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Archive for January, 2013

RIGHTS EROSION — AN ANALYSIS ( 27 JANUARY 2013) BY LAWRENCE DAVIDSON

 

 



PART I – What Is Important When It Comes to Rights?

 

Question: Why is it that so many Americans are more angry over the prospect of relatively minor adjustments to the gun laws, than they are over the serious erosion of Constitutional rights to due process in the courts?

 

Despite the fact that proposed changes to the gun laws would leave the Second Amendment’s* alleged basic right of ownership intact, thousands of Americans rallied in state capitals across the nation last week to demand their “right” to own all manner of automatic weapons and multiple round ammunition clips. The rationale for this ranged from “the Second Amendment comes from God,” a popular claim with protesters in Austin Texas, to the equally absurd notion that the Obama administration is obsessed with controlling all our lives. “It is not about guns, it is about control” proclaimed the folks rallying in Annapolis, Maryland. All this took place on the nation’s first impromptu “gun appreciation day” (Saturday, 19 January 2013) during which five accidental shooting occurred at celebratory gun shows and three others took place elsewhere. Nonetheless, as one protester in Maine put it, the right to “bear arms” is “a constitutional right no one can take away.”

 

Actually, the last twelve years have proved this fellow from Maine quite wrong. There has been an erosion of constitutional rights that are much more important than his so-called inalienable right to own weapons with thirty round clips. For instance, the federal government has been steadily eroding the Fifth, Sixth and Fourteenth Amendments which guarantee one’s access to fair procedures in the courts. These are the ones that say your life, liberty and property cannot be taken away without your being charged with a crime and tried by a jury of your peers and/or a judge following due process rules. There are multiple examples of such deterioration:

 

–The federal government now asserts that it has the authority to hold Americans, as well as others, indefinitely without charge or trial. It does so on the assertion that we are in a perennial state of war. This allows for the perversion of the Fifth Amendment which allows for the suspension of Habeas Corpus in the special cases of war and rebellion. The government’s claim to this authority has been challenged in court but the U.S. Court of Appeals has sided with the Feds and the issue will probably end up in the Supreme Court. In the meantime, to fall into this black hole in American jurisprudence all you have to do is be is labeled a “terrorist” by the president. This, of course, can happen based on alleged evidence never made public.

 

— Another weird but relevant point. If you do happen to meet someone who is a member of a “designated terrorist group,” don’t you dare try to talk them out of being violent. That is illegal as well. Our very own Supreme Court told us so in the 2010 case of Holder v. Humanitarian Law Project. In what may well call into question the rationality of a majority of the justices (the decision was decided 6 for the government position and 3 against), the Court declared that trying to persuade members of such an organization give up violence is the equivalent of rendering “material aid” to the bad guys. Try to save their souls in this fashion and you will end up in some special hell-hole of an American prison where all communications with your lawyer will be taped for the benefit of the prosecution.

 

–The president can also put anyone, including American citizens, on a list of folks to be murdered at the first suitable opportunity. The government often uses drones to do this. Here is one of the ways this works: some Air Force officer living in Las Vegas gets up in the morning, has his breakfast, kisses the wife goodbye and tells the kids to behave at school. He gets in his four door sedan and drives to Creech Air Force base in the desert outside of town. He passes through the security checks and finally gets to his “office.” The office is a video studio affair from which he controls a UAV (unmanned aerial vehicle) full of explosives. The UAV in question is actually sitting at an another air base in Afghanistan, Yemen or some such location. Our man’s job is to remotely fly this thing into somebody’s house half-a-world away. Doing so usually kills another man, his wife, his kids, and maybe the neighbors too. All this happens without any due process establishing the victims’ guilt or innocence.

 

 

— Then there is the case of the Holy Land Foundation in which five American citizens who ran the largest Muslim charity in the nation were convicted of “material support of terrorism” and sentenced to up to 65 years in jail on the basis of an anonymous witness whose credibility could not be challenged. This is a prima facie violation of the Sixth Amendment which guarantees (or used to guarantee) the accused his or her right to confront the accuser. You would think the Supreme Court would have something to say about this, particularly considering that all the real evidence in the case showed that the Holy Land Foundation was simply supporting institutions such as Palestinian hospitals, and that its directors had repeatedly consulted the State Department to assure the legality of their activities. But no, in a miscarriage of justice not rivaled since Dread Scott, our present Court refused to hear the Holy Land Five’s appeal.

 

PART II — Why the Apathy?

 

Alas, with the exception of a handful of citizens, no one has hit the streets in protest over any of these horrid legal precedents. No one has dreamt up a “due process appreciation day” and called for commemorative rallies. How come? The answer has to do with how basic communal impulses play out. These include natural localism and the power of custom and tradition.

 

Natural localness is my term for the fact that most people live their lives according to the precepts of their immediate local communities. Therefore, local customs and traditions are usually taken quite seriously. In the United States, gun ownership is widespread enough to be an issue for self-conscious subsets of most local populations. In other words, for millions it is an important local custom which helps shape their self-images. Gun ownership has also been tied to a Constitutional right allegedly enshrined in the Second Amendment. Support for this claim links these subsets into a powerful “special interest” that translates local custom into a national tradition. So, you can get thousands protesting on the same day in state capitals across the U.S.

 

What about due process? Is it not a local practice of major importance representing a national tradition enshrined in law through the Constitution? Yes, that is correct, but psychologically, due process rights have completely different personae. Due process laws protect the rights of those accused of wrong doing. They try to assure, among other things, that the accused is assumed innocent until proven guilty. Yet among the public this assumption is almost never held. If you end up in court, the public assumption is that you must have done something wrong. This is particularly true if you can be tagged with a label that suggests danger to or betrayal of community values. The media uses such labels all the time, for instance, terms such as terrorist or whistle blower. So, those who are in need of due process protections are almost always assumed by the public to have acted outside the parameters of acceptable behavior.

 

The other side of this coin is that ordinary individuals, the mass who make up “the people,” naively feel that due process protections are not important to them. This is because they rarely trespass against the customs and traditions they themselves have, over time, established. In other words, the “people” define what is acceptable. Carrying guns or, in the local lingo, to “go packin,” is sufficiently within the bounds of acceptable behavior to be “normal” in much of the U.S. As long as you register all the weapons in your arsenal (even if you have enough of them to wage a small war), you are still a “law abiding” citizen. However, give charity to the Palestinians or try to tell the Kurdish PKK (a group on the State Department’s Terrorism List) how to pursue their goals non-violently, and you are a danger to the American way of life and on an obscenely fast track to indefinite detention. And very few law abiding citizens are going to care, because if they notice your fate at all, they will assume you are guilty and getting what you deserve.

 

PART III – Conclusion

 

“The people” simply do not like those who think outside the box. They never have and probably never will. Non-conformists (in this case those in need of due-process and not those “packin”) make the majority feel uneasy and fearful.

 

In relatively peaceful times such “others’ can be tolerated if they don’t make too much noise and, with the American Civil Liberties Union watching, they can demand their due process rights when needed. However, since the September 11, 2001 attacks things have changed. We are being told that there are no more peaceful times. Crisis is, supposedly, perpetual and that leads to the erosion of the rights of those assumed guilty of something endangering the majority–even if there is no real evidence or logic to the claim. This is a awful slippery slope.

 

There is a passage in the 1957 play A Man For All Seasons, by Robert Bolt, that speaks to this present predicament. The play tells the story of Sir Thomas More, the singularly principled Chancellor of England under King Henry VIII. The passage we are concerned with is about the importance making the law available to all, even the Devil.

 

 

“William Roper (More’s son-in-law): So, now you give the Devil the benefit of law!

Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

 

So that is the crux of the matter. As long as the law is denied to some, we are all at risk. The majority does not understand this. They do not understand that for democracy to be worth its salt, it must defend the rights of everyone, and particularly those who disagree with, live differently from, and think differently than the majority. The United States as we know it can easily survive without everyone having assess to assault rifles. It cannot survive without everyone having assess to due process. Thus, as goes due process rights, so goes our democracy.

 

 

* The origin of the Second Amendment lies, at least in good part, with the Founders’ perceived need to give local jurisdictions control of militias in slave holding sections of the young United States. See Thom Hartmann piece on this issue at: http://truth-out.org/news/item/13890-the-second-amendment-was-ratified-to-preserve-slavery

Does Torture Work?  Does It Matter? – An Analysis (13 January 2012) by Lawrence Davidson

 

 

Part I – Does Torture Work?

 

Back in the Fall of 2005 I wrote a essay, published in the journal Logos (issue 4.4), entitled “Torture in our Time.”  In it I laid out the historical evidence for the conclusion that torture rarely works.  This position goes back at least to the Enlightenment when Cesare Beccaria wrote a famous pamphlet, “ On Crimes and Punishments” (1764) in which he observed the obvious:

 

“The impression of pain, then, may increase to such a degree that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment….He will accuse himself of crimes of which he is innocent so that the very means employed to distinguish the innocent from the guilty will most effectually destroy all difference between them.”

 

Along with false admissions of guilt, those under torture will tell their tormenter just about anything, regardless of truth and accuracy.  Modern researchers, and even modern practitioners of interrogation, know this to be so.  They have come to the same conclusion as Beccaria. Torture produces more false and fictional information than not. 

 

 For instance, Darius Rejali in his book Torture and Democracy (2009), tells us that “the available evidence [against the efficacy of torture] is conclusive” and alludes to the fact that, for 250 years, criminologists, and psychologists have been pointing this out.   The ex-intelligence officer, Colonel John Rothrock, who headed a combat interrogation team in Vietnam, told the Washington Post in 2005 that, given the Vietnam experience, “he doesn’t know any professional intelligence officers of my generation who would think this [torture] is a good idea’” even in a so-called “ticking bomb” scenario.  The inclusion of “my generation” in Rothrock’s statement implies that each generation has to learn the truth about torture anew, over the wreckage of newly broken bodies.  

 

More recently, in December 2012, the Senate Intelligence committee approved a report which, in some 6,000 pages, concludes that “the harsh interrogation measures used by the CIA [that is the torture techniques allowed by the administration of George Bush Jr.] did not produce significant intelligence breakthroughs.”  This specifically includes the production of intelligence leading to the discovery of Osama bin Laden.  Indeed, the report says that torture actually became “counterproductive in the broader campaign against al-Qaeda.”  All this has led Dianne Feinstein (D-Calif.), the chairman of the Senate intelligence committee, to call Bush Jr.’s secret CIA prisons and use of torture, “terrible mistakes.” 

 

Part II – The Eternal Skeptics

 

For a certain subset of the population (and not just in the U.S.) these truths do not matter.  This subset constitutes a modern warrior caste and their followers.  The American sampling includes many (but not all) neoconservatives, classic tough-guys turned politicians, faux-realists, military professionals, and an ever-present small number of people who just like to hurt and humiliate others and find their way into professions that allow them to do so (often the actual torturers).  For all these folks the evidence against torture appears counter-intuitive and just does not “feel right.”  

 Therefore, intuitively, these skeptics feel more comfortable with another statement, that might be juxtaposed with Beccaria’s above.  This one was written by White House Counsel Alberto R. Gonzales, in a memorandum for President Bush on January 25, 2002:

 

“The nature of the new war places a high premium on…the ability to quickly obtain information from captured terrorists in order to avoid further atrocities against American civilians.  In my judgment, this new paradigm renders obsolete Geneva’s [the Geneva Convention Against Torture] strict limitations on questioning of enemy prisoners….”

 

Currently, it is the Republican Party that harbors many of the skeptics who share this opinion about the efficacy of torture and the “obsolete” nature of the treaties (ratified by the United States)  forbidding it.  The Republicans on the Senate intelligence committee that issued the latest report proving torture’s uselessness, even refused to participate in the report’s investigatory process.  For some of them this might have been the result of obeying their party’s dictate to remain loyal to the discredited Bush administration.  For others though, it was loyalty plus their belief (in the face of all the evidence to the contrary) that Bush was correct to send the CIA out into the world to cause unbearable pain and suffering.  They believe such behavior materially contributed to “making America safe.”  

 

Part III – Making Torture’s Case Through the Movies

 

Unfortunately, there is a general tendency on the part of Americans to agree with the skeptics.  And, this trend is about to be strengthened.  There is now a movie, Zero Dark Thirty (the work of the Oscar-winning director Kathryn Bigelow) in U.S. theaters that will reinforce the erroneous view that torture works.  Zero Dark Thirty purports to tell the story, based on “first hand accounts,” of the hunt for and killing of Osama Bin Laden.  According to this film, torture formed a “critical aspect of intelligence gathering” process.  There is good evidence that the U.S. government assisted in making of the movie, if not the actual writing of the script. 

 

It would be nice if some talented director could make a movie, based on “first hand accounts” of the making of the Senate report on Bush era torture.  But that sort of movie will not be made because Washington has no desire to tie its hands in this regard.  Nor will the truly accurate documentaries (see below) that do exist on the prison camp at Guantanamo Bay, or the now defunct hell-hole that was Abu Ghraib, get national distribution.  However, we can expect many more films like Zero Dark Thirty.  This is because the recent 2013 National Defense Authorization Act (NDAA) signed by President Obama makes legal direct government funding of propaganda aimed at the American population.  Perhaps the U.S. government is about to buy its own back-lot in Hollywood.  

 

Part IV – Conclusion

 

There is a story about Abraham Lincoln that claims that every time he was confronted by someone extolling the benefits of slavery, he had a desire to see it (slavery) tried out on the one defending it.  Torture can be approached the same way.  Does President Bush jr. and ex-counsel Alberto Gonzales think it is a vital part of America’s defense?  Do all those Republicans on the Senate intelligence committee have such faith in torture that they can dismiss out of hand 6,000 pages of contrary evidence?  OK.  Let’s see torture tried out on these fellows and note whether they will confess to false reports about, say, their sex lives. 

 

Just wishful thinking. The torturers we are talking about are all past or present powerful government officials and their henchmen.  Most of them will die in bed and maybe, someday, have their face put on a postage stamp.  Their horrid deeds, already excused, will soon be forgotten.  For what are crimes when committed by the average person, are but vices when  committed by the powerful (so said Benjamin Disraeli).  Finally, it has been known for ages that, as the old Latin saying goes, “in times of war the laws go silent.”

 

Note:  Here are three good documentaries touching on the U.S. practice of torture:  Alex Gibney, Taxi to the Dark Side; Rory Kennedy, Ghosts of Abu Ghraib; Annie Sunberg and Ricki Stern, The End of America.  

Haneen Zoabi:  Another Persecuted Truth-Teller – An Analysis (3 January 2013)  by Lawrence Davidson 

 

 

Part I – Haneen Zoabi and Her Mission

 

Haneen Zoabi is a Palestinian member of  Israel’s parliament, the Knesset.  She was elected in 2009 as a member from the Balad Party.  Balad is an Arab party that was formed in 1995 with the aim of “struggling to transform the state of Israel into a democracy for all its citizens.”  In the West, this is a perfectly normal goal.  But Israel’s Zionist ideology disqualifies it as a “Western” nation.  Thus Balad’s aim is in direct opposition to the Zionist idea of Israel as a “Jewish state,” a concept that Ms Zoabi labels “inherently racist.”  

 

Apparently, Haneen Zoabi is fearless.  She actually lives her principles.  She has been campaigning  loudly and very publicly for full citizenship rights for Israel’s Palestinians.  She has also actively opposed Israel’s settlement movement, occupation policies, and its siege of Gaza.  That last effort led her to participate in the international flotilla that sought to break the Gaza siege in May of 2010.  That was the time Israeli commandos attacked the Mavi Marmara in international waters, killing 9 Turkish activists who tried to resist the assault on their ship. 

 

In an outright dictatorship, Ms Zoabi would be in jail or worse.  And, given the direction of Israel’s political evolution, that still might be her fate.  But as of now she is just the worst nightmare of an ethnocentric state, and a government pushing racist policies while trying to pretend it is a democracy.  It is a nightmare for the Israel’ s Zionist leadership because Zoabi, as a member of the Knesset, insists that if the Israeli Jews won’t allow full citizenship for non-Jews, as a real democracy must, then she is not going to let them pretend anymore.  Yet pretense is all that is left of Israel’s international persona. If the “Jewish state” loses the ability to posture as “the only democracy in the Middle East,” the country’s reputation in the world is, as the saying goes, fit for the dust hole.  

 

Think of it this way.  Israel is the nation-state equivalent of Oscar Wilde’s fictional character Dorian Gray.  Gray is a man who never seems to be anything but young, good-looking, and successful.  However, hidden away in some closet there is an extraordinarily ugly and frightening portrait of him, and it is this portrait that ages and reflects the meanness and brutality of Gray’s true character.  Haneen Zoabi has uncovered such a portrait of Israel and insists on going about showing everyone the state’s real characteristics.  She wants the world to see the true picture. That is why the Israeli government is trying to destroy Haneen Zoabi.  

 

Part II –  The Persecution 

 

The catalyst for the campaign against Zoabi was her presence on the Mavi Marmara in 2010. Not only was she on a ship attempting to bring humanitarian assistance to over 1.6 million Gazans living under an illegal Israeli embargo,  but, she was also an eyewitness to nine official Israeli acts of murder.

 

To the acts of collective punishment, the shelling and bombing of civilian neighborhoods, and the seemingly random murder of civilians by Israeli border snipers, can now be added a deadly attack on a civilian vessel in international waters.  All of these actions are criminal under international law and they all easily fall into the category of state terrorism.  However, in the Kafkaesque world of Zionism, it is Ms Zoabi who became the “terrorist.”

 

When, on 2 June 2010,  she returned to the Knesset following the the Mavi Marmara incident and insisted on bearing witness to Israeli offenses, she was shouted down by her “outraged” fellow members of the Knesset, most of whom saw Zoabi as a traitor.  Her efforts to describe what she had seen reduced the Knesset session to “pandemonium.”  From that point Ms Zoabi received “hundreds of threats, by letters, by email, by phone call.”  In July of 2011, while contesting statements being made by Prime Minister Netanyahu, she was ejected from the Knesset by the chamber’s Speaker who then suspended her from further participation based on a grossly exaggerated charge that she had assaulted one of the chamber’s ushers.  

 

Meanwhile, members of the Prime Minister’s party, Likud, conspired to ban Ms Zoabi from running in the upcoming Israeli elections (scheduled for 22 January 2013).  The Knesset’s Ethics Committee voted that Zoabi had violated Article 7A of Israel’s “Basic Law” which states that a candidate for or member of the Knesset, “cannot reject Israel as a Jewish and democratic state…or support armed combat by an enemy state or terror organization against the State of Israel.”  Some Israelis claim that the group organizing the flotilla efforts to break the Gaza siege is a terrorist organization, but that is clearly nonsense.  On the other hand, there can be little doubt that Ms Zoabi is shouting from the rooftops the blatant fact that “Israel as Jewish and democratic state” reflects a deep and tragic contradiction.  

 

According to such luminaries of the Israeli right as MK Danny Danon, Ms Zoabi has “spit on the state.”  She does not belong in the Knesset, according to Danon, “she belongs in Jail.” (Danon is also the politician who had the clever idea of inviting Glenn Beck, an incendiary right-wing American TV talk show personality,  to address the Israeli parliament.)

 

Subsequently, Israel’s supreme court declared the banning of Haneen Zoabi was unconstitutional, but Danon has replied that he and his allies are ready with “plan B.”  They will simple have the Knesset change the law so as to prevent future electoral campaigns by anyone like Zoabi. 

 

Part III – Conclusion

 

Politicians with dictatorial leanings instinctively avoid their own reflection.  They cannot admit the consequences of their own actions and policies and they cannot tolerate others who publicly expose those consequences.  Like Dorian Gray, they restrict the ugly truth to some hidden closet.  Yet, eventually, someone like Ms Zoabi comes along and takes up the role of truth-teller. 

 

There is another issue that her efforts bring to light.  It is that the interests of the state (understood here as a government) and the interests of the nation (the collective occupants of a country) may not always be the same.  Governments most often represent cliques or classes or elites or ideologues, etc.  Those in power, ruling in the interest of these  smaller constituencies, simply assume that their own parochial interests stand for the “national interest.”  

 

Ms Zoabi is insisting that the Israeli State cease identifying itself with the interest of a single constituency and start representing the interests of the nation as a whole.  What this is all about, she says,  are “the values, the humanistic, universalistic values of freedom, of equality, of justice.”  But there is nothing “universalistic” about Zionism and so, for her efforts, she is castigated and threatened.  Such is the state that Zionism has built.