Rule of Law

A couple of legal issues are on my mind right now, one at the law enforcement level, and one at the legislative level.

I have been seeing a series of photos and videos from around the country of unprovoked assaults by police against unarmed and entirely peaceful demonstrators. An 84 year old woman got maced out in Oakland and students at U.C. Davis, seated and passive, were maced in a calculating, unhurried manner by a campus police officer. Unresisting protesters have been beaten with clubs and teargassed. An officer in Oakland fired a tear gas canister into the head of a man at point blank range, fracturing his skull. When other people clustered around the fallen man to administer first aid, an officer tossed a tear gas grenade into the center of the group, scattering them.

This bothers me, of course, because of the unnecessary violence and sheer sadism of it. It also bothers me because of the damage it does to the idea of rule of law.

We should expect laws to be enforced fairly, evenly, and with techniques proportional to the seriousness of the crime. We should expect law enforcement personnel to do their jobs with the minimum force required for their own safety and the safety of those around them. But we can’t. It seems that peaceably assembling in order to petition the government for redress of grievances, while admittedly becoming a public nuisance, is grounds for violent assault.

What the police themselves fail to realize is the two types of power they wield, and the relationship between the two. Their most obvious type of power is that of the gun, the mace, and the club. This is their small power. With all that weaponry and armor, an individual police officer is no more powerful than any other person so armed and armored. A police officer’s great power is the power of respect, both for the rule of law and for the officer as a just enforcer of that law. When the general populace has that respect for law enforcement, a single officer can walk safely among a thousand people. The people will assist that officer, obey all reasonable commands, warn of danger, and offer useful information. When the police arbitrarily use violence, they lose that respect. Without that respect, the officer is merely the member of a uniformed gang.

As a positive example, consider the Vermont State Police. They are one of the best trained and most thoroughly professional police forces in the country. They patrol the highways and back roads of Vermont alone. They rely on respect. They have a solid reputation. In my few interactions with them they have been uniformly polite, helpful, and professional, even when my personal appearance was not such as inspires the affection of a police officer. They are not perfect as individuals or professionals, but I can easily see 98% of Vermonters on their side. Can the police officers of New York City or Oakland expect the same from their citizens?

The police forces that are using violence against peaceful protesters are weakening themselves. And yet, this is a common theme in history. As a government loses legitimacy in the minds of its people it resorts to force, which hastens the decline. The relative immunity of millionaire bankers to arrest and prosecution is an aggravating factor. Apparently trespassing on Wall Street is a more pressing concern to the authorities than defrauding investors of billions of dollars on Wall Street.

As if the militarization of the police wasn’t bad enough, now Congress is turning the military into the police, prosecutor, judge, jury, and jail. The Senate just passed the National Defense Authorization Act, S.1867. Stuck in there is a nightmare provision, Subtitle D – Detainee Matters. It authorizes the U.S. military to detain any terrorism suspect indefinitely, without trial. That includes U.S. citizens detained on U.S. soil, as in you, on your street. A false accusation or a case of mistaken identity is as good as a life sentence. There is a feeble and vague insertion about not affecting existing law or authorities. That means that after the military whisks you away into secret indefinite detention you can hope that the courts work it out before something even more unpleasant happens to you.

Specifically (as highlighted below):

Under Section 1031 c (1), you can be detained until the end of the “War on Terror,” whenever that might be.

Under Section 1031 c (2), you can be tried in a military tribunal, lacking basic rights or rules of evidence, and including the use of confessions obtained under torture.

Under Section 1031 c (4), you can be shipped off to a foreign country of the government’s choice.

Well, there go all the good parts of the Constitution.

President Obama says he wants to veto it, albeit for all the wrong reasons. The House of Representatives still has to work it over. Apparently even the top military brass and the various branches of the intelligence services don’t want it to pass. It’s time to write the White House and your members of Congress. And call them. And raise hell in general.

Subtitle D—Detainee Matters

SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED

FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

 (a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military

Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition

under the law of war.

 (b) COVERED PERSONS.—A covered person under this section is any person as follows:

 (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

 (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly

supported such hostilities in aid of such enemy forces.

 (c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

 (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

 (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–25 84)).

 (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

 (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

 (d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

 (e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

 (f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—

The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).

Amendments

As I reported last time, I am working with a group of people online, trying to formulate a couple of Amendments to the Constitution. The purpose of the amendments would be to get corporate influence out of government and to reform campaign finance laws so that the 99% of us who earn ordinary incomes have a voice equal to the 1% who can pour tens of thousands of dollars into the political process.

The origin of this particular online effort comes from a political commentator named Cenk Uygur, who has a show called The Young Turks. He created an organization called the WolfPAC, which is aligned with Occupy Wall Street. The goal is to organize a state by state campaign for these constitutional amendments. I’ll sum up his original, somewhat colloquial proposal this way:

Corporations are not persons.

Campaign contributions are not protected by the Constitution

Only citizens can contribute

Contributions are limited in size

I added this concept:

Contributions are restricted to constituents

The online discussions continue, but I have formulated a working proposal. Some of this is my wording, some is others. A college student named Lam Nguyen has organized the online forum and has had a lot of influence. I’ll lay it out for you in full, and then go through it with some explanation. Believe me, every word of this has been hashed and rehashed.

28^th Amendment

Section 1: Only natural persons shall have the rights protected under the U.S. Constitution.

Section 2: Incorporated for-profit entities are forbidden to interfere with elections, legislation, or the conduct of government.

Section 3: Congress shall have power to enforce this article by appropriate legislation.

29^th Amendment

Section 1: Notwithstanding any other provision of law, contributions of money or gifts in kind to candidates for public office, or to organizations engaged in influencing legislation, the outcome of an election, or a ballot initiative, are not protected acts under the U.S. Constitution.

Section 2: Only U.S. Citizens shall be allowed to contribute money or gifts in kind to a candidate for public office, or to an organization engaged in influencing legislation, the outcome of an election, or a ballot initiative.

Section 3: No candidate for any elected office, or organization engaged in influencing legislation, the outcome of an election, or a ballot initiative, shall be permitted to receive more than a sum equal to sixteen times the federal hourly minimum wage, in contributions of any form, excluding volunteer labor, for any purpose, from any individual during an election cycle. All contributions must be fully disclosed in amount and source.

Section 4: All campaign expenditures shall be comprised entirely of campaign contributions. Candidates as private citizens may contribute to their campaigns within the limits and restrictions of this amendment.

Section 5: All contributions to candidates for public office, or to organizations engaged in influencing legislation, the outcome of an election, or a ballot initiative, must be raised from the constituents of the elected office in question or legal residents of the jurisdiction affected.

Section 6: Congress shall have power to enforce this article by appropriate legislation.

Perhaps you are saying to yourselves, “I knew James Madison, and you, sir, are no James Madison.” In this case I want to know the secret of your longevity, but it is true that I am not a writer in the 18^th century style. I have tried to pare away the unnecessary and to achieve the fine balance between specificity and generality. The result is not always graceful. Let me explain.

28^th Amendment

Section 1: Only natural persons shall have the rights protected under the U.S. Constitution.

This reverses the near-universally misinterpreted Supreme Court decision of 1886, Santa Clara County v. Southern Pacific Railroad. Read Unequal Protection by Thom Hartmann for details, but the court clerk, a former railroad lawyer, added his own spin to the decision by declaring that corporations were protected as persons under the 14^th Amendment. This contradicted common sense, legal precedent, and the explicit commentary of those who wrote the 14^th Amendment, as well as the Santa Clara decision itself, but no matter.

It was, and is, ridiculous to consider an artificial, unconscious, immortal, amoral legal entity in the same legal light as a human being, but that’s the way we have been operating for the past century. Corporations have accumulated both power over government and immunity from government in ways that have distorted our legislative process and made the government act against the general public interest. This amendment restricts the protections of the Constitution to human beings (“natural persons” being the legal term of art) and renders any protections to corporations mere privileges, which may be revoked.

Section 2: Incorporated for-profit entities are forbidden to interfere with elections, legislation, or the conduct of government.

This is reasonably self explanatory. These amoral legal fictions we call corporations are rendered politically impotent.

Section 3: Congress shall have power to enforce this article by appropriate legislation.

A must have for implementation.

29^th Amendment

Section 1: Notwithstanding any other provision of law, contributions of money or gifts in kind to candidates for public office, or to organizations engaged in influencing legislation, the outcome of an election, or a ballot initiative, are not protected acts under the U.S. Constitution.

The Supreme Court made the absurd decision in Buckley v Valeo that donating money to a campaign constituted protected political speech. The Court neglected to explain how we would all somehow manage to obtain equal amounts of money so that millionaires wouldn’t have greater rights than those of modest income. As it stands, money is so effective at determining the outcome of elections that it is more analogous to voting than speech. It is not democracy when wealthy people and corporations have more votes than everyone else. This section places financial contributions in the realm of legislation.

Section 2: Only U.S. Citizens shall be allowed to contribute money or gifts in kind to a candidate for public office, or to an organization engaged in influencing legislation, the outcome of an election, or a ballot initiative.

Again, this is reasonably self explanatory. No foreigners or corporations are allowed to finance lobbying, campaigns, or ballot measures.

Section 3: No candidate for any elected office, or organization engaged in influencing legislation, the outcome of an election, or a ballot initiative, shall be permitted to receive more than a sum equal to sixteen times the federal hourly minimum wage, in contributions of any form, excluding volunteer labor, for any purpose, from any individual during an election cycle. All contributions must be fully disclosed in amount and source.

This one levels the playing field. I have written before about the 90% success rate of high spenders in primary campaigns and our millionaire-friendly donation limits. This amendment pegs the maximum donation to the income of the least well paid among us. It will increase or decrease in value along with their fortunes. Warren Buffet and the guy who mows Warren Buffet’s lawn will have equal political clout.

Section 4: All campaign expenditures shall be comprised entirely of campaign contributions. Candidates as private citizens may contribute to their campaigns within the limits and restrictions of this amendment.

What will prevent candidates from borrowing money from wealthy donors or millionaires buying their way in? This amendment.

Section 5: All contributions to candidates for public office, or to organizations engaged in influencing legislation, the outcome of an election, or a ballot initiative, must be raised from the constituents of the elected office in question or legal residents of the jurisdiction affected.

Why should I be able to influence an election in California, or a Californian influence an election in Vermont? I shouldn’t and he or she shouldn’t. Neither of us has legal standing in the other’s political process. I can’t vote in California, for obvious reasons, but I can presently donate to Californian candidates, lobbying firms, political action committees, and the like. It’s just not right.

Section 6: Congress shall have power to enforce this article by appropriate legislation.

As is necessary.

I don’t expect this particular wording to survive a trip through the Constitutional Convention process, or even the online process. However, it does contain the basic principles needed to place political power in the hands of ordinary citizens. Even passing just the proposed Section 1 of the 28^th Amendment would get us a long way towards some version of a functional democracy.

Whether or not you find this particular wording satisfying, I hope you will promote the concepts involved. Talk to your friends, do the Facebook thing, and maybe even get involved with WolfPAC and its forum, the 99 Declaration, or Occupy Wall Street. Creating democracy is a democratic process.

A Strange Sense of Optimism

For the first time in years, I am actually feeling a glimmer of hope about politics in this country. I’ve been writing on this blog for five years now, and it has generally been about depressing things. Occupy Wall Street (OWS) has changed the picture.

I have forgotten where I read it, but a media watchdog recently noted that while a few months ago the number one word in the headlines was “deficit,” now it is “jobs,” along with “inequality.” The talking heads on the news purport not to understand what OWS is about, but as a friend of mine pointed out, they are occupying Wall Street, not a shoe store. It seems that a large and growing portion of the population understands what OWS is about. This growing portion of the population overlaps with the percentage facing financial ruin and watching the agents of that ruin getting bonuses instead of indictments.

A man named Edward Dowling once said, “The two greatest obstacles to democracy in the United States are, first, the widespread delusion among the poor that we have a democracy, and second, the chronic terror among the rich, lest we get it.” That widespread delusion is eroding, and an understanding of the true mechanisms of our politics is spreading.

My optimism doesn’t include the idea that OWS will sweep the country, driving the forces of evil before it. I think that OWS will both succeed and fail, in unexpected ways.

In some ways it has already succeeded. The flavor of the month in the news media has been shifted 180 degrees, and may remain the flavor for a few months more. It has also broached the idea of class in this country in a way that is concise and powerful and hard to ignore. Class consciousness has always been lacking on this side of the Atlantic. We have always cherished the myth of equal opportunity, even as it was disproved before our eyes. However, socioeconomic class is one of those big and true ideas that is analogous to a parachute. Once the ripcord is pulled, it blossoms, and once out it is hard to stuff back in the bag.

The fact that the words “class warfare” are being tossed around tells me that an alarm has sounded somewhere in the halls of power. The term is used as if class warfare is a new issue, initiated by these unruly occupiers. However, people are starting to slowly warm up to the concept in terms of “Oh, so that’s what has been happening to us.” The 99% vs. 1% meme is a useful one, as it draws the line in a reasonably accurate way between those who make their money primarily from work and those who make their money primarily from investments, and the stark difference in economic interests between the two. It also draws a reasonable line between that fraction of a percent who donate large sums to candidates and those who don’t.

I don’t expect an uninterrupted path of growth and success for OWS, however. The financial power will get over its surprise, find its center, and start to counterpunch. Police brutality will be the least of it. The inept blusterings on Fox are just an overture. We can expect more sophisticated propaganda to come, along with dirty tricks and opposition research. Every minor failing of the movement and its participants will be trumpeted in the corporate media. We’ll see smears. We’ll see internal divisions, grandstanding, and ill-considered strategies. We’ll see provocateurs and disruptive idiots. I’ve been involved with groups that work by consensus, and although the process insures that everyone is dedicated to a policy or a tactic, it takes time, trust, and cooperation. The process can be fragile, especially among people who don’t know each other.

In the end, the biggest enemy of political movements is everyday life: families that need support, jobs that need energy and attention, getting the kid to a doctor’s appointment, washing the dishes, getting a moment to relax. The economic distress that provoked the movement denies people spare time and energy. OWS is also facing a long winter outside. The movement is based on physical presence, so a symbolic or virtual presence won’t do.

And yet, and yet, some mainstream politicians, including a few on the right, are trying to maneuver their way into a semi-neutral-plausible-deniability-triangulated-meaningless-pseudo position of support. I believe the phrase is “recognizing the frustration” of the people involved. By recognizing the frustration a politician can sort of get behind the movement without actually approving of anything specific. It reminds me of a saying about the aftermath of WW2 in France: Somehow it turned out that everyone was working with the Resistance. The finely tuned political senses of the hackoisie are detecting, what? A shift in the wind?

Afterword:

Your Minor Heretic is involved in one facet of the movement; the formulation of a couple of constitutional amendments that would eliminate corporate personhood and get the big money out of politics. This is organized though Cenk Uygur’s WolfPAC, allied with OWS. Visit the forum here.

The Librarian keeps me informed about the 99% Declaration, a set of principles being formulated by a working group of OWS. When I read them I thought, “This is exactly what I’ve been thinking for years!” There is a plan for a national convention next year to ratify the declaration and present it to Congress. When the hacks ignore it, Plan B is to run a slate of third party candidates against them. Visit their site here.

And, of course, there is OWS itself.

The Secret Committee

Thanks to a few highly placed government officials we now know how the Obama administration came to the conclusion that the murder of Anwar al-Awlaki was permissible. Through Glenn Greenwald’s always excellent column at Salon I found a Reuters article about the secret committee in the bowels of our (?) government that decides who lives and who dies.

From the Reuters article, quoting the anonymous government officials:

“They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.”

Great. A bunch of faceless suits halfway down the hierarchy at the NSC and the intelligence agencies are making a hit list.

And further:

“Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.”

If the arbitrary killing of U.S. citizens is such a wonderful, justifiable thing, why does the President need protecting? Because those involved know that they are violating every basic principle of our Constitution and are doing it anyway. They are doing it for political gain and just because they can get away with it.

Of course, if there is a secret committee, there must be a secret memo. The New York Times reports on a 50-page memo, written last year, that laboriously justifies the zero-due-process killing of a U.S. citizen.

“The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.”

No broad new legal doctrine for arbitrarily killing us? Right. Read the first sentence of that excerpt again. The murder of Anwar al-Awlaki wasn’t a one-off. What we are witnessing is a new direction for the military/security-industrial complex. The dirty work, or “wet work,” as the practitioners so elegantly call it, is being brought out in the open. Justification is easier and more effective than concealment.

I have written before about the fact that torture is a technique of terrorism. When a government uses torture, the practice is never supposed to be completely secret. A partial disclosure of the horror works to chill opposition. In this case, the arbitrary assassination of a U.S. citizen (and its justification) serves the same purpose. It rallies the bigots and proto-fascists and makes everyone else look over their shoulders.

It’s a grim joke to have to ask the President to live up to his oath of office and uphold the Constitution. It’s another grim joke to see the right wingers discomfited by a Democrat who is willing to outflank them to the right on both militarism and disregard for constitutional law. Obama has tasted the power of the imperial presidency handed over by Bush, and he’s finding it useful.

The question of this administration’s respect for rule of law has been answered in the negative. It is merely a continuation of previous practices under a new headliner. We should not expect the President to change course or suddenly have a change of heart. That is, unless the political realities of the situation change dramatically.

I don’t have any clear or easy answer as to how we change the political reality. Looking at history, such changes have always been a messy struggle. Those involved generally have a well defined goal, but the path and the ultimate destination only reveal themselves in hindsight. It takes longer than expected, and the movement never quite gets there. Liberty is always unfinished business.

In light of these painful, shameful, and frightening developments I can only say, do something. Do what you think is right to reverse this trend. Keep doing it. Either you are doing something against it, or in your silence and passivity you are cooperating with it.

Symmetry

The United States government recently killed a U.S. citizen named Anwar al-Awlaki with a missile fired from a drone aircraft. The man was riding in a group of vehicles going down a road in Yemen. There was no battle going on. There were no U.S. or NATO soldiers present, or even within the borders of Yemen.

Anwar al-Awlaki was born and raised in the United States. He retained his U.S. citizenship until his death. He was neither indicted for nor convicted of any crime by any U.S. court.

He was a man of conservative religious belief, a man who opposed U.S. foreign policy (especially in the Middle East and Central Asia), and a man with a wide following among Muslims who support attacks against the West. He had publicly advocated attacks against the United States, and allegedly corresponded with Major Nidal Hassan, the Army officer who went on a shooting rampage on a U.S. military base, as well as Umar Farouk Abdulmutallab, the inept “underwear bomber.” He is said to have inspired many Muslims living in the West to join jihadist movements. Please note that everything you will read about al-Awlaki’s ties to terrorists or terror organizations will contain the words “alleged,” “believed to be,” “suspected,” or the like.

What he wrote and spoke was obnoxious to almost all his fellow citizens, including me. This is irrelevant. The First Amendment is there to protect obnoxious speech. Uncontroversial speech needs no protection.

What he had done was speaking, writing, and thereby inspiring people to join criminal organizations and perhaps commit criminal acts. The U.S. government suspected (there’s that word again) him of becoming “operational” as a leader in al Qaeda. Theoretically, for the speaking and writing we can actually confirm, he could have been convicted of supporting terrorism, which carries a 15-year sentence. That is, if he had been arrested and brought to trial.

Instead, our government tracked him down in a foreign country and fired a missile at his car. He was not arrested or arraigned. He received no trial, no chance to confront witnesses against him, no discovery of evidence, none of the due process that U.S. citizens are supposed to have by right. I should expand on this – all human beings deserve due process. It’s not right because it is in the Constitution; it’s in the Constitution because it is right. The most heinous criminals and the people we hate need and deserve due process most of all, because the persecution of the hated is the weak point in any system of justice, the hairline crack where total failure begins.

You are not safe. When you get up in the morning and eat breakfast you are not safe. When you go to work you are not safe. When you walk down the street or drive in your car you are not safe. You are not safe when you go to bed at night. I am not alluding to terrorism originating in the Middle East. You are not safe because the U.S. government has crossed a line and decided that it can blast a U.S. citizen to bloody rags because of what he said and what he wrote. The U.S. government decided that it could arbitrarily kill a man because of as-yet unproven allegations and personal contacts with people who later committed crimes.

You may brush this off and think, “Whatever. I’m not a Muslim cleric with a big mouth and bad connections.” When I reach out through the internet and write to you, individual reader, that you are not safe, I am not engaging in hyperbole. If the government truly focused its many eyes on you, what would it find? With whom would you be associated, and by how many degrees of separation? The notorious Cardinal Richelieu once said that if you gave him just six lines written by an innocent man he could find something in them to damn him. What have you said or written carelessly in an angry moment? And if some Homeland Security operative with an attitude found something he didn’t like, what would he do? What would he be allowed to do?

 Remember the terrible symmetry of the law. Anything that the government can do to Anwar al-Awlaki it can do to you.