Category Archives: Legal/Constitutional

Act Now To Protect Our Right To Protest

The radical attack on our constitutional right to protest in Washington, DC needs to be stopped. The National Park Service (NPS) has published proposed rules that would curtail First Amendment rights to assemble, petition the government and exercise free speech in the nation’s capital. Together, we can stop this proposal from going forward.

Popular Resistance submitted comments to the National Park Service and is working in coalition with numerous organizations in Washington, DC to protect our constitutional rights. We will be joining with other organizations in submitting coalition comments. We need everyone to participate, submit a comment this weekend, the deadline is Monday.

Tell the NPS why protest in Washington, DC is important, your experience with protest and why these new restrictions will make it difficult to exercise your constitutional rights. Your comment will be the evidence courts will consider in reviewing these proposed rules.

Submit your comment here. The deadline is Monday, October 15th. More specifics are provided below. Please act today. 

This is part of the effort to curtail dissent in the United States

The proposal would result in people being charged fees if they hold a protest. That means in order to exercise your constitutional right, the government can charge you for the police barricades, the Park Service police time and even their overtime. And, if you hold a concert with your protest where people make speeches, play music or use spoken word, you can be charged for that exercise of Free Speech as well.

While the “pay to play” rules have gotten some attention in the media, that is just the beginning of the restrictions. The area around the White House would basically be off-limits as they would close the walkway and sidewalk in front of it. This area that was used by suffragists to appeal to President Wilson for the right to vote would no longer be available. There are hundreds of protests every year around the White House as this iconic spot has been used for protests on civil rights, opposition to war, protection of the environment, urging climate justice, for economic fairness and so much more. It is used to get the attention of the president to use the presidential power to pardon, as we did in the campaign for Chelsea Manning directed at President Obama.

In this time of immediate news coverage and the ability to use social media for breaking news as it happens, NPS proposed restricting “spontaneous demonstrations.” Rather than the current rule, which presumes a permit is granted if it is not denied within 24 hours, the NPS would now put such requests in limbo and have until the last minute to deny the permit. And even if a permit is granted, the proposed rules would allow a permit to be revoked for any infraction of the permit.

Under international law, no authorization should be required to assemble peacefully, and a system of prior notification should only be intended to allow authorities to facilitate protests and peaceful assemblies. This standard would be a standard consistent with the US Constitution which forbids the abridgment of the rights to assemble, petition the government and to speak freely. The permit process already violates international law, making it more restrictive moves the United States further into the territory of a rogue nation that ignores the law even though it ratified the International Covenant on Civil and Political Rights in 1992.

The proposed rules would also limit the size of signs and banners in many parts of the city and asks whether more parks should be labeled as parks that do not allow protest. And, in response to the Occupy protests, the NPS would limit vigils and encampments to one month — letting the people in power know that long-term protests are only a short-term threat.

Read the twelve ways that the proposed protest rules would restrict our constitutional right to protest in our call to action.

Protests are increasing and will continue

Protests have been escalating in the United States since the 2009 economic collapse. That collapse was followed by a wide range of protests at banks and the Federal Reserve as well as in state capitals across the country. That was followed by the sustained multi-month protest of the Occupy encampments in hundreds of cities across the country. Out of police violence and killings of black people came the Black Lives Matter movement, and out of the poverty wages of low wage workers came Our Walmart and Fight for $15. As the US moved to become the largest oil and gas producing nation in the world — at a time when climate change science said we should build no oil and gas infrastructure — protests across the country against pipelines, compressor stations, export terminals and other infrastructure grew. This climaxed in the No DAPL protest at Standing Rock, and continues to build.

There has been a dramatic increase in protests since President Trump was elected president. In the last year, one-fifth of people in the United States say they have participated in a protest, rally or other First Amendment event. A recent poll found, “One in five Americans have protested in the streets or participated in political rallies since the beginning of 2016. Of those, 19 percent said they had never before joined a march or a political gathering.”

This is a time to be protecting constitutional rights, not curtailing them. People understand the government is not listening to them or meeting their needs and are protesting in order to be heard as they face economic insecurity – high debt and low pay.

Efforts to curtail protest are a sign that the movement is having an impact. We are building our power and are getting more organized. We have the power to stop these unconstitutional restrictions on our right to protest.

We urge you to join us in taking action today. Submit a comment explaining why the right to protest matters to you. It can be brief or long or somewhere in between.

Together we can keep building a movement for transformational change. Economic, racial and environmental justice as well as an end to war can be achieved. We are closer than we realize, efforts to stop us are a sign that the power structure is afraid of the people organizing to demand change.

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

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

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

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

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

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

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

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

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

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

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

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

Why does this matter?

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

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

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

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

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

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.

Suspending the Constitution

That was when they suspended the Constitution. They said it would be temporary. There wasn’t even any rioting in the streets. People stayed home at night, watching television, looking for some direction. There wasn’t even an enemy you could put your finger on.

— Margaret Atwood, The Handmaid’s Tale

We can pretend that the Constitution, which was written to hold the government accountable, is still our governing document.

The reality we must come to terms with, however, is that in the America we live in today, the government does whatever it wants, freedom be damned.

“We the people” have been terrorized, traumatized, and tricked into a semi-permanent state of compliance by a government that cares nothing for our lives or our liberties.

The bogeyman’s names and faces may change over time (terrorism, the war on drugs, illegal immigration, etc.), but the end result remains the same: our unquestioning acquiescence to anything the government wants to do in exchange for the phantom promise of safety and security.

Thus, in the so-called name of national security, the Constitution has been steadily chipped away at, undermined, eroded, whittled down, and generally discarded to such an extent that what we are left with today is but a shadow of the robust document adopted more than two centuries ago.

Most of the damage, however, has been inflicted upon the Bill of Rights—the first ten amendments to the Constitution—which historically served as the bulwark from government abuse.

A recitation of the Bill of Rights—set against a backdrop of government surveillance, militarized police, SWAT team raids, asset forfeiture, eminent domain, over-criminalization, armed surveillance drones, whole body scanners, stop and frisk searches (all sanctioned by Congress, the White House, the courts and the like)—would understandably sound more like a eulogy to freedoms lost than an affirmation of rights we truly possess.

Here is what it means to live under the Constitution today.

The First Amendment is supposed to protect the freedom to speak your mind, assemble and protest nonviolently without being bridled by the government. It also protects the freedom of the media, as well as the right to worship and pray without interference. In other words, Americans should not be silenced by the government. To the founders, all of America was a free speech zone.

Despite the clear protections found in the First Amendment, the freedoms described therein are under constant assault. Increasingly, Americans are being arrested and charged with bogus “contempt of cop” charges such as “disrupting the peace” or “resisting arrest” for daring to film police officers engaged in harassment or abusive practices. Journalists are being prosecuted for reporting on whistleblowers. States are passing legislation to muzzle reporting on cruel and abusive corporate practices. Religious ministries are being fined for attempting to feed and house the homeless. Protesters are being tear-gassed, beaten, arrested and forced into “free speech zones.” And under the guise of “government speech,” the courts have reasoned that the government can discriminate freely against any First Amendment activity that takes place within a government forum.

The Second Amendment was intended to guarantee “the right of the people to keep and bear arms.” Essentially, this amendment was intended to give the citizenry the means to resist tyrannical government. Yet while gun ownership has been recognized by the U.S. Supreme Court as an individual citizen right, Americans remain powerless to defend themselves against SWAT team raids and government agents armed to the teeth with military weapons better suited for the battlefield. As such, this amendment has been rendered null and void.

The Third Amendment reinforces the principle that civilian-elected officials are superior to the military by prohibiting the military from entering any citizen’s home without “the consent of the owner.” With the police increasingly training like the military, acting like the military, and posing as military forces—complete with heavily armed SWAT teams, military weapons, assault vehicles, etc.—it is clear that we now have what the founders feared most—a standing army on American soil.

The Fourth Amendment prohibits government agents from conducting surveillance on you or touching you or invading you, unless they have some evidence that you’re up to something criminal. In other words, the Fourth Amendment ensures privacy and bodily integrity. Unfortunately, the Fourth Amendment has suffered the greatest damage in recent years and has been all but eviscerated by an unwarranted expansion of police powers that include strip searches and even anal and vaginal searches of citizens, surveillance (corporate and otherwise) and intrusions justified in the name of fighting terrorism, as well as the outsourcing of otherwise illegal activities to private contractors.

The Fifth Amendment and the Sixth Amendment work in tandem. These amendments supposedly ensure that you are innocent until proven guilty, and government authorities cannot deprive you of your life, your liberty or your property without the right to an attorney and a fair trial before a civilian judge. However, in the new suspect society in which we live, where surveillance is the norm, these fundamental principles have been upended. Certainly, if the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights.

The Seventh Amendment guarantees citizens the right to a jury trial. Yet when the populace has no idea of what’s in the Constitution—civic education has virtually disappeared from most school curriculums—that inevitably translates to an ignorant jury incapable of distinguishing justice and the law from their own preconceived notions and fears. However, as a growing number of citizens are coming to realize, the power of the jury to nullify the government’s actions—and thereby help balance the scales of justice—is not to be underestimated. Jury nullification reminds the government that “we the people” retain the power to ultimately determine what laws are just.

The Eighth Amendment is similar to the Sixth in that it is supposed to protect the rights of the accused and forbid the use of cruel and unusual punishment. However, the Supreme Court’s determination that what constitutes “cruel and unusual” should be dependent on the “evolving standards of decency that mark the progress of a maturing society” leaves us with little protection in the face of a society lacking in morals altogether.

The Ninth Amendment provides that other rights not enumerated in the Constitution are nonetheless retained by the people. Popular sovereignty—the belief that the power to govern flows upward from the people rather than downward from the rulers—is clearly evident in this amendment. However, it has since been turned on its head by a centralized federal government that sees itself as supreme and which continues to pass more and more laws that restrict our freedoms under the pretext that it has an “important government interest” in doing so.

As for the Tenth Amendment’s reminder that the people and the states retain every authority that is not otherwise mentioned in the Constitution, that assurance of a system of government in which power is divided among local, state and national entities has long since been rendered moot by the centralized Washington, DC, power elite—the president, Congress and the courts. Indeed, the federal governmental bureaucracy has grown so large that it has made local and state legislatures relatively irrelevant. Through its many agencies and regulations, the federal government has stripped states of the right to regulate countless issues that were originally governed at the local level.

If there is any sense to be made from this recitation of freedoms lost, it is simply this: our individual freedoms have been eviscerated so that the government’s powers could be expanded.

Yet those who gave us the Constitution and the Bill of Rights believed that the government exists at the behest of its citizens. It is there to protect, defend and even enhance our freedoms, not violate them.

It was no idle happenstance that the Constitution opens with these three powerful words: “We the people.” As the Preamble proclaims:

We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this CONSTITUTION for the United States of America.

In other words, we have the power to make and break the government. We are the masters and they are the servants. We the American people—the citizenry—are the arbiters and ultimate guardians of America’s welfare, defense, liberty, laws and prosperity.

Still, it’s hard to be a good citizen if you don’t know anything about your rights or how the government is supposed to operate.

As the National Review rightly asks, “How can Americans possibly make intelligent and informed political choices if they don’t understand the fundamental structure of their government? American citizens have the right to self-government, but it seems that we increasingly lack the capacity for it.”

Americans are constitutionally illiterate.

Most citizens have little, if any, knowledge about their basic rights. And our educational system does a poor job of teaching the basic freedoms guaranteed in the Constitution and the Bill of Rights. For instance, when Newsweek asked 1,000 adult U.S. citizens to take America’s official citizenship test, 44% were unable to define the Bill of Rights.

A survey by the Annenberg Public Policy Center found that a little more than one-third of respondents (36 percent) could name all three branches of the U.S. government, while another one-third (35 percent) could not name a single one. Only a quarter of Americans (27 percent) know it takes a two-thirds vote of the House and Senate to override a presidential veto. One in five Americans (21 percent) incorrectly thinks that a 5-4 Supreme Court decision is sent back to Congress for reconsideration. And more than half of Americans do not know which party controls the House and Senate.

A 2006 survey by the McCormick Tribune Freedom Museum found that only one out of a thousand adults could identify the five rights protected by the First Amendment. On the other hand, more than half (52%) of the respondents could name at least two of the characters in the animated Simpsons television family, and 20% could name all five. And although half could name none of the freedoms in the First Amendment, a majority (54%) could name at least one of the three judges on the TV program American Idol, 41% could name two and one-fourth could name all three.

It gets worse.

Many who responded to the survey had a strange conception of what was in the First Amendment. For example, 21% said the “right to own a pet” was listed someplace between “Congress shall make no law” and “redress of grievances.” Some 17% said that the First Amendment contained the “right to drive a car,” and 38% believed that “taking the Fifth” was part of the First Amendment.

Teachers and school administrators do not fare much better. A study conducted by the Center for Survey Research and Analysis found that one educator in five was unable to name any of the freedoms in the First Amendment.

In fact, while some educators want students to learn about freedom, they do not necessarily want them to exercise their freedoms in school. As the researchers conclude:

Most educators think that students already have enough freedom, and that restrictions on freedom in the school are necessary. Many support filtering the Internet, censoring T-shirts, disallowing student distribution of political or religious material, and conducting prior review of school newspapers.

Government leaders and politicians are also ill-informed. Although they take an oath to uphold, support and defend the Constitution against “enemies foreign and domestic,” their lack of education about our fundamental rights often causes them to be enemies of the Bill of Rights.

So what’s the solution?

Thomas Jefferson recognized that a citizenry educated on “their rights, interests, and duties” is the only real assurance that freedom will survive.

As Jefferson wrote in 1820:

I know no safe depository of the ultimate powers of our society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.

From the President on down, anyone taking public office should have a working knowledge of the Constitution and the Bill of Rights and should be held accountable for upholding their precepts. One way to ensure this would be to require government leaders to take a course on the Constitution and pass a thorough examination thereof before being allowed to take office.

Some critics are advocating that students pass the United States citizenship exam in order to graduate from high school. Others recommend that it must be a prerequisite for attending college. I’d go so far as to argue that students should have to pass the citizenship exam before graduating from grade school.

Here’s an idea to get educated and take a stand for freedom: anyone who signs up to become a member of The Rutherford Institute gets a wallet-sized Bill of Rights card and a Know Your Rights card. Use this card to teach your children the freedoms found in the Bill of Rights.

If this constitutional illiteracy is not remedied and soon, freedom in America will be doomed.

As I make clear in my book Battlefield America: The War on the American People, we have managed to keep the wolf at bay so far. Barely.

Our national priorities need to be re-prioritized. For instance, some argue that we need to make America great again. I, for one, would prefer to make America free again.

As actor-turned-activist Richard Dreyfuss warned:

Unless we teach the ideas that make America a miracle of government, it will go away in your kids’ lifetimes, and we will be a fable. You have to find the time and creativity to teach it in schools, and if you don’t, you will lose it. You will lose it to the darkness, and what this country represents is a tiny twinkle of light in a history of oppression and darkness and cruelty. If it lasts for more than our lifetime, for more than our kids’ lifetime, it is only because we put some effort into teaching what it is, the ideas of America: the idea of opportunity, mobility, freedom of thought, freedom of assembly.

The Bourgeois Conception of “Free Speech” in the U$

In Part 1, I talked about the power of social media giants and claims of “free speech” on their platforms. Again, I am referring just to the U$, as I am most familiar with the debate on “free speech” there. In the future I may expand this analysis to other capitalist countries. The bourgeois conception of “free speech” is so ingrained that Nadine Strossen, a former president of the ACLU, can spout on The Real News about a “we the people” government in the U$, while declaring that government regulation through net neutrality and antitrust laws, along with consumer pressure, and “free speech” (or counter speech) can stop the bigots in their tracks. This is a laughable notion from a person who says porn should be tolerated (not restricted or banned), is currently a contributor for the Federalist Society, criticized campus speech restrictions, and was a friend and fan of Antonin Scalia! She also, infamously, defended the actions of former ACLU president Anthony Romero, who had agreed to “screen the organization’s employees against terrorist “watch lists”…in order to qualify as an officially approved charity for federal employees,” advising the “Ford Foundation to “parrot” the Patriot Act in formulating controversial new restrictions on the speech of its grantees,” and trying to impose “very broad confidentiality agreement and technology rules on ACLU employees,” as argued by former ACLU board member Wendy Kaminer, who also harshly criticized the organization for its policies on civil liberty. As The Onion joked in one article, when Strossen was president, the ACLU declared that it would “”vigorously and passionately defend” the Georgia chapter of the American Nazi Party’s First Amendment right to freely express its hatred of the ACLU by setting its New York office ablaze on Nov. 25.” That’s how ridiculous the ACLU is, without a doubt.

Last year, the Supreme Court held in Packingham v. North Carolina that a North Carolinian law that restricted access of sex offenders to social media violated the First Amendment. More than that, this case, which was the first major case on the topic since the Reno v. ACLU case in 1997, opens the floodgates for “free speech” to apply to the internet as the latter is considered analogous to a public forum, perhaps leading to further jurisprudence. But more than being a supposed victory for “free expression,” which was likely cheered on by the ACLU, Justice Anthony Kennedy’s majority opinion raises the question of what parts of the internet would fall under First Amendment protection. In this opinion, followed by a blistering dissent from Samuel Alito, Kennedy, clearly a tech optimist, wrote that the First Amendment is a “fundamental principle” meaning that “all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more,” adding that this now applies to cyberspace, including social media, with users engaging in a “wide array” of “First Amendment activity” that is “legitimate” and “protected.”

He added that the digital age has a “vast potential to alter how we think, express ourselves, and define who we want to be” which can quickly change, while implying that the First Amendment may offer some protection for access to social media and the internet. As for social media, he argued that it not only allows “users to gain access to information and communicate with one another about it on any subject that might come to mind” but that it is the “modern public square” that, in his view, allows for people to explore “the vast realms of human thought and knowledge…mak[ing] his or her voice heard.” This is clearly an optimistic view of social media which often is filled with utter and mundane garbage. I think social media includes many more pictures of people showing off their dogs, newborn babies, and silly cat videos, than those who engage in discussion that opens “human thought and knowledge.” What is Kennedy smoking here?

With this decision, the arguments of those like the ACLU that want “an uncensored Internet, a vast free-speech zone,” the EFF that wants “sufficient legal protections for users and innovators,” and Strossen, are clearly boosted. Still, this does not mean there will be “free speech” on the internet anytime soon. While the general conception is that “anyone can say anything online,” this is not only changing but it is inaccurate because intimidation is not protected speech on the internet, along with inciting violence, making threats of violence, privacy invasion, defamation, copyright infringement, inciting a riot or inducing lawbreaking, “fighting words,” false advertising, and disrupting school activities, to name a few. While some say that the First Amendment asserts that one can express themselves “without interference or constraint by the government,” the fact is that a government can “place reasonable restrictions on free speech, such as those that restrict the time, place, and manner of the speech.”

Some have tried to use the Packingham decision to declare that there should be “free speech” on the internet. Others, like White nationalists and Neo-Nazis, have gone even further to draw a parallel between private shopping centers and social media platforms! If this connection was to be made, which is a remote and absurd possibility, those on social media would not be able to “unreasonably intrude” on the private property rights of these platforms, having to “reasonably exercise” their rights while their ideas would not be allowed to have “free rein.” Additionally, their words and actions would have to be deemed peaceful, orderly, and not disturbing the functioning of these platforms, with the latter allowed to restrain the “time, place, and manner” of user’s speech. They could be prohibited from imposing “blanket and total prohibition on the exercise of First Amendment activities” of users but they would also be allowed to restrict those engaging such speech so they did not obstruct or unduly interfere with “normal business operations” or does not impede, distract, or interfere with the business itself.

Furthermore, anyone who engaged in substantial damage or physical obstruction of social media could be restricted or banned, along with being prohibited from annoying and harassing individuals. At the same time, while users could have the right to “freedoms of speech and religion” they could also be restricted if there was a public space where they could use their rights apart from social media, and by the fact that the U$ Constitution provides no protection or redress from a private person or corporation, with the 1st and 14th Amendment not applying to action “by the owner of private property used only for private purposes.” This is not what the bigots would want! Even with these interpretations, Twitter could still say it is a private sector company, which requires users to abide by their rules. Additionally, it is worth noting that these social media platforms are not public since the “supposed public square is actually a small group of digital platforms owned by an even smaller group of giant transnational corporations,” a fact that should be obvious.1. Even Mozilla, which says that “the principle of free speech is a foundation of Western democracy” admits that “free speech gets more complicated in private spaces – that is, spaces not owned by the government…private businesses have every right, legally, to refuse service to individuals who don’t adhere to their stated policies.”

Jimmy Dore and others have said the First Amendment should be applied to Facebook (and other social media) because they see it as a public space and have also said that such outlets should be public utilities. Now, in order to be a public utility, these social media companies would have to be classified the same as other companies providing “a service to the public such as transport, energy, telecommunications, waste disposal, or water and any other public goods and services.” The question arises: are companies like Facebook, Twitter, and YouTube, to give a few examples, public service corporations that engage in operations that “serve the needs of the general public or conduce to the comfort and convenience of an entire community,” which currently includes “railroads, gas, water, and electric light companies”? Well, we know they are clearly private companies with operations which are “executed by private individuals,” comprising some of those in the corporate (or private) sector which is “responsible for the allocation of the majority of resources” within a capitalist economy.

Now, to be a public service company, they would have to “provide a service to the public” which includes “transport, communications and the like.” These social media platforms likely would fall into the category of public service company rather than a public service corporation because they do not necessarily serve the needs of the general public or conduce convenience or comfort of an entire community. Instead they gather private information and make it public, selling it for profit, having great power over people’s lives. Likely such efforts to make social media a public utility will fall flat because the U$ government is legally obligated to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation” even with other provisions on civil liability.

The bourgeois conception of “free speech” is broadly held across the Western World. Even the Universal Declaration of Human Rights that recognizes the “right to freedom of thought, conscience and religion” (Article 18) and “right to freedom of opinion and expression” (Article 19) is limited by the fact that everyone can be subject to legal limitations to secure respect and recognition for freedom and rights of others, along with meeting “the just requirements of morality, public order and the general welfare in a democratic society” (Article 29).

There are many laws across the world when it comes to speech, with some countries trying to experiment different levels of censorship online, irking those who defend the bourgeois conception of “freedom of speech,” with some even bringing in anti-communist rhetoric to complain about “the lack of transparency found in Soviet-style governance structures” disappearing in Eastern Europe. Some, like the horrid organization, FIRE (Foundation for Individual Rights in Education) have declared that “the best antidote to tyranny is free and spirited debate, not suppression of speech,” which Jimmy Dore basically expressed on his show, while others like HRW or The Guardian complain about the “Great Chinese Firewall” and challenges “journalists, bloggers and dissidents” have to undertake. This has led to a list of “enemies” of the internet and efforts to break through claimed “closed societies” (one organization gives the examples of Iran and China), believing that making these societies “open” will bring goodness to the world. This id despite the fact that the internet has “been a revolution for censorship as much as for free speech” as The Guardian admitted back in 2008, which anyone with sense would recognize.

Clearly, the majority of those in the Western Left are indoctrinated to think they are free, leading them attack other leftists across the world who holding power as noted by Andre Vltchek. However, his analysis is faulty since he incorrectly describes China, part of the revisionist triad (the other two countries in this triad are Laos and Vietnam), as communist when it has actually been on the capitalist road since 1976, with a form of state-supported form of capitalism which is different from that of the West, and saying that Russia’s policy is “clearly anti-imperialist” when it is actually just nationalistic.

Clearly, some individuals have more of an ability for speech than others. As the subreddit of /r/communism puts it rightly, which I still agree with even though I was ousted as a mod after I began criticizing China as capitalist rather than saying it is socialist (consensus of the subreddit’s mods), “speech, like everything else, has a class character, and that some speech can be oppressive.” This is something those who believe in the bourgeois conception of “free speech” cannot and will not acknowledge. As one person put on Twitter, after responding to a story that the court system in the U$ repealed a law forcing porn companies to “prove that their performers are of age,” that the principle of “free speech” in the U$ almost seems that it is “inherently bourgeois.”

In the capitalist society of the U$ this bourgeois conception of free speech manifests itself by capitalists like Robert Mercer, the Koch Brothers, George Soros, Pierre Omidyar, Mark Zuckerberg, Elon Musk, and many others, having the ability to publish and project their speech more than those on meager budgets. Basically, this means that ordinary people, the proletariat, have no influence (or power in) on the decision-making and politics of the U$ despite all rhetoric claiming they have such influence. How this manifests itself in the world of “free speech” is it means that those capitalists who are hatemongers can spread their horrid message far and wide while those who try to counter them get less exposure.2

We do not have to give such speech “respect” as some have declared we should, since there is the idea of the heckler’s veto, where a public event is canceled or suppressed due to “interruptions, protests, or violence” or the threat of such actions, one of the many tools, apart from de-platforming (not by social media outlets, but literally in person or by organizing against them online) which can be used to fight against bigoted or otherwise detestable individuals. In the end, there should be criticism (and efforts to counter) corporate control over information but this does not mean we have to defend hateful speech. Instead, those who speak truth to power, especially on the political Left, should be vigorously defended. As Michael Parenti once put it, “democratic victories, however small and partial they be, must be embraced…We need to strive in every way possible for the revolutionary unraveling, a revolution of organized consciousness striking at the empire’s heart with the full force of democracy, the kind of irresistible upsurge that seems to come from nowhere while carrying everything before it.” Victory to the proletariat! A socialist world is possible!

  1. Paul Blumenthal, “The Problem Isn’t Alex Jones’ Free Speech, It’s Digital Platform Monopolies,” HuffPost, August 11, 2018.
  2. The U$ is standing against principles outlined in many international agreements like the UN’s Millennium Declaration (in its section about equality between men and women and “participatory governance), the Vienna Declaration (has a section saying that the international community should comprehensively and speedily elimination all forms of racism, racial discrimination, xenophobia, and other intolerance), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (which says that all states have to pursue a policy of eliminating all forms of racial discrimination, promoting racial understanding, condemn racist propaganda, eradicate all incitement to discrimination, and declare those organizations that engage in racist propaganda illegal), and the International Covenant on Civil and Political Rights (1966) (with a section about how freedom of religion and beliefs is protected by subject to certain limitations, and that “propaganda of war” along with any “advocacy of national, racial or religious hatred” has to be prohibited).

The First Thing We Do

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

c.f.5

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

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

Authoritarian Revocations: Australia, Terrorism and Citizenship

Contrary to any popular perceptions of Australia’s legal system, a dislike of rights reigns with pious conviction on both sides of the political aisle.  Rights are the stuff of nonsense and nuisance, revocable for those deemed undesirable. The Australian constitution, a heavily dull document, remains silent on many important liberties; the common law is relied upon to fill in gaps (think of that conjuration known as the implied constitutional right to freedom of communication on political subjects). Parliament, mystically wise, is meant to be the grand guardian.

In terms of citizenship, Australia’s parliament has been rather cavalier on the idea of citizenship, exploiting the absence of any specific reference to the term in the arid document that grants it legislative powers.  In 2015, national security considerations became the basis for legislation stripping individuals of citizenship in certain instances where terrorism was an issue.  While citizenship can be lost in certain instances common to other countries, the arbitrary revocation of citizenship via executive fiat is possible under the Citizenship Act 2007 (Cth).

The relevant minister, goes the wording of s. 35A, “may determine in writing that a person ceases to be an Australian citizen” in various instances involving convictions for certain offences, including terrorism.  But convictions might not be necessary; the minister might deem it against the public interest for the person to remain an Australian citizen. This is all made ever vaguer on the issue of what constitutes recruitment and the status of foreign fighters.  We remain at the mercy of “security” considerations.

Parliament did stop short of rendering citizens stateless, making the provisions apply to dual nationals.  But it yielded two outcomes: that the relevant minister would be effectively governed by the consideration that the Australian citizen might have citizenship of another country, however tenuous that link would be, and that any powers to deprive that person of Australian citizenship could be exercised to limited review.

This curiously venal formulation was always problematic; for one, such laws are not, specifically, “with respect to aliens” or with respect to immigration, terminology that is to be found in the constitution.

Khaled Sharrouf became the debutant to lose his Australian citizenship under the amendments, his reputation marked by a spectacularly gruesome display of images sporting his son holding a severed head.

Five Islamic State supporters can now deem themselves former Australian citizens.  Details are scant.  All it took was a decision by the Home Affairs Minister, Peter Dutton.  There was no presiding judge, nor scrutinising judicial proceeding to oversee the merits of the decision.  There was no context supplied as to what support was given to Islamic State.  “We have taken a decision that these people have been involved in serious terrorist-related activity.”  No guidelines were disclosed supporting the decision, no taxing criteria by which we could even say that these supporters should be deprived of their bit of paperwork.

Dutton admits that there was something akin to a process, but openly admits conflict zones present different challengers to the investigator.  “Obviously when you are talking about a war zone, it is a very different circumstance than a crime zone in Australia in terms of gathering evidence.”

Not that this evidentiary hurdle troubles him.  Intelligence assessments and briefings do not necessarily stand the test of a withering legal examination, but for Dutton they constitute the legal basis for alleviating individuals of their citizenship.

The issues of belonging and involvement in civic life are troubling propositions. Stripping citizenship is an announcement that the time for belonging is over.  But it is also an assertion that there is no redemption and challenge.  Like the despot’s favour, Dutton can designate individuals terrorists with capricious ease, a situation that does not broker appeal except in exceptional cases.  That very repellent, illiberal fact runs against the concept of holding an overly zealous executive to account.

All that matters for Dutton is the public safety rationale, a concept of such fuzziness it is susceptible to convenient abuse. “The determination of the Government is to try and keep Australia as safe as possible and we do that by keeping these people far from our shores so if we can deal with foreign fighters away from our shores we do that.”

Such occasions should strike fear into the citizenry of any self-respecting state.  Dutton has assumed the position of assessor, deliberator, and executor, his crude paternalism a conspicuous threat to civil liberties.  Policing roles have been fused with the judicial, the very definition of an unchecked tyrant.  Whatever the nature of those who deemed it necessary to join a cause or find solace in the organisational bosom of an officially designated terrorist group (and the options are many) the ease by which they lost their status is more than troubling.  The Magna Carta, it would seem, is a dead letter, a fact that should be a cause for lengthy mourning.

Institutionalizing Intolerance: Bullies Win, Freedom Suffers When We Can’t Agree to Disagree

Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.
― Benjamin Franklin

What a mess.

As America has become ever more polarized, and those polarized factions have become more militant and less inclined to listen to—or even allow for the existence of—other viewpoints, we are fast becoming a nation of people who just can’t get along.

Here’s the thing: if Americans don’t learn how to get along—at the very least, agreeing to disagree and respecting each other’s right to subscribe to beliefs and opinions that may be offensive, hateful, intolerant or merely different—then we’re going to soon find that we have no rights whatsoever (to speak, assemble, agree, disagree, protest, opt in, opt out, or forge our own paths as individuals).

In such an environment, when we can’t agree to disagree, the bullies (on both sides) win and freedom suffers.

Intolerance, once the domain of the politically correct and self-righteous, has been institutionalized, normalized and politicized.

Even those who dare to defend speech that may be unpopular or hateful as a constitutional right are now accused of “weaponizing the First Amendment.”

On college campuses across the country, speakers whose views are deemed “offensive” to some of the student body are having their invitations recalled or cancelled, being shouted down by hecklers, or forced to hire costly security details. As The Washington Post concludes, “College students support free speech—unless it offends them.”

At Hofstra University, half the students in a freshman class boycotted when the professor assigned them to read Flannery O’Connor’s short story “Artificial Nigger“. As Professor Arthur Dobrin recounts:

The boycotters refused to engage a writer who would use such an offensive word. They hadn’t read the story; they wouldn’t lower themselves to that level. Here is what they missed: The story’s title refers to a lawn jockey, a once common ornament of a black man holding a lantern. The statue symbolizes the suffering of an entire group of people and looking at it bring a moment of insight to a racist old man.

It’s not just college students who have lost their taste for diverse viewpoints and free speech.

In Charlottesville, Va., in the wake of a violent clash between the alt-right and alt-left over whether Confederate statues should remain standing in a community park, City Council meetings were routinely “punctuated with screaming matches, confrontations, calls to order, and even arrests,” making it all but impossible for attendees and councilors alike to speak their minds.

In Maryland, a 90-year-old World War I Peace Cross memorial that pays tribute to the valor, courage and sacrifice of 49 members of the Prince George community who died in battle is under fire because a group of humanists believes the memorial, which evokes the rows of wooden Latin Crosses that mark the graves of WW I servicemen who fell on battlefields far away, is offensive.

On Twitter, President Trump has repeatedly called for the NFL to penalize players who take a knee in protest of police brutality during the national anthem, which clearly flies in the face of the First Amendment’s assurance of the right to free speech and protest (especially in light of the president’s decision to insert himself—an agent of the government—into a private workplace dispute).

On Facebook, Alex Jones, the majordomo of conspiracy theorists who spawned an empire built on alternative news, has been banned for posting content that violates the social media site’s “Community Standards,” which prohibit posts that can be construed as bullying or hateful.

Jones is not alone in being censured for content that might be construed as false or offensive.

Facebook also flagged a Canadian museum for posting abstract nude paintings by Pablo Picasso.

Even the American Civil Liberties Union, once a group known for taking on the most controversial cases, is contemplating stepping back from its full-throated defense of free (at times, hateful) speech.

“What are the defenders of free speech to do?” asks commentator William Ruger in Time magazine.

“The sad fact is that this fundamental freedom is on its heels across America,” concludes Ruger. “Politicians of both parties want to use the power of government to silence their foes. Some in the university community seek to drive it from their campuses. And an entire generation of Americans is being taught that free speech should be curtailed as soon as it makes someone else feel uncomfortable. On the current trajectory, our nation’s dynamic marketplace of ideas will soon be replaced by either disengaged intellectual silos or even a stagnant ideological conformity. Few things would be so disastrous for our nation and the well-being of our citizenry.”

Disastrous, indeed.

You see, tolerance cuts both ways.

This isn’t an easy pill to swallow, I know, but that’s the way free speech works, especially when it comes to tolerating speech that we hate.

The most controversial issues of our day—gay rights, abortion, race, religion, sexuality, political correctness, police brutality, et al—have become battlegrounds for those who claim to believe in freedom of speech but only when it favors the views and positions they support.

Free speech for me but not for thee” is how my good friend and free speech purist Nat Hentoff used to sum up this double standard.

This haphazard approach to the First Amendment has so muddied the waters that even First Amendment scholars are finding it hard to navigate at times.

It’s really not that hard.

The First Amendment affirms the right of the people to speak freely, worship freely, peaceably assemble, petition the government for a redress of grievances, and have a free press.

Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense, hurting someone’s feelings, safeguarding government secrets, protecting government officials, insulating judges from undue influence, discouraging bullying, penalizing hateful ideas and actions, eliminating terrorism, combating prejudice and intolerance, and the like.

Unfortunately, in the war being waged between free speech purists who believe that free speech is an inalienable right and those who believe that free speech is a mere privilege to be granted only under certain conditions, the censors are winning.

We have entered into an egotistical, insulated, narcissistic era in which free speech has become regulated speech: to be celebrated when it reflects the values of the majority and tolerated otherwise, unless it moves so far beyond our political, religious and socio-economic comfort zones as to be rendered dangerous and unacceptable.

Protest laws, free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws and a host of other legalistic maladies dreamed up by politicians and prosecutors (and championed by those who want to suppress speech with which they might disagree) have conspired to corrode our core freedoms, purportedly for our own good.

On paper—at least according to the U.S. Constitution—we are technically free to speak.

In reality, however, we are only as free to speak as a government official—or corporate entities such as Facebook, Google or YouTube—may allow.

Emboldened by phrases such as “hate crimes,” “bullying,” “extremism” and “microaggressions,” the nation has been whittling away at free speech, confining it to carefully constructed “free speech zones,” criminalizing it when it skates too close to challenging the status quo, shaming it when it butts up against politically correct ideals, and muzzling it when it appears dangerous.

Free speech is no longer free.

The U.S. Supreme Court has long been the referee in the tug-of-war over the nation’s tolerance for free speech and other expressive activities protected by the First Amendment. Yet the Supreme Court’s role as arbiter of justice in these disputes is undergoing a sea change. Except in cases where it has no vested interest, the Court has begun to advocate for the government’s outsized interests, ruling in favor of the government in matters of war, national security, commerce and speech.

When asked to choose between the rule of law and government supremacy, the Supreme Court tends to side with the government.

If we no longer have the right to tell a Census Worker to get off our property, if we no longer have the right to tell a police officer to get a search warrant before they dare to walk through our door, if we no longer have the right to stand in front of the Supreme Court wearing a protest sign or approach an elected representative to share our views, if we no longer have the right to voice our opinions in public—no matter how misogynistic, hateful, prejudiced, intolerant, misguided or politically incorrect they might be—then we do not have free speech.

What we have instead is regulated, controlled speech, and that’s a whole other ballgame.

Just as surveillance has been shown to “stifle and smother dissent, keeping a populace cowed by fear,” government censorship gives rise to self-censorship, breeds compliance, makes independent thought all but impossible, and ultimately foments a seething discontent that has no outlet but violence.

The First Amendment is a steam valve. It allows people to speak their minds, air their grievances and contribute to a larger dialogue that hopefully results in a more just world.

When there is no steam valve—when there is no one to hear what the people have to say—frustration builds, anger grows and people become more volatile and desperate to force a conversation. By bottling up dissent, we have created a pressure cooker of stifled misery and discontent that is now bubbling over and fomenting even more hate, distrust and paranoia among portions of the populace.

Silencing unpopular viewpoints with which the majority might disagree—whether it’s by shouting them down, censoring them, muzzling them, or criminalizing them—only empowers the controllers of the Deep State.

Even when the motives behind this rigidly calibrated reorientation of societal language appear well-intentioned—discouraging racism, condemning violence, denouncing discrimination and hatred—inevitably, the end result is the same: intolerance, indoctrination and infantilism.

It’s political correctness disguised as tolerance, civility and love, but what it really amounts to is the chilling of free speech and the demonizing of viewpoints that run counter to the cultural elite.

We’ve allowed ourselves to be persuaded that we need someone else to think and speak for us. And we’ve allowed ourselves to become so timid in the face of offensive words and ideas that we’ve bought into the idea that we need the government to shield us from that which is ugly or upsetting or mean.

The result is a society in which we’ve stopped debating among ourselves, stopped thinking for ourselves, and stopped believing that we can fix our own problems and resolve our own differences.

In short, we have reduced ourselves to a largely silent, passive, polarized populace incapable of working through our own problems with each other and reliant on the government to protect us from our fears of each other.

So where does that leave us?

We’ve got to do the hard work of figuring out how to get along again.

Charlottesville, Va., is a good example of this.

It’s been a year since my hometown of Charlottesville, Va., became the poster child in a heated war of words—and actions—over racism, “sanitizing history,” extremism (both right and left), political correctness, hate speech, partisan politics, and a growing fear that violent words would end in violent actions.

Those fears were realized when what should have been an exercise in free speech quickly became a brawl that left one activist dead.

Yet lawful, peaceful, nonviolent First Amendment activity did not kill Heather Heyer. She was killed by a 20-year-old Neo-Nazi who drove his car into a crowd of pedestrians in Charlottesville, Va.

Words, no matter how distasteful or disagreeable, did not turn what should have been an exercise in free speech into a brawl. That was accomplished by militant protesters on both sides of the debate who arrived at what should have been a nonviolent protest armed with sticks and guns, bleach bottles, balloons filled with feces and urine and improvised flamethrowers, and by the law enforcement agencies who stood by and allowed it.

This is what happens when we turn our disagreements, even about critically and morally important issues, into lines in the sand.

If we can’t agree to disagree—and learn to live with each other in peace and speak with civility in order to change hearts and minds—then we’ve reached an impasse.

That way lies death, destruction and tyranny.

Now, there’s a big difference between civility (treating others with consideration and respect) and civil disobedience (refusing to comply with certain laws as a means of peaceful protest), both of which Martin Luther King Jr. employed brilliantly, and I’m a champion of both tactics when used wisely.

Frankly, I agree with journalist Bret Stephens when he says that we’re failing at the art of disagreement.

As Stephens explains in a 2017 lecture, which should be required reading for every American:

To say the words, ‘I agree’—whether it’s agreeing to join an organization, or submit to a political authority, or subscribe to a religious faith—may be the basis of every community. But to say, I disagree; I refuse; you’re wrong; etiam si omnesego nonthese are the words that define our individuality, give us our freedom, enjoin our tolerance, enlarge our perspectives, seize our attention, energize our progress, make our democracies real, and give hope and courage to oppressed people everywhere. Galileo and Darwin; Mandela, Havel, and Liu Xiaobo; Rosa Parks and Natan Sharansky — such are the ranks of those who disagree.

What does it mean to not merely disagree but rather to disagree well?

According to Stephens, “to disagree well you must first understand well. You have to read deeply, listen carefully, watch closely. You need to grant your adversary moral respect; give him the intellectual benefit of doubt; have sympathy for his motives and participate empathically with his line of reasoning. And you need to allow for the possibility that you might yet be persuaded of what he has to say.”

Instead of intelligent discourse, we’ve been saddled with identity politics, “a safe space from thought, rather than a safe space for thought.”

Safe spaces.

That’s what we’ve been reduced to on college campuses, in government-run forums, and now on public property and on previously open forums such as the internet.

The problem, as I make clear in my book A Government of Wolves: The Emerging American Police State, is that the creation of so-called safe spaces—where offensive ideas and speech are prohibited—is just censorship by another name, and censorship breeds resentment, and resentment breeds conflict, and unresolved, festering conflict gives rise to violence.

Charlottesville is a prime example of this.

Anticipating the one-year anniversary of the riots in Charlottesville on August 12, the local city government, which bungled its response the first time around, is now attempting to ostensibly create a “safe space” by shutting the city down for the days surrounding the anniversary, all the while ramping up the presence of militarized police, in the hopes that no one else (meaning activists or protesters) will show up and nothing (meaning riots and brawls among activists) will happen.

What a mess!

How Does Canada Escape Prosecution for Genocide?

Can Canada continue to commit what is an enumerated act of genocide by the UNGC [United Nations Genocide Convention] and excuse itself by continuing to say that it is not intending what the Genocide Treaty recognizes as the result of such an act… ?

— Tamara Starblanket1

Genocide is a heinous crime that fractures and dehumanizes humanity. Science tells us that we are all taxonomically Homo sapiens. Yet most of us tend to divide into Us and Them groupings, sometimes leading to in-group and out-group competition that can turn violent. In the worst cases, the monstrous result is the decimation of the different group.

The carrying out of a genocide doesn’t require annihilatory bombing or the mowing down of a particular targetted group. Neither does genocide require a lightning temporality in execution. Genocide merely requires the intent to bring about the destruction of a targetted group by whatever manner, unbounded by a specific timeframe. Humans steer genocide: a malicious force capable of an evil genius in linguistically guising its execution, as well as being capable of extreme patience in achieving its pernicious aims.

A particular example of an under-the-radar genocide is that carried out by European settler-colonialists who denationalized all the Original Nations of the western hemisphere. There are non-indigenous people who are aware and acknowledge that genocide occurred, but few would realize or acknowledge that the genocide continues. That is much of the importance of Tamara Starblanket’s Suffer the Little Children: Genocide, Indigenous Nations and the Canadian State (Clarity Press, 2018).

Starblanket is a Nehiyaw iskwew (Cree woman) from Ahtahkakoop First Nation in Treaty Six Territory — in the region colonially designated as Shell Lake, Saskatchewan, Canada. Her Suffer the Little Children is based on her Master of Laws thesis which, she relates, met with obstruction from “Canada’s academic gatekeepers.”2

Suffer the Little Children details the Canadian state’s Indian Residential School (IRS) program — a policy whose intent was the disappearance of Indigenous peoples. As such it constitutes genocide. Moreover, by prefacing the genocide with the descriptor “cultural,” as in cultural genocide, the destruction seemingly points to the abstraction of culture, thereby eliding the lethal effects on humans.

Starblanket cuts through the lexical obfuscation and compellingly makes known that the genocide continues “in somewhat altered form, and the toll continues to mount.” (p 22)

One narrative, however, is largely controlled by the state and dependent media. A stark example is the “apology” read by then Canadian prime minister Stephen Harper about the “sad chapter” of the IRS.

How sincere an “apology” was it? Has the Canadian state subsequently set out to meaningfully atone for the genocide? The author asks:

But has the Canadian state put effort into assisting the victims of the residential schools to re-learn traditional parenting skills before the birth of children? Has the state stopped the forcible removals in the child welfare system? All the aggravates not mitigates the Canadian government’s conduct? (p 265)…

It is hypocritical for the state of Canada and Canadians to pretend to Indigenous Peoples and Nations and to the world at large that they are ‘sorry’ when it’s obvious the Canadian state, at least, is anything but…. Furthermore, there is no ‘apology’ that would undo or make the atrocious crimes it has engaged in ‘forgiveable’. It is a smokescreen designed by the colonizer to absolve itself of the crimes it knowingly engages in against the innocent.” (p 273-274)

The “apology” was followed by a government-created Truth and Reconciliation Commission (TRC) to document the history and make known what happened in IRS. Starblanket, however, argues that “the TRC adheres to the federal script in every significant respect,” (p 27) evades addressing genocide, (p 28) and is “very far from the truth.” (p 28)

The Canadian government apparently attempted to burnish its image based on the goodwill and generosity demonstrated by the Truth and Reconciliation Commission in South Africa. In South Africa, the TRC was establised by the people who survived the apartheid regime — not by the oppressors. Unlike in South Africa, the Canadian TRC was set up by the colonial-settler political estalishment.

Evading a monstrous crime such as genocide is problematic on many levels, including legally and morally; nonetheless the evasion continues in Canada. One legal obstacle is demostrating the intent of the genocidaire. Starblanket writes that “the specific intent requirement actually serves the denial of genocide due to its difficulty to prove.” (p 32)

Starblanket cites the International Criminal Tribunal findings in Karadzic and Akayesu as indicating: “If the destruction is massive, widespread and systematic this will satisfy the specific intent requirement.” (p 74)

However, Canada and the colonial powers displayed bad faith in the drafting of the UNGC. “In effect, as a result of the colonial powers’ dominance over the drafting process, international laws fail to protect against the imposition of a colonial framework of destruction over Indigenous Peoples.” (p 77) “The necessary point to draw … is that colonialism is regarded as a genocidal process by the very fact that it came up in the drafting process of the genocide convention.” (p 81)

Starblanket argues that Canada was aware of legal loopholes in the Genocide Convention that would allow it to evade culpability. (p 213) Furthermore, “If Canada intended to have entire segments of the convention excluded from its domestic laws, it was under an obligation to make a formal reservation.” (p 229)

That the forced transfer of children has taken place suggests an implied reservation by Canada. (p 229) Yet the International Court of Justice determined that parties to the Genocide Convention could not make sovereign reservations to the convention. (p 232) Building her case further, Starblanket points to Article 18 of the Vienna Convention which prohibits states involved in criminal conduct from entering into treaty on such a conduct, in this case genocide. (p 235)

Starblanket describes the IRS as a total institution, an institution whose purpose is dehumanization. (p 97, 342) Among the outcomes wrought by the IRS total institution are:

  1. linguicide3 — as the state realized the importance of transmitting culture from one generation to the next and sought to stultify such transference; colonial language attempts to finalize domination and dehumanization (p 162); “… children do not learn that we have names in our original languages that identify our lands and territories.” (p 189); “Spiritual laws are encoded into Indigenous languages.” (p 202)
  2. deculturation
  3. religious indoctrination
  4. slave labor
  5. torture
  6. starvation
  7. trauma — such as compelling Indigenous students to witness the public execution of eight Cree men (p 118)
  8. beatings, rapes, killings — all this disguised euphemistically to thwart legal efforts proving state culpability. (p 156)

The genocide continues unabated. The author writes that the IRS negated adult survivors’ ability to parent. IRS children lived the example of violence used to coerce their obedience. Post-IRS enter the child welfare system and children continue to be “removed” and isolated from biological parents, family, community, and their First Nation. This was not, as the language implies, a Sixties Scoop. Starblanket finds that such naming masks the ongoing genocide within Canada’s child welfare system. (p 221) The ongoing genocide is revealed by 2011 statistics: whereas Indigenous children represent 7% of all children in Canada, they account for 48% of children placed in foster care. (p 133-134)

Starblanket points to cognitive conditioning whereby:

… ‘laws of occupation’ … serve as the cornerstone of legalized persecution and oppression of Indigenous Nations in the colonizer’s quest for land. Colonial domination justified by the dehumanizing Western doctrine of racial superiority is vital to the process of genocide. (p 190)

Starblanket argues, “The application of the law [will] show beyond a reasonable doubt, to say nothing of a preponderance of the evidence, that the Canadian government is culpable for crimes of genocide.” (p 244) After reading Suffer the Little Children, it is difficult to rationally or morally reach a different conclusion.

The book is bold and well-argued, and it should be read widely; however, a few points vexed me.

1) Starblanket cites the ruling from Akayesu and the purported genocide of Tutsis committed by Hutus. (p 263) Granted, Starblanket is interested in the legal determinations concerning the genocide, and, of course, the ruling of the court has salience. However, when the validity of the court is dubious and the question is raised of whether a genocide could be insidiously twisted such that the perpetrators escape justice and even benefit from the horrific crime then such matters demand addressing.4,5

2) Starblanket cites academics David MacDonald and Graham Hudson who state that there have been few occasions for Canadian courts to consider the Genocide Convention in criminal proceedings. (p 211; See David MacDonald and Graham Hudson, “The Genocide Question and Indian Residential Schools in Canada,” 2012. PDF: p 14.) Suffer the Little Children has not cited Bruce Clark, PhD in comparative law,6 who has doggedly (some may say overzealously; but how can one be overzealous in fighting against genocide?) attempted to pursue the matter of genocide in Canadian courts where he and his clients have been stymied by the legal system’s Catch-22. This is missing from MacDonald and Hudson’s paper and Starblanket’s thesis. It seems pertinent.

Starblanket replied that she was not encouraged to include Clark’s work since she was building her own case and it was considered unnecessary to prove her legal arguments to her committee.7 Maybe so. But it seems crucial to points she raised in her book.8

3) Granted, Starblanket is focused on IRS and Article 2(e) of the Genocide Convention: “Forcibly transferring children of the group to another group.” Yet no mention was made of biological warfare against Original Peoples.9

A Quick Historical Overview, Solution, and Duty

The Original Peoples had lived on Turtle Island for millennia when the Europeans first reached the continent’s shores. The Europeans brought with them their supremacist notions and dehumanized the Original Peoples as savages and heathens. Preposterously, the colonial-settlers considered that this gave them the right to dispossess the First Nations and wreak a genocide. First Nations’ children were kidnapped and indoctrinated into the White man’s ways. Today, the dispossessed remain dispossessed and the genocide continues within the child welfare system.

The solution (the only solution according to the author) to the injustices lies in Indigenous peoples ridding themselves of the yoke of colonial dispossession and seizing what is their sovereign right to self-determination.

Starblanket speaks to non-indigenous Canadians:

It is up to you finally to be the generation of settlers that stands up against the crimes that are committed against Original Peoples and Nations of this Western hemisphere and the world. (p 278)

I concur. For those not already aware (and those who wish to deepen their knowedge), read the book and stand in solidarity against the crimes that are committed against Original Peoples and their nations.

  1. In Suffer the Little Children: Genocide, Indigenous Nations and the Canadian State (Clarity Press, 2018): p 208.
  2. Academic gatekeeping regarding Original Peoples is no surprise to this writer. See “Canadian Government and Academia: ‘Othering’ Original Peoples,” Dissident Voice, 2014.
  3. In 1890, 100% of First Nations people spoke the Indigenous tongue compared to 5.1% in 2010. “Report on the Status of B.C. First Nations Languages 2010.”
  4. See Keith Harmon Snow, “The Rwanda Genocide Fabrications,” Dissident Voice, 13 April 2009 and “Real Rwandan Genocide and Brainwashing of the Western Mind,” Dissident Voice, 11 April 2014. Edward S. Herman and David Peterson in Enduring Lies: The Rwandan Genocide in the Propaganda System, 20 Years Later (CreateSpace Independent Publishing Platform, 2014) write that the victims and the perpetrators of genocide have been inverted, abetted by the US, UK, and Canada. Moreover, “a larger–apparently substanially larger–death toll was suffered by Hutu [compared to Tutsi]…”
  5. Keith Harmon Snow, who has been working on the politics of genocide for years, sees the merit and power of Starblanket’s book. But he wonders, “How so many people cite wrong cases of genocide, or fail to cite true cases, and all the other kinds of political, intentional, accidental, ethical errors and commissions and propaganda.” Snow considers, “Akayesu, and many of the other cases were a complete sham.” Snow particularly dissents from Starblanket’s promulgation of the establishment narrative on page 74: “‘(Tutsi peoples)’ as victims but this lacks all appropriate situating of genocide, war crimes or crimes against humanity in Rwanda, and so it contributes to the perpetuation of genocide (ongoing) against the Hutu peoples in service to the establishment interests.” Herein Snow identifies a problem: “On the one hand she [Starblanket] wants to challenge the establishment; on the other she uses the tools of the empire (establishment agents) to try to do so.” Personal communication, 1 August 2018.
  6. Clark is the author of Indian Title in Canada (1986) and Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada (1990), Justice in Paradise (2004), and the upcoming (2018) Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights.
  7. Dana Kaminstein, professor and capstone advisor at the University of Pennsylvania states, “The literature review for a master’s thesis or capstone… needs to be a substantive part of the paper. The focus should be on making sure that the literature that is covered is directly related to the research question(s) in the thesis, as well as being clear about what areas have been left out, and the reasons for excluding them. (p 3)
  8. E.g., at footnote 88 (p 352) Starblanket writes, “The point being there is no Canadian Court that has applied the term genocide or acknowledged the application of genocide in international law to government culpability into genocide.” That is precisely what Clark has been struggling against at great personal cost.
  9. 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). Review.