Category Archives: Legal/Constitutional

It is Not Love that Abandons Its Treaties

The Tsilhqot’in Struggle

On 26 March 2018, Canada’s prime minister Justin Trudeau spoke of the six Tsilhqot’in chiefs who were arrested during a sacred peace-pipe ceremony and subsequently hanged for their part in a war to prevent the spread of smallpox by colonialists: “We recognize that these six chiefs were leaders of a nation, that they acted in accordance with their laws and traditions and that they are well regarded as heroes of their people.”

“They acted as leaders of a proud and independent nation facing the threat of another nation.”

“As settlers came to the land in the rush for gold, no consideration was given to the rights of the Tsilhqot’in people who were there first,” Trudeau said. “No consent was sought.”

In recent years, the Tsilhqot’in people were engaged in a long, drawn-out fight to gain sovereignty over their unceded territory, spurred by the attempts of Taseko Mines to situate an open-pit copper-and-gold mine near the trout-rich Teẑtan Biny (Fish Lake). Also proposed was “destroying Yanah Biny (Little Fish Lake) and the Tŝilhqot’in homes and graves located near that lake, to make way for a massive tailings pond.”

The Supreme Court decision in Tsilhqot’in Nation v British Columbia, (2014), upheld Indigenous title as declared in an earlier Supreme Court decision, Delgamuukw v British Columbia, (1997).

The Wet’suwet’in Struggle

Sometimes the law works (even colonial law), and sometimes it doesn’t. Neither the Tsilhqot’in or Delgamuukw legal precedents have, so far, buttressed the Wet’suwet’en people’s fight against the encroachment of a pipeline corporation.

In the unceded territory of the Wet’suwet’en First Nation, corporate Canada and the government of Canada are violently seeking to ram a pipeline through Wet’suwet’en territory despite its rejection by all five hereditary chiefs; i.e., no consent has been given for the laying of a pipeline.

The Gidimt’en land defenders of the Wet’suwet’en turned to the international forum and made a submission to the United Nations Human Rights Council’s Expert Mechanism on the Rights of Indigenous People on the “Militarization of Wet’suwet’en Lands and Canada’s Ongoing Violations.”  The submission was co-authored by leading legal, academic, and human rights experts in Canada, and is supported by over two dozen organisations such as the Union of BC Indian Chiefs and Amnesty International-Canada.

The submission to the UN was presented by hereditary chief Dinï ze’ Woos (Frank Alec), Gidimt’en Checkpoint spokesperson Sleydo’ (Molly Wickham), and Gidimt’en Checkpoint media coordinator Jen Wickham. It makes the case that forced industrialization by Coastal GasLink and police militarization on Wet’suwet’en land is a repudiation of Canada’s international obligations as stipulated in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Their submission states:

Ongoing human rights violations, militarization of Wet’suwet’en lands, forcible removal and criminalization of peaceful land defenders, and irreparable harm due to industrial destruction of Wet’suwet’en lands and cultural sites are occurring despite declarations by federal and provincial governments for reconciliation with Indigenous peoples. By deploying legal, political, and economic tactics to violate our rights, Canada and BC are contravening the spirit of reconciliation, as well as their binding obligations to Indigenous law, Canadian constitutional law, UNDRIP and international law.

Sleydo’ relates the situation:

We urge the United Nations to conduct a field visit to Wet’suwet’en territory because Canada and BC have not withdrawn RCMP from our territory and have not suspended Coastal GasLink’s permits, despite the United Nations Committee on the Elimination of Racial Discrimination calling on them to do so. Wet’suwet’en is an international frontline to protect the rights of Indigenous peoples and to prevent climate change. Yet we are intimidated and surveilled by armed RCMP, smeared as terrorists, and dragged through colonial courts. This is the reality of Canada.

In the three large-scale police actions that have transpired on Wet’suwet’en territory since January 2019, several dozens of people have been arrested and detained, including legal observers and media. On 13 June 2022, the Unist’ot’en Solidarity Brigade expressed outrage that the BC Prosecution Service plans to pursue criminal contempt charges against people opposed to the trespass of Wet’suwet’en territory, including Sleydo’.

Treaty Treatment

The Wet’suwet’en are on their ancestral unceded lands. Would it have made a difference if they had signed a treaty with the colonial entity?

The book We Remember the Coming of the White Man (Durville, 2021), edited by Sarah Stewart and Raymond Yakeleya, does not augur a better outcome for the First People.

We Remember adumbrates how the treaty process operates under colonialism:

When our Dene People signed Treaty 11 in 1921, there had been no negotiation because the Treaty translators were not able to translate the actual language used in the document. There was not enough time for our People to consult with each other. Our Dene People were given a list that had been written up by bureaucrats declaring the demands of Treaty 11. They dictated to the Dene, ‘This is what we want. You have to agree, and sign it.’ We did not know what the papers contained. (p ix)

Treaties and contracts signed under duress are not legally binding. Forced signing of a treaty is on-its-face preposterous to most people with at least half a lobe. It is no less obvious to the Dene of the Northwest Territories:

How can you demand something from People who cannot understand? That’s a crime. I have often said that Treaty 11 does not meet the threshold of being legal. In other words, when we make a treaty, it should be you understand, I understand, and we agree. In this case, the Dene did not understand. (p x)

Unfortunately, the Dene trusted an untrustworthy churchman. The Dene signed on the urging of Bishop Breyant, a man of God, because they had faith in the Roman Catholic Church. (p x)

Oil appeals to those with a lust for lucre. This greed contrasts with traditional Dene customs. Walter Blondin writes in the Foreword,

We Dene consider our land as sacred and owned by everyone collectively as it provides life…. [T]here were laws between the families that insured harmony and sharing. No one was left behind to face hardships or starve when disasters such as forest fires devastated the lands. The Dene laws promoted sharing, and this was taken seriously as failure to follow these laws could lead to war and bloody conflict. (p 3)

The Blondin family of Norman Wells (Tlegohli) in the Northwest Territories experienced first hand the perfidy of the White Man. The Blondins gave oil samples from their land to the Roman Catholic bishop for testing. The Dene family never received any report of the results. Later, however, a geologist, Dr Bosworth staked three claims at Bosworth Creek that were bought by Imperial Oil in 1918. (p 5-6)

Imperial Oil told the families: “You are not welcome in your homes and your traditional lands and your hunting territory.” The Dene people were driven out. “Elders say, ‘It was the first time in living memory where the Dene became homeless on their own land.'” (p 6)

The Blondin family homes were torn down with possessions inside and pushed over the river bank. “No apology or compensation was ever received from Imperial Oil. Imperial Oil considered Norman Wells to be ‘their town—a White Man’s town’ and the Blondin family and other Dene were not welcome.” (p 6)

“Treaty 11 became the ‘treaty for oil ownership.'” (p 8)

“One hundred years after the fact, the Dene can see the collusion between the British Crown, Imperial Oil [now ExxonMobil] and the Roman Catholic Church in the fraud, theft and embezzlement of Dene resources.” (p 10)

Sarah Stewart writes, “Treaty 11 was a charade to legitimize the land grab in the Northwest Territories.” The land grab came with horrific consequences. Stewart laments that the White Man brought disease, moved onto Dene lands and decimated wildlife, and that the teaching of missionaries and missionary schools eroded native languages, cultures, and traditions. (p 14)

Indigenous People, whose land it was, were never considered equal partners in benefiting from the resource. As Indian Agent Henry Conroy wrote to the Deputy General of Indian Affairs in January 1921, the objective was to have Indigenous people surrender their territory ‘to avoid complications in the exploitation of oil.’ (p 15)

Filmmaker Raymond Yakeleya elucidates major differences between the colonialists and the Dene. He points to the capitalist mindset of the White Man: “‘How can we make money off this?’ Dene People are not motivated by that.” (p 24) A deep respect and reverence for all the Creator’s flora and fauna and land is another difference. “When you kill an animal, you have a conversation with it and give it thanks for sharing its body. There are special protocols and ceremonies you have to go through.” (p 28)

While Yakeleya acknowledges that not all missionaries were bad, (p 30) he points to a dark side:

A major confusion came to our People with the coming of the Catholic missionaries. I see the coming of the Black Robes as being a very, very dark cloud that descended over our People. All of a sudden you have people from another culture with another way of thinking imposing their laws. We see that they did it for money, control, and power. I heard an Elder say to me once that the Christians who followed the Ten Commandments were the same people who broke all of them.

The first time we ever questioned ourselves was with the coming of the Christians and to me, I think there was something evil that came amongst our People…. The missionaries were quick to say our ways were the ways of the devil, or the ways of something not good…. Now we see they are being charged with pedophilia and other crimes. (p 29)

As for the discovery of oil, Joe Blondin said, “The Natives found it and never got anything out of it and that’s the truth.” (p 159) As for Treaty 11, John Blondin stated emphatically, “We know that we did not sell our land.” (p 171)

At the Mackenzie Valley Pipeline Inquiry in Fort McPherson [Teetł’it Zheh], Dene Philip Blake spoke words that resonate poignantly with the situation in Wet’suwet’en territory today:

If your nation chooses … to continue to try and destroy our nation, then I hope you will understand why we are willing to fight so that our nation can survive. It is our world…. But we are willing to defend it for ourselves, our children, and our grandchildren. If your nation becomes so violent that it would tear up our land, destroy our society and our future, and occupy our homeland, by trying to impose this pipeline against our will, but then of course we will have no choice but to react with violence. I hope we do not have to do that. For it is not the way we would choose…. I hope you will not only look on the violence of Indian action, but also on the violence of your own nation which would force us to take such a course. We will never initiate violence. But if your nation threatens by its own violent action to destroy our nation, you will have given us no choice. Please do not force us into this position. For we would all lose too much. (p 229)

The Nature of Colonialism and Its Treaties

Spoken word poet Shane L. Koyczan captures the nature of colonialism in Inconvenient Skin (Theytus Books, 2019):

150 years is not so long
that the history can be forgot

not so long that
forgiveness can be bought with empty apologies
or unkept promises

sharpened assurances that this is now
how it is

take it on good faith
and accept it

except that
history repeats itself
like someone not being listened to
like an entire people not being heard

the word of god is hard to swallow
when good faith becomes a barren gesture

there were men of good faith
robbing babies from their cradles
like the monsters we used to tell each other about

ripping children out of their mother’s arms
to be imprisoned in the houses of god
whose teachings were love

did no one hear?
did god mumble?

god said love

but the things that were done
were not love

our nation is built above the bones
of a genocide

it was not love that pried apart these families
it is not love that abandons its treaties

The post It is Not Love that Abandons Its Treaties first appeared on Dissident Voice.

Gun Confiscation Laws Put a Target on the Back of Every American

What we do not need is yet another pretext by which government officials can violate the Fourth Amendment at will under the guise of public health and safety.

Indeed, at a time when red flag gun laws (which authorize government officials to seize guns from individuals viewed as a danger to themselves or others) are gaining traction as a legislative means by which to allow police to remove guns from people suspected of being threats, it wouldn’t take much for police to be given the green light to enter a home without a warrant in order to seize lawfully-possessed firearms based on concerns that the guns might pose a danger.

Frankly, a person wouldn’t even need to own a gun to be subjected to such a home invasion.

SWAT teams have crashed through doors on lesser pretexts based on false information, mistaken identities and wrong addresses.

Nineteen states and the District of Columbia have adopted laws allowing the police to remove guns from people suspected of being threats. If Congress succeeds in passing the Federal Extreme Risk Protection Order, which would nationalize red flag laws, that number will grow.

As the Washington Post reports, these red flag gun laws “allow a family member, roommate, beau, law enforcement officer or any type of medical professional to file a petition [with a court] asking that a person’s home be temporarily cleared of firearms. It doesn’t require a mental-health diagnosis or an arrest.

In the wake of yet another round of mass shootings, these gun confiscation laws—extreme risk protection order (ERPO) laws—may appease the fears of those who believe that fewer guns in the hands of the general populace will make our society safer.

Of course, it doesn’t always work that way.

Anything—knives, vehicles, planes, pressure cookers—can become a weapon when wielded with deadly intentions.

With these red flag gun laws, the stated intention is to disarm individuals who are potential threats… to “stop dangerous people before they act.”

While in theory it appears perfectly reasonable to want to disarm individuals who are clearly suicidal and/or pose an “immediate danger” to themselves or others, where the problem arises is when you put the power to determine who is a potential danger in the hands of government agencies, the courts and the police.

We’ve been down this road before.

Remember, this is the same government that uses the words “anti-government,” “extremist” and “terrorist” interchangeably.

This is the same government whose agents are spinning a sticky spider-web of threat assessments, behavioral sensing warnings, flagged “words,” and “suspicious” activity reports using automated eyes and ears, social media, behavior sensing software, and citizen spies to identify potential threats.

This is the same government that has a growing list—shared with fusion centers and law enforcement agencies—of ideologies, behaviors, affiliations and other characteristics that could flag someone as suspicious and result in their being labeled potential enemies of the state.

For instance, if you believe in and exercise your rights under the Constitution (namely, your right to speak freely, worship freely, associate with like-minded individuals who share your political views, criticize the government, own a weapon, demand a warrant before being questioned or searched, or any other activity viewed as potentially anti-government, racist, bigoted, anarchic or sovereign), you could be at the top of the government’s terrorism watch list.

Moreover, as a New York Times editorial warns, you may be an anti-government extremist (a.k.a. domestic terrorist) in the eyes of the police if you are afraid that the government is plotting to confiscate your firearms, if you believe the economy is about to collapse and the government will soon declare martial law, or if you display an unusual number of political and/or ideological bumper stickers on your car.

Let that sink in a moment.

Now consider the ramifications of giving police that kind of authority: to preemptively raid homes in order to neutralize a potential threat.

It’s a powder keg waiting for a lit match.

Under these red flag laws, what happened to Duncan Lemp—who was gunned down in his bedroom during an early morning, no-knock SWAT team raid on his family’s home—could very well happen to more people.

At 4:30 a.m. on March 12, 2020, in the midst of a COVID-19 pandemic that had most of the country under a partial lockdown and sheltering at home, a masked SWAT team—deployed to execute a “high risk” search warrant for unauthorized firearms—stormed the suburban house where 21-year-old Duncan, a software engineer and Second Amendment advocate, lived with his parents and 19-year-old brother.

The entire household, including Lemp and his girlfriend, was reportedly asleep when the SWAT team directed flash bang grenades and gunfire through Lemp’s bedroom window.

Lemp was killed and his girlfriend injured.

No one in the house that morning, including Lemp, had a criminal record.

No one in the house that morning, including Lemp, was considered an “imminent threat” to law enforcement or the public, at least not according to the search warrant.

So what was so urgent that militarized police felt compelled to employ battlefield tactics in the pre-dawn hours of a day when most people are asleep in bed, not to mention stuck at home as part of a nationwide lockdown?

According to police, they were tipped off that Lemp was in possession of “firearms.”

Thus, rather than approaching the house by the front door at a reasonable hour in order to investigate this complaint—which is what the Fourth Amendment requires—police instead strapped on their guns, loaded up their flash bang grenades and carried out a no-knock raid on the household.

According to the county report, the no-knock raid was justified “due to Lemp being ‘anti-government,’ ‘anti-police,’ currently in possession of body armor, and an active member of the Three Percenters,” a far-right paramilitary group that discussed government resistance.

This is what happens when you adopt red flag gun laws, painting anyone who might be in possession of a gun—legal or otherwise—as a threat that must be neutralized.

Therein lies the danger of these red flag laws, specifically, and pre-crime laws such as these generally where the burden of proof is reversed and you are guilty before you are given any chance to prove you are innocent.

Red flag gun laws merely push us that much closer towards a suspect society where everyone is potentially guilty of some crime or another and must be preemptively rendered harmless.

Where many Americans go wrong is in naively assuming that you have to be doing something illegal or harmful in order to be flagged and targeted for some form of intervention or detention.

In fact, all you need to do these days to end up on a government watch list or be subjected to heightened scrutiny is use certain trigger words (like cloud, pork and pirates), surf the internet, communicate using a cell phone, limp or stutter, drive a car, stay at a hotel, attend a political rally, express yourself on social media, appear mentally ill, serve in the military, disagree with a law enforcement official, call in sick to work, purchase materials at a hardware store, take flying or boating lessons, appear suspicious, appear confused or nervous, fidget or whistle or smell bad, be seen in public waving a toy gun or anything remotely resembling a gun (such as a water nozzle or a remote control or a walking cane), stare at a police officer, question government authority, appear to be pro-gun or pro-freedom, or generally live in the United States.

Be warned: once you get on such a government watch list—whether it’s a terrorist watch list, a mental health watch list, a dissident watch list, or a red flag gun watch list—there’s no clear-cut way to get off, whether or not you should actually be on there.

You will be flagged as a potential threat and dealt with accordingly.

You will be tracked by the government’s pre-crime, surveillance network wherever you go.

Hopefully you’re starting to understand how easy we’ve made it for the government to identify, label, target, defuse and detain anyone it views as a potential threat for a variety of reasons that run the gamut from mental illness to having a military background to challenging its authority to just being on the government’s list of persona non grata.

The government has been building its pre-crime, surveillance network in concert with fusion centers (of which there are 78 nationwide, with partners in the private sector and globally), data collection agencies, behavioral scientists, corporations, social media, and community organizers and by relying on cutting-edge technology for surveillance, facial recognition, predictive policing, biometrics, and behavioral epigenetics (in which life experiences alter one’s genetic makeup).

Combine red flag laws with the government’s surveillance networks and its plan to establish an agency that will take the lead in identifying and targeting “signs” of mental illness or violent inclinations among the populace by using artificial intelligence to collect data from Apple Watches, Fitbits, Amazon Echo and Google Home, and you’ll understand why some might view gun control legislation with trepidation.

No matter how well-meaning the politicians make these encroachments on our rights appear, in the right (or wrong) hands, benevolent plans can easily be put to malevolent purposes.

As I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, even the most well-intentioned government law or program can be—and has been—perverted, corrupted and used to advance illegitimate purposes once profit and power are added to the equation.

The war on terror, the war on drugs, the war on illegal immigration, the war on COVID-19: all of these programs started out as legitimate responses to pressing concerns and have since become weapons of compliance and control in the government’s hands.

No matter how well-intentioned, red flag gun laws will put a target on the back of every American whether or not they own a weapon.

The post Gun Confiscation Laws Put a Target on the Back of Every American first appeared on Dissident Voice.

Weapons of Faith: The Arming of American Schools

The United States remains a country of tenacious faith.  The nature of that faith stretches from the digital pulpits of Silicon Valley, where cool technology occupies the seat of majesty, to the hot Bible Belt of spiritual endurance and suffering, where the good Lord holds sway in stern disapproval.  In between, market fundamentalists take time to worship the invisible hand of business and capitalism.

The symptoms of that faith can be extraordinary, almost to the point of caustic neuroses.  Faith in the sanctity of guns permits a form of tolerable urban warfare, a type of assimilated frontier violence characterised by high death tolls.  For all the rage and mourning that takes place after each massacre, be it in school or in places of worship, the slain are merely the tax paid for exercising a constitutional liberty.  As with all freedoms, exercising them comes at a cost.

As a sacred totem, the gun, like ancient god figures drawn from verdant groves and sun-bleached deserts, is an idol to be replicated in displays, shows, and performances.  Any chinks in this system of idolatry are put down to the nature of the worshipper, weak of character, questionable of principle.  The Uvalde shooter was, in keeping with this view, a mental basket case, detached, isolated, estranged.  He was lobotomised by the cruel workings of social media, an outcast, a social vegetable.  A suburban family with 50 assault weapons salivating over their next purchase is, by contrast, sanely functional, good citizens going about their business under the double blessing of the Second Amendment and the marketplace.

Texas Senator Ted Cruz’s understanding of this issue is typical and unblemished by complexity.  In the language of a sweetly crafted, and predictable fairy tale, Cruz sees a morality tale in the business of owning guns.  To the 19 children and two adults who perished at Robb Elementary School, he had this response: “What stops bad guys is armed good guys.”

Garden gnome psychology is never far from such reasoning.  “We know that many of those who commit the most heinous crimes they’re isolated from human contact,” Cruz told members of the National Rifle Association in an address last month.  “They’re living a virtual life in the absence of community and faith and love.”

Addressing the medical, pathological aspect – to de-psycho, as it were, the field of ownership – is seen as one answer from the pro-gun fraternity.  The other is counter-intuitive and, in its way, truly a matter of faith.  To solve the gun problem, more weapons, not fewer, are needed.  Spread the fetish, proliferate the means of mass lethality.  As certain theorists of security and international relations regard the issue of addressing nuclear weapons, the more countries have them, the more secure the world will be.  Terror binds us; terror deters us.  If you cannot abolish weapons, then partake of its fruits.

In such mind-numbing logic, schools can solve shootings by flooding the administrative system with guns, arming teachers, militarising the spaces and places of learning.  In a 2021 Pew Research poll, 43% of those surveyed favoured allowing K-12 teachers and school officials to carry guns.  Of the percentage, 66% of them were Republicans; 24% Democrats.  63% of gun owners supported the measure; 33% of non-gun owners did not.

In response to Uvalde, Senator Cruz, Texas Attorney General Ken Paxton and Lt. Gov. Dan Patrick, are stirring their base.  Their suggestions of arming schools are of uneven quality, childish and resoundingly doltish.  But they point to a central understanding of acceptable carnage and military permissiveness.

Attorney General Paxton has been true over the years to the view that a citizenry armed to the teeth, even when going about mundane tasks, is a safe one.  In December 2017, he issued an opinion claiming that licensed handgun owners could legally carry loaded weapons into Texas churches with no posted signs banning them.  As for what could have been done in Uvalde, the theme is familiar.  The key was to make it “more difficult for people even to get in that point of entry” by having “teachers and other administrators who have gone through training and who are armed.”

Such a measure, Paxton argued, was to be encouraged as law enforcement authorities tended to be late on the scene, failing to prevent the shooting.  “The reality is,” he explained to Fox News, “we don’t have the resources to have law enforcement at every school.”

Patrick’s statement of June 3 could just as well apply to a discussion about violent insurgencies US foreign policy has tended to foment over the years.  “If every member of law enforcement across the state, approximately 80,000 officers, had a bulletproof shield in their vehicle, their ability to respond to an active shooter situation would be greatly enhanced.”  (Does he envisage police driving into the active shooter in class?)

He notes that “more training is needed”, but the urgency of having measures in place before the start of the new school year to “better equip our police who respond to these attacks” was paramount.  As with any planning for a military campaign, having the appropriate material in stock might be a problem.  “There could be a supply-chain issue at present, but we should try to buy every quality shield we can find and order the rest so we are at the front line when more become available.”

Not that these matters solve the problem.  To equate armed teachers with safety is a false equation.  The Uvalde shooter could still go about his business even in the face of a heavily armed response unit.  The “good guys” seemed rather ineffectual to stop the “bad guy” at Uvalde.  The National Education Association President Becky Pringle’s statement in response to shootings could only seem peculiar in an environment of gun fetishists.  “Bringing more guns into schools makes schools more dangerous and does nothing to shield our students and educators from gun violence.”

Dispirited about such responses, Daniel Siegel, a 23-year-old middle-school teacher from Houston, suggested something disturbingly radical.  Give schools more resources, not in terms of weapons and defences but on matters of learning and the nurturing of students’ emotional wellbeing.  Sadly, that horse, saddled by the Second Amendment, bolted some time ago.

The post Weapons of Faith: The Arming of American Schools first appeared on Dissident Voice.

America, Meet Your New Dictator-in-Chief

America, meet your new dictator-in-chief.

As the New York Times reports, “Newly disclosed documents have shed a crack of light on secret executive branch plans for apocalyptic scenarios—like the aftermath of a nuclear attack—when the president may activate wartime powers for national security emergencies.”< The problem, of course, is that we have become a nation in a permanent state of emergency. Power-hungry and lawless, the government has weaponized one national crisis after another in order to expand its powers and justify all manner of government tyranny in the so-called name of national security. The seeds of this present madness were sown almost two decades ago when George W. Bush stealthily issued two presidential directives that granted the president the power to unilaterally declare a national emergency, which is loosely defined as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions.”

Comprising the country’s Continuity of Government (COG) plan, these directives (National Security Presidential Directive 51 and Homeland Security Presidential Directive 20) provide a skeletal outline of the actions the president will take in the event of a “national emergency.”

Just what sort of actions the president will take once he declares a national emergency can barely be discerned from the barebones directives. However, one thing is clear: in the event of a national emergency, the COG directives give unchecked executive, legislative and judicial power to the president.

The country would then be subjected to martial law by default, and the Constitution and the Bill of Rights would be suspended.

Essentially, the president would become a dictator for life.

It has happened already.

As we have witnessed in recent years, that national emergency can take any form, can be manipulated for any purpose and can be used to justify any end goal—all on the say so of the president.

The emergency powers that we know about which presidents might claim during such states of emergency are vast, ranging from imposing martial law and suspending habeas corpus to shutting down all forms of communications, including implementing an internet kill switch, and restricting travel.

Yet according to documents recently obtained by the Brennan Center, there may be many more secret powers that presidents may institute in times of so-called crisis without oversight from Congress, the courts, or the public.

It doesn’t even matter what the nature of the crisis might be—civil unrest, the national emergencies, “unforeseen economic collapse, loss of functioning political and legal order, purposeful domestic resistance or insurgency, pervasive public health emergencies, and catastrophic natural and human disasters”—as long as it allows the government to justify all manner of government tyranny in the name of so-called national security.

In such a climate, the American president becomes dictator with permanent powers: imperial, unaccountable and unconstitutional.

Then again, the police state with the president at its helm has been riding roughshod over the rule of law for years now without any pretense of being reined in or restricted in its power grabs by Congress, the courts or the citizenry.

Although the Constitution invests the President with very specific, limited powers, in recent years, American presidents have claimed the power to completely and almost unilaterally alter the landscape of this country for good or for ill.

The powers amassed by each successive president through the negligence of Congress and the courts—powers which add up to a toolbox of terror for an imperial ruler—empower whoever occupies the Oval Office to act as a dictator, above the law and beyond any real accountability.

As law professor William P. Marshall explains, “every extraordinary use of power by one President expands the availability of executive branch power for use by future Presidents.”

All of the imperial powers amassed by Barack Obama and George W. Bush—to kill American citizens without due process, to detain suspects indefinitely, to strip Americans of their citizenship rights, to carry out mass surveillance on Americans without probable cause, to suspend laws during wartime, to disregard laws with which he might disagree, to conduct secret wars and convene secret courts, to sanction torture, to sidestep the legislatures and courts with executive orders and signing statements, to direct the military to operate beyond the reach of the law, to operate a shadow government, and to act as a dictator and a tyrant, above the law and beyond any real accountability—were inherited by Donald Trump and passed along to Joe Biden.

These presidential powers—acquired through the use of executive orders, decrees, memorandums, proclamations, national security directives and legislative signing statements and which can be activated by any sitting president—enable past, president and future presidents to operate above the law and beyond the reach of the Constitution.

This is what you might call a stealthy, creeping, silent, slow-motion coup d’état.

If we continue down this road, there can be no surprise about what awaits us at the end.

Unfortunately, the process of unseating a dictator and limiting the powers of the presidency is far from simple but at a minimum, it must start with “we the people.”

For starters, as I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, we must recalibrate the balance of power.

Start locally—in your own communities, in your schools, at your city council meetings, in newspaper editorials, at protests—by pushing back against laws that are unjust, police departments that overreach, politicians that don’t listen to their constituents, and a system of government that grows more tyrannical by the day.

What we desperately need is a concerted, collective commitment to the Constitution’s principles of limited government, a system of checks and balances, and a recognition that they—the president, Congress, the courts, the military, the police, the technocrats and plutocrats and bureaucrats—answer to and are accountable to “we the people.”

In other words, we’ve got to start making both the president and the police state play by the rules of the Constitution.

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Jackboots Policing: No-Knock Raids Rip a Hole in the Fourth Amendment

We’re all potential victims.

— Peter Christ, retired police officer

It’s the middle of the night.

Your neighborhood is in darkness. Your household is asleep.

Suddenly, you’re awakened by a loud noise.

Someone or an army of someones has crashed through your front door.

The intruders are in your home.

Your heart begins racing. Your stomach is tied in knots. The adrenaline is pumping through you.

You’re not just afraid. You’re terrified.

Desperate to protect yourself and your loved ones from whatever threat has invaded your home, you scramble to lay hold of something—anything—that you might use in self-defense. It might be a flashlight, a baseball bat, or that licensed and registered gun you thought you’d never need.

You brace for the confrontation.

Shadowy figures appear at the doorway, screaming orders, threatening violence.

Chaos reigns.

You stand frozen, your hands gripping whatever means of self-defense you could find.

Just that simple act—of standing frozen in fear and self-defense—is enough to spell your doom.

The assailants open fire, sending a hail of bullets in your direction.

You die without ever raising a weapon or firing a gun in self-defense.

In your final moments, you get a good look at your assassins: it’s the police.

Brace yourself, because this hair-raising, heart-pounding, jarring account of a no-knock, no-announce SWAT team raid is what passes for court-sanctioned policing in America today, and it could happen to any one of us.

Nationwide, SWAT teams routinely invade homes, break down doors, kill family pets (they always shoot the dogs first), damage furnishings, terrorize families, and wound or kill those unlucky enough to be present during a raid.

No longer reserved exclusively for deadly situations, SWAT teams are now increasingly being deployed for relatively routine police matters such as serving a search warrant, with some SWAT teams being sent out as much as five times a day.

SWAT teams have been employed to address an astonishingly trivial array of so-called criminal activity or mere community nuisances: angry dogs, domestic disputes, improper paperwork filed by an orchid farmer, and misdemeanor marijuana possession, to give a brief sampling. In some instances, SWAT teams are even employed, in full armament, to perform routine patrols.

These raids, which might be more aptly referred to as “knock-and-shoot” policing, have become a thinly veiled, court-sanctioned means of giving heavily armed police the green light to crash through doors in the middle of the night.

No-knock raids, a subset of the violent, terror-inducing raids carried out by police SWAT teams on unsuspecting households, differ in one significant respect: they are carried out without police having to announce and identify themselves as police.

It’s a chilling difference: to the homeowner targeted for one of these no-knock raids. It appears as if they are being set upon by villains mounting a home invasion.

Never mind that the unsuspecting homeowner, woken from sleep by the sounds of a violent entry, has no way of distinguishing between a home invasion by criminals as opposed to a police mob. In many instances, there is little real difference.

According to an in-depth investigative report by The Washington Post, “police carry out tens of thousands of no-knock raids every year nationwide.”

While the Fourth Amendment requires that police obtain a warrant based on probable cause before they can enter one’s home, search and seize one’s property, or violate one’s privacy, SWAT teams are granted “no-knock” warrants at high rates such that the warrants themselves are rendered practically meaningless.

If these aggressive, excessive police tactics have also become troublingly commonplace, it is in large part due to judges who largely rubberstamp the warrant requests based only on the word of police; police who have been known to lie or fabricate the facts in order to justify their claims of “reasonable suspicion” (as opposed to the higher standard of probable cause, which is required by the Constitution before any government official can search an individual or his property); and software that allows judges to remotely approve requests using computers, cellphones or tablets.

This sorry state of affairs is made even worse by U.S. Supreme Court rulings that have essentially done away with the need for a “no-knock” warrant altogether, giving the police authority to disregard the protections afforded American citizens by the Fourth Amendment.

In addition to the terror brought on by these raids, general incompetence, collateral damage (fatalities, property damage, etc.) and botched raids are also characteristic of these SWAT team raids. In some cases, officers misread the address on the warrant. In others, they simply barge into the wrong house or even the wrong building. In another subset of cases, police conduct a search of a building where the suspect no longer resides.

SWAT teams have even on occasion conducted multiple, sequential raids on wrong addresses or executed search warrants despite the fact that the suspect is already in police custody. Police have also raided homes on the basis of mistaking the presence or scent of legal substances for drugs. Incredibly, these substances have included tomatoes, sunflowers, fish, elderberry bushes, kenaf plants, hibiscus, and ragweed.

All too often, botched SWAT team raids have resulted in one tragedy after another for the residents with little consequences for law enforcement.

The horror stories have become legion in which homeowners are injured or killed simply because they mistook a SWAT team raid by police for a home invasion by criminals. Too often, the destruction of life and property wrought by the police is no less horrifying than that carried out by criminal invaders.

As one might expect, judges tend to afford extreme levels of deference to police officers who have mistakenly killed innocent civilians but do not afford similar leniency to civilians who have injured police officers in acts of self-defense. Indeed, homeowners who mistake officers for robbers can be sentenced for assault or murder if they take defensive actions resulting in harm to police.

Yet the shock-and-awe tactics utilized by many SWAT teams only increases the likelihood that someone will get hurt.

That’s exactly what happened to Jose Guerena, the young ex-Marine who was killed after a SWAT team kicked open the door of his Arizona home during a drug raid and opened fire. According to news reports, Guerena, 26 years old and the father of two young children, grabbed a gun in response to the forced invasion but never fired. In fact, the safety was still on his gun when he was killed. Police officers were not as restrained. The young Iraqi war veteran was allegedly fired upon 71 times. Guerena had no prior criminal record, and the police found nothing illegal in his home.

Aiyana Jones is dead because of a SWAT raid gone awry. The 7-year-old was killed after a Detroit SWAT team—searching for a suspect—launched a flash-bang grenade into her family’s apartment, broke through the door and opened fire, hitting the little girl who was asleep on the living room couch. The cops weren’t even in the right apartment.

Exhibiting a similar lack of basic concern for public safety, a Georgia SWAT team launched a flash-bang grenade into the house in which Baby Bou Bou, his three sisters and his parents were staying. The grenade landed in the 2-year-old’s crib, burning a hole in his chest and leaving him with scarring that a lifetime of surgeries will not be able to easily undo.

Payton, a 7-year-old black Labrador retriever, and 4-year-old Chase, also a black Lab, were shot and killed after a SWAT team mistakenly raided the mayor’s home while searching for drugs. Police shot Payton four times. Chase was shot twice, once from behind as he ran away. “My government blew through my doors and killed my dogs. They thought we were drug dealers, and we were treated as such. I don’t think they really ever considered that we weren’t,” recalls Mayor Cheye Calvo, who described being handcuffed and interrogated for hours—wearing only underwear and socks—surrounded by the dogs’ carcasses and pools of the dogs’ blood.

If these violent SWAT team raids have become tragically widespread, you can chalk it up to the “make-work” principle that has been used to justify the transfer of sophisticated military equipment, weaponry and training to local police departments, which in turn has helped to transform police into extensions of the military—a standing army on American soil.

The problem, as one reporter rightly concluded, is “not that life has gotten that much more dangerous, it’s that authorities have chosen to respond to even innocent situations as if they were in a warzone.”

A study by a political scientist at Princeton University concludes that militarizing police and SWAT teams “provide no detectable benefits in terms of officer safety or violent crime reduction.” The study, the first systematic analysis on the use and consequences of militarized force, reveals that “police militarization neither reduces rates of violent crime nor changes the number of officers assaulted or killed.”

SWAT teams, designed to defuse dangerous situations such as those involving hostages, were never meant to be used for routine police work targeting nonviolent suspects, yet they have become intrinsic parts of federal and local law enforcement operations.

There are few communities without a SWAT team today.

In 1980, there were roughly 3,000 SWAT team-style raids in the US.

Incredibly, that number has since grown to more than 80,000 SWAT team raids per year.

Where this becomes a problem of life and death for Americans is when these militarized SWAT teams are assigned to carry out routine law enforcement tasks.

In the state of Maryland alone, 92 percent of 8200 SWAT missions were used to execute search or arrest warrants.

Police in both Baltimore and Dallas have used SWAT teams to bust up poker games.

A Connecticut SWAT team swarmed a bar suspected of serving alcohol to underage individuals.

In Arizona, a SWAT team was used to break up an alleged cockfighting ring.

An Atlanta SWAT team raided a music studio, allegedly out of a concern that it might have been involved in illegal music piracy.

A Minnesota SWAT team raided the wrong house in the middle of the night, handcuffed the three young children, held the mother on the floor at gunpoint, shot the family dog, and then “forced the handcuffed children to sit next to the carcass of their dead pet and bloody pet for more than an hour” while they searched the home.

A California SWAT team drove an armored Lenco Bearcat into Roger Serrato’s yard, surrounded his home with paramilitary troops wearing face masks, threw a fire-starting flashbang grenade into the house in order, then when Serrato appeared at a window, unarmed and wearing only his shorts, held him at bay with rifles. Serrato died of asphyxiation from being trapped in the flame-filled house. Incredibly, the father of four had done nothing wrong. The SWAT team had misidentified him as someone involved in a shooting.

And then there was the police officer who tripped and “accidentally” shot and killed Eurie Stamps, an unarmed grandfather of 12, who had been forced to lie face-down on the floor of his home at gunpoint while a SWAT team attempted to execute a search warrant against his stepson.

Equally outrageous was the four-hour SWAT team raid on a California high school, where students were locked down in classrooms, forced to urinate in overturned desks and generally terrorized by heavily armed, masked gunmen searching for possible weapons that were never found.

These incidents underscore a dangerous mindset in which the citizenry (often unarmed and defenseless) not only have less rights than militarized police, but also one in which the safety of the citizenry is treated as a lower priority than the safety of their police counterparts (who are armed to the hilt with an array of lethal and nonlethal weapons).

Likewise, our privacy, property and security are no longer safe from government intrusion.

Yet it wasn’t always this way.

There was a time in America when a person’s home was a sanctuary, safe and secure from the threat of invasion by government agents, who were held at bay by the dictates of the Fourth Amendment, which protects American citizens from unreasonable searches and seizures.

The Fourth Amendment, in turn, was added to the U.S. Constitution by colonists still smarting from the abuses they had been forced to endure while under British rule, among these home invasions by the military under the guise of “writs of assistance.” These writs gave British soldiers blanket authority to raid homes, damage property and wreak havoc for any reason whatsoever, without any expectation of probable cause.

To our detriment, we have come full circle to a time before the American Revolution when government agents—with the blessing of the courts—could force their way into a citizen’s home, with seemingly little concern for lives lost and property damaged in the process.

Rubber-stamped, court-issued warrants for no-knock SWAT team raids have become the modern-day equivalent of colonial-era writs of assistance.

Then again, we may be worse off today when one considers the extent to which courts have sanctioned the use of no-knock raids by police SWAT teams (occurring at a rate of more than 80,000 a year and growing); the arsenal of lethal weapons available to local police agencies; the ease with which courts now dispense search warrants based often on little more than a suspicion of wrongdoing; and the inability of police to distinguish between reasonable suspicion and the higher standard of probable cause.

This is exactly what we can expect more of as a result of President Biden’s commitment to expand law enforcement and so-called crime prevention at taxpayer expense.

Yet as I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, no matter what the politicians insist to the contrary, militarized police armed with weapons of war who are empowered to carry out pre-dawn raids on our homes, shoot our pets, and terrorize our families are not making America any safer or freer.

The post Jackboots Policing: No-Knock Raids Rip a Hole in the Fourth Amendment first appeared on Dissident Voice.

Law’s Limits: The Passage of the Antilynching Bill

In 1900, Representative George Henry White of North Carolina, the sole Black law maker in Congress at the time, dared to introduce legislation (HR 6963) that would make lynching a hate crime.  To back his case, he submitted an anti-lynching petition from New Jersey residents protesting the lynching of Black Americans for alleged offences, from the most fleetingly minor, to the most serious.  The bill stuttered and expired in the Judiciary Committee, never making it out to a House vote.

Such instruments were drafted with an express purpose of targeting that nastily cruel weapon of choice for white insecurity and supremacy.  Nearing the end of March this year, US President Joe Biden signed into law the Emmett Till Antilynching Act, its name taken from the teenager murdered in 1955 by a mob for supposedly flirting with a white woman.  In being designated a hate crime, those responsible for its infliction, resulting in either death or injury, can face up to three decades in prison in addition to time for other charges.

Lynching had a defining role of keeping Black Americans in their place, a vigilante method of control that received more than a little bit of support from local policing authorities. It symbolised the fangs and threat of Jim Crow and its sheer durability, initially justified as a form of popular sovereignty in the face of tardy justice.  Such a form of terror was seminal in compelling the migration of millions of Black Americans from the Southern States to the north and enforcing insidious racial hierarchies.

Between 1877 and 1950, the Equal Justice Initiative claims that 4,400 African Americans met their fate in this way.  The NAACP estimates that Black victims accounted for 72 percent of 4,743 cases of lynching between 1882 and 1968.  This took place, despite the warnings from White House occupants that such acts could “not be tolerated in a great and civilized country like the United States” (William McKinley in 1897) or represented “much a loosening of the bonds of civilization” (Theodore Roosevelt in 1906).

Such acts were, as the EJI’s report Lynching in America notes, characterised by a number of features: the lingering fear of interracial sex; a reaction to casual social transgression; a response to allegations of serious crime; the lure of the public spectacle; the escalation of violence against whole African American communities and a hunger to punish specific figures: sharecroppers, ministers and community leaders.

For over a century, legislation remained unpassed.  There were 200 failed attempts in Congress to take it to the statute books.  “That it took so long is a stain, a bitter stain on America,” stated Senator Chuck Schumer of New York.  Senator Cory Booker, Democrat of New Jersey, considered the legislation “a necessary step America must take to heal from the racialized violence that has permeated its history”.

On this occasion, there were no objections in the Senate as it sailed through earlier in the month.  But three House members refused to pass it when it reached them in February: Republicans Thomas Massie of Kentucky, Chip Roy of Texas and Andrew Clyde of Georgia.

Massie justified his decision in a social media spray.  “Adding enhanced penalties for ‘hate’ tends to endanger other liberties such as freedom of speech.”  He was on better ground in noting that the States had already made lynching illegal within their jurisdictions.  He also expressed concern about using the “conspiracy” concept, thereby lending the law to be potentially “enforced overbroadly”.

Roy’s reasons were less systematic (he had time to suggest that this was “an effort to advance a woke agenda under the guise of correcting racial injustice”), arguing that this was a matter best left to the States.  His reluctance might be best explained by that old school of thought that a lynching could itself be an example of expeditious justice.  “There’s old sayings in Texas about ‘find all in the rope in Texas and get a tall oak tree,” he stated during a 2021 hearing on Asian-American hate crimes.

Resistance to the specific framing of such a law has not always been racial or deranged.  The fact that a law acknowledging lynching as a hate crime has made it to the federal law books is one thing.  Its actual effectiveness is yet to be determined.  Those seasoned by penal scepticism, such as Kara Gotsch of The Sentencing Project, see little merit in compiling sentences with severity.  The more, the nastier.  “We often react and assume that somehow crime will end if we just make sentences longer or punishments tougher.”  Her organisation, not without some sense, opposed the bill “because we don’t believe in expanding criminal punishments and creating additional federal crime”.

A similar argument was advanced, with some coherence, by Kentucky Senator Rand Paul, who argued in holding up the Till Antilynching Act in a previous iteration that making lynching a hate crime could lead to a brutal sentencing regime.  “This bill would cheapen the meaning of lynching by defining it too broadly as to include a minor bruise or abrasion.”  The country’s “national history of racial terrorism demands more seriousness than that.”

There is also a paradox to having laws designed to protect a particular group or community being turned on those very same individuals.  Once on the books, prosecutors can feel inclined to use them for other purposes, simplifying the often complex profile of the offender.  Victims and perpetrators trade places.

In a June 2021 report from the Stanford Law School and the Brennan Center for Justice, gathered data suggests that Black people made up a quarter of hate crime offenders in 2018, and a third of violent hate crime offenders between 2004 and 2015. Admittedly, weaknesses in the report include its reliance on voluntary reporting and a lack of focus on the prosecution, conviction, and sentencing stages.

That said, this problem is not a new one.  The South Carolina Sentencing Reform Commission voted in January 2010 to change the lynching law to “assault and battery by a mob” because it had been used to target the activities of African American gangs.

Fitzhugh Brundage of the University of North Carolina said at the time that the law had seen “a corruption not only of the idea of what a lynching is, but also the historical memory of what a lynching is”.  But, showing a distinct indifference to historical memory, Charleston, S.C.’s first black police chief, Rueben Greenberg was pragmatic: the law was highly effective in coping with urban gang activity.

However well intentioned, laws on the statute books will be used and enforced in shifting circumstances, however ironic and disturbing the outcome.  Symbolism eventually gives way to the crude inclinations and biases of the law enforcing pragmatist.

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No Corporate Law and Power Questions for Judge Ketanji Brown Jackson

In over twenty hours of grueling confirmation hearings for Judge Ketanji Jackson’s nomination to the U.S. Supreme Court, Republican Senators (Cruz, Cotton, Hawley, Blackburn, and Graham) found much time to disgrace themselves, using the Judge as a prop for their despicable political ambitions. Meanwhile the Democratic (and Republican) Senators found no time to tap into Judge Jackson’s knowledge and analysis of the grave issues regarding the nexus of the power of giant corporations and the Constitution.

Senators, who should have known better, declined to raise the important questions about corporate personhood, or the provision of equal rights for corporations with human beings in a Constitution that never mentions “corporations” or “companies.” The Constitution is all about “We the People.”

Ignoring the immense power of global corporations over the rule of law, the immunities and privileges these companies use to escape the law and harm people with impunity, and the power of corporations under the 2011 Citizens United case to spend unlimited amounts of money to independently support or oppose candidates for public office were taboo subjects.

These are critical questions that leading citizen groups like Public Citizen and Common Cause would have wanted raised. The hearings, before a large television and radio audience, could have provided a rare educational moment for the public!

In numerous nomination hearings for Associate Justices of the High Court, we have submitted questions to presumably receptive Democratic Senators about corporations and the law. They were never asked. Our requests that Senators submit questions on corporate power to the nominee for written responses were also regularly denied.

Since my testimony with Dr. Sidney Wolfe during Justice Stephen Breyer’s confirmation hearings in 1994, outside civic witnesses have largely been prohibited from testifying at these tightly choreographed spectacles. Congress has added this exclusion to their overall closure movement against the civic community.

We are left with submitting testimony for the record, which rarely sees the light of the Judiciary Committee’s day. On the last day of the hearings with the nominees, the two Parties each select their own panel of rubber-stamp witnesses (often law professors). Both the media and senatorial attendance declines.

The Committee’s arrogance is such that distinguished people asking to testify do not even get the courtesy of a written acknowledgement. They’re just treated as nonpersons, instead of valuable contributors to the nomination process.

During the nomination in 2006 of the most right-wing corporatist, unitary-presidency ideologue, Samuel A. Alito, Jr., I wrote that the Senators did not “pose questions relating to access-to-justice, as provided by tort law, nor to the generic constitutional questions relating to NAFTA and the World Trade Organization (WTO) and their dubious authority to side-step the sovereignty of our three branches of government with their mandatory decisions” affecting workers, consumers, and the environment.

When the most powerful institutions in our country escape scrutiny at these times of peak interest in the rule of law (constitutional and statutory), the charge that Congress refuses to confront corporatism and the supremacy of these out-of-control corporate behemoths comes full circle.

Call them above the law, beyond the law, or the creators of the law, giant and powerful corporations are a major domestic threat to our democracy. They are corrupting elections, dominating the media, blocking union formation, obstructing judicial justice for wrongfully injured people, and destroying our consumer freedom of contract – while strategically planning the future of human beings, down to their genetic inheritance.

Asking Judge Jackson her thoughts about the legal rights of robots, the engagement in military activities by corporate contractors, and the corporate patenting of life forms would have increased public awareness about important legal issues. Even if she artfully avoided judgmental replies, just asking what she knows about the settled law in these and other areas would have educated lawmakers and the public.

To get a sense of the immensity of this overlooked corporate phenomenon, please visit our website nader.org for the list of my previous questions and see the excellent article by the great journalist Morton Mintz in the November 1, 2005 issue of The Nation titled “Serious Questions for Samuel A. Alito Jr.”

Readers, remember Congress is misusing the powers that you have granted it under the Constitution, but you still hold the sovereign power and duty to safeguard and improve our democracy.

The post No Corporate Law and Power Questions for Judge Ketanji Brown Jackson first appeared on Dissident Voice.

American Genocide

The comments of principal man Ian Zabarte of the Western Bands of the Shoshone Nation of Indians to the White House Environmental Justice Advisory Council, characterize the ongoing abuse suffered by the Western Shoshone people as a result of US military and commercial nuclear development. There has been no explicit act of Congress to diminish or extinguish Indian title to 30 million acres of land owned by the Western Shoshone Nation defined by Article 5 of the Treaty of Ruby Valley. We seek creation of a reservation by the President under Article 6 of the treaty as a remedy for the safety, protection and benefit of the Western Shoshone people.

Consultation is not consent but when done, should be according to the UN Declaration on the Rights of Indigenous People with free, prior informed consent of Indigenous people affected–a right of self-determination, and in the planning and implementation of projects on our lands. The law needs to be enforced and resources directed to indigenous communities for clean-up efforts and proper enforcement.

Our nation has, and is, being destroyed by nuclear weapons testing and nuclear material disposal. The pattern and practice of the Department of Energy and cooperating agencies inflict conditions intended to bring about the destruction of Shoshone Nation, violating peremptory norms in International Law that the United States has acceded to under the Proxmire Act in 1988 (18 USC 1091–GENOCIDE).

In 1990, the Department of Energy created “cultural triage” used in the Yucca Mountain nuclear waste repository project defined as, “the forced choice decision-making by an ethnic group to a development project” claiming Indians were involved in Yucca Mountain development. Cultural triage features are it is forced upon ethnic Native Americans for development.” Federally recognized Indian tribes are deemed by the US Supreme Court as incompetents under the superintendence of the Secretary of the Interior and therefore cannot consent. It is the US that is wholly responsible for the outcomes. The systematic use of cultural triage is genocide.

Origin is important. Shoshone individuals must be followed for health consequences. We need collaborative research funding, monitoring, surveillance and registries for Shoshone down-winders affected by radiation from nuclear weapons. We need radiation exposure compensation re-authorization (RECA). We need the President to create a Shoshone homeland under Article 6 of the Treaty of Ruby Valley. All federal actions must be required to prove ownership of federally funded project sites.

Finally, nuclear weapons are illegal under the new International law, the Treaty on the Prohibition of Nuclear Weapons, that entered into force January on 22, 2021. We can protect our environment, our Mother Earth, by ending our obsession with nuclear weapons of mass destruction and join the Treaty on Prohibition of Nuclear Weapons. Thank you.

The post American Genocide first appeared on Dissident Voice.

Annihilating the Virus Enemy in Japan

Men wearing Japanese imperial military uniform visit the Yasukuni Shrine in Tokyo, Japan August 15, 2019, on the 74th anniversary of Japan’s surrender in World War Two. REUTERS/Kim Kyung-Hoon TPX IMAGES OF THE DAY

According to Japan’s Ministry of Health, Labor and Welfare, 18,515 people had lost their lives to the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) by 24 January 2022. Of those deaths, four were minors, i.e., 19 years of age or younger. At this point, nobody can say exactly why the Archipelago of Japan has emerged relatively unscathed by the virus, but it has been clear for many months that Japanese have little to worry about.

Somehow, however, this has not translated into victory celebrations or a round of applause for government health officials for preventing a public health disaster, or much praise for the residents of Japan for their very diligent cooperation with government health guidelines. Indeed, the panicked language continues, such that we were recently told by journalists that Japan is “bracing” for the omicron variant. The government is now considering vaccine booster shots for everyone, not just health workers. The Nation’s borders were sealed quickly and tightly when omicron emerged in November. And even now we are told that we need greater security, and that local and national government agencies are willing and able to provide it, as long as we all trust and obey them.

With full awareness of the relatively low lethality of the virus, there is still widespread fear and a (mis)recognition that we are all in an exceptional situation now, one that will require, for our own health, greater austerity and sacrifices, and even more violations of Japan’s constitution. Nicknamed the Peace Constitution and promulgated in 1947, it is not yet clear whether it will be weakened through a “state of exception” in which the constitution is set aside “temporarily,” or through “amendment by interpretation,” or through actual legal revision, but what now appears almost inevitable is that elite ultranationalist forces in government will continue to take advantage of the present crisis to weaken the human-rights-defending potential of the Constitution, deprive the people of their civil liberties, and dismantle Japan’s fragile democracy.

With awareness of COVID-19’s impact on class struggle, we are now beginning to get a picture of who the losers and winners in Japan might ultimately be. Some of the key winners may include pharmaceutical and biotech companies, big business in general, universities and companies with public-private partnerships, liberal intellectuals in the fields of medicine and economics, pro-U.S. factions, and the ultranationalist political party Nippon Ishin no Kai (“Japan Innovation Party”), who are considering calling for the creation of an emergency situation clause in the Constitution. The losers will probably include not only the working class but also single mothers, victims of domestic violence, homeless people, small business owners and employees, immigrants, asylum seekers, and children without parents or with parents who cannot take care of them.

Healthy hygiene is important for us all, but we have to be careful that this discourse does not cause a loss of freedom, such as what we saw with the obsession with terrorism and national security after 9/11. Many people believe that a nation-state is supposed to achieve health security in the same way that it is supposed to achieve national security, i.e., by annihilating the enemy. If we are not careful, a similar bloodthirsty logic can take over, whether the enemy is a country, a terrorist, an insect, or a virus. Whether you use a nuclear bomb, a pesticide, or an mRNA vaccine, when the people are in a warring mood, the goal becomes annihilating the foreign Other. This is key to understanding COVID-19 deceptions.

Giorgio Agamben (1942-), the philosopher who, for many years, has deeply probed the question of the political uses of movements for greater “biosecurity,” emphasizes how the state exaggerates the bio-threats, just as it exaggerated terrorism and advertises itself as the savior of the people. He writes that “We could argue that, once terrorism ceased to exist as a cause for measures of exception, the invention of an epidemic offers the ideal pretext for widening them beyond all known limits” (Where Are We Now? The Epidemic as Politics, Valeria Dani, trans., Kindle edition [Rowman & Littlefield, 2021] p. 13). The “limitation of freedom” that is imposed by governments seems limitless, just as the desire for security is limitless (Where Are We Now? p. 38). Governments tell us that we need more security, we believe them, we desire more security, and then they intervene to satisfy that desire. (I have previously discussed the state of exception in Japan here). Just as governments were supposed to be the only ones who could protect us from terrorism, especially after 9/11, now they tell us that only they can protect us from nature.

The following quote often attributed to the Nazi war criminal Hermann Göring (1893-1946) seems appropriate for today. “Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.” Many advocates of peace are aware of this problem, how states gain power by exaggerating threats from the outsiders within our communities and from people in foreign countries. Fear of the unknown plays into their hands.

More specifically, the system or the “regime” that we are now struggling under is the modern ideology of the plague that was famously described by Michel Foucault in Discipline and Punish: The Birth of the Prison (1975) and other works. This is aptly explained by Carlos Salzani:

It has been noted that the COVID-19 pandemic is a biopolitical dream (or rather nightmare) come true—and in fact Foucault’s poignant analyses of the intertwined evolution of politics and medicine in modernity have been evoked from the very beginning. To describe the mutations of power between the seventeenth and eighteenth century, Foucault tellingly used three models based precisely on infectious diseases. In the lecture on 15 January 1975 of his 1974-1975 course at the Collège de France titled [“Abnormal”] and, more in depth, in the opening of the chapter on panopticism of Discipline and Punish (published a month later, in February 1975), he counterpoised the management of leprosy and that of the plague as two distinct modalities of control and organization: whereas the former required the leper’s exclusion from society, the latter installed a disciplinary mechanism that mobilized society in its totality. Both models, Foucault noted, are very ancient, but in a sense at the dawn of modernity the plague model became prevalent. According to Foucault’s by-now famous distinction, the exclusion of lepers (premodern power) is a negative model based on rejection and prohibition and pursuing the dream of purifying the community; the plague model (modern, disciplinary power), to the contrary, is a positive technology of power demanding the inclusion of the infected within a space meticulously analyzed, partitioned, organized, and controlled, with the concomitant production of an appropriate knowledge. Exclusion is replaced by quarantine, rejection by inclusion and the assignment to each individual of a proper name and a proper place. The goal is no longer that of purifying the community but rather of producing a healthy population. This model contradicts the “literary dream of the plague,” all those political fables (like Camus’ or Saramago’s) which liken the plague to orgiastic outbursts of lawlessness, disorder, and confusion; the “political dream of the plague” is instead precisely the contrary, “the marvelous moment when political power is exercised to the full. Plague is the moment when the spatial partitioning and subdivision (quadrillage) of a population is taken to its extreme point.” In truth, the plague is met by order, discipline, hierarchy, control: “The plague-stricken town […] is the utopia of the perfectly governed city.” (Author’s italics).

Salzani explains that Foucault defined biopolitics as “the peculiarly modern political focus on the preservation of life,” and notes that this goes back to Cicero’s words, Salus populi suprema lex esto. (The health/safety of the people should be the supreme law). In “An Essay concerning the True Original, Extent and End of Civil Government” (1690) John Locke wrote, “Salus populi suprema lex is certainly so just and fundamental a rule, that he who sincerely follows it cannot dangerously err.” And every American knows from our “Declaration of Independence” that we have the right to “life, liberty and the pursuit of happiness.” Many people are familiar with the words, “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” And ominously from the perspective of government officials, the Declaration also told us that “whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it.”

But the “Declaration of Independence” does not claim that safety and health are supreme, that they are far more important than liberty and the pursuit of happiness. There are limits to how much safety should be demanded, especially in times and places where governments do not respect human rights or democracy. Too much emphasis on safety can permanently damage democratic institutions. As the Japanese internist Dr. Irohira Tetsurō has argued, it is not possible for a society to simultaneously enjoy freedom of expression, freedom of profit, and zero [coronavirus] infections (Japanese weekly magazine, Shūkan Kinyōbi 1322 [26 March 2021] p. 34). Just as in China, some politicians in Japan have advocated the dangerous social goal of “zero corona.”

Kiuchi Minoru, like many politicians of the largely ultranationalist ruling party LDP, expressed worry about what would happen if Japan’s national legislative assembly did “not function when an urgent response is required.” Many Japanese believe that quick responses from the government will be necessary in the future when pandemics and natural disasters occur. This kind of concern was behind the 2020 revision of the 2012 Act on Special Measures against Novel Influenza, etc. (Shingata infuruenza tō taisaku tokubetsu sochi hō), which is now often abbreviated as the “Special Measures Law” in English. (The English translation of the law can be found on the page entitled “Japanese Law Translation” at the website of the Ministry of Justice). This Special Measures Law was revised on 13 March 2020 by the Diet (i.e., Japan’s national legislative assembly). In the midst of the crisis presented by the new coronavirus, the Diet granted the prime minister “the authority to declare a state of emergency in the event of the spread of an infectious disease that could gravely affect people’s lives.”

The next day, on 14 March, the revision came into effect, and Prime Minister Abe Shinzō gave a speech saying that the new law would prevent the spread of the virus and that the government would be asking the public to accept “substantial difficulties and inconveniences.”

At first glance, this new Special Measures Law sounds like a fair and reasonable response to a dangerous virus, until one recalls that the “state of emergency,” or “state of exception,” is precisely how the Nazis of Germany got their start. Some Japanese scholars of law have pointed out the danger of such a thing happening in Japan, such as the scholar of modern German history, Professor Ishida Yūji at the Graduate School of the University of Tokyo. The Weimar Constitution was once thought of as the most democratic constitution in the world, but it was through the abuse of the state of emergency clause (Article 48), which gave the president the power to issue an emergency decree, that Adolf Hitler rose to power. According to the Holocaust Encyclopedia,

Embedded within the Weimar Constitution was an article that encompassed the right/left political tension and would be fundamental to Adolf Hitler’s rise to power. This was Article 48, which stated that “If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces.” It also allowed the President to suspend civil liberties guaranteed in the Weimar Constitution.

This was the Constitution’s “fatal flaw,” and it is probably also what Asō Tarō referred to as the “Nazi Trick.” Asō, one of the right-hand men of the former prime minister Abe, is presently the Deputy Prime Minister and Minister of Finance. In 2013 he made the notorious suggestion, “Why don’t we learn from that (Nazi) trick?” (Various translations appeared in English). He made this statement in connection with the debate over the revision of the Constitution.

Ishida explains:

The fact that a minister who made such a comment and undermined the trust of the nation is able to retain his post shows the true nature of the [Abe] administration. The LDP [Liberal Democratic Party] will use this experience to try to write an emergency clause into the Constitution… A state of emergency gives the government the authority to suspend the normal constitutional legal order (i.e., separation of powers and the guarantee of human rights) and take emergency measures in emergency situations such as war, civil war, depression, and major disasters.

Ishida is the author of two books in Japanese relating to this fatal flaw in the Weimar constitution. He is the author of Hitler and Nazi Germany (Hitoraa to Nachi Doitsu [Kodansha Gendai Shinsho, 2015]) and the co-author with Hasebe Yasuo of Nazi “Tricks” and the State of Emergency Clause (Nachisu no “teguchi” to kinkyūjitai jokō [Shūeisha shinsho, 2017]). Thus it is not surprising that he was one of the first to raise the alarm when the Special Measures Law was revised in March 2020. For Ishida it was “incomprehensible” that all of the opposition parties, with the exception of the Communist Party and the Reiwa Shinsengumi, voted in favor of this law, when it does not require the prime minister to obtain prior approval from the Diet, who are the representatives of the people, when declaring a state of emergency. He said that the original 2012 law should have been corrected regardless of the fact that it was passed under the administration of the Democratic Party of Japan (Minshutō, a liberal opposition party to the left of the ruling LDP). This law gives the executive branch the authority to place restrictions on the fundamental rights of the citizens. He argues that it could easily wind up allowing Japan’s ultranationalist government to completely abandon the Constitution.

Hitler’s government, formed in January of 1933, was a coalition between the Nazi Party and the German National People’s Party (who were traditional conservatives). The Nazi Party had received 33.1% of the vote, so Hitler’s government initially came into power as a minority government. On 27 February 1933 the parliament building went up in flames. This was the famous “Reichstag Fire,” which happened just before election day (on 5 March). An atmosphere of panic and terror followed, and the Nazis blamed the fire on the communists.

On the day after the fire, the “Emergency Decree for the Protection of the German People” was passed. This was a declaration of a state of emergency. Democratic institutions were suspended, freedom of speech was restricted, and the right to own property and the right to trial before imprisonment were removed.

A month after the state of emergency was declared, on 24 March, the Enabling Act (Gesetz zur Behebung der Not von Volk und Reich, or “Law to Remedy the Distress of People and Reich”]) was rammed through the Reichstag. This law granted legislative power to the Hitler Cabinet. Hitler could now rule by decree. By July, Hitler and the Nazi Party had managed to establish a one-party system, with the Nazis as the sole ruling power. This was only six months after the Nazis had taken the reins of government. The parliament gradually ceased to function as a true legislature, to the extent that people wondered why the Reichstag even existed.

Ishida suspects that the government of Japan is likewise doing rehearsals for a state of emergency clause that would allow prime ministers to side-step the constitution. His warnings about Japan’s state-of-emergency legislative changes echo the those of Giorgio Agamben, who warned in 2020 and earlier that making the state of exception as permanent as possible is one of the primary goals of getting people to panic about biosecurity. According to Agamben, health security used to be “at the margins of political calculations” but is now becoming an “essential component of state and international political strategies” (Where Are We Now? p. 55). What certain politicians may now be hoping for is a permanent state of emergency.

Former Lower House Speaker Ibuki Fumiaki said at a meeting for an LDP faction on 12 March 2020, the day before the Special Measures Law was revised, that we must not “play too much or drink too much.” Suzuki Miho, the Mainichi journalist who interviewed Ishida, wrote that this statement reminded her of the World War II-era slogan in Japan “We will sacrifice everything for the victory” (Hoshigarimasen, katsu made wa), and she sensed anxiety about the virus among the people. With little known about it, there is an atmosphere of people coerced into enduring their suffering.

It does seem that when people are so focused on contributing to a “war effort,” they can easily lose awareness of the fact that their rights are being stolen from them. On 7 April 2020, a few weeks after the Special Measures Law became law, Abe did declare a state of emergency, making use of his new power under the revised law. Even at that early point, Abe wielded the mighty authority to restrict people’s right to freedom of movement and assembly. Yet, Ishida notes, a poll conducted by the Mainichi on the following day, indicated that 72% of the respondents approved of Abe’s declaration, and only 20% disapproved.

Another troubling feature of the Special Measures Law for Ishida is that it allows for a wide range of compulsory measures to be taken, such as requests to refrain from mingling with other people outside one’s home; restrictions on the use of schools and assembly halls; the prime minister’s new power to give instructions to NHK (Japan’s national broadcaster); and his power to expropriate land, buildings, and supplies. He warns that the day may not be far off when rallies and demonstrations become impossible, when people “clam up” no matter how dissatisfied they are with the government. In his view, too, Japan’s Diet is now weak, as was the Reichstag when Hitler became chancellor.

Many lawyers have made statements against the Special Measures Law, too. The Japan Federation of Bar Associations (JFBA), an organization of lawyers with 42,991 members, opposed it, in fact. Their concern was not with the parallels with Nazi history or the state of exception but with the negative effects on COVID-19 patients and businesses. They worry that patients may be stigmatized and human rights may be violated:

Anyone may contract COVID-19 because of its significant transmissibility. People infected do not deserve blame for their contraction of the virus, whereas the amendment bill presented this time ignores such circumstances and seeks to impose obligations by means of punishment without adequate deliberation. It neglects the aims of and the historical background to the legislation of the Infectious Diseases Act and makes light of the fundamental human rights of those who are affected by infectious diseases.

This is exactly the situation that Agamben describes when writing, “the citizen no longer has a right to health (‘health safety’) but is instead forced by law to be healthy (‘biosecurity’)” (Where Are We Now? p. 56).

As the JFBA statement explains, in the past “…there was groundless discrimination or prejudice” against patients suffering from Hansen’s disease, (AIDS), and other infectious diseases in Japan. That is “the historical background to the legislation of the Infectious Diseases Act.” (The full name of the Infectious Diseases Act is the “Act on the Prevention of Infectious Diseases and Medical Care for Patients with Infectious Diseases,” or Kansenshō no yobō oyobi kansenshō no kanja ni taisuru iryō ni kan suru hōritsu. This law has been part of Japan’s infectious disease surveillance system since 1 April 1999. The JFBA opposes both these laws, the Infectious Diseases Act and the Special Measures Act). The JFBA statement also cites violations of worker’s rights, such as dismissals of unvaccinated workers; increases in hate speech against minorities; and people infected with COVID being unable to vote.

The Special Measures Law was established at a time when Japanese perceived, correctly or incorrectly, that Japan needed more biosecurity, and many people were unaware of the fact that a “state of exception,” in the sense of an ideological operation, was in the works. Although historians like Ishida and lawyers such as those with the JFBA have raised concerns, Japan’s journalists are not problematizing this law.

Yet, the Special Measures Law may be the greatest threat to Japan’s Peace Constitution in decades. This is because it opens the way for a state of exception in which prime ministers and prefectural governors possess the authority to issue decrees that have the effect of a law. While the Peace Constitution still exists, prime ministers and prefectural governors are able to do things during an official state of emergency that they could not normally do. However weak or gentle such decrees may appear, they could set the stage for much more Draconian decrees in the future, and there is no guarantee that future prime ministers and governors will not abuse their new power.

This Special Measures Law may even weaken the authority of the Diet, and violate Article 41, which says, “The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State.” Contrary to Article 41, the Special Measures Law gives the prime minister the authority to suspend certain articles of the constitution whenever there is a war, economic crisis, or pandemic. Setting aside the constitution in this way is dangerous because there is no clear end in sight. Japan has had at least three major crises in the last two decades: 9/11, “3/11” (the 2011 Tōhoku earthquake and tsunami), and the 2020 coronavirus crisis, and as a result of all three, the Constitution has been violated and rights have been trampled on.

Who can be sure, for example, that what happened to Japan and Germany during WWII, where people like Adolf Eichmann (1906-62) and Tōjō Hideki (1884-1948) went about their work calmly and confidently organizing massacres as if they were harvesting cabbage, will not happen again. Under a state of exception, when the constitution is repeatedly ignored, powerful officials are often in a position where they are able to say with a straight face that they are just following orders. No illegal acts are committed because the constitution is no longer in effect. In the case of Japan now, coronavirus justice depends solely on the judgment of a small number of individuals, primarily the prime minister and the regional governors.

Governors can “request” a state of emergency for their prefecture from the prime minister. The way this process seems to work is that the Ministry of Health, Labour, and Welfare distributes information to prefectural government offices and, based on that information, if the number of COVID-19 cases is sufficiently large, governors single-handedly make a decision to request a state of emergency for their region from the prime minister. If the prime minister is convinced (as he always is), he complies with the governor’s request and issues a state of emergency for that prefecture. It is a win-win situation for the prime minister and the governors. This system of declaring states of emergency empowers governors of regions with large case numbers, including ultranationalists like Tokyo Governor Koiki Yuriko and Osaka Governor Yoshimura Hirofumi (who has been likened to Adolf Hitler), not only liberals like Aichi Governor Ōmura Hideaki and Okinawa Governor Tamaki Denny. This overly empowers a small number of elite officials; encourages unconstitutional and undemocratic governance; and hurts the lives of many people, such as those working in the restaurant industry.

The lawyers group JFBA predicted the last problem. Governors, with the cooperation of the prime minister, can force business operators to “change their operating hours or take other measures and, in the event of non-compliance with the order,” they “can impose petty fines and publicize the fact of having issued the request and order,” which hurts the reputation of the business operator/owner.

There is a lack of regulation of governors as they punish businesses for not cooperating with their biosecurity protocols. The JFBA explains that the law does not provide clear criteria for issuing the request or order, “while the scope of the authority granted to the prefectural governors is quite extensive.”

Such orders from governors can cause “immediate” and “grave” consequences, they warn, for people who work at businesses operating under severe conditions, and those people could “lose their livelihood or even their lives.” They emphasize the difficult situation that restaurant owners find themselves in:

The businesses involved in dine-in food service or serving alcoholic beverages, namely the major target of the request/order, are not engaged in operations which are harmful in themselves. It is too cruel to require them to change operating hours (which could be critical to their trade), etc. only because there are risks of spreading infection in food and drink establishments regardless of how hard they try to contain it. If such request or order is due, it must be combined with the necessary and adequate compensation defined in the Constitution of Japan as “just compensation there for” for businesses that are affected.

What compensation will be given to affected businesses has not been spelled out and, in the future, governors could theoretically lash out at certain persons in an arbitrary and unjust way, e.g., attacking the restaurants that are on the side of their personal enemies or political opponents. Orders from governors could impinge on the rights of business owners to provide products and services. “Additionally, the indifferent issuance and publicizing of the request/order may produce unjustifiable reputational damage or discrimination and prejudice, and entails violations of the business operators’ honor, right to privacy, and freedom of business.” For restaurant owners, employees, and many others, the new emphasis on hygiene, sanitization, and biosecurity presents them with the danger of worsened health, stigmatization, and the loss of human rights. One person’s safety is another person’s danger.

Tokyo Governor Koike has, in fact, already ordered four restaurants to pay 250,000 yen (USD $2,000) fines for refusing to shorten their business hours, which they were ordered to do under her state of emergency. While it may be fine to call Japan’s biosecurity policies “lockdown lite,” these fines demonstrate that the Special Measures Law does have legal teeth in it. In the words of the JFBA, this law grants “broad authority to the prefectural governors for the purposes of containing the spread of COVID-19.” According to Japan’s constitution, people have the right to work (Article 27) and the right to own property (Article 29). Article 31 states that “no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” Under Article 21 Japanese are also supposed to enjoy the right of assembly and association. One could argue that the rights of the above four restaurant owners have been violated.

The political scientist and activist Douglas Lummis has underscored how dear the Constitution has been to the hearts of millions of people throughout the Archipelago of Japan:

Under the protection of the human rights provisions of the Constitution, Japan developed a politically active civil society, and this civil society in turn made protection, or better, full realization of the Constitution its principal piece of business. The country’s ruling elites made the amendment of Article 9 and the remilitarization of the country its first goal as far back as the 1950s; the civil society has so far prevented this. If the Constitution was not legitimized by the Diet vote in 1947, it surely was legitimized in the decades of struggle by the civil society to preserve it.

One of the most dramatic examples was the 1960 US-Japan Security Treaty Uprising (or “Anpō” protests. “By the time the protests climaxed in June 1960, an estimated 30 million people—about one-third of Japan’s population at the time—participated in some manner in cities, villages, and towns all across the nation”). These were protests for peace and the sovereignty of the people, against the US-Japan Security Treaty, which is the treaty that continues to this day to allow the U.S. to station troops on Japanese soil.

Peace-loving people and others throughout the Archipelago have often brought out the best in the Constitution, using it during the three quarters of a century since it was promulgated to build a foundation of peace, democracy, and human rights. Now the question is, “Will Japanese civil society stay strong, maintain a ‘politically active civil society,’ and continue to breathe life into the Constitution? Or, does the Constitution have one foot in the grave already?” For the sake of the people of East Asia and future generations of Japanese, let us hope that the former is true, that Asō Tarō’s ultranationalist dream of the death of the Peace Constitution does not occur. He was ignorantly but cunningly plotting for its death on 29 July 2013 when speaking before an ultranationalist audience: “It should be done quietly. One day everybody woke up and found that the Weimar Constitution had been changed, replaced by the Nazi Constitution. It changed without anyone noticing. Maybe we could learn from that. No hullabaloo.”

Lummis points out Asō’s ignorance: “The Weimar Constitution was never amended by the Nazis; the Nazis did not take over the government ‘quietly’.” Indeed, it was not “amended.” It was state-of-exceptionized. It is not necessarily true “that the LDP is aiming for a Nazi-type regime. They have their own, local, model for authoritarian government: the Japanese government as it was before 1945.” It is an undemocratic and militarist past that nobody in East Asia except former colonizers and colonizer-collaborators looks back on with nostalgia.

Many thanks to Olivier Clarinval for answering several questions about how current government health policies in the Global North are threatening democracy.

The post Annihilating the Virus Enemy in Japan first appeared on Dissident Voice.

Trump, Twitter and the Digital Town Hall

The merits are hard to stomach for partisans long jaundiced by presumption and dislike, but the cheer at the deplatforming of Donald Trump by a range of social media platforms said as much about the nature of any sentiment about democracy as it did about those claiming to defend it.  For one, it shut off a valve of fantastic, instant recognition to a figure whose thoughts are best aired rather than cellared in underground vats.

But cellaring, hiding, suppressing unsavoury viewpoints are the very things social media platforms are getting more enthusiastic about, much of it pushed on the censorious lobby that claims to have a monopoly on veracity and good behaviour.  In the name of misinformation, offence and incitement, users will be either suspended, barred or subjected to digital excommunication in the name of safety.

Which brings us to the fascinating nature of Trump’s latest legal action against Twitter.  In January, the former US president was banned from the platform following the January 6th riot at the Capitol building inspired by supporters riled by claims that the election had been stolen.  It began as a temporary ban of 12 hours for “repeated and severe violations of our Civic Integrity policy”.  Two days later, the ban was made permanent.  “In the context of the horrific events this week, we made it clear on Wednesday that additional violations of the Twitter Rules would permanently result in this very course of action,” Twitter claimed in its January 8 statement.  “The company’s “public interest framework” existed to permit “the public to hear from elected officials and world leaders directly.”  But this role did not exist “above our rules entirely” and could not be used “to incite violence, among other things.”

The reasoning behind the ban was illuminating of a social media giant sitting in shallow judgment.  Two of Trump’s tweets were singled out: one claiming that 75 million “great American patriots who voted for me” would “not be disrespected or treated unfairly in any way, shape or form!!!”; the second stating that he would “not be going to the Inauguration on January 20th.”  Assuming the imperious role of civics guardian, the company strained to identify these mutterings as violating “our Glorification of Violence policy”.

At the time German Chancellor Angela Merkel called the decision “problematic” while Jens Zimmermann, Social Democrat member of the Bundestag, wondered what it meant “for the future actions of social media platforms”.

In July, Trump began his legal battle to seek reinstatement across a range of platforms, filing a class action lawsuit against Google, Twitter and Facebook. “We are demanding an end to the show-banning, a stop to the silencing, and a stop to the blacklisting, banishing, and cancelling that you know so well,” he stated at the time.

On October 1, Trump filed a more specific complaint in the Southern District of Florida claiming that Twitter “coerced by members of the United States Congress” was censoring him.  The social media platform, the complaint argues, “exercises a degree of power and control over political discourse in this country that is immeasurable, historically unprecedented, and profoundly dangerous to open democratic debate”.  With 88 million followers, Trump argued that his account had become “an important source of news and information about government affairs and was a digital town hall.”

The filing also made a pointed remark to Twitter’s somewhat varied approaches to users.  Why permit the Taliban, “a known terrorist organization”, room to tweet about their military victories across Afghanistan yet claim that his own efforts had been accused of “glorifying violence”.

Resort was also made to Florida’s social media legislation, the Stop Social Media Censorship Act, which was signed into law by Governor Ron DeSantis in May to spite “the Silicon Valley elites” only to be blocked two months later by a bemused judge.  One of the plaintiffs, Steve DelBianco of the industry group NetChoice, expressed delight at the absurd proposition that the court ruling “ensured that social media can remain family-friendly”.  But equally absurd was the law’s idiosyncratic drafting, which included an exemption for companies operating theme parks in Florida.  It is likely to perish at the hands of the Federal Appeals Court.

Leaving aside the twaddle put forth by DelBianco, the difficulties of targeting social media platforms are almost insurmountable.   Content moderation remains a pillar of using such fora, one guaranteed by Section 230 of the Communications Decency Act which gives the digital giants platform rather than publisher status. And the sacred First Amendment is assumed to apply to government actions rather than corporate mischief.

The efforts by Trump to place his legal arguments against Big Tech on the hook of the First Amendment has received little support. One mighty voice in the field of jurisprudence thinking Trump has a case is Alan Dershowitz, who has argued that the case “pits freedom of speech on the one hand against the First Amendment on the other.”  Such reasoning can well justify why lawyers deserve a bad name, but Dershowitz sees it as the high-tech behemoths quashing free speech. “They are censoring but they’re claiming the right to do so under the First Amendment”.

Withering scorn has been levelled at that view. “Unlike delusional Dershowitz,” Democratic Rep. Ted Lieu insisted with smug confidence, “I read the First Amendment and it does not apply to private sector companies.”  Laurence Tribe, formerly Carl M. Loeb Professor at Harvard Law School, took a dim view of his former colleague.  “How low can a former law professor sink?  To call a bogus lawsuit on a fake version of the First Amendment an important case, much less ‘the most important’ of the century?  Has he no shame?”

Democratic strategist Kaivan Shroff, conforming to the fashion of the times, suggested a retributive remedy: the cancellation of Dershowitz’s status as emeritus professor.  Harvard Law School had “a professional and ethical responsibility to its community – past, present and future – to associate with faculty who are ethical and have a high regard for the law.”

For all such righteous splutters, Dershowitz and Trump have a point in pointing out a symptom of the US body politic that has become cripplingly apparent: business and the interests of capitalism have come to control speech, its circulation, its distribution.  For decades, they had already come to guide politicians and political parties, exercising influence through campaign donations. Why run for elected office when you can buy it?

In 2010, the US Supreme Court decision of Citizens United v Federal Election Commission found that limits upon “independent political spending” from corporations and private interest groups violated the First Amendment.  Those with deep purses could only deem this the natural order of things: if you have cash, spend it to influence opinion in the name of free speech.  Put rather simply, such speech was a shield big capitalism could well employ if it needed to. (Rep. Lieu, take note.)

Gore Vidal used to remark that anyone seeking the keys to the White House could only do so with the approval of the Chase Manhattan Bank.  Had he lived to see the Trump cancellation saga, he may well have added those Big Tech titans to the sterile committee of electoral approval.

The post Trump, Twitter and the Digital Town Hall first appeared on Dissident Voice.