.”  Natïve women were raped, imprisoned, tortured, mutilated and killed by white colonial settlers, and that tradition and mentality still lives on in the experience of Red Fawn Fallis and her fellow women water protectors.

White police forcibly assaulted, stripped and searched demonstrators.  In a very familiar pattern, Prairie McLaughlin, daughter of LaDonna Brave Bull Allard, Lakota historian, was cited with “resisting arrest,” after objecting to being forcibly stripped.  An officer broke Apache-Navajo Laurie Howland’s wrist during her arrest.  Echoing Annie May Aquash, who was killed during the Wounded Knee uprising, Howland thought the white officers objected to her not being white and not praying to Jesus. Women dissidents against governmental authority, from Shaker Mother Ann Lee, to women militant suffragists, to black freedom riders, to revolutionary weatherwomen, have met male police violence, as “unnatural” noncompliant women.  For black and Native-American women, branded by a racist culture as even more beneath contempt, it is always worse.  So naturally, Red Fawn Fallis, singled out as a leader by the authorities, would be thrown down and arrested, and then brought up on serious charges which she would have no hope of beating.

It was October 2016, when 40-year-old Red Fawn Fallis was arrested after being tackled and pinned by several officers.  Fallis came from a family well used to resistance and its consequences.  Red Fawn is an Oglala Sioux from Pine Ridge.  Fallis’ mother Troylynn Yellow Wood was active in AIM (American Indian Movement) and was at the Wounded Knee protest in 1973.  She died shortly before the Standing Rock demonstrations.  She had taught her daughter to fight for “social and environmental justice” and to “stand up for her people.”  Red Fawn was serving as a medic at Standing Rock.  She was known as a “mother” to young activists, known to be “dedicated to peaceful tactics.”  When she was accused of shooting at a police officer, her supporters found it hard to believe.  Terrell Ironshell of the Indigenous Youth Council said that Fallis told them:  “You don’t have to be afraid of the government.  This is our land.”  Apparently the government has not yet been convinced of that.

On October 27, 2016, there was a 400-person rally near a DAPL construction site.  The police used the occasion to raid an “1851 treaty camp” and to take and destroy ceremonial and sacred items from a sweat lodge.  They dispersed the crowd with rubber bullets, tear gas and a “long-range acoustic device.”  There were 147 arrested that day and all were released except Red Fawn.  Deputy Thad Schmit said he spotted Fallis “being an instigator and disorderly” so he “took her to the ground.”  She allegedly fired a gun while down, and according to the arresting officers told them they were lucky she didn’t “shoot all you fuckers.”  [What military conference do they go to for this stuff?]  A video taken at the time clearly shows her being violently tackled by a dozen police, who then pinned her down, with a gun (according to witnesses) in her back.  The scene is horrific and typical of fascist militarized authorities quelling unarmed protesters.  It was the same response shown when black women protesters confronted Ferguson police and when Occupy demonstrators met up with the NYPD.

The initial (state) charge against Red Fawn Fallis was “attempted murder” of a police officer.  This was dropped in November in favor of federal charges of “civil disorder” and “possession of a firearm by a convicted felon” (a felon for allegedly driving the car while her male companion shot and wounded another man).  US authorities ordered her held without bail—standard for political prisoners, whether black Panther or Weatherwoman or water protector.  At a June 2017 hearing, she was denied bail, purportedly because the judge said Standing Rock protesters were “violent.”  In October she finally was released to a half-way house in Fargo, after being in North Dakota jails for months.

In January 2018, she had a trial, but, of course, the defense could not use the abrogation of treaty rights or the elaborate military-style surveillance and intelligence reports used to target her, reports which equated her with “jihadist fighters”; or the role of the swarmy FBI informant Heath Harmon, who insinuated himself into a relationship with Fallis, and said he provided her with the gun she allegedly fired.  With the defense hamstrung, as it always is when a woman political is a supposed terrorist, “eco-terrorist” in her case, she and her lawyer Bruce Ellison (Leonard Peltier’s attorney—hm), decided it’d be best to take a plea deal for civil disorder and possession of a firearm, with the dropping of the discharge of firearm (potentially a life sentence).  She also had to express remorse for causing any danger to the police [!].  After some delays, Red Fawn was finally sentenced on July 11, to 57 months in federal prison, with 18 months credit for prison time served.  She will serve about 39 months and three years probation.  She is appealing, but—vicious government prosecutors in North Dakota courts not known for Native-American sympathies–?  Not much chance.  Interestingly, Fallis said, before sentencing, she “wanted to move forward in a positive way away from Harmon and the things he tried to put on me while I was trying to push him away.”  Guess he got even.

When it comes to political dissent, the US government has a long history of violently suppressing it.  When it comes to women dissenters, US authorities have a long history of saving special kinds of punishments for them.  In 1973, black liberationist Assata Shakur was pulled over in a traffic stop, ended up being shot and then falsely accused of shooting her attacker.  Knowing she’d be killed in prison, her comrades helped her escape to Cuba.  In 1990, environmentalist Judi Bari was blown up with a car bomb in California, very likely by the FBI and the Pacific Lumber Company.  She was charged with “possession of an explosive device.”  She never recovered from her injuries.   Muslim- Pakistani scientist Aafia Siddiqui, a Boston doctor, was caught up in the horror of false terrorism charges in the early 2000s.  After years of imprisonment, rape and torture, she was set up for a staged shooting of US army officers in Afghanistan, was herself grievously wounded in the stomach, and, as an accused “terrorist,” got 86 years in prison.  Occcupy’s Cecily McMillan was sexually accosted by an NYPD officer, tackled by a number of other officers, and was charged with attacking the police.  She served time in Rikers and was released.  Black Lives Matter activist Sandra Bland was pulled over in Texas for not signaling for a lane change, was tackled with her head hitting the ground, charged with the felony of attacking an officer, and was found hanged in her cell a few days later under suspicious circumstances.  In a police state, you can be a New Jersey mother on a beach and get accosted by cops, a black woman at a waffle house and be tackled by officers, a young woman jaywalking and get attacked by the police.  This is the mark of an authoritarian, patriarchal power structure.

Red Fawn Fallis will serve hard time in federal prison because she stood up to government/corporate power.  The Free Red Fawn facebook page says—on July 12, 2018—that she is a “political prisoner.  She stood up for justice against environmental genocide, encroachment of our land and water.”  Like other Native-American and Puerto Rican women politicals, Fallis sees her status as a war captive of the US government.  She knows she faces a long prison sentence, but has heard her supporters sing outside her window.  She says, “So I stand strong. . .  I grow stronger every passing hour.”  She was treated brutally and with a punishment far in excess of any possible crime.  Such treatment of women political prisoners is the mark of a state which has little patience for defiant women resisters:  a fascist state, a police state –not one beginning with Trump—Standing Rock and Ferguson happened under Obama. The repression against those women who have fought for freedom and justice began with the first settlers.

The Constitution Is Not Neutral: Courts of Justice Should Not Act Like Courts of Order

The Constitution is not neutral. It was designed to take the government off the backs of the people.

— Justice William O. Douglas, The Court Years, 1939-1975: The Autobiography of William O. Douglas‎ (1980), p. 8.

For those still deluded enough to believe they’re living the American dream—where the government represents the people, where the people are equal in the eyes of the law, where the courts are arbiters of justice, where the police are keepers of the peace, and where the law is applied equally as a means of protecting the rights of the people—it’s time to wake up.

We no longer have a representative government, a rule of law, or justice.

Liberty has fallen to legalism.

Freedom has fallen to fascism.

Justice has become jaded, jaundiced and just plain unjust.

And for too many, the American dream of freedom and opportunity has turned into a living nightmare.

Given the turbulence of our age, with its police overreach, military training drills on American soil, domestic surveillance, SWAT team raids, asset forfeiture, wrongful convictions, profit-driven prisons, and corporate corruption, the need for a guardian of the people’s rights has never been greater.

Yet as the events of recent years have made clear, neither the president, nor the legislatures, nor the courts will save us from the police state that holds us in its clutches.

After all, the president, the legislatures, and the courts are all on the government’s payroll.

They are the police state.

Certainly, Americans can no longer rely on the courts to mete out justice.

The courts were established to serve as Courts of Justice. What we have been saddled with, instead, are Courts of Order.

This is true at all levels of the judiciary, but especially so in the highest court of the land, the U.S. Supreme Court, which is seemingly more concerned with establishing order and protecting government interests than with upholding the rights of the people enshrined in the U.S. Constitution.

Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.

As a result, the police and other government agents have been generally empowered to probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.

Rarely do the concerns of the populace prevail.

When presented with an opportunity to loosen the government’s noose that keeps getting cinched tighter and tighter around the necks of the American people, what does our current Supreme Court usually do?

It ducks.

Prevaricates.

Remains silent.

Speaks to the narrowest possible concern.

More often than not, it gives the government and its corporate sponsors the benefit of the doubt, which leaves “we the people” hanging by a thread.

Rarely do the justices of the U.S. Supreme Court— preoccupied with their personal politics, cocooned in a priggish world of privilege, partial to those with power, money and influence, and narrowly focused on a shrinking docket (the court accepts on average 80 cases out of 8,000 each year)—venture beyond their rarefied comfort zones.

Every so often, the justices toss a bone to those who fear they have abdicated their allegiance to the Constitution. Too often, however, the Supreme Court tends to march in lockstep with the police state.

The Court’s 2017-18 term was a particularly mixed bag. Here are some of the key rulings and non-rulings handed down by the Court this term:

Speech, Religious Liberty and the First Amendment

In Janus v. American Federation, a 5-4 Supreme Court chose to err on the side of the First Amendment when it concluded that state laws forcing public-sector employees to provide financial support for unions that engage in political activities with which they disagree violates the First Amendment.

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court ruled narrowly that government officials had violated the First Amendment rights of a baker by discriminating against his religious views regarding same-sex marriage.

In National Institute of Family and Life Advocates v. Becerra, the Court ruled against compelled speech by a government agency when it found that a California state law violated the First Amendment by forcing pro-life crisis pregnancy centers to provide patients with information about how to obtain an abortion.

In Minnesota Voters Alliance v. Joe Mansky, the Court struck down as unconstitutionally vague a Minnesota law that bans political speech on any “badge, button, shirt, or hat” worn at election polling stations. Critics had argued that the law opened the door to abuse of voters’ free speech rights by giving appointed election officials unlimited discretion to determine what political speech should be censored.

Police Misconduct

In refusing to hear the case of Young v. Borders, the Supreme Court declined to hold police accountable for shooting and killing an innocent homeowner during the course of a middle-of-the-night “knock and talk” police tactic gone awry. The Court’s refusal to review the case let stand a lower court ruling that exonerates police who, while executing a “knock and talk” investigation of a speeding incident, banged on the wrong door at 1:30 am, failed to identify themselves as police, and then repeatedly shot and killed the innocent homeowner who answered the door while holding a gun in self-defense.

In Kisela v. Hughes, the U.S. Supreme Court shielded a police officer who shot a woman four times in her driveway as she stood talking to a friend while holding a kitchen knife. As Justice Sonia Sotomayor acknowledged in her dissent, “It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” Sotomayor, one of the few justices who speaks out consistently against police misconduct, denounced the ruling as “part of a disturbing trend of unflinching willingness’ to protect police officers accused of using excessive force. The court’s decisions concerning qualified immunity, she wrote, ‘transforms the doctrine into an absolute shield for law enforcement officers.’”

Privacy and the Fourth Amendment

In Carpenter v. United States, a 5-4 Court sent a strong message about privacy rights in an age of government surveillance, ruling that police must generally obtain a warrant before obtaining cell phone data to track a person’s movements.

In Collins v. Virginia, the Court refused to grant law enforcement yet another loophole to encroach on the rights of citizens to privacy in their homes, ruling 8-1 that police may not intrude on private property in order to carry out a warrantless search of a vehicle parked near a residence.

In United States v. Microsoft, the Court sidestepped a debate over digital privacy in the face of government surveillance when it mooted a case over whether Microsoft had to comply with a request to provide emails hosted on overseas servers in response to government subpoenas.

In Byrd v. United States, a unanimous Court ruled that drivers of rental cars—whether or not they are explicitly named in the rental agreement—are generally entitled to the same reasonable expectations of privacy under the Fourth Amendment as the individual listed in the rental agreement.

In Dahda v. United States of America, the Court ruled 8-0 that evidence obtained under orders that violate the nation’s federal wiretapping law can be used against a defendant in a criminal trial.

Immigration and the Power of the Presidency

In Trump v. Hawaii, a polarized Supreme Court upheld the Trump Administration’s ban on foreign travelers from Muslim-centric nations, ostensibly giving the president the power to discriminate on the basis of religion, while simultaneously overturning the Court’s World War II-era ruling in Korematsu v. United States that saw nothing wrong with the government imprisoning Japanese-Americans in internment camps. In other words, the Court righted one wrong (Korematsu) while sanctioning another. As Justice Sotomayor concluded in her dissent, “By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

States’ Rights

In Murphy v. NCAA, the Court ruled 7-2 in favor of the 10th Amendment, which reserves to the States (and the people) the powers not delegated to the United States by the Constitution, nor prohibited by it. The case was factually about the right of the states to legalize sports gambling despite a federal law prohibiting it, but the ramifications of the ruling could extend into the area of marijuana legalization.

Voters’ Rights and Gerrymandering

In Husted v. A. Philip Randolph Institute, the Court gave the green light to Ohio to remove people from its voter registration rolls if they hadn’t been heard from in four years.

In Gill v. Whitford and Benisek v. Lamone, the Court weighed in on two cases that challenged the practice of gerrymandering, in which the boundaries of an electoral constituency are drawn in such a way as to favor one side over another in an election. Instead of addressing the issue of partisan gerrymandering, the Court disposed of the cases on procedural/standing grounds.

Commerce

In South Dakota v. Wayfair, the Court leveled the playing field, at least when it comes to collecting sales tax, between online e-commerce retailers and traditional businesses with a physical presence in a particular state.

So where does that leave us?

Still in the clutches of the American police state, I’m afraid.

In recent years, for example, the Court has ruled that police officers can use lethal force in car chases without fear of lawsuits; police officers can stop cars based only on “anonymous” tips; Secret Service agents are not accountable for their actions, as long as they’re done in the name of security; citizens only have a right to remain silent if they assert it; police have free reign to use drug-sniffing dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside; police can forcibly take your DNA, whether or not you’ve been convicted of a crime; police can stop, search, question and profile citizens and non-citizens alike; police can subject Americans to virtual strip searches, no matter the “offense”; police can break into homes without a warrant, even if it’s the wrong home; and it’s a crime to not identify yourself when a policeman asks your name.

The cases the Supreme Court refuses to hear, allowing lower court judgments to stand, are almost as critical as the ones they rule on. Some of these cases have delivered devastating blows to the rights enshrined in the Constitution. By remaining silent, the Court has affirmed that: legally owning a firearm is enough to justify a no-knock raid by police; the military can arrest and detain American citizens; students can be subjected to random lockdowns and mass searches at school; and police officers who don’t know their actions violate the law aren’t guilty of breaking the law.

What a difference nine people can make.

More often than not, the Roberts Supreme Court has been characterized by rulings that show an abject deference to government authority, military and corporate interests (rulings have run the gamut from suppressing free speech activities and justifying suspicionless strip searches and warrantless home invasions to conferring constitutional rights on corporations, while denying them to citizens).

Contrast the Roberts Court with the Warren Court (1953-1969), which handed down rulings that were instrumental in shoring up critical legal safeguards against government abuse and discrimination.

Without the Warren Court, there would be no Miranda warnings, no desegregation of the schools and no civil rights protections for indigents. Among those serving on the Warren Court were Chief Justice Earl Warren, William J. Brennan, Jr., William O. Douglas, Hugo Black, Felix Frankfurter and Thurgood Marshall.

Yet more than any single ruling, what Warren and his colleagues did best was embody what the Supreme Court should always be: an institution established to intervene and protect the people against the government and its agents when they overstep their bounds.

Indeed, Justice Douglas, who served on the Supreme Court for 36 years, was particularly vocal in his belief that Americans have a right to be left alone (“The right to be let alone is indeed the beginning of all freedom”). Considered the most “committed civil libertarian ever to sit on the court,” Douglas was frequently controversial and far from perfect (he was part of that 6-3 majority in Korematsu vs. United States that supported the government’s internment of American citizens of Japanese descent during World War II.)

Yet even so, as I make clear in my book A Government of Wolves: The Emerging American Police State, Douglas’ warnings against a domineering, suspicious, totalitarian, police-driven surveillance state resonate still today. They stand as a potent reminder that while the technology and social concerns of Douglas’ day have undergone dramatic transformations in our time, the rights we are struggling to safeguard remain the same, as do the threats posed by the government.

Perhaps the greatest difference between Justice Douglas and his contemporaries and those who occupy the bench today can be found in his answer to a government that refuses to listen to its citizen or abide by the rule of law. “We must realize that today’s Establishment is the New George III,” noted Douglas. “Whether it will continue to adhere to his tactics, we do not know. If it does, the redress, honored in tradition, is also revolution.”

The Danger Is Real: We Need a New Declaration of Independence for Modern Times

These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.

— Thomas Paine, December 1776

Imagine living in a country where armed soldiers crash through doors to arrest and imprison citizens merely for criticizing government officials.

Imagine that in this very same country, you’re watched all the time, and if you look even a little bit suspicious, the police stop and frisk you or pull you over to search you on the off chance you’re doing something illegal.

Keep in mind that if you have a firearm of any kind while in this country, it may get you arrested and, in some circumstances, shot by police.

If you’re thinking this sounds like America today, you wouldn’t be far wrong.

However, the scenario described above took place more than 200 years ago, when American colonists suffered under Great Britain’s version of an early police state. It was only when the colonists finally got fed up with being silenced, censored, searched, frisked, threatened, and arrested that they finally revolted against the tyrant’s fetters.

No document better states their grievances than the Declaration of Independence.

A document seething with outrage over a government which had betrayed its citizens, the Declaration of Independence was signed on July 4, 1776, by 56 men who laid everything on the line, pledged it all—“our Lives, our Fortunes, and our sacred Honor”—because they believed in a radical idea: that all people are created to be free.

Labeled traitors, these men were charged with treason, a crime punishable by death. For some, their acts of rebellion would cost them their homes and their fortunes. For others, it would be the ultimate price—their lives.

Yet even knowing the heavy price they might have to pay, these men dared to speak up when silence could not be tolerated. Even after they had won their independence from Great Britain, these new Americans worked to ensure that the rights they had risked their lives to secure would remain secure for future generations. The result: our Bill of Rights, the first ten amendments to the Constitution.

Imagine the shock and outrage these 56 men would feel were they to discover that 242 years later, the government they had risked their lives to create has been transformed into a militaristic police state in which exercising one’s freedoms is often viewed as a flagrant act of defiance.

Indeed, had the Declaration of Independence been written today, it would have rendered its signers terrorists, resulting in them being placed on a government watch list, targeted for surveillance of their activities and correspondence, and potentially arrested, held indefinitely, stripped of their rights and labeled enemy combatants.

The danger is real.

We could certainly use some of that revolutionary outrage today.

Certainly, we would do well to reclaim the revolutionary spirit of our ancestors and remember what drove them to such drastic measures in the first place.

Then again, perhaps what we need is a new Declaration of Independence.

Re-read the Declaration of Independence for yourself and ask yourself if the abuses suffered by early Americans at the hands of the British police state don’t bear a startling resemblance to the abuses “we the people” are suffering at the hands of the American police state.

If you find the purple prose used by the Founders hard to decipher, here’s my translation of what the Declaration of Independence would look and sound like if it were written in the modern vernacular:

There comes a time when a populace must stand united and say “enough is enough” to the government’s abuses, even if it means getting rid of the political parties in power.

Believing that “we the people” have a natural and divine right to direct our own lives, here are truths about the power of the people and how we arrived at the decision to sever our ties to the government:

All men and women are created equal.

All people possess certain innate rights that no government or agency or individual can take away from them. Among these are the right to Life, Liberty and the pursuit of Happiness.

The government’s job is to protect the people’s innate rights to Life, Liberty and the pursuit of Happiness. The government’s power comes from the will of the people.

Whenever any government abuses its power, it is the right of the people to alter or abolish that government and replace it with a new government that will respect and protect the rights of the people.

It is not wise to get rid of a government for minor transgressions. In fact, as history has shown, people resist change and are inclined to suffer all manner of abuses to which they have become accustomed.

However, when the people have been subjected to repeated abuses and power grabs, carried out with the purpose of establishing a tyrannical government, people have a right and duty to do away with that tyrannical Government and to replace it with a new government that will protect and preserve their innate rights for their future well being.

This is exactly the state of affairs we are suffering under right now, which is why it is necessary that we change this imperial system of government.

The history of the present Imperial Government is a history of repeated abuses and power grabs, carried out with the intention of establishing absolute Tyranny over the country.

To prove this, consider the following:

The government has, through its own negligence and arrogance, refused to adopt urgent and necessary laws for the good of the people.

The government has threatened to hold up critical laws unless the people agree to relinquish their right to be fully represented in the Legislature.

In order to expand its power and bring about compliance with its dictates, the government has made it nearly impossible for the people to make their views and needs heard by their representatives.

The government has repeatedly suppressed protests arising in response to its actions.

The government has obstructed justice by refusing to appoint new judges and has demanded that the Court comply with the government’s dictates.

The government has allowed its agents to harass the people and steal from them.

The government has directed militarized government agents—a.k.a., a standing army—to police domestic affairs in peacetime.

The government has turned the country into a militarized police state.

The government has conspired to undermine the rule of law and the constitution in order to expand its own powers.

The government has allowed its militarized police to invade our homes.

The government has failed to hold its agents accountable for wrongdoing and murder.

The government has jeopardized our international trade agreements.

The government has taxed us without our permission.

The government has denied us due process and the right to a fair trial.

The government has engaged in extraordinary rendition.

The government has continued to expand its military empire and occupy foreign nations.

The government has eroded fundamental legal protections and destabilized the structure of government.

The government has declared its federal powers superior to those of the states.

The government has ceased to protect the people and instead waged war against the people.

The government has plundered our seas, ravaged our Coasts, burned our towns, and destroyed the lives of the people.

The government has employed private contractors and mercenaries to carry out acts of death, desolation and tyranny, totally unworthy of a civilized nation.

The government has pitted its citizens against each other.

The government has stirred up civil unrest and laid the groundwork for martial law.

Repeatedly, we have asked the government to cease its abuses. Each time, the government has responded with more abuse.

An Imperial Ruler who acts like a tyrant is not fit to govern a free people.

We have repeatedly sounded the alarm to our fellow citizens about the government’s abuses. We have warned them about the government’s power grabs. We have appealed to their sense of justice. We have reminded them of our common bonds.

They have rejected our plea for justice and brotherhood. They are equally at fault for the injustices being carried out by the government.

Thus, for the reasons mentioned above, we the people of the united States of America declare ourselves free from the chains of an abusive government. Relying on God’s protection, we pledge to stand by this Declaration of Independence with our lives, our fortunes and our honor.

That was 242 years ago.

In the years since early Americans first declared and eventually won their independence from Great Britain, we—the descendants of those revolutionary patriots—have somehow managed to work ourselves right back under the tyrant’s thumb.

Only this time, the tyrant is one of our own making: the U.S. government.

The abuses meted out by an imperial government and endured by the American people have not ended. They have merely evolved.

“We the people” are still being robbed blind by a government of thieves.

We are still being taken advantage of by a government of scoundrels, idiots and cowards.

We are still being locked up by a government of greedy jailers.

We are still being spied on by a government of Peeping Toms.

We are still being ravaged by a government of ruffians, rapists and killers.

We are still being forced to surrender our freedoms—and those of our children—to a government of extortionists, money launderers and professional pirates.

And we are still being held at gunpoint by a government of soldiers: a standing army.

Given the fact that we are a relatively young nation, it hasn’t taken very long for an authoritarian regime to creep into power.

Unfortunately, the bipartisan coup that laid siege to our nation did not happen overnight.

It snuck in under our radar, hiding behind the guise of national security, the war on drugs, the war on terror, the war on immigration, political correctness, hate crimes and a host of other official-sounding programs aimed at expanding the government’s power at the expense of individual freedoms.

The building blocks for the bleak future we’re just now getting a foretaste of—police shootings of unarmed citizens, profit-driven prisons, weapons of compliance, a wall-to-wall surveillance state, pre-crime programs, a suspect society, school-to-prison pipelines, militarized police, over-criminalization, SWAT team raids, endless wars, etc.—were put in place by government officials we trusted to look out for our best interests and by American citizens who failed to heed James Madison’s warning to “take alarm at the first experiment on our liberties.”

In so doing, we compromised our principles, negotiated away our rights, and allowed the rule of law to be rendered irrelevant.

There is no knowing how long it will take to undo the damage wrought by government corruption, corporate greed, militarization, and a nation of apathetic, gullible sheep.

The problems we are facing will not be fixed overnight: that is the grim reality with which we must contend.

Frankly, as I make clear in my book Battlefield America: The War on the American People, we may see no relief from the police state in my lifetime or for several generations to come. That does not mean we should give up or give in or tune out.

Remember, there is always a price to be paid for remaining silent in the face of injustice.

That price is tyranny.

Dial T for Tyranny: While America Feuds, the Police State Shifts Into High Gear

Big Brother does not watch us, by his choice. We watch him, by ours. There is no need for wardens or gates or Ministries of Truth. When a population becomes distracted by trivia, when cultural life is redefined as a perpetual round of entertainments, when serious public conversation becomes a form of baby-talk, when, in short, a people become an audience and their public business a vaudeville act, then a nation finds itself at risk; a culture-death is a clear possibility.

— Professor Neil Postman, Amusing Ourselves to Death: Discourse in the Age of Show Business

What characterizes American government today is not so much dysfunctional politics as it is ruthlessly contrived governance carried out behind the entertaining, distracting and disingenuous curtain of political theater. And what political theater it is, diabolically Shakespearean at times, full of sound and fury, yet in the end, signifying nothing.

Played out on the national stage and eagerly broadcast to a captive audience by media sponsors, this farcical exercise in political theater can, at times, seem riveting, life-changing and suspenseful, even for those who know better.

Week after week, the script changes—Donald Trump’s Tweets, Robert Mueller’s Russia probe, Michael Cohen’s legal troubles, porn star Stormy Daniels’ lawsuit over an alleged past affair with Trump, Michelle Wolf’s tasteless stand-up routine at the White House correspondents’ dinner, North and South Korea’s détente, the ongoing staff shakeups within the Trump administration—with each new script following on the heels of the last, never any let-up, never any relief from the constant melodrama.

The players come and go, the protagonists and antagonists trade places, and the audience members are forgiving to a fault, quick to forget past mistakes and move on to the next spectacle.

All the while, a different kind of drama is unfolding in the dark backstage, hidden from view by the heavy curtain, the elaborate stage sets, colored lights and parading actors.

Such that it is, the realm of political theater with all of its drama, vitriol and scripted theatrics is what passes for “transparent” government today, with elected officials, entrusted to act in the best interests of their constituents, routinely performing for their audiences and playing up to the cameras, while doing very little to move the country forward.

Yet behind the footlights, those who really run the show are putting into place policies which erode our freedoms and undermine our attempts at contributing to the workings of our government, leaving us none the wiser and bereft of any opportunity to voice our discontent or engage in any kind of discourse until it’s too late.

It’s the oldest con game in the books, the magician’s sleight of hand that keeps you focused on the shell game in front of you while your wallet is being picked clean by ruffians in your midst.

Indeed, while mainstream America has been fixated on the drama-filled reality show being televised from the White House, the American Police State has moved steadily forward.

Set against a backdrop of government surveillance, militarized police, SWAT team raids, asset forfeiture, eminent domain, over-criminalization, armed surveillance drones, whole body scanners, stop and frisk searches, roving VIPR raids and the like—all of which have been sanctioned by Congress, the White House and the courts—our constitutional freedoms have been steadily chipped away at, undermined, eroded, whittled down, and generally discarded.

Our losses are mounting with every passing day.

Free speech, the right to protest, the right to challenge government wrongdoing, due process, a presumption of innocence, the right to self-defense, accountability and transparency in government, privacy, press, sovereignty, assembly, bodily integrity, representative government: all of these and more have become casualties in the government’s war on the American people.

All the while, the American people have been treated like enemy combatants, to be spied on, tracked, scanned, frisked, searched, subjected to all manner of intrusions, intimidated, invaded, raided, manhandled, censored, silenced, shot at, locked up, and denied due process.

None of these dangers have dissipated.

They have merely disappeared from our televised news streams.

The new boss has proven to be the same as the old boss, and the American people, the permanent underclass in America, has allowed itself to be so distracted and divided that they have failed to notice the building blocks of tyranny being laid down right under their noses by the architects of the Deep State.

Frankly, it really doesn’t matter what you call the old/new boss—the Deep State, the Controllers, the masterminds, the shadow government, the police state, the surveillance state, the military industrial complex—so long as you understand that no matter who occupies the White House, it is a profit-driven, an unelected bureaucracy that is actually calling the shots.

In the interest of liberty and truth, here’s an A-to-Z primer to spell out the grim realities of life in the American Police State that no one is talking about anymore.

A is for the AMERICAN POLICE STATE. A police state “is characterized by bureaucracy, secrecy, perpetual wars, a nation of suspects, militarization, surveillance, widespread police presence, and a citizenry with little recourse against police actions.”

B is for our battered BILL OF RIGHTS. In the cop culture that is America today, where you can be kicked, punched, tasered, shot, intimidated, harassed, stripped, searched, brutalized, terrorized, wrongfully arrested, and even killed by a police officer, and that officer is rarely held accountable for violating your rights, the Bill of Rights doesn’t amount to much.

C is for CIVIL ASSET FORFEITURE. This governmental scheme to deprive Americans of their liberties—namely, the right to property—is being carried out under the guise of civil asset forfeiture, a government practice wherein government agents (usually the police) seize private property they “suspect” may be connected to criminal activity. Then, whether or not any crime is actually proven to have taken place, the government keeps the citizen’s property.

D is for DRONES. It is estimated that at least 30,000 drones will be airborne in American airspace by 2020, part of an $80 billion industry. Although some drones will be used for benevolent purposes, many will also be equipped with lasers, tasers and scanning devices, among other weapons—all aimed at “we the people.”

E is for ELECTRONIC CONCENTRATION CAMP. In the electronic concentration camp, as I have dubbed the surveillance state, all aspects of a person’s life are policed by government agents and all citizens are suspects, their activities monitored and regulated, their movements tracked, their communications spied upon, and their lives, liberties and pursuit of happiness dependent on the government’s say-so.

F is for FUSION CENTERS. Fusion centers, data collecting agencies spread throughout the country and aided by the National Security Agency, serve as a clearinghouse for information shared between state, local and federal agencies. These fusion centers constantly monitor our communications, everything from our internet activity and web searches to text messages, phone calls and emails. This data is then fed to government agencies, which are now interconnected: the CIA to the FBI, the FBI to local police.

G is for GRENADE LAUNCHERS and GLOBAL POLICE. The federal government has distributed more than $18 billion worth of battlefield-appropriate military weapons, vehicles and equipment such as drones, tanks, and grenade launchers to domestic police departments across the country. As a result, most small-town police forces now have enough firepower to render any citizen resistance futile. Now take those small-town police forces, train them to look and act like the military, and then enlist them to be part of the United Nations’ Strong Cities Network program, and you not only have a standing army that operates beyond the reach of the Constitution but one that is part of a global police force.

H is for HOLLOW-POINT BULLETS. The government’s efforts to militarize and weaponize its agencies and employees is reaching epic proportions, with federal agencies as varied as the Department of Homeland Security and the Social Security Administration stockpiling millions of lethal hollow-point bullets, which violate international law. Ironically, while the government continues to push for stricter gun laws for the general populace, the U.S. military’s arsenal of weapons makes the average American’s handgun look like a Tinker Toy.

I is for the INTERNET OF THINGS, in which internet-connected “things” will monitor your home, your health and your habits in order to keep your pantry stocked, your utilities regulated and your life under control and relatively worry-free. The key word here, however, is control. This “connected” industry propels us closer to a future where police agencies apprehend virtually anyone if the government “thinks” they may commit a crime, driverless cars populate the highways, and a person’s biometrics are constantly scanned and used to track their movements, target them for advertising, and keep them under perpetual surveillance.

J is for JAILING FOR PROFIT. Having outsourced their inmate population to private prisons run by private corporations, this profit-driven form of mass punishment has given rise to a $70 billion private prison industry that relies on the complicity of state governments to keep their privately run prisons full by jailing large numbers of Americans for inane crimes.

K is for KENTUCKY V. KING. In an 8-1 ruling, the Supreme Court ruled that police officers can break into homes, without a warrant, even if it’s the wrong home as long as they think they have a reason to do so. Despite the fact that the police in question ended up pursuing the wrong suspect, invaded the wrong apartment and violated just about every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, leaving Americans with little real protection in the face of all manner of abuses by law enforcement officials.

L is for LICENSE PLATE READERS, which enable law enforcement and private agencies to track the whereabouts of vehicles, and their occupants, all across the country. This data collected on tens of thousands of innocent people is also being shared between police agencies, as well as with fusion centers and private companies. This puts Big Brother in the driver’s seat.

M is for MAIN CORE. Since the 1980s, the U.S. government has acquired and maintained, without warrant or court order, a database of names and information on Americans considered to be threats to the nation. As Salon reports, this database, reportedly dubbed “Main Core,” is to be used by the Army and FEMA in times of national emergency or under martial law to locate and round up Americans seen as threats to national security. As of 2008, there were some 8 million Americans in the Main Core database.

N is for NO-KNOCK RAIDS. Owing to the militarization of the nation’s police forces, SWAT teams are now increasingly being deployed for routine police matters. In fact, more than 80,000 of these paramilitary raids are carried out every year. That translates to more than 200 SWAT team raids every day in which police crash through doors, damage private property, terrorize adults and children alike, kill family pets, assault or shoot anyone that is perceived as threatening—and all in the pursuit of someone merely suspected of a crime, usually possession of some small amount of drugs.

O is for OVERCRIMINALIZATION and OVERREGULATION.  Thanks to an overabundance of 4,500-plus federal crimes and 400,000 plus rules and regulations, it is estimated that the average American actually commits three felonies a day without knowing it. As a result of this overcriminalization, we’re seeing an uptick in Americans being arrested and jailed for such absurd “violations” as letting their kids play at a park unsupervised, collecting rainwater and snow runoff on their own property, growing vegetables in their yard, and holding Bible studies in their living room.

P is for PATHOCRACY and PRECRIME. When our own government treats us as things to be manipulated, maneuvered, mined for data, manhandled by police, mistreated, and then jailed in profit-driven private prisons if we dare step out of line, we are no longer operating under a constitutional republic. Instead, what we are experiencing is a pathocracy: tyranny at the hands of a psychopathic government, which “operates against the interests of its own people except for favoring certain groups.” Couple that with the government’s burgeoning pre-crime programs, which will use fusion centers, data collection agencies, behavioral scientists, corporations, social media, and community organizers and by relying on cutting-edge technology for surveillance, facial recognition, predictive policing, biometrics, and behavioral epigenetics in order to identify and deter so-called potential “extremists,” dissidents or rabble-rousers. Bear in mind that anyone seen as opposing the government—whether they’re Left, Right or somewhere in between—is now viewed as an extremist.

Q is for QUALIFIED IMMUNITY. Qualified immunity allows officers to walk away without paying a dime for their wrongdoing. Conveniently, those deciding whether a police officer should be immune from having to personally pay for misbehavior on the job all belong to the same system, all cronies with a vested interest in protecting the police and their infamous code of silence: city and county attorneys, police commissioners, city councils and judges.

R is for ROADSIDE STRIP SEARCHES and BLOOD DRAWS. The courts have increasingly erred on the side of giving government officials—especially the police—vast discretion in carrying out strip searches, blood draws and even anal probes for a broad range of violations, no matter how minor the offense. In the past, strip searches were resorted to only in exceptional circumstances where police were confident that a serious crime was in progress. In recent years, however, strip searches have become routine operating procedures in which everyone is rendered a suspect and, as such, is subjected to treatment once reserved for only the most serious of criminals.

S is for the SURVEILLANCE STATE. On any given day, the average American going about his daily business will be monitored, surveilled, spied on and tracked in more than 20 different ways, by both government and corporate eyes and ears. A byproduct of this new age in which we live, whether you’re walking through a store, driving your car, checking email, or talking to friends and family on the phone, you can be sure that some government agency, whether the NSA or some other entity, is listening in and tracking your behavior. This doesn’t even begin to touch on the corporate trackers that monitor your purchases, web browsing, Facebook posts and other activities taking place in the cyber sphere.

T is for TASERS. Nonlethal weapons such as tasers, stun guns, rubber pellets and the like have been used by police as weapons of compliance more often and with less restraint—even against women and children—and in some instances, even causing death. These “nonlethal” weapons also enable police to aggress with the push of a button, making the potential for overblown confrontations over minor incidents that much more likely. A Taser Shockwave, for instance, can electrocute a crowd of people at the touch of a button.

U is for UNARMED CITIZENS SHOT BY POLICE. No longer is it unusual to hear about incidents in which police shoot unarmed individuals first and ask questions later, often attributed to a fear for their safety. Yet the fatality rate of on-duty patrol officers is reportedly far lower than many other professions, including construction, logging, fishing, truck driving, and even trash collection.

V is for VIPR SQUADS. So-called “soft target” security inspections, carried out by roving VIPR task forces, comprised of federal air marshals, surface transportation security inspectors, transportation security officers, behavior detection officers and explosive detection canine teams, are taking place whenever and wherever the government deems appropriate, at random times and places, and without needing the justification of a particular threat.

W is for WHOLE-BODY SCANNERS. Using either x-ray radiation or radio waves, scanning devices and government mobile units are being used not only to “see” through your clothes but to spy on you within the privacy of your home. While these mobile scanners are being sold to the American public as necessary security and safety measures, we can ill afford to forget that such systems are rife with the potential for abuse, not only by government bureaucrats but by the technicians employed to operate them.

X is for X-KEYSCORE, one of the many spying programs carried out by the National Security Agency that targets every person in the United States who uses a computer or phone. This top-secret program “allows analysts to search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals.”

Y is for YOU-NESS. Using your face, mannerisms, social media and “you-ness” against you, you can now be tracked based on what you buy, where you go, what you do in public, and how you do what you do. Facial recognition software promises to create a society in which every individual who steps out into public is tracked and recorded as they go about their daily business. The goal is for government agents to be able to scan a crowd of people and instantaneously identify all of the individuals present. Facial recognition programs are being rolled out in states all across the country.

Z is for ZERO TOLERANCE. We have moved into a new paradigm in which young people are increasingly viewed as suspects and treated as criminals by school officials and law enforcement alike, often for engaging in little more than childish behavior. In some jurisdictions, students have also been penalized under school zero tolerance policies for such inane “crimes” as carrying cough drops, wearing black lipstick, bringing nail clippers to school, using Listerine or Scope, and carrying fold-out combs that resemble switchblades. The lesson being taught to our youngest—and most impressionable—citizens is this: in the American police state, you’re either a prisoner (shackled, controlled, monitored, ordered about, limited in what you can do and say, your life not your own) or a prison bureaucrat (politician, police officer, judge, jailer, spy, profiteer, etc.).

As I make clear in my book Battlefield America: The War on the American People, the reality we must come to terms with is that in the post-9/11 America we live in today, the government does whatever it wants, freedom be damned.

We have moved beyond the era of representative government and entered a new age.

You can call it the age of authoritarianism. Or fascism. Or oligarchy. Or the American police state.

Whatever label you want to put on it, the end result is the same: tyranny.

Earth Day: Conflict Over The Future Of The Planet

Photograph from climate march in Washington, DC, Union of Concerned Scientists.

On this Earth Day, it is difficult to look at the state of the planet and the current political leadership and see much hope. In “Junk Planet” Robert Burrowes writes a comprehensive description of the degradation of the atmosphere, oceans, waterways, groundwater, and soil as well as the modern pollution of antibiotic waste, genetic engineering, nanowaste, space junk, military waste and nuclear, a description of a planet degraded by pollution impacting our bodies and health as well as the planet’s future.

Burrowes includes another form of waste, junk information, that denies reality; e.g., climate change, the dangers of extreme energy extraction and food polluted by genetic engineering, pesticides, and depleted soils. This false reporting results in policies that create a risk of ecosystem collapse.

Political and economic elites want people to believe these problems do not exist. Those in power seek to protect profits from dirty energy rather than transition to 100 percent clean energy. They seek to protect agribusiness food, pesticides, and genetically modified foods rather than transform food to organic, locally grown foods using regenerative agriculture. They deny the reality of environmental racism rather than correct decades of racism and provide reparations. They seek to put profits ahead of the health and necessities of people as well as ahead of protecting and restoring the planet.

Despite this, a growing portion of the public understands these realities and is taking action to challenge the system. People know, for example, as activist Steven Norris writes, that they should be concerned about the impact of carbon infrastructure on their communities and the planet.

Last week, David Buckel, a nationally known advocate for gay rights and the environment, died in a self-immolation suicide as a wake-up call to save the planet. He wrote in a note:

Pollution ravages our planet, oozing inhabitability via air, soil, water and weather. Most humans on the planet now breathe air made unhealthy by fossil fuels, and many die early deaths as a result – my early death by fossil fuel reflects what we are doing to ourselves.

The undertow being created by organized resistance is growing, and so is the push back against it. In order for this conflict to be resolved, the conflict must be heightened as is occurring now.

Tree-Sit Protest Of Mountain Valley Pipeline from West Virginia Metro News.

People Power Escalates

As we write this, tree-sits are growing in West Virginia where people are putting their bodies on the line to prevent the destruction of trees and habitat to build the Mountain Valley pipeline for fracked gas. In Virginia, Red Terry started a tree-sit on Easter weekend to protect her land from destruction. She remains, despite the company with law enforcement support, denying her food and water — something illegal against prisoners or during war. As trees are felled she remains, as do protesters in Pennsylvania, who are also doing tree-sits. Their stubborn courageous should encourage each of us.

In Louisiana, a water protector locked herself into a cement-filled barrel placed in the trench of a horizontal directional drill to block construction of the Bayou Bridge Pipeline. Eleanor Goldfield reports this is part of the Battle of the Bayou, a coalition of groups and individuals standing against the destruction of a fragile environment, facing arrest and creating a future together.

In Maryland, people blocked construction then escalated to a tractor blockade to prevent the construction of a compressor station that will bring fracked gas from the Mid-Atlantic to the Dominion export terminal in southern Maryland. People who fought the export terminal for years are now joining with neighboring counties fighting gas infrastructure and mounting a campaign against the Maryland Department of the Environment as Governor Hogan pushes $100 million in gas infrastructure.

People are taking protests to corporate offices as a busload of Lancaster, PA people did when they brought a 12 foot stretch of pipeline to a meeting room, singing songs and chanting, asking “How does it feel to be invaded?” In Bellevue Washington, protesters constructed a small longhouse blocking the main entrance to the corporate headquarters of an energy company.

California’s Governor Jerry Brown was protested when he came to speak at the National Press Club in Washington, DC. Hundreds of people  protested Governor Tom Wolf of Pennsylvania over his pro-fracking policies. More politicians will be held accountable in this election year by angry constituents.

The industry recognizes that pipeline protestors are having an impact. Canada is having a hard time moving tar sands and fracked gas because protests are stopping pipeline investment. Oil companies are successfully being pressured to examine the risks to the environment and human rights from their actions. Washington activists defeated the largest oil-train terminal in the nation.

Protests are successfully resulting in cities divesting from banks who fund fossil fuel projects. Europe’s largest bank, HSBC just announced it will no longer fund oil or gas projects in the Arctic, tar sands projects, or most coal projects. Corporations realize they are investing in stranded assets that may not pay off and they may be held legally accountable for causing climate change.

Exxon Knew protest. Photo by Johnny Silvercloud.

Litigation Raises Risks

Corporations and the federal government are facing lawsuits from individuals, organizations and state and local governments over climate change and environmental degradation. Protesters are using the courts to underscore the urgent necessity for action by using a climate necessity defense.  Courts are beginning to accept it, but protesters willingly understand they risk incarceration.

Exxon Mobil is facing a raft of litigation arguing the company was aware of climate risks but continued to mislead the public and to pollute. State and local governments are seeking damages and calling for a federal criminal investigation. Litigation highlights the science of climate change and demonstrates how oil giants made immense profits while billions of dollars of cost from climate change; e.g., immense storms and sea level rise, are borne by individuals and governments. Most suits were brought by coastal communities but recently Colorado communities are suing oil corporations over climate change-caused droughts and fires.

ExxonMobil tried to stop state investigations in Massachusetts, New York, and Texas over misleading investors for years about climate change risks. The judge issued a sharp rebuke with prejudice preventing an appeal and allowing the investigations to continue. Oil companies are no doubt behind new legislation in states to give severe penalties to people protesting “critical infrastructure”.

Future generations from Our Children’s Trust have brought eight suits against the federal government over the destruction of the environment claiming a public trust over the atmosphere. A suit filed by 21 youth in Washington has overcome government efforts to dismiss the case and will be going to trial after both the trial court and Ninth Circuit rejected the government.

Environmental racism is also being challenged. Recently a court ruled that the Environmental Protection Agency violated the Civil Rights Act for decades of inaction over complaints filed by residents of Flint, MI. Hundreds of complaints about environmental racism have been made to the EPA. An ultimate case of racism is coming up in the Supreme Court when it considers whether the United States must abide by treaties made with Indigenous Peoples. The long history of racism from the founding of the US by colonizing land inhabited by millions, followed by ethnic cleansing of the Indigenous who lived there, is on trial. If treaties are law, as they should be, this will empower Indigenous People more.

Climate Our Future from People’s Climate March by Reuters.

Change Is Being Created, Transformation Is Coming

The undertow of protest is having an impact. Corporations fear they will be held accountable for the damage they have done. Governments and elected officials are aware the people are angry and their careers can end with the new political culture created by people power.

The beginning of change always begins with education and changing ourselves. While we know systemic change is necessary, people are also educating themselves about their own own lifestyles. Thirty-six-year-old Daniel Webb was conscious of the dangers of plastic and decided to keep all of his plastic for a year gathering 4,490 items, 93% were single-use plastic, and just 8 were biodegradable. He made a mural of his plastic to educate others.

The US uses 500 million plastic straws every day. Whenever we order a drink, we request no straws and share this fact. This consciousness has permeated the culture, now many restaurants only bring straws when asked, and people are organizing “Don’t Suck”  and “Be Straw Free” campaigns to eliminate plastic straws.

More people spend their money consciously using it to buy organic and local, eating less meat and boycotting factory farm foods. We have more power with our dollar than with our vote in a manipulated “democracy” disguised as an oligarchy.

People are also making changes at the community level. Edmonston, a working-class town with a median income of $19,000 in Maryland, took small steps to going green. In the early 2000s to ameliorate stormwater flooding, they gradually remade their town into a green town, empty lots turned into community gardens and rain barrels were added. Now they have permeable pavement, solar panels, fruit trees for food and native plant landscapes with leaves collected by the city and composted.

In Brooklyn, people began reclaiming land with a vacant lot turned into a nearly 2-acre community space with garden beds, an outdoor movie screening area, a pumpkin patch, and an educational production and research farm. They then got data on vacant lots in the city and put bi-lingual signs on them that said: “This land is your land” and told people how to get control of the area, linking them to a website to help. Since 2011, communities have transformed over 200 sites. Municipalization, or fearless cities, may be a key for creating change toward socializing energy into a public service resulting in transformative cities. These changes are not only about the environment and climate justice but are also about economic, racial and social justice.

Despite the government continuing to invest in dirty energy, clean energy is growing.  Wind farming is creating jobs in red states like Texas. The Solar Foundation mapped solar jobs by congressional district as solar is the fastest growing source of new energy. Research has been developed on a state-by-state basis to make the United States 100% renewable by 2050. With a national mobilization it could happen more quickly.

There are many challenges at the national level with corrupt federal agencies tied to polluting industries, but people pressure is still having an impact. The Federal Energy Regulatory System (FERC) which has been in bed with the oil, gas, and nuclear industries since its founding, indeed it is funded by those industries, has been the focus of a more than four-year pressure campaign by Beyond Extreme Energy. This June 23-25 they will be holding a Crack the FERC protest campaign to escalate pressure. The protest coincides with the Poor People’s Campaign as addressing the  environmental crisis is linked to economic inequality, racism, and other issues.

The environmental crisis and the mishandling of climate change are issues that are going to make the 2020s a decade of transformational change. In order for people to create transformative changes, we need a well-educated activist community.

The Popular Resistance School will begin on May 1 and will be an eight-week course on how movements grow, build power and succeed as well as examine the role you can play in the movement. Sign up to be part of this school so you can participate in small group discussions about how to build a powerful, transformational movement.

Defendants Acquitted Based On Climate Necessity Defense

Roxbury climate necessity defendants. (By Peter Bowden)

Massachusetts – On March 27, 13 defendants went into the West Roxbury District courthouse to answer charges related to their arrests protesting the West Roxbury Massachusetts Lateral Pipeline. They expected to have charges against them reduced to civil infractions — the equivalent of a parking ticket. While finding no grounds to deny that motion from the prosecution, the judge chose to let each defendant testify briefly on the necessity of their actions.

The defendants collectively presented a powerful and comprehensive argument for why it was necessary to engage in civil disobedience to stop the imminent local and global harms of this fracked gas pipeline. Following their testimony, the judge acquitted ALL the defendants by reason of necessity.

While defendants in this case were still denied a jury trial and the possibility of presenting a full necessity defense, this was the first time that we know of that defendants were acquitted based on climate necessity. The defendants told the story of the campaign against the West Roxbury Lateral Pipeline and how their actions were justified by the threat of climate change.

Lawyers for the 13 activists suggested there may even have been a “cause and effect” – that charges were reduced in order to avoid the trial for which the defendants, their legal team, eight expert witnesses, and many supporters had prepared.

Activists said they were disappointed that they would not get the chance to present their case to a jury of their peers, but not disheartened. “The attempt to take these cases to trial was a long shot,” said Marla Marcum, co-founder of the Climate Disobedience Center and a spokesperson for the group. “As climate activists in 2018, we know that long shots and moral imagination are some of the most promising tools for culture-shifting transformation.”

With the judge dismissing the charges, the campaign was a success even without the trial. As Nathan Phillips, a professor in the Earth and Environment Department at Boston University and one of the defendants, said “We forced Spectra to admit to the judge that they did not have and do not have a safety plan for the West Roxbury Lateral pipeline and likely any projects going forward.”

The result in this case is an important part of building power to fight the fossil fuel industry. Climate justice advocates told their story not just in court but from the way they created their protest, which included “Digging Mass Graves” to highlight the dangers of climate change.

Wampanoag Territory: West Roxbury Protectors ExoneratedJudge completely dismisses all civil charges in favor of Necessity Defense. Start Video At 4 Minutes In…Statements From:-Attourney Josh Raisler-Tim DeChristopher-Marla Marcum-Karenna Gore-Nathan Phillips -Brown Pulliam-Warren Senders -Nora Collins -Mary Boyle -Diane Martin -Calista Womick-Catherine Hoffman Climate Action RI • 350 RIClimate Disobedience CenterShare, educate and inspire…Mitakuye Oyasin,Standing Bear ~ John Gonzalez#MniWičoni#WaterIsLife#ProtectTheSacred#StopSpectra#OčetiOyate#AllNations

Posted by John Gonzalez on Tuesday, March 27, 2018

 

Roxbury protesters arrive to show the moral imperative of stopping climate infrastructure due to climate change.

Roxbury pipeline protest dramatized the mass deaths that climate change will occur and the necessity of stopping climate infrastructure.

Digging Mass Graves in West Roxbury from Kori Feener on Vimeo.

“What we stood for is true, and that truth is in the process of coming to light, regardless of the fact that the system is unable to fully hear it right now,” said Karenna Gore, daughter of former Vice President Al Gore and Director of the Center for Earth Ethics at Union Theological Seminary in New York.

Activists continued to tell their story after the protest. See this blog from Tim DeChristopher, and by Rev. Lara Hoke. The participants consistently made the point that they restated before the court — there is an urgent necessity to stop building carbon infrastructure as climate change will kill millions of people and cause immense environmental damage.

This protest and refusal to accept a plea bargain built the movement’s power and demonstrated the violence of carbon energy infrastructure projects.

The defendants were among roughly 200 protesters who had been arrested as part of a massive campaign against this pipeline, beginning in mid 2015. Initially concerned with local  safety – the risk of locating a high pressure facility in a densely-populated neighborhood and across the street from an active blasting quarry—protesters gained support from Boston Mayor Walsh and the entire Boston City Council, Congressman Lynch, Senators Markey and Warren, State Representative Coppinger and State Senator Rush, as well as residents and officials from the Town of Dedham through which the pipeline also runs.

This is not just one protest but part of a national resistance movement for climate justice with activists taking action across the country to stop carbon energy infrastructure and extraction of oil and gas. We urge you to share this report so tens of thousands of people will see principled climate disobedience actions as one kind of necessary leadership in a time when our regulatory systems and our government are owned by the fossil fuel industry. We hope this action will inspire more people to take direct action, risk arrest, and pursue novel legal strategies.

The Climate Disobedience Center provides a guide for activists on how to use the tool of the necessity defense in climate cases. It defines climate necessity as: “The climate necessity defense is an argument made by a criminal defendant to justify action taken on behalf of the planet. It’s offered by activists who have been arrested for protesting fossil fuel extraction and government inaction on climate policy.” [Emphasis in original] The necessity defense is a long-time defense used in civil disobedience cases where activists argue that their violation of the law should not result in conviction because they were acting out of necessity to prevent a greater harm. In climate cases, the argument is the impacts of climate change are so serious that breaking the law is necessary to avert them.

The trial was supported by Climate Disobedience Center, the Massachusetts Chapter of the National Lawyers Guild, Climate Defense Project, and 198 Methods.

For more information visit the Climate Disobedience Center and Stop the West Roxbury Lateral. The above report is based in part on the press release from the defendants.

“Six miles deep… forever”

Six Nations, southwest of Hamilton, Ontario, is the largest reserve in Canada, with 27,000 members, though only 12,000 live on the reserve. It is a mini-multicultural nation, the only reserve in North America that has all six Haudenosaunee nations living together.

The Haldimand Proclamation, negotiated by Joseph Brant on behalf of the Six Nations in 1784 in gratitude for native support of Britain against the American revolutionaries, was, until 1924, governed by the traditional native government, now called the The Haldimand Proclamation. It promised the lands “six miles deep from each side of the river beginning at Lake Erie and extending in that proportion to the head of the said river which them and their posterity are to enjoy forever.”

This agreement was a decree, never formalized as a treaty, promising what translated into 950,000 acres of what is arguably Canada’s most fertile, scenic, and resource-rich land. As this became apparent in the 19th century, the decree was downgraded by the government, using a new survey in 1821, to 674,910 acres. Canada prides itself in ‘winning’ the war of 1812, but despite fighting for the British then, the result for the natives was to have their earlier promises betrayed, in the first place via the theft of 90% of the land promised to the Six Nations. Canada was becoming ‘independent’, but for the settlers only.

Ignoring the proclamation, settlers moved into Six Nations territory, the land was cleared and became unsuitable for hunting. Only a small section, now the Six Nations reserve, was left, though it too was mostly denuded and is now primarily used to grow tobacco. The Six Nations were forced to surrender lands to the Crown purportedly to raise funds for the perpetual care and maintenance of Six Nations. Soon, the Crown had expropriated approximately 600,000 acres in questionable transfers. The Crown appointed “Indian Agents” which gave Six Nations’ land to friends and families, or sold land in order to pay their own salaries. Forty years after the Haldimand Treaty was confirmed, Six Nations were dispossessed of 90% of their original grant.

In 1924, the Canadian government dissolved the native governing structures completely, and installed the elected council system according to the 1876 Indian Act, in the case of the Haudenosaunee, the Six Nations Elected Band Council (SNEBC). This divided the natives, who were forced to accept the changes, resulting in a schism in the community with those who held on to traditional governing structures, embodied in the Great Law of Peace, that exists to this day.
From approximately 1840 to 1865, the Six Nations Confederacy council met in a log building near Middleport (since, confiscated). In 1856, against protests from the Onondaga chiefs, Indian Department superintendent Jasper Gilkison established a council building in what is present day Ohsweken, about 6 km south-west of Middleport.

The traditionals have no government recognition or funding, weakening their ability to function effectively. But at moments of crisis, the two power structures have worked together, however hesitantly. The elected council for the Six Nations, the SNEBC, is run like a western-style local government, and is headed by Chief Ava Hill. The Haudenosaunee Confederacy is governed more diffusely, incorporating traditional roles of each of the member tribes. There are 50 chief positions, though not all are filled.

But for the Great Law to function, at least half of all the members must actively support the traditional ways (really it should be unanimous). That is the bottom line, according to native rights activist Nicole Lebrasseur, who is working through the Canadian People’s Union to popularize the Great Law as a prototype for all Canadians, as a way to fight neoliberalism and corporate globalization, where corporations continue to erode citizen democracy. “The Six Nations can be the germ of a renewal of genuine democracy for all nations,” says Nicole Lebrasseur.

Current stand-off

The current Grand River land dispute hit the mainstream media in 2006 when the Six Nations formally reactivated their 1995 suit against Canada and Ontario, protesting to raise awareness about their land claims, in particular, 40 hectares in the Haldimand Tract in Caledonia, Haldimand County which Henco Industries Ltd had purchased in 1992, and planned to develop as the upscale Douglas Creek Estates.

When the contested land was officially registered for real estate development in 2005, this led the traditionals, the HCCC, to stage protests, closing roads, and at times escalating to damage of electricity generation and even the burning of a bridge. While not condoning the actions, the elected band council benefited from them, the national publicity they generated, creating the conditions which pushed the federal and provincial governments into action to solve the dispute. Call it: the elected council natives playing the good cop to the traditionalist bad cop.

In May 2006, natives occupied Douglas Creek Estates and twenty-one were arrested, prompting several hundred natives, some of whom were masked and were armed with baseball bats, axes and hockey sticks, to return to the site. The police retreated and the natives reclaimed the site and set up roadblocks along the access street. During the evening, the protesters put hundreds of tires across the highway, doused them with gasoline and lit them.

“As the world has seen, our protest has been firm but peaceful. Our people are responding without weapons, using only their bodies to assert that we are a sovereign people with a long history and that we cannot be intimidated,” said Six Nations Confederacy Chief Allen McNaughton. When the community’s chiefs ask people to abandon the barricades, it was the clan mothers who overrule them, leading a cultural reawakening in their traditionally matriarchal community.

Local nonnatives were furious and in June more than 400 area residents and businesses filed a class-action suit against the Ontario provincial government for its failure to protect them adequately. This was settled in July 2011, with the government paying the nonnatives $20 million and prosecuting several demonstrators.

In 2007, another development site within six miles of the Grand River in nearby Brantford was blocked off by protesters. On September 13, Sam Gualtieri, a builder, was attacked in a confrontation with occupiers at the 90-home Stirling Woods development and seriously injured. Mohawk native Richard Smoke was convicted of assault for resisting Gualtieri when he tried to force Smoke and several others to leave his daughter’s house, which he was helping build as a wedding present. Smoke later apologized to Gualtieri in court.

The 2006 government promise read, “It is the intention that the land title be returned to its original state, its status under the Haldimand Proclamation.” The historic road-block stand-off over Caledonia and the Burtch Lands ended in 2010 with the province promising to hand it back to the Haudenosaunee Confederacy, but instead putting it in a federal corporation, with an Six Nations Elected Council member on the board.

Elected Council vs Confederacy

The stand-off in Caledonia continues, pitting the SNEBC against the traditional Confederacy. In 2010, the SNEBC rescinded a motion that recognized the Haudenosaunee Confederacy Council as the leader for the Douglas Creek Estates site in Caledonia. “The Confederacy negotiating team has been there for four years with limited success,” said SNEBC rep Chief William Montour. At the same time, Mohawk farmer Kristine Hill, who had been farming a section of the nearby Burtch Lands (formerly seized by the Ontario government and used as a prison) under authorization of the Haudenosaunee Confederacy, was evicted after an injunction was filed against her by the government on behalf of the SNEBC, the elected council. A decision on this case, along with a contempt of court charge, was delivered in an Ontario court in September 2017.

“We the Onkwehonwe of Kanonhstaton are still standing strong,” said Ronda Martin, in front of the blockade decorated with Haudenosaunee and Mohawk Warrior flags, built of what appeared to be part of a decommissioned electrical tower. “We ask again for the public’s patience as we work on some very complicated issues.” In a YouTube video uploaded by Turtle Island News on August 17, Doreen Silversmith listed off three demands of Six Nations people at the barricade. They include that the province and the Canadian government return to the negotiation table with the Confederacy, that Ontario honour its promise to really return the land, and that Six Nations elected band council withdraw its injunction against Hill. This latest blockade ended peacefully in early September, but after the court ruling upholding the eviction, the matter remains unsettled.

The current stand-off is over who has authority over these lands reverting to native control – the traditionals or the Elected Council. The traditionals are more interested in agricultural and woodlands use, the Elected Council want to use it for housing. The elected council is cooperating with the Ontario and federal governments by accepting the corporation fig leaf for the development of the lands, but claims to be resisting the government and striving for the same goals as the traditionals.

The confederacy is refusing to acknowledge the Ontario government corporation, which would still leave Canadian officials in control through the elected council. Ontario Premier Wynne threw the gauntlet, playing games with the band, in an attempt to undermine the authority of the HCCC, by utilizing the factions the government has created to get what they want: the complete and total assimilation of the Six Nations.

There are 28 land claims by Six Nations, which have been on the books since the 1990s when litigation against the federal government was filed. This, as well as other court challenges made through the Elected Council since then, have all stalled without ever being heard and without the SNEBC being able to achieve any headway.

This stand-off reached a crisis point in the 1959 occupation of the elected council meeting in the Old Council House, which lasted 8 days, with the demand to disband the band council and reinstate the confederacy. The elected council chief resigned, but the ‘revolution’ was still born.

• Read Part One here;