Category Archives: Justice

Green Party Urges International Criminal Court To Prosecute Israel For Crimes Against Palestinians

Above: Delegation at the International Criminal Court in the Hague, Netherlands on November 19, 2018. From left to right Margaret Flowers, Green Party co-chair, member of the Green Party Peace Action Committee and Green Party of Maryland, Miko Peled, Green Party US member, Dirk Adriaensens of the BRussells Tribunal, Diane Moxley of Green Party International Committee and Green Party of New Jersey, Stephen Verchinski of the Green Party International Committee and Green Party of New Mexico, Marie Spike, of the Green Party International Committee and Green Party of Michigan and Kevin Zeese of the Green Party Peace Action Committee and Green Party of Maryland

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United States Green Party Representatives Deliver Call for Full Investigation of Israel’s War Crimes Against Palestinians to International Criminal Court

The Hague, The Netherlands (Monday, November 19, 2018) — Members of the Green Party United States traveled to the International Criminal Court (ICC) on Monday, November 19, 2018 to deliver a letter calling for a full investigation of Israel for war crimes it has committed against the Palestinians. [Read the text here.]

In addition to being endorsed by the Green Party U.S., the letter was signed by over 1,000 organizations, including Popular Resistance, and individuals from the United States who want prosecutors at the ICC and the world to know that there is a political party along with people in the US who support holding nations accountable to international law. The Green Party recognizes that the United States is complicit in Israel’s crimes by providing financial support, selling weapons and providing political cover to Israel.

The letter states:

For 70 years [Palestinians] have: suffered the most appalling living conditions imposed upon them by the military occupation and apartheid rule; peacefully resisted the unabated illegal settlements upon their land (at least 80% has been seized since the Nakba); withstood the blockade of Gaza and survived genocidal assaults. Since 1947 the Palestinians have steadfastly and peacefully fought for their safety, dignity, freedoms and Right of Return proclaimed by the UN General Assembly Resolution 194 passed in 1948. The Right of Return, to include damages and compensation, was deemed their inalienable right in Resolution 3236 passed in 1974. [footnotes omitted.]

Green Party co-chair, Margaret Flowers and Miko Peled, a member of the Green Party U.S., a dual Israeli and American citizen and author of The General’s Son: Journey of an Israeli in Palestine and other books, met with a representative of the ICC Office of the Prosecutor to deliver a copy of the signed letter. The letter will be entered into the body of evidence being collected as part of a preliminary investigation to determine whether a full investigation will be conducted.

A delegation of Green Party U.S. members, many of whom are on the Green Party U.S. Peace Action and International Committees, made video statements outside the ICC after the letter was delivered.

The delegation included Kevin Zeese, Diane Moxley, Marie Spike, who authored the original draft of the letter, and Stephen Verchinski. The delegation was joined by Dirk Adriaensens of the BRussells Tribunal, which conducted a tribunal on Palestine.

Miko Peled stated:

It was an honor to be part of the GPUS delegation to the ICC, to add our voice to the growing demand to investigate Israel for war crimes. Only when people of the world speak up will the Israeli perpetrators of war crimes and crimes against humanity be brought to justice.

Members of the delegation understand they have a responsibility to act and to educate others in the United States about the truth of the violent Israeli occupation of Palestine and apartheid state. It is by countering the myths put out by the media and U.S. lawmakers, due to the significant Israeli influence over them, and showing solidarity with Palestinians that the tide will shift toward justice for people living in the Occupied Palestinian Territory (OPT) and the millions of refugees who have been forced to flee.

While the Green Party worked on the issue for months, on the same day that the Green Party National Committee voted to endorse the letter, John Bolton said the United States would not cooperate with war crime investigations and called for sanctions against ICC judges if they proceed with an investigation of the United States or Israel.

Prior to visiting the ICC, members of the delegation met with Nils Mollema of Al Haq, an organization founded by Palestinian lawyers to address Israel’s occupation and apartheid. Members of the Green Party of The Netherlands (De Groenen) including Otto ter Haar as well as members of the Green Left Party (Groen Links) participated in that meeting.

Canadian Legal System’s Complicity in Genocide

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

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

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

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

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

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

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

How to achieve actual justice for the dispossessed?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why Is Israel Afraid of Khalida Jarrar?

When Israeli troops stormed the house of Palestinian parliamentarian and lawyer, Khalida Jarrar, on April 2, 2015, she was engrossed in her research. For months, Jarrar had been leading a Palestinian effort to take Israel to the International Criminal Court (ICC).

Her research on that very evening was directly related to the kind of behavior that allows a group of soldiers to handcuff a respected Palestinian intellectual, throwing her in jail with no trial and with no accountability for their action.

Jarrar was released after spending over one year in jail in June 2016, only to be arrested once more, on July 2, 2017. She remains in an Israeli prison.

On October 28 of this year, her ‘administrative detention’ was renewed for the fourth time.

There are thousands of Palestinian prisoners in Israeli jails, most of them held outside the militarily Occupied Palestinian Territories, in violation of the Fourth Geneva Convention.

However, nearly 500 Palestinians fall into a different category, as they are held without trial, detained for six-month periods that are renewed, sometimes indefinitely, by Israeli military courts with no legal justification whatsoever. Jarrar is one of those detainees.

Jarrar is not beseeching her jailers for her freedom. Instead, she is keeping busy educating her fellow female prisoners on international law, offering classes and issuing statements to the outside world that reflect not only her refined intellect, but also her resolve and strength of character.

Jarrar is relentless. Despite her failing health – she suffers from multiple ischemic infarctions, hypercholesterolemia and was hospitalized due to severe bleeding resulting from epistaxis – her commitment to the cause of her people did not, in any way, weaken or falter.

The 55-year-old Palestinian lawyer has championed a political discourse that is largely missing amid the ongoing feud between the Palestinian Authority’s largest faction, Fatah, in the Occupied West Bank and Hamas in besieged Gaza.

As a member of the Palestine Legislative Council (PLC) and an active member within the Popular Front for the Liberation of Palestine (PFLP), Jarrar has advocated the kind of politics that is not disconnected from the people and, especially, from the women who she strongly and uncompromisingly represents.

According to Jarrar, no Palestinian official should engage in any form of dialogue with Israel, because such engagement helps legitimize a state that is founded on genocide and ethnic cleansing, and is currently carrying out various types of war crimes; the very crimes that Jarrar tried to expose before the ICC.

Expectedly, Jarrar rejects the so-called ‘peace process’, a futile exercise that has no intention or mechanism that is aimed at “implementing international resolutions related to the Palestinian cause and recognizing the fundamental rights of the Palestinians.”

It goes without saying that a woman with such an astute, strong position, vehemently rejects the ‘security coordination’ between the PA and Israel, seeing such action as a betrayal to the struggle and sacrifices of the Palestinian people.

While PA officials continue to enjoy the perks of ‘leadership’, desperately breathing life into a dead political discourse of a ‘peace process’ and a ‘two state solution’, Jarrar, a Palestinian female leader with a true vision, subsists in HaSharon Prison. There, along with dozens of Palestinian women, she experiences daily humiliation, denial of rights and various types of Israeli methods aimed at breaking her will.

But Jarrar is as experienced in resisting Israel as she is in her knowledge of law and human rights.

In August 2014, as Israel was carrying out one of its most heinous acts of genocide in Gaza – killing and wounding thousands in its so-called ‘Protective Edge’ war – Jarrar received an unwelcome visit by Israeli soldiers.

Fully aware of Jarrar’s work and credibility as a Palestinian lawyer with an international outreach – she is the Palestine representative in the Council of Europe – the Israeli government unleashed their campaign of harassment, which ended in her imprisonment. The soldiers delivered a military edict ordering her to leave her home in al-Bireh, near Ramallah, for Jericho.

Failing to silence her voice, she was arrested in April the following year, beginning an episode of suffering, but also resistance, which is yet to end.

When the Israeli army came for Jarrar, they surrounded her home with a massive number of soldiers, as if the well-spoken Palestinian activist was Israel’s greatest ‘security threat.’

The scene was quite surreal, and telling of Israel’s real fear – that of Palestinians, like Khalida Jarrar, who are able to communicate an articulate message that exposes Israel to the rest of the world.

It was reminiscent of the opening sentence of Franz Kafka’s novel, The Trial: “Somebody must have made a false accusation against Joseph K., for he was arrested one morning without having done anything wrong.”

Administrative detention in Israel is the re-creation of that Kafkaesque scene over and over again. Joseph K. is Khalida Jarrar and thousands of other Palestinians, paying a price for merely calling for the rights and freedom of their people.

Under international pressure, Israel was forced to put Jarrar on trial, levying against her twelve charges that included visiting a released prisoner and participating in a book fair.

Her other arrest, and the four renewals of her detention, is a testament not just to Israel’s lack of any real evidence against Jarrar, but for its moral bankruptcy as well.

But why is Israel afraid of Khalida Jarrar?

The truth is, Jarrar, like many other Palestinian women, represents the antidote of the fabricated Israeli narrative, relentlessly promoting Israel as an oasis of freedom, democracy and human rights, juxtaposed with a Palestinian society that purportedly represents the opposite of what Israel stands for.

Jarrar, a lawyer, human rights activist, prominent politician and advocate for women, demolishes, in her eloquence, courage and deep understanding of her rights and the rights of her people, this Israeli house of lies.

Jarrar is the quintessential feminist; her feminism, however, is not mere identity politics, a surface ideology, evoking empty rights meant to strike a chord with western audiences.

Instead, Khalida Jarrar fights for Palestinian women, their freedom and their rights to receive proper education, to seek work opportunity and to better their lives, while facing tremendous obstacles of military occupation, prison and social pressure.

Khalida in Arabic means “immortal”, a most fitting designation for a true fighter who represents the legacy of generations of strong Palestinian women, whose ‘sumoud’ – steadfastness – shall always inspire an entire nation.

Housing Crisis, Mental Health Collective Breakdown, 9 am to 5 am Work!

The essential American soul is hard, isolate, stoic, and a killer. It has never yet melted.

― D.H. Lawrence, Studies in Classic American Literature

He who does not travel, who does not read,
who does not listen to music,
who does not find grace in himself,
she who does not find grace in herself,
dies slowly.

— Brazilian poet Martha Medieros

I work at a homeless veterans (and their families, and some have their emotional support animals here) transitional housing facility in Oregon. We get our money from a huge non-profit religious organization and from the federal government in the form of VA per diem payouts.

The job is tough, rewarding, never with a dull moment, and a microcosm of the disaster that capitalism pushes into every fiber of the American fabric of false adoration of a class dividing and racially scaled society.

Mostly after two-and three-year hitches in the Army, Navy, Marines and Air Force, these men and women are broken on many levels, but serve as emblematic examples of the masses of broken people this country’s top 19 or 20 percent make a killing on. The Point Zero Zero One Percent, the One Percenters and the 19 Percenters live off the 80 percent of us who have toiled for these masters of the capitalist universe and these Little Eichmanns and highly paid bureaucrats and middle managers and top brass in every industry possible (two-income earners making money in higher education, medicine, the law, pharmaceuticals, high tech, military industrial complex, judicial and criminal justice, and all the flimflam that is the retail and consumption class).

I have clients who never saw out-of-country battlefields, but these same veterans hands down have applied and sometimes have received service connected disability claims, from tinnitus to shin splits, bad discs in the back to Parkinson’s, from skin diseases to anxiety disorders, from PTSD to depression, and many, many more.

The problems abound, because these folk are virtually broken and spiritually disconnected, brainwashed by some mythological past, flooded with inertia, possibly never able to get their lives back. We can look at them in their section eight apartments, see them at the free meal joints for veterans, and we can listen to their complaints and then respond by throwing all our fury and recrimination onto them, admonishing them to get off their butts and work. Sounds good from a parasitic, penury capitalistic society of me-myself-and-I thinking, but in reality, these younger and older veterans are strafed with anxiety disorders, co-occurring mental health challenges, post-addiction disorders, and brains that have been calcified by many, many aspects of being in the military; then discharged, and then the entire landmine field of epigenetic realities anchored to what many of them call “broken and bloodied” family lives before hitching up.

Some of us know how to solve their homelessness problem, help with intensive healing, assist them in reintegrating into society: inter-generational communities, in micro-homes/tiny homes, with an intentional cooperative community housing set up with things to do . . . . Like growing food, working on construction projects, engaging in peer counseling, and coalescing around community engagement and co-op like business models.

How many plots of land exist in this PT Barnum Land? How many empty buildings are there in this Walmart Land? How many young and old would like to get off the hamster wheel and out of the machine to live a life worthy of spiritual and collective pacifism to grow a truly communitarian spirit.

Here we have this CryptoZionist VP Pence pledging to rebuild an Air Force base in Florida, Tyndall, for $1.5 billion and then spreading more hubris as we witness Pence and the Air Force brass (their felonious DNA locked into our corrupt military industrial complex) ask for more robbing of the tax till, when a hurricane we knew about weeks ahead of time, destroyed more than 17 Stealth aircraft worth (sic) $339 million each! No apologies, no public investigation, nothing!

You won’t hear on Democracy Now a strong case against building these jets in the first place, or a strong case for lopping off the heads of Generals and state senators, on down, for this Keystone Cop disaster. Up to $6 billion for these graft-ridden and spiritually empty examples (Stealth Baby and Old Man-Woman Killers) of America the Empire.

Daily, I struggle to get veterans accommodations for evictions or for property debts, as many have just failed to pay rents or mortgages because of the colluding forces of mental-physical-spiritual dysfunction created by what it is that makes broken people in general, but especially broken veterans who have some undeserved sense of entitlement. Daily, just attempting to get VA hospital treatment, or trying to have experts look at veterans’ amputated limbs and just getting appointments for prosthesis devices?

We are not in “new times” with a CryptoZionist brigade in office, or a filthy example of an individual as the leader of these follies. Nothing new in the New Gilded Age punishment caused by a small cabal of One Percenters who hold dominion over workers. Nothing new about the power of the media and entertainment game to brainwash compliant citizens. Nothing new about War Is a Racket principles (sic) driving our economy. Nothing new about white supremacy ruling Turtle Island. Nothing new about the Manifest Destiny Operating System ripping land, resources, people from indigenous homelands and other countries’ sovereignty. Nothing new in the great white hope tutoring other like-minded fellows in other countries on how to get one or two or a thousand “ups” on the powerless or disenfranchised peoples of their own countries.

Life for Third World (sic) peoples was bad under all the criminals we have voted into POTUS office for the past 250 years! Longer.

The big difference seems to be the passed on and learned helplessness, fear, bulwarking that has been seeded from generation to generation. The fact there are hyper Christians who support the hyper hedonistic, superficial, irreligious, criminally-minded, sexist, racist, loud mouth, intellectually challenged Trump may seem illogical. Oh, so much illogical braying in the world before the Trump seed spilled on this land. Imagine, Jews supporting white supremacists, anti-Semites. Imagine, Native Americans wrapping themselves in the US red-white-blue, and signing up for war-military in higher numbers than any other demographic group. No need to go apoplectic over women supporting Trump as if he is their daddy or Sugar Daddy. How many times in this country’s history have we had Women for Reagan, Women for Bush, Women for Clinton, Women for the Vietnam War?

Susan Sontag said it pretty clearly:

Of course, it’s hard to assess life on this planet from a genuinely world-historical perspective; the effort induces vertigo and seems like an invitation to suicide. But from a world-historical perspective, that local history that some young people are repudiating (with their fondness for dirty words, their peyote, their macrobiotic rice, their Dadaist art, etc.) looks a good deal less pleasing and less self-evidently worthy of perpetuation. The truth is that Mozart, Pascal, Boolean algebra, Shakespeare, parliamentary government, baroque churches, Newton, the emancipation of women, Kant, Marx, Balanchine ballets, et al., don’t redeem what this particular civilization has wrought upon the world. The white race is the cancer of human history; it is the white race and it alone — its ideologies and inventions — which eradicates autonomous civilizations wherever it spreads, which has upset the ecological balance of the planet, which now threatens the very existence of life itself. What the Mongol hordes threaten is far less frightening than the damage that western ‘Faustian’ man, with his idealism, his magnificent art, his sense of intellectual adventure, his world-devouring energies for conquest, has already done, and further threatens to do.

To be honest, the insanity of the white race is also what I am concerned with in Sontag’s (RIP) polemic. That pejorative “crazy” seems apropos for the white race, if one were to look at the way this country’s leaders and movers and shakers play the game and push their destructiveness on the rest of the world. They are all white!

Crazy watching the Kavanaugh hearings. Crazy reading the World Socialist Web Site hit after hit on any woman fighting the scourge of sexual harassment, sexual assault, rape!

This David Walsh gets it all wrong, deploying simplistic “blame the victim” mentality, and then using “witch hunts” accusations to buttress his absurd essay’s thesis. This article is an example of low level white writer crazy:

The ostensible aim of this ongoing movement is to combat sexual harassment and assault, i.e., to bring about some measure of social progress. However, the repressive, regressive means resorted to—including unsubstantiated and often anonymous denunciations and sustained attacks on the presumption of innocence and due process—give the lie to the campaign’s “progressive” claims. Such methods are the hallmark of an anti-democratic, authoritarian movement, and one, moreover, that deliberately seeks to divert attention from social inequality, attacks on the working class, the threat of war and the other great social and political issues of the day.

Instead of bringing about an improvement in conditions, in fact, the #MeToo movement has helped undermine democratic rights, created an atmosphere of intimidation and fear and destroyed the reputations and careers of a significant number of artists and others. It has taken its appropriate place in the Democratic Party strategy of opposing the Trump administration and the Republicans on a right-wing footing.

The sexual hysteria has centered in Hollywood and the media, areas not coincidentally where subjectivism, intense self-absorption and the craving to be in the limelight abound.

Comments back at the author’s “hysteria” analysis are not worthy of recrimination, for sure, but if you scroll down in the WSWS comments section for this piece, have at it: the continued craziness of white thought, white attitudes and white actions. It’s a long essay, and this man’s conclusions are all over the place, indicting anyone who aligns himself or herself with the #MeToo movement. Blames #MeToo (using current polls) for aiding and abetting an upsurge in misogynistic thinking, where these vaunted white man’s polls say more Americans one year later after #MeToo are skeptical in larger numbers about allegations of sexual harassment coming from anyone. Blame #MeToo, so-called socialist David.  Polls, oh those pollsters, oh Mr. Walsh states that #MeToo activists should be involved in other things, like the plight of working class men and women, or stopping the apocalyptic brinkmanship played out by Trump with toy nuclear weapons. Etc., etc.

It makes sense that we have silos in the social justice, criminal injustice, environmental-economic-equity movements. So much easier to tackle one bad bill or vote or crazy politician in your neck of the woods than to grasp the totality of how broken, mean, murderous, monstrous this country’s policies are! And, reality check – the white race is crazy. You see it in Nazi German, in Europe today, in Israel, in the USA, in Canada, in Australia.

Yet the broken systems, the insanity of even considering a series of social nets being frayed, chopped and burned by the One Percent’s minions in political office and finance – how insane is it that social security is on the chopping block, that there is no single payer health plan, that there is no public transportation, that the commons are being razed, raped and contaminated? How insane is it to “let” lead flow in public water system pipes (Flint, Portland, et al); or that pesticides rule the micro-world of future generations, where brain stems are permanently damaged; or how insane is it to allow a good chunk of young people to come into the world with diabetes, or riddled with on-the-spectrum diseases . . . or full of ticks and physical ailments in the name of Big Ag/Big Energy/Big Chem/Big Med/Big Tech ruling the land?

Insanity is a race that hawks chemicals of death, that inculcates punishments and fines and levies and taxes and penalties and surcharges and charges and fees and tolls and taxes and tickets and defaults and foreclosures and balloon rates and eminent domain decisions and impoundments and confiscations and seizures on their own people?

Daily, Portland (three counties, and then just north, Clark County, WA) is an example of this white insanity — unchecked growth, unchecked rent hikes, unchecked cost of living busting more and more people, unchecked home costs rising, unchecked traffic and bureaucratic gridlock, constant punishment for the downtrodden, homeless, poor. How insane is it to have students of nursing programs living in their cars while attending classes (Portland Community College, et al)? How insane is it that the Portland police bureau can charge non-profits thousands of dollars for public records, our own records?

The system is rigged, and it’s a white system of lawsuit after lawsuit! Death by a thousand fines and spiritual-mental-physical cuts!

Until the system is so broken you have millions of social workers like myself attempting to figure out how to save one life at a time, all broken lives products of the insane white culture, their own insane (crazy) leaders, family members, bosses and communities?

Before the Law

The limited formal and negative generality of law under liberalism not only makes possible capitalist calculability but also guarantees a minimum of liberty since formal liberty has two aspects and makes available at least legal chances to the weak. For this reason there develops a conflict between the law and the liberties based thereon on the one side, and the requirements of a monopolistic economy on the other side. Under monopolistic capitalism private property in the means of production as the characteristic institution of the entire bourgeois epoch is preserved but general law and contract disappear and are replaced by individual measures on the part of the sovereign.
— Franz Neumann, The Change in the Function of Law in Modern Society, 1937

Large Capitalist firms — banks as well as monopoly concerns — long ago ceased to depend on court proceedings to conduct their affairs with members of other social groups.
— Otto Kircheimer, State Structure and Law in the Third Reich, 1935 pamphlet

What is legalism? It is the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.
— Judith N. Shklar, Legalism: Law, Morals, and Political Trials, Harvard University Press, 1964

Do not the bourgeois assert that the present-day distribution is ‘fair’? And is it not, in fact, the only ‘fair’ distribution on the basis of the present-day mode of production? Are economic relations regulated by legal conceptions or do not, on the contrary, legal relations arise from economic ones?
— Karl Marx, Critique of the Gotha Program

Watching the Kavanaugh circus the last few weeks I kept thinking about the way in which the general public now views law and justice. I suspect most Americans think of law and legality in terms they have learned from Hollywood TV. Perhaps there is no other area in which the general public relies so extensively on assumptions and cliche as the judicial system. But it also raises questions about the law that I suspect even relatively well educated people never ask themselves.

The entire narrative that is manufactured each time a justice is nominated to the Supreme Court is among the more overblown and hysterical versions of political theatre we are granted but also the most opaque. For the vast majority of people have no real legal knowledge, nor do they understand the intricacies of the entire appellate courts system. Like most things that pass for politics in America, the nomination is treated as a form of American Idol or a beauty pageant.

But there is another issue attached to the spectacle that accompanies Supreme Court nominations and that has to do with a more philosophical set of questions about both class, and about psychology. And the most obvious and most forgotten (and intentionally obscured) truth about the rule of law is that it is not impartial or in any way democratic.

Mass incarceration shows no sign of slowing down despite the very tireless and relentless work of prison critics and death penalty activists. ICE continues to round up people and separate children from their parents. All legal, of course. Children are sentenced as adults. Men are given life terms for drug offenses. The criminalization of life continues to expand. Criminal codes increase. And that increase and expansion mirrors the German criminal law system under National Socialism.

The first period after the downfall of the Weimar Republic was marked by the rise of authoritarian ideology. An authoritarian criminal theory mingled with elements of the old classical school, dominated the academic field. In the criminal courts the transition was immediately reflected by the imposition of harsher punishments, and by a weakening of the status of the defendant.
— Otto Kircheimer, Criminal Law in National Socialist Germany, 1939

The second shift Kircheimer notes was a shift from the objective facts of the case to the subjective. It was the Nietzschian theory being appropriated. The subjective took the form of a focus on intent, and served thereby to obscure the distinction between act and intention. I’d argue one sees a version of this logic today in the valorizing of remorse. It has become a singularly elevated component in evaluating the appropriate punishment, and more, in how to *feel* about the criminal. The unrepentant are the lowest rung on the ladder of guilt. Remorse and confession eclipse the actual commissioned criminal act. In the Germany of the thirties the law allowed for vagueness in the service of expansion. And in a sense today, victim’s rights and a new subjectivity of remorse and confession are in the service of widening the definition of crime itself. And all correctives (#metoo, for example) are quickly absorbed within a trend that strips away presumptions of innocence and the rights of the accused. For denying accusations sounds perilously close to unapologetic and lacking in the qualities of penitence.

Another instance of professional attitudes may be seen in the way in which such a citadel of conservative lawyerdom as the American Bar Association addresses itself to social issues. Matters are taken up one by one, in isolation from the social context and without discussion of the basic issue. Precisely because the A.B.A. regards itself as the official spokesman of the bar it must present its views in a formal manner that gives the appearance of being supra-political and almost without concrete content. It is the independence of the judiciary, the separation of powers, the preservation of fundamental rights, or just fairness, the policy of justice-never the specific social interests or purposes of policies-that is discussed.
— Judith Shklar, Legalism: Law, Morals, and Political Trials, Harvard University Press, 1964

Shklar wrote Legalism in 1964. She presciently articulated the front edges of that neo Nietzschian fascist sensibility at work in the intentional vagueness that allowed for its use in traversing any theoretical problems with mass warehousing of the poor, cruel and unusual punishments, torture, and executions.

The men who reach candidacy for appointments to positions of authority in the legal apparatus are, these days certainly, uniformly guided by a belief in retaining the status quo, and a devotion to the societal direction of control and oppressive social forms. There are no radicals available even if a President, in a fit of madness, wanted to appoint one.

On balance and over the span of American history, the court has, in fact, done far more to retard progress than to advance it. Most horribly, the court upheld in its decision in Dred Scott the sanctity of slavers’ property interest in other humans. The court likewise approved in its Korematsu decision the World War II–era imprisonment of Japanese Americans based on nothing more than fear and paranoia. The court recently claimed to overturn Korematsu, but in the context of the Trump v. Hawaii decision in which the court upheld the constitutionality of Trump’s Muslim travel ban. In the Citizens United case, meanwhile, the court turned back legislative efforts to rein in the corruption of our politics that follows inevitably from our First Amendment–sponsored orgy of special interest contributions.
— Christopher Jon Sprigman, “The Supreme Court is a Historically Regressive and Presently Expendable Institution“, October 11, 2018

In fact, through most of its history the Supreme Court has engaged in the wildest conservative judicial activism in defense of privileged groups. Right-wing judicial activism reached a frenzy point in George W. Bush v. Al Gore. In a 5-to-4 decision, the conservatives overruled the Florida Supreme Court’s order for a recount in the 2000 presidential election. The justices argued with breathtaking contrivance that since different Florida counties might use different modes of tabulating ballots, a hand recount would violate the equal protection clause of the Fourteenth Amendment. By preventing a recount, the Supreme Court gave the presidency to Bush.

In recent years these same conservative justices have held that the Fourteenth Amendment’s equal protection clause could not be used to stop violence against women, or provide a more equitable mode of property taxes, or a more equitable distribution of funds between rich and poor school districts.
— Michael Parenti, “Right-wing Judicial Activism”, Democracy for the Few, 2010, p. 266

Michael Mandel pointed out that When dealing in their writings with legality, Marx and Engels sought to discredit completely any notion of an autonomous or egalitarian legal realm capable of transcending or resolving the discord, unfulfillment and subjugation of everyday life or (most importantly) of restraining the oppressive social power of class society.” And it was Marx who formulated the concept of base/superstructure. For the total reality (base) of life is found in the total of its relations of production — on top of which a superstructure of political and legal institutions is built.

Here again, however, one sees the overall dumbing down of the American public. And I’m honestly not sure how much of a journey that was. The TV staple ‘lawyer show’ is almost always prosecutorial, and rarely about defense lawyers. There was one, The Divide, but it was cancelled after one season due to low ratings. This is the culture (and here I’m speaking of the white bourgeoisie) that thrives on and embraces racist rhetoric like ‘super predator’ and who fail to see the dogged xenophobia and racism of all lawyer shows. In fact, the single most predominant theme or plot is that of white saviour; the idealistic DA (sic) working to help the “good” black or hispanic kid from the clutches of gangs and drug dealers (the vast majority of the residents of the *ghetto*). White paternalism has always been a hallmark of Hollywood drama. But I digress.

These are difficulties which the man from the country has not expected to meet, the Law, he thinks, should be accessible to every man and at all times, but when he looks more closely at the doorkeeper in his furred robe, with his huge pointed nose and long, thin, Tartar beard, he decides that he had better wait until he gets permission to enter. The doorkeeper gives him a stool and lets him sit down at the side of the door. There he sits waiting for days and years.

— Franz Kafka, “Before the Law”, from The Trial

What is important to recognize is the hegemonic nature of the legal system, and of laws. There is a consensus which grows out of an atmosphere or backdrop that is society wide, and which is manufactured and presented by media and entertainment over and over again. And today these assumptions and consensus travel across various economic trans-national blocs. The paradox, if that is what it is, of a growing nationalist frenzy in Europe and the U.S. serves to mask the greater cooperation of these global economic blocs. And such blocs are also rather fluid, though not completely. And while cynical regarding Nationalistic interests, they also often fall prey themselves to such jingoism. This is the global reality and it shadows domestic institutions, and that most certainly includes the courts. For these economic blocs are immune to judicial or legal interference or sanction.

The idea that the law plays a central role in the American imagination and political imagination is well- trodden ground; noticed early on by Tocqueville and today provocatively framed by some as a form of religious observance for the foundational document that is the U.S. Constitution, the idea of law looms large in the American liberal imagination. One is hard pressed to find an account of liberalism — be it by its proponents or by its critics — that does not feature the rule of law as one of its main tenets, if not as its central normative feature.
— Tiphaine Dickson, “On the Poverty, Rise, and Demise of International Criminal Law“, (2016), Dissertations and Theses, Paper 2707, Portland State University

The courts are reflective, on several levels, of life in the U.S. It is racist firstly. Profoundly so. In death penalty cases, 97% of DA’s were white. And not just that…

[A]n investigation of all murder cases prosecuted . . . from 1973 to 1990 revealed that in cases involving the murder of a white person, prosecutors often met with the victim’s family and discussed whether to seek the death penalty. In a case involving the murder of the daughter of a prominent white contractor, the prosecutor contacted the contractor and asked him if he wanted to seek the death penalty. When the contractor replied in the affirmative, the prosecutor said that was all he needed to know. He obtained the death penalty at trial. He was rewarded with a contribution of $5,000 from the contractor when he successfully ran for judge in the next election. The contribution was the largest received by the District Attorney. There were other cases in which the District Attorney issued press releases announcing that he was seeking the death penalty after meeting with the family of a white victim. But prosecutors failed to meet with African-Americans whose family members had been murdered to determine what sentence they wanted. Most were not even notified that the case had been resolved. As a result of these practices, although African-Americans were the victims of 65% of the homicides in the Chattahoochee Judicial District, 85% of the capital cases were white victim cases.
— S. Bright, Santa Clara Law Review, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 1995

One could continue citing statistics for a few hundred pages. The courts express American intolerance and inequality as if under a magnifying glass. And remember that that religious adulation reserved for the *Founding Fathers* (sic) usually conveniently omits that most of them owned slaves. Judith Shklar wrote of the Supreme Court: “this is an institution obviously irreconcilable with democracy, but results from the conjunction of the three following facts: legal traditions inherited from the colonial and Revolutionary period, distrust of any government, and a democracy which had little confidence in itself”.

The courts are factories to process surplus humanity, in the eyes of the ruling class anyway.
— Antonio Gramsci, The Conquest of the State

So, returning to the Brett Kavanaugh circus. (side bar note: Brett boy is a Catholic, which may account for his deficiencies as a public weeper. Evangelicals are far superior at crying. See: Swaggert, Jimmy. Weber, Rep. Randy. Baker, Jim.) The fact is that Obama’s last nominee Merrick Garland was almost a cookie cutter cutout ideologically from Kavanaugh, and John Roberts seems of no interest to most liberals. And it again is a part of this ‘American Idolization’ of the political that no major media outlet ever addresses the fact that even Ginsburg, the erstwhile liberal on the court, is eons removed from William O. Douglas or Brennan. In fact, per the New York Times (circa 1997 it should be noted):

A recent survey by the libertarian Institute for Justice examined Supreme Court opinions between 1993 and 1996. The survey lamented the fact that the Justices least likely to strike down laws infringing civil and economic liberties were President Clinton’s appointees, Justices Ginsburg and Stephen Breyer, who voted to uphold Government power in two-thirds of the cases examined.

Ginsburg is also tight with Antonin Scalia. Go figure, huh.

So it is hard to muster much outrage over another uptight white guy becoming a supreme court justice. The higher courts are the expression of an illusory coherence and imaginary neutrality that it is alleged, stands above the merely political. But, in fact, it is at its core political. The courts adaptation of a rarified positivist grammar, one that carries with it a kind of scientific precision (and it is precise, if one allows it to frame itself. Precise and even beautiful) are, in fact, neither neutral nor precise. But this distance, this hermetic emotionless rationality is really in the service of removing social trauma and human suffering from the rulings, and to hide the class mediated selectivity at work.

In the arena of international law, the first problem has to do with tribunals created by members of the U.N. security council. For such tribunals (The ICTY, at the Hague and the ICTR at Arusha, et al) are trying individuals whose countries of origin are not members of the security council and hence cannot create ad hoc tribunals. Nor can these individuals refuse to participate. Milosevic, who was kidnapped by the U.S. and taken to the Hague, opened his defense by declaring the tribunal illegitimate. Of course, the trial went ahead and he died in custody. A decade later he was acquitted.

It is interesting to note that nobody involved in the killing of Osama bin Ladin was ever thought to be put on trial. Nor whatever drone pilot hit the sixteen year old American Anwar al-Awlaki. The father did bring a suit but it was dismissed out of hand. Or is it possible for the nation of Honduras to form an ad hoc tribunal to consider the role of the U.S. in the recent coup that unleashed massive violence. Could Venezuela form an ad hoc tribunal? No.

Tiphaine Dickson, in her remarkably comprehensive examination of the evolution of international criminal law, notes, the ascendency of human rights as a foreign policy principle took place as an arm of neoliberalism, and came out of a variety of factors that included corporatism, Vietnam and American shame, and in theory the failure of political utopias — this last was really the argument of Samuel Moyn. And failure is certainly a relative term.

By all accounts, human rights organizations made the conscious choice to scuttle socio-economic rights in order to streamline and mainstream their message; in today’s cynical marketing parlance, we would speak of clarifying their brand. This certainly contradicts the idea that these movements stood like deer in the headlights before an unexpected neoliberal ten-ton truck: they had already known it best to dash away to the safe-haven of the atrocity and the war crime.
— Tiphaine Dickson, “On the Poverty, Rise, and Demise of International Criminal Law“, (2016), Dissertations and Theses, Paper 2707, Portland State University

Moyn described the *spectacular atrocity as the organizational fulcrum* of international moral conscience. Now there was also a decided colonial flavor to this marketing parlance. And to its choices. The *dark continent* was the perfect backdrop for the association of primitive bestial violence. A violence that far exceeded what was possible in the advanced West. It is that super predator theme again. And it is again white paternalism. There was another factor in the rise of this specific human rights consciousness and that was what is termed “Holocaust Memory”. The Holocaust industry. So neoliberalism, inequality, and the Holocaust memory idea roughly came to prominence at the same time. And it is interesting, perhaps, to observe the rise of ‘victim’s rights’ in domestic criminal law and practice, a short while later. The role of American guilt, then, is tied into this, or at least the shaping of and control of how guilt is viewed and experienced.

After its defeat in Vietnam, and Richard Nixon’s normalization of relations with China, the United States engaged in a major ideological shift. In the early 1970s, the United States used the Conference on Security and Cooperation in Europe to redefine its enemy. Under the cover of détente with Moscow, this East-West conference agreed on measures supposedly designed to promote lasting peace. The Helsinki Final Act, signed in 1975, endorsed the inviolability of frontiers, territorial integrity of states, and non-intervention in internal affairs of other states (measures designed to reassure Moscow, still fearful of German revanchism). However, that last principle was subtly challenged by Washington’s new cherished “value”: respect for human rights. While seemingly affirming the status quo, this initiated a new phase of indirect U.S. interference in the internal affairs of other nations, no longer in the name of anti-communism, but rather as defense of human rights. In 1978, the Helsinki Watch group was founded to monitor human rights in Soviet bloc countries. Ten years later, Helsinki Watch evolved into Human Rights Watch, whose watchfulness continues to focus on countries where the United States is likely to favor regime change.
— Diana Johnstone, Monthly Review, 2017

I am writing an almost short hand simplified overview here of what is a complex history. But there is enough material, I think, to arrive at a few conclusions. The US court system is not going to ever do other than it always has. It is going to protect those who own the wealth and property of the country, and the Supreme Court is the final voice of the Imperialist ruling elite and its role is to tidy up matters in a way that protects the status quo.

Michael Mandel (in How America Gets Away with Murder) summarizes international criminal courts thus…

So here is the problem with international criminal law: it lets the Americans get away, not only with murder, but with the supreme international crime, and it punishes only the individual evils of the Americans’ enemies – even though these are but the inevitable result of this supreme crime that ‘contains within itself the accumulated evil of the whole.’ It does this so regularly that it cannot be regarded as some minor kink that has to be worked out of the system. Despite international criminal law’s banner commitment to ‘ending impunity,’ its operating principle is really one of ‘selective impunity.

The supreme international crime is, of course, a reference to Robert Jackson’s opening speech at Nuremberg, where he described aggressive war, not in self defense, as the supreme international crime. Which, by my reckoning, means the U.S. is guilty of that crime about 7 or 8 times in just the last twenty years

This is an era of massive organized disinformation, historical revisionism, and outright propaganda. Massive. One of the problems associated with pointing this out is that one is liable to be called a conspiracy theorist. It’s the definitive fear inducing appellation. And even when obvious campaigns of disinformation are being implemented, there is a reluctance on the part of many to point it out. Hollywood, let alone the media news giants and telecoms, are directly tied to the US government, to the Pentagon, CIA, and state department. In Hollywood today CIA advisors sit in on story meetings for any show or film that even indirectly touches on the subject of the military or government or law enforcement. The result has been twenty five years of direct propaganda. Most Americans learn of the court system from TV. Dick Wolf, as an example, as several hugely successful franchises that have legal and courtroom, or law enforcement backdrops and locations. In fact, his latest show is titled FBI. But there are a dozen other show runners and show creators who peddle the same kitsch versions of a cartoon legal world. Most Americans learn most everything from mass corporate entertainment and news. The normalizing of outright executions and coups is experienced as nothing out of the ordinary, and far away anyway. The public is told when to be outraged and when not to be. And they are instructed that class doesn’t exist and that military service is the most noble form or patriotism. And never ever is American exceptionalism to be questioned.

In the legal system there are only ‘individual’ stories, de-linked from social reality and from history. Liberal pieties about the ‘rule of law’ and the reactionaries devotion to morality (others, not their own) again speaks to parallels with National Socialism in the thirties. Kircheimer ends his essay on law under the Third Reich this way:

In effect it is difficult to see how the goal of improving public morality could be obtained by a state that not only operates at such a low level satisfaction of needs, but rests on a supervision and direction of all spheres of life by an oppressive political organization.

So, I’d say the Supreme Court is actually pretty much as it’s always been. Founded by slavers and the rich colonial proprietorial class, it has served the interests of the wealthy, of business and privilege, and has done it without interruption since its inception. There is the additional psychological conditioning today that encourages agreement, encourages consensus and a valorizing of the familiar. Words such as *revolutionary* or *dissent* are considered bad, lumped into an amorphous category labeled *fake news*. *Radical* is a bad word, too. And the business of the courts, all courts, really, is too conform to, and reinforce the values of, a class system and a privileged wealthy elite.

Kavanaugh Is The Wrong Nominee For Our Times

Demonstrators protest outside of Supreme Court after Judge Brett Kavanaugh was chosen by President Trump as his nominee for the high court. From FOX 45 DC twitter.

The Kavanaugh confirmation process has been a missed opportunity for the United States to face up to many urgent issues on which the bi-partisans in Washington, DC are united and wrong.

Kavanaugh’s career as a Republican legal operative and judge supporting the power of corporations, the security state and abusive foreign policy should have been put on trial. The hearings could have provided an opportunity to confront the security state, use of torture, mass spying and the domination of money in politics and oligarchy as he has had an important role in each of these.

Kavanaugh’s behavior as a teenager who likely drank too much and was inappropriately aggressive and abusive with women, perhaps even attempting rape, must also be confronted. In an era where patriarchy and mistreatment of women are being challenged, Kavanaugh is the wrong nominee for this important time. However, sexual assault should not be a distraction that keeps the the public’s focus off other issues raised by his career as a conservative political activist.

A demonstration against the Supreme Court nomination of Judge Brett M. Kavanaugh outside the Capitol this month. Credit Erin Schaff for The New York Times

The Security State, Mass Spying and Torture

A central issue of our era is the US security state — mass spying on emails, Internet activity, texts and phone calls. Judge Kavanaugh enabled invasive spying on everyone in the United States.  He described mass surveillance as “entirely consistent” with the US Constitution. This is a manipulation of the law as the Constitution plainly requires probable cause and a search warrant for the government to search an individual.

Kavanaugh explained in a decision, “In my view, that critical national security need outweighs the impact on privacy occasioned by this [NSA] program.” This low regard for protecting individual privacy should have been enough for a majority of the Senate to say this nominee is inappropriate for the court.

Kavanaugh ruled multiple times that police have the power to search people, emphasizing “reasonableness” as the standard for searching people. He ruled broadly for the police in searches conducted on the street without a warrant. He ruled in favor of broader use of drug testing of federal employees. Kavanaugh applauded Justice Rehnquist’s views on the Fourth Amendment, which favored police searches by defining probable cause in a flexible way and creating a broad exception for when the government has “special needs” to search without a warrant of probable cause. In this era of police abuse through stop and frisk, jump out squads and searches when driving (or walking or running) while black, Kavanaugh is the wrong nominee and should be disqualified.

Kavanaugh also played a role in the Bush torture policy. Torture is against US and international law, certainly facilitating torture should be disqualifying not only as a justice but should result in disbarment as a lawyer. Kavanaugh was appointed by President Trump, who once vowed he would “bring back waterboarding and … a hell of a lot worse than waterboarding.” Minimizing torture is demonstrated in his rulings; e.g., not protecting prisoners at risk of torture and not allowing people to sue the government on allegations of torture.

Torture is a landmine in the Senate, so Kavanaugh misled the Senate, likely committing perjury on torture.  In his 2006 confirmation, he said he was “not involved” in “questions about the rules governing detention of combatants.” Tens of thousands of documents have been kept secret by the White House about Kavanaugh from the Bush era. Even so, during these confirmation hearings documents related to the nomination of a lawyer involved in the torture program showed Kavanaugh’s role in torture policies leading Senator Dick Durbin to write:

It is clear now that not only did Judge Kavanaugh mislead me when it came to his involvement in the Bush Administration’s detention and interrogation policies, but also regarding his role in the controversial Haynes nomination.

Durbin spoke more broadly about perjury writing:

This is a theme that we see emerge with Judge Kavanaugh time and time again – he says one thing under oath, and then the documents tell a different story.  It is no wonder the White House and Senate Republicans are rushing through this nomination and hiding much of Judge Kavanaugh’s record—the questions about this nominee’s credibility are growing every day.

Perjury allegations should be investigated and if proven should result in him not being confirmed.

This should have been enough to stop the process until documents were released to reveal Kavanaugh’s role as Associate White House Counsel under George Bush from 2001 to 2003 and as his White House Staff Secretary from 2003 to 2006. Unfortunately, Democrats have been complicit in allowing torture as well; e.g., the Obama administration never prosecuted anyone accused of torture and advanced the careers of people involved in torture.

Shouldn’t  the risk of having a torture facilitator on the Supreme Court be enough to stop this nomination?

Protesters show there are a lot of reasons to reject Kavanaugh (Photo from NARAL Twitter)

Corporate Power vs Protecting People and the Planet

In this era of corporate power, Kavanaugh sides with the corporations. Ralph Nader describes him as a corporation masquerading as a judge.  He narrowly limited the powers of federal agencies to curtail corporate power and to protect the interests of the people and planet.

This is evident in cases where Kavanaugh has favored reducing restrictions on polluting corporations. He dissented in cases where the majority ruled in favor of environmental protection but has never dissented where the majority ruled against an environmental interest. He ruled against agencies seeking to protect clean air and water. If Kavanaugh is on the court, it will be much harder to hold corporations responsible for the damage they have done to the climate, the environment or health.

Kavanaugh takes the side of businesses over their workers with a long history of anti-union and anti-labor rulings. A few examples of many, he ruled in favor of the Trump Organization throwing out the results of a union election, sided with the management of Sheldon Adelson’s Venetian Casino Resort upholding the casino’s First Amendment right to summon police against workers engaged in a peaceful demonstration — for which they had a permit, affirmed the Department of Defense’s discretion to negate the collective bargaining rights of employees, and overturned an NLRB ruling that allowed Verizon workers to display pro-union signs on company property despite having given up the right to picket in their collective bargaining agreement. In this time of labor unrest and mistreatment of workers, Kavanaugh will be a detriment to workers rights.

Kavanough opposed the Federal Communications Commission (FCC) ruling in favor of net neutrality, which forbids telecom companies from discrimination on the Internet. He argued net neutrality violated the First Amendment rights of Internet Service Providers (ISP) and was beyond the power granted to the FCC. He put the rights of big corporations ahead of the people having a free and open Internet. The idea that an ISP has a right to control what it allows on the Internet could give corporations great control over what people see on the Internet. It is a very dangerous line of reasoning in this era of corporations curtailing news that challenges the mainstream narrative.

In 2016, Kavanaugh was asked if he believed that money spent during campaigns represents speech, and is protected by the First Amendment and answered: “Absolutely.”  Kavanaugh joined in decisions and wrote opinions consistent with efforts to oppose any attempt by Congress or the Federal Elections Commission to restrict campaign contributions or expenditures. His view that free speech allows unrestricted money in elections will add to the avalanche of big money politics. Wealthy elites and big corporations will have even greater influence with Kavanaugh on the court.

Kavanaugh will be friendly to powerful business and the interests of the wealthy on the Supreme Court, and will tend to stand in the way of efforts by administrative agencies to regulate them and by people seeking greater rights.

Kavanaugh protesters call for his rejection over sexual assault call to Believe Survivors (Photo by Carol Kaster Associated Press)

Women’s Rights, Abortion and Sexual Assault

Judge Kavanaugh has not ruled on Roe v. Wade and whether the constitution protects a woman’s right to have an abortion. In 2017, Kavanaugh gave a Constitution Day lecture to the conservative American Enterprise Institute where he praised Justice Rehnquist and one of the cases he focused on was his dissent in Roe. Rehnquist opposed making abortion constitutionally protected, writing, it was not “rooted in the traditions and conscience of our people.”  Shortly after that speech, Kavanaugh wrote a dissent that argued an immigrant minor in government detention did not have a right to obtain an abortion.

On the third day of his confirmation hearings, Judge Brett Kavanaugh seemed to refer to the use of contraception as “abortion-inducing drugs.” It was a discussion of a case where Kavanaugh dissented from the majority involving the Priests for Life’s challenge to the Affordable Care Act (ACA). Kavanaugh opposed the requirement that all health plans cover birth control, claiming that IUDs and emergency contraception were an infringement of their free exercise of religion.

Multiple accusers have come forward to allege Kavanaugh’s involvement in sexual assault and abuse. While Dr. Christine Blasey Ford is viewed as credible — she was the only witness allowed to testify — it is not clear these allegations will be thoroughly reviewed. After being approved by the committee, the Republican leadership and President Trump agreed on a limited FBI investigation. It is unclear whether the FBI will be allowed to follow all the evidence and question all the witnesses. As we write this newsletter, the outcome has yet to unfold. If there is corroborating evidence for the accusers, Kavanaugh should not be approved.

A Republican Political Operative As A Justice?

Kavanaugh has been a legal operative for the Republican Party involved in many high profile partisan legal battles. He spent three years working for Ken Starr on the impeachment of Bill Clinton where he pressed Starr to ask Clinton sexually graphic details about his relationship with Monica Lewinisky. He tried to expand the Starr investigation into the death of Vince Foster, whose death had been ruled a suicide. He was a lead author of the infamous Starr Report—widely criticized as “strain[ing] credulity” and being based on “shaky allegations.”

Kavanaugh was one of George W. Bush’s lawyers in the litigation after the election in 2000, which sought to block a recount of ballots in Florida, resulting in a decision that handed the presidential election to Bush. In the Bush administration, he was involved in pushing for conservative judges as well as controversial policies like torture.

During his confirmation process, in response to the accusations of assault, he claimed they were “a calculated and orchestrated political hit” and “revenge on behalf of the Clinton’s.” He demonstrated partisan anger and displayed a lack of judicial temperament, making him unfit to serve on the Supreme Court.

Kavanaugh exposes the true partisan nature of the highest court, which is not a neutral arbiter but another battleground for partisan politics. The lack of debate on issues of spying, torture and more shows both parties support a court that protects the security state and corporate interests over people and planet. Accusations of sexual assault must be confronted, but there are many reasons Kavanaugh should not be on the court. The confirmation process undermines the court’s legitimacy and highlights bi-partisan corruption.

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)

When an Alien is Our Brother, Son, Friend

I think that most of us instinctively avoid people with mental illness.

I think in many ways what my films are about is that search for my grandpa’s dentures: for that humanizing narrative that bridges the gap between “us” and “them” to arrive at a “we.”
—Brian Lindstrom, documentarian

I first had my real run-in’s with “the law,” in Tucson, Arizona. Pima County Sheriff’s deputies in three vehicles were chasing me on my Bultaco 360cc, as I was cutting through dirt roads and gullies as a 15-year-old unlicensed motocrosser. The mayhem those deputies created, going after me as if I was a mass murderer.

It took six months and probably a few snitches at my high school before the knock on the classroom door of my physics class when the vice principal and two deputies greeted me. The two weaponized cops, in the hallway, handcuffed me and walked me away.

I was charged with driving a motorcycle without a license, along with 18 moving violations.

All of the charges were dropped, as my mother was well-connected to both Tucson Police Department captains and the chief of police, as well as a senator in the Arizona legislature.

Bottom line was the deputies were humiliated, over a one-year period, by my smart-ass ripping up the desert and eluding them. Without evidence that I was actually the one on the Bultaco each time I eluded them, the judge threw the cases out the window while admonishing me to wear a helmet and get a license.

It didn’t take much longer in my life to have more interfaces with cops, as I became the police reporter for both the college daily in Tucson and eventually several dailies and weeklies in Southern Arizona along the US-Mexico border.

My first real live reporter’s story on a cop shooting was when I had to cover a killing of a person with bipolar effective disorder who was in distress near Ajo, Arizona. A mother calls 911 about her son, a Vietnam veteran, drinking a lot and standing in their fenced yard talking to and yelling at ghosts. He had a six-inch Buck knife, and a tall boy PBR in the other hand. Deputy skids to a stop, comes out of the patrol car, pulls his gun, and while in a shoot-to-kill stance, mind you, on the other side of the clear demarcation of the property line to the son and mother’s double-wide trailer and shed set up, he shouts at the man to put the knife down and lay on the 120 degree desert ground with fingers laced and around his head.

The mother pleads to the cop to just back off, to not yell; her son yells back, cussing out this dude, telling him, “Don’t you come onto our property or I’ll stick you.” One thing leads to another, the distressed man charges, while still in his yard, the four-foot high fence between the police official and him. The deputy yells stop, and the Vietnam veteran tells him to fuck off and get away.

At the property line, on his family’s side of the line, the veteran waves his beer and his knife. Fifteen seconds later, the cop fires three rounds, pumping metal into the 42-year-old’s chest.

That was my first foray into investigating police policies around distressed and mentally deranged and emotionally flagging citizens.

One way to end the mental health crisis is to “shoot them out of existence” said one asshole El Paso deputy to me off the record.

Jump cut almost four decades later: Portland, Oregon. Pearl District. Daytime. Man who is deathly afraid of police is confronted by cops, runs away, is subdued, and in less than 120 minutes from the point of confrontation and while in police custody, said perpetrator is dead.

Watching Brian Lindstrom’s Alien Boy: The Life and Death of James Chasse, I am reminded of my forty plus years in and around cops, with mentally distressed clients, as a social worker with homeless and re-entry and veteran clients, and as a teacher in many alternative high school programs, community college, prisons, with military students, and with adults living with developmental disabilities.

I viewed the five year old film with homeless veterans and their family members in Beaverton, Oregon. Three in the audience (including me) had heard of the James Chasse case of Portland Police slamming to the pavement a skinny 42-year-old while also kicking him, applying a Taser, and hogtying the man with schizophrenia and letting him turn ashen gray while standing around sipping Starbucks.

Lindstrom’s film is powerful on many levels, notwithstanding the filmmaker’s ability to ply through the historical record to humanize this interesting and buoyant son who was known around Portland for many years. The quintessential peeling back of the biographical onion peel is what’s compelling about the filmmaker’s approach.

Here, a quote Lindstrom, lifted from a 2013 Portland Mercury interview:

With Alien Boy, our main goal was to honor Jim and really to kind of restore the depth and dimension to Jim’s life. We wanted to restore his humanity and depth. When he died his whole existence was reduced to this headline, 42 Year Old Man with Schizophrenia Dies in Police Custody, and that’s just such a desolate interpretation of his life. Actually, it’s really just an interpretation of his death not of his life. So we painstakingly researched his life, and found friends, family, his old girlfriend, his neighbors, all these people that could talk about him and give him the kind of fullness he deserved. He lived a life of hardship. He was dealt a hard hand but he played it well. He had a lot of integrity and drive. He built a meaningful life and we really wanted to show that in the film.

Mr. Chasse was living in an SRO (subsidized single room occupancy apartment) in downtown Portland, with his own little space from where he positioned his life to survive the voices and the hardships a schizophrenic lives through attempting to be accepted and left alone as an atypical in a neuro-normal and highly judgmental world.

The promontory idea my audience participants who viewed the film expressed was how a person who lives their life disheveled and as a loner with obvious atypical clothing and demeanor can end up at the blunt end of the macho and violent world of a police force. What is really compelling are the eyewitnesses to the event – people who did not know James at the time of the brutal and misanthropic and cavalier way he was meted out injustice – and the stake they had in reviving the 42-year-old’s humanity.

As is the case in all these incidents of police brutality, overreach, and killing, the victims are rarely treated as sons and daughters, fathers and mothers, uncle and aunts, friends and neighbors. They are un-people, aliens, reduced to their prior run-ins with the law, their rap sheets, their mental states, and their resistance.

Lindstrom takes this case, and builds a life, and in the process of reportage, he is able to elicit the emotive power of those of us bearing witness to injustice, a crime against humanity, and any warped expression of the human condition vis-à-vis a cliquish and many times felonious police force. Bearing witness, we as the documentary’s viewers are compelled to see a man, Jim, whose origins are a boy, a child, a son, a boyfriend, a character in the community, and a citizen of not only Portland, Oregon, but of the world.

Image result for james chasse jr

Image result for james chasse jr

James Chasse, Jr., was a fixture in the early punk rock scene in Portland, and Lindstrom allows a kaleidoscope of memories to enter the milieu of his film. One might expect the fury of the chase, or the fear of a dark alley and known crack dealer’s crib. In the case of James Chasse, Jr., he was minding his business in his grimy state in an upscale part of Portland. That was his crime.

“I think we’re used to viewing a lot of police tragedies that are unfortunate one-time decisions about pulling a trigger,” Lindstrom says. “What’s so disturbing about this [case] is that the film reveals this cascade of deceits, omissions, and lies that lead to this terrible death, which was preventable.”

Alien Boy premiered in February 2013 at the Portland International Film Festival after six years of production. The architectonics of the film peers back into our own souls – many of us have experienced videotaped depositions, court documents, and witness interviews up close. September 17, 2006 police approached Chasse, believing he was behaving suspiciously. Herein lies the universal truth of community police forces – if you run away, you most probably will be maimed or injured by officers.

In the case of Jim, he ended up with two dozen breaks on 16 ribs. The policemen signed a waiver denying the EMT unit authority to send him to a hospital.

I’ve seen this shit in Guatemala, in Mexico, in El Paso and Spokane – a hog-tied and writhing-in-pain screaming suspect thrown in a cell, whereupon the person stops breathing or has a seizure, and then slow-to-respond jailers and deputies load the suspect into a police vehicle headed for a hospital. Jim’s level of pain was captured on video and audio, and the viewer sees the brutality of group think in the jailer-cop mindset as people stand around inside the Multnomah County Detention Center as the dying Jim Jim went white and cyanic.

Jim was dumped in a squad car where the cop who pounded him to the pavement drove him to Providence Medical Center. He died in transit, a few minutes away from the emergency room.

This film does not hearken back to some episode of Law and Order, and instead we get a wonderful and human portrait of not an alien, but a life of a man who was a seeker of art as musician, writer, and cartoonist.

Here’s the rub – men and women can live lives of dignity and worth even with mental illness and the so-called hearing voices effects of schizoid disorders. They have friends, they believe in things, they are many times artists, and they can be creative and have meaningful relationships. Lindstrom calls Jim Jim “an amazing success story … a beautiful, sensitive, fragile-yet-resilient nature.”

As a practitioner in the social services world, I have worked with hundreds of people who are looked upon by mainstream society as broken, damaged, suspect and unworthy of all the rights embedded in a democracy, part and parcel what it means to be a citizen. I’ve had clients who lived in the same subsidized apartment building Chasse lived in. This world of neuro-atypical people living in our communities is a success story when social services and the full suite of programs come in and help people like James Chasse function in the world.

Jim Jim was part of our world, and given that, we have a responsibility to honor and respect the individual. Our versus his, or us versus them, are not paradigms in 21st Century USA, and Brian Lindstrom plays out that criticism through the people he interviewed and the narrative flow of his powerful film. Unfortunately, police departments, jailers and prison authorities, and now ICE against undocumented immigrants believe that the men and women with the weapons, military gear and new super powers to harass citizens are the “us” and we are the “they.” For people with developmental, psychological and intellectual disabilities, they are at the bottom rung of “humanity” in the minds of many street-level cops.

Lindstrom has spent years confronting the stories of people he says “society kind of puts an X through.” When the audience finishes a film like Alien Boy, we come away as better people in that same collective community, many times with a greater sense of empathy.

For some, it’s not a cakewalk as this filmmaker is challenged to “expose some grit and grace, that otherwise you might not know was there, in the people you may walk by every day.”

The filmmaking involved many sealed documents and gag orders since the city and police bureau were being sued by the Chasse family. “It was an exercise in faith,” he says. “We would just show up and do the work and hope that a way would be revealed.” The floodgates of evidence opened in 2010 when the Chasse family settled for $1.6 million from the City of Portland.

The viewers last week in the homeless veteran shelter where I work asked if things had changed, and some in the audience answered:

“Hell, no. The Portland police have gotten worse. They attack protesters against ICE detention camps. They give me no evidence that they know how to deal with people in mental health crises.”

A bit of a Lindstrom’s biographical underpinning points to a Portland kid who was thinking all the time about stories he wanted to tell, and he came to the conclusion that it was film as a medium to express those narratives.

Lindstrom was the first member of his family to attend college, paying for this education at both University of Oregon and then Lewis & Clark University by working summers at a salmon cannery in Cordova, Alaska. A linchpin to Brian’s transformation into believing he would be a filmmaker occurred when communications professor Stuart Kaplan screened Edward R. Murrow’s 1960 documentary, Harvest of Shame, about the hard lives American migrant farmworkers faced producing America’s food.

“Brian was really captivated by that, and thought that that’s the kind of thing he would like to do,” Kaplan says. “Documentaries that could bring about social change.”

After graduating from Lewis & Clark, Lindstrom got into Columbia University’s film directing program, where he produced educational videos for the New York City Department of Transportation. His thesis films included a short drama adapted from a Charles Baxter short story and a five-minute documentary about the famous schoolyard basketball player Earl “The Goat” Manigault.

Brian Lindstrom

He’s connected to the NW Film School, and he’s worked with one of my old stomping grounds, Central City Concern, a Portland nonprofit that provides housing, health care, and addiction-treatment services. The fruit of his labor includes Kicking, a half-hour documentary that follows three drug addicts through the medically supervised detox process at Central City’s Hooper Detox Center, and then Finding Normal, about CCC’s Mentor program, where recovering drug addicts get housing and a peer mentor to bust the cycle of addiction, sobriety, relapse.

Today, Lindstrom works intently on other projects while also spending time with his two children and wife, writer Cheryl Strayed, author of the best-selling memoir, Wild, which was turned into a Hollywood film.

My quick mini-interview of Alien Boy‘s Brian Lindstrom:

Paul Haeder: What’s the lesson you take away in 2018 after making the film Alien Boy, and after the screenings, the interviews, the passage of time from that 2006 killing?

Brian Lindstrom: We need to do more to support and protect people dealing with mental illness. I naively thought, way back in 2013 when we were finishing Alien Boy, that the Justice Dept. would come in and make everything better. That hasn’t happened. I want to think the opening of Unity is a step in the right direction and takes pressure off of PPB in terms of dealing with people in mental health crises, but evidently there are some issues at Unity that need to be worked out. I want to be clear that just because I’m advocating for anything that takes the burden off of PPB dealing with people with mental illness, I am in no way condoning or excusing what the PPB did to James Chasse. What is clear to me is that we have to figure out a way to support and protect people with mental illness so that PPB isn’t the defacto mental health services provider.

PH: You make documentaries. What influence do you want these films to have on audiences? The old conundrum is as artists who cover social/environmental/cultural/community injustices we get both the 35,000 foot perspective and the two inch POV, yet in the back of our minds we say, “Shit nothing has changed … in fact, it’s worse.” Riff with this in terms specifically with how you see not only PPB dealing with people they come in contact with living with mental health diagnoses, but writ large in the USA?

BL: I have a confession to make. If I’m truly honest with myself, I don’t make films for audiences. I make them for the people in the film. It is my small way of honoring them. That doesn’t mean I don’t delve into dark areas or that I ignore that person’s struggles. I’m much more concerned with trying to achieve an honest depiction of that person’s life than I am with any potential audience reaction.

PH: Why do you focus on the subject matter you have thus chosen in your documentarian body of work?

BL: It chooses me. I don’t know how else to explain it.

PH: Which story that hasn’t been told but for which you would like to see be told by anyone, or you yourself?

BL: Hmm… So many. I will go with the first that comes to mind: I’ve always wanted to make a documentary about an adult overcoming illiteracy.

PH: What advice do you give young or nascent filmmakers who want to make a difference and tell those stories that might spark a difference in our world?

BL: Grab a camera and go for it. Learn to get out of the way of the story.

PH: Anything you learned in the making of Alien Boy that you have just come to grips with?

BL: We must keep fighting for those whom life has dealt a hard hand.

PH: Why do you make documentaries?

BL: The camera is a bridge of sorts that allows me to get to know people I otherwise might never get to meet. I’m forever grateful for the brave people who have let me tell their story.

Of Genocide and Those Who Do Nothing

Of genocide one thing becomes clear: the perpetrators are usually governments. The perpetrators may be cliques within the government, using the government, but the organization of such cataclysmic events is beyond the skills of amateurs.  So it isn’t a surprise that the domain of preventing genocides is as tightly controlled as the mechanisms of punishment. A control not entirely foreseen by the conceptual author, Raphael Lemkin, was written-into the Convention on the Punishment and Prevention of the Crime of Genocide, with the support of countries which had risen to power through colonialism. It is the word “intent” as in “intent to destroy”, which is now considered a requirement, if any attempt to destroy a “national, racial, ethnical or religious” group of people is to be considered a genocide.

The mass killing has to provably have the intention of destroying one of these groups protected by the Convention.

The vagaries of “intent” and the difficulties of ever proving “intention” deep within a perpetrator’s mind is a domain claimed by the government’s policy makers, academics, inevitably psychologists, and the judiciary, who keep the Convention on Genocide basically out of the hands of the people.  The people are universally the victims.

To move beyond this control we might put aside nationalism and look at governments on one hand, and peoples on the other as not always having the same interests.

The emergency brake of puzzlement about “intent” is customarily used to obstruct application of the Convention on Genocide. It’s the standard way genocidal governments seek to avoid responsibility for their actions. Still we recognize the horror of a genocide as it occurs, which is partly that we are not doing something to stop it.

For example, can the military forces of North American countries bomb the civilian water supply of Iraq, her civilian infrastructure, entire cities, museums, bomb the country “back into the stone age,” without intention to destroy the national group? Civilian casualties were falsely referred to as “collateral damage.”

This assumed lack of intention spares our leaders and ourselves but is sophistry. Intention is established by repetition with a similar result each time leading to the inevitable mass civilian deaths. North Americans find the meaning of “intention” difficult. Too many dead Aboriginals, slaves, prisoners of our histories clogging our minds, never dealt with, never admitted. Denying the people their history leaves no chance for rehabilitation.

The U.S. having signed and after forty years ratified the Convention on Genocide presents objections as “Reservations and Declarations”1 which specifically underscore the need for intent to be present in the destruction of a group, if it’s to be considered genocide.

The Convention has already limited its own applicability to groups. It fails to specifically protect gender based and sexuality based groups, as well as the aged, the sick, ableist and groups defined by genetic traits, as well as groups defined by mental health, criminal records, or prisoners as a group. These are all vulnerable to genocide-like actions by fascist states as shown in the German Third Reich’s practices. A contemporary Convention on Genocide should include them.2

The Convention on Genocide as it appeared in 1948 was a very narrowly conceived document in one sense: it addressed the safety of the powerful victim groups of Hitler’s inhumane policies while ignoring less powerful victim groups, which in many cases continue to be victimized.

Understanding #4″ of the U.S. objections to the Convention prepares the U.S. for wars such as the destruction of Iraq by armed force. It’s very simple, it says: “4. That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention” (Article II is where the Convention prohibits “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group…).

What could be interpreted at the diplomatic level as a threat to other countries, of war without quarter, possibly to assure their cooperation, was in Iraq a threat fulfilled. Through “Understanding #4” the U.S. could excuse itself from obligation at international courts as long as it controls the courts or interpretation of the law.

Not all countries agree that the U.S. can define applicability of the Convention on Genocide to itself, which the U.S. attempts in “Reservation #1” and “Understanding #5.” The Convention is considered currently applicable to actions in all countries signatory to the Convention. Under the World Court this could include the U.S., willing or not, with applicability a political issue not reliant on any statute of limitations.

Because of the U.S. extreme insistence on the element of “intent” (also specified in “Understanding #1”), as necessary to genocide, the interpretation of the Convention became slightly skewed.

The difficulty rises from an awareness which keeps asserting itself, that intent is very hard to prove. It becomes harder as perpetrators learn to disguise their intentions to avoid eventual prosecution. And harder as those who struggle to be moral, repress and twist their own motives to avoid the guilt of their own actions or inaction.

Protected from application of the Convention by the U.S. withdrawal from International Criminal Court U.S. writers and academics write more freely about genocides. Karen Goldsmith’s work, “The Issue of Intent in the Genocide Convention”3 discusses this within academic traditions, aware of attempts historically to trap interpretation of the Convention into serving the powerful. She encourages a more relaxed approach.

Instead of acceding to an academic discussion of intention which has allowed the confusion of whether an instance of insane mass murder is a genocide or not, wouldn’t it be more wise to cede a situation to the laws against genocide without immediate consideration of the issue of intent?

It may be arrogant to ever suppose to know or understand what happens in another person’s mind. It may take a long time to identify a pattern of behaviour which might prove intent through points of evidence. Realizing that the Convention attempts to shield a number of groups deserving of its protection, logically one would assign the word genocide to situations where one group as defined, is being repetitively killed or deprived of necessities or of lives for its children. It is certainly genocide to its victims.

To suggest the academic or professional jurist’s difficulty with this I recommend some consideration of the work of Kai Ambos4 who is not only an academic (professor of international criminal law) but has served as a district judge and a judge at the International Court of Justice (at the Hague), and is comfortable with the differences available in “intent to destroy.”

Is this general intent and knowledge of what one is doing, or a “surplus” of intention, an ulterior intention which exceeds the persecution of a group, a “special” intention? While the study of projected meanings presents its own kind of hell of devils dancing on the head of a pin, it makes no difference at all to the victims, their family, and village slaughtered most probably by an array of expensive modern technology.

To ascertain guilt by identifying precisely the perpetrator’s state of mind is the result of an evolution in response to the Convention’s prohibition. It is also a distraction from what is moral. Or a distraction from the pain of confronting human nature. ‘Legalese,’ by removing a subject from day to day life and placing it in a domain which is not necessarily ruled by love, may spare the judges of humanity’s excesses suffering and an ongoing PTSD syndrome.

But people at large seem to be moving beyond “dolus generalis” and “dolus specialis” as categorizations of kinds of intent to what is more simply expressed and noted by both Ambos and Goldsmith: Article 30 of the Rome Statute of the International Criminal Court.

The ICC holds the Convention on Genocide within its jurisdiction since one of the Court’s purposes is to address the crime of genocide. Therefore the ICC’s interpretation of the Convention can solve years of puzzlement created by patriotic lawyers:

Article 30 Mental Element

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of sequence or events. “Know” and “knowingly” shall be construed accordingly.

The Rome Statute’s definitions end run much of the smokescreen available in discussions of general intention versus special intention. This makes it much easier for countries subscribing to the International Criminal Court to address instances of genocide.

Because the path forward is in a way clear to address and consider instances of genocide currently in motion why haven’t the world nations attempted to honour their commitment to the Convention which demands some response when a genocide occurs?

Because a reader might not agree with one example I’ll point out four salient instances where the situation could be declared genocide by the courts:

1. The peoples of the The Democratic Republic of Congo (Zaire) are being destroyed in the battle for Congo’s resources, by foreign interests.

2. Palestinians, particularly of Gaza, are being destroyed as a national and as a religious group by the Zionist government in Israel.

3. In Myanmar the Buddhist Army found few impediments to its attempted destruction of the Muslim Rohingya people. Signatory governments are complicit through inaction.

4. Indigenous peoples of Canada are subjected to extreme conditions of life, health and water by the Government over a long period of time. The government’s inability to move beyond its denial, or educate Canadians to their full rights and responsibilities under human rights law can be equated with an attempt to destroy the victim group.

Any United Nations intervention to directly counter a genocide in progress would, I think, have to pass through the Security Council for approval, and could meet a U.S. veto.

The attempts to effect the Convention on Genocide have been obstructed by:

1. The difficulty of proving intent as a condition required for identifying a genocide.

2. Likely obstruction at the Security Council where the political and financial interests of one of its members can veto intervention.

3. Lack of public knowledge and misinformation campaigns (demonization of a targeted victim group’s leader).

4. National reluctance to identify genocide since under law a signatory nation is required to intervene.

5. The fact that genocides are almost exclusively effected by governments and the Convention on Genocide can only be effected by governments or possibly large international organizations.

While genocides are waged for national or corporate purpose by governments the Convention on genocide is a mechanism of protest, alleviation, intervention, at the service only of governments. In areas where the genocide might be of gain to many governments it is less likely that the Convention will be brought into play.

Note, for example, NATO’s attempt to force the overthrow of Syria’s leadership by making conditions of life unbearable for Syria’s people. This became a concerted military effort by France, England, the U.S., Turkey, Israel and others. The resulting partial destruction of the national group was an intended genocide with a deflection of its purpose by a “civil war” waged by a minority assuming responsibility for a rebellion initiated by the foreign powers who provided funding.

There are also policies which many governments can agree on and ignore when they share the guilt. A current example is the forcible transfer of children as a way of managing migrants and asylum seekers entering the U.S.. While this isn’t accompanied by an intention to destroy a portion of a “national, ethnical, racial or religious group” it could be if the U.S. were considered responsible for destruction of the refugee’s country of origin. Both Canada and the U.K. separate children from their families when officials consider it in the “best interests of the child.” The issue has stronger interface in the area of transferring children to a country’s social services and the practices of ‘sponsoring’ the children of one protected group, with sponsors outside that group.

To address directly our own genocide defenses in North America: these almost exclusively rest with organizations funded by the government, at the service of government policy, staffed by academics with strong ties to government, or who have worked for the government, or will work for the government. Or who have government loans, or grants. The organizations’ political positions accommodate government policies, despite the innate confusion in identifying genocides, previously discussed here.

It’s unlikely that one will find in the active agendas of the genocide related NGOs any protests or any actions hampering government policy. This is particularly notable in the controversial area of Israel’s ongoing persecution of Palestinians.

If the issue may be considered within the multi-million dollar funded structure of the enterprise, or studied in a course from the hosting university, one might find that the well known NGOs are not usually allies in struggles to save the peoples oppressed criminally by the NGO’s host governments or its allies.

A run down of these specific non-governmental organizations, funded through service to the government either overtly or covertly, is avoided because much of what they accomplish does address the needs of victim groups. In a sense they pay off humanity by doing a portion of their job. The difficulty is that they refuse to address the crimes of our own governments. And they provide on occasion impetus for falsely raising the issue of genocide, in the service of government programs for corporate expansion which in situations of ‘genocide’ can threaten with military intervention.  Powerful NGOs concerned with genocide risk at some point supporting government policies which are genocidal. When they do not purvey genocides as genocide which is the major portion of their usefulness, they become complicit.

Against these difficulties with the “Convention on the Prevention and Punishment of the Crime of Genocide,” as it stands, and the difficulties of applying it, is the fact that it corresponds deeply to the beliefs of the largest portions of humankind. We believe it’s valid and necessary – not the law of it only, as much as its affirmation of our humanity – its refusal of the horror we find unacceptable.

In Rwanda after the genocide there were trials of the accused perpetrators under international law but also under Rwandan law, and then under village law in that the courts were held in the communities. In villages throughout the country people were brought together and found they had to account for themselves and explain what they did or didn’t do – their part in the genocide. These courts were known as Gacaca courts.4;5

What begins to evolve in the accounts of village trials is a world view of justice asserting itself in a landscape of the ultimate horror. And it has very little to do with arguments of what kind of intent was involved, or the mental state of the perpetrators, the Faculty coffee room, the judges or judicial chambers.

It has everything to do with surviving what the people never chose of their own accord. I think this defense might well be applied to a majority of North Americans as their corporations and capital continues to destroy less powerful nations. These instances of taking life are so much more clear in the Rwandan genocide.

This is the shadow which falls between the studies of genocide and the massive losses of humanity, decency, tenderness, life.

Prof. Giorgía Donà’s study of “situated bystandership”6 explores the realities of the bystanders, those who were neither the victims nor the perpetrators of the genocide which by her figures killed close to a million Tutsi (April 7th through July 18, 1994).

This group most closely parallels the majority of North Americans during the destructions of Iraq, Afghanistan, Yugoslavia, Libya, Syria to begin a longer more complicated list of massive loss of life and destruction.

She notes both external bystanders such as the United Nations and signatories of the Convention who knew and did nothing, and the internal bystanders who might be thought of as the people, and bear the guilt of the people for crimes that came from beyond them, were broadcast to them, programmed into them like an experiment with Rwanda as its laboratory.

A terrible thing here is that the killing was accomplished by so many and by my understanding so many were forced into the conformity of killing others lest they be killed, and under pressures that might make our judgment of them and our concept of ‘heroism’ irrelevant. In some instances those who wouldn’t kill were killed. Those who hid fugitives, if caught, were killed or forced to kill the fugitives they had harboured. Can this be considered within a context of law?

How deeply have North Americans responded to the massive death caused by our inception, our wars, armaments, economic needs, when our survival has had so many options other than war?

Donà’s paper suggests that in the aftermath of the Rwanda genocide the majority of people tried to separate themselves from the perpetrators whom they considered “extremists” and evil. The bystander majority would consider itself as retaining moral values. The Kagame government at first promoted the assessment of morally guilty bystanders, complicit through inaction.7

This group of bystanders then sorts out into those who acceded to the perpetrators’ actions and those who attempted to resist under the tremendous pressure from the overall program to kill. Those who remained non-violent would have to hide as did the victims.8 When refusing to participate in the killing meant death, some then participated. At a local factual level this was understood by the Gacaca courts, because how does one judge this with reference to the intent of genocide.

While Gacaca courts prosecuted murder and rape they didn’t the crime of non-intervention,9 and so under the policy of the community courts non-intervention was no longer necessarily one of guilt. These courts also shifted guilt and the responsibility for a crime, from mass action to the individual.

Crimes during the mass killing of the genocide were no longer abstract or collective but personal. While many of the Hutu were found guilty, many were found innocent and were freed from the condemnation of collective guilt.10

The Gacaca courts present a challenge to academic studies, and what is often an intellectual or judicial tendency to categorize and perceive through the application of abstractions. The community level courts were more realistic and humane than the courts of international law? Possibly so. But then they were addressing the people who as victim, killer or bystander, were the objects of a planned and prepared-for national atrocity.11

This focusing of attention on the bystander element of genocide may help many North Americans reconsider our own relationship to guilt, the ultimate price of silence, the relationship between our morality and what happens about us, realizing that despite the tremendous social pressures programming us by schools, corporately funded universities, from media, from history, by conformity and each other, we deserve to be judged for how we’ve responded to the crimes against others.

  1. The “Declarations and Reservations” which at ratification the U.S. added to the Convention are generally kept out of sight so I list them here:
    Reservations:
    1. That with reference to article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.
    2. That nothing in the Convention Requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.
    Understandings:
    1. That the term ‘intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such’ appearing in article II means, the specific intent to destroy, in whole or in substantial part, a national, ethnical, racial or religious group as such by the acts specified in article II.
    2. That the term ‘mental harm’ in article II(b) means permanent impairment of mental faculties through drugs, torture, or similar techniques.
    3. That the pledge to grant extradition in accordance with a state’s laws and treaties in force found in article VII extends only to acts which are criminal under the laws both of the requesting and the requested state and nothing in article VI affects the right of any state to bring to trial before its own tribunals any of its nationals for acts committed outside a state.
    4. That acts in the course of armed conflicts committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention. 5. That with regard to the reference to an international penal tribunal in article VI or the Convention, the United States declares that it reserves the right to effect its participation in any such tribunal only by a treaty entered into specifically for that purpose with the advice and consent of the Senate.
    – According to “Multilateral Treaties deposited with the Secretary-General.” Status as of 31 December 1992. United Nations, New York.
  2. I initially stated this suggestion in “An Essay on Genocide: or why the Convention on Genocide hasn’t worked,” peacemedianews (Netherlands), 1995. Reprint: Night’s Lantern.
  3. Karen Goldsmith. “The Issue of Intent in the Genocide Convention, and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge Based Approach,” Vol. 5, 2010 (Issue 3, Article 3), Genocide Studies and Prevention: an International Journal (IAGS).
  4. Kai Ambos. “What does ‘intent to destroy’ in genocide mean?” Vol. 91, #876, December 2009, International Review of the Red Cross.
  5. Giorgía Donà. “‘Situated Bystandership’ During and After the Rwandan Genocide,” Vol. 20, No.1, Journal of Genocide Research, 2018; passim.
  6. Ibid.
  7. loc. cit., p. 8.
  8. loc. cit., p. 14.
  9. loc. cit., p.17.
  10. Concerning the issue of alleged massacres of Hutu by Tutsi I suggest the work of Professor Peter Erlinder (William Mitchell College of Law in St. Paul, Minnesota), The Rwanda Documents Project.
  11. Alison Des Forges. “The Ideology of Genocide,” Volume 23/Issue 2/1995. African Issues.

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.