Republican bill uses Iran as bogeyman to benefit Big Oil donors and neuter environmental law
A couple of weeks ago, Sen. James Inhofe (R-OK) put forward a bill (S.965) with the title “Iran Sanctions Implementation Act of 2013.” It’s a ridiculously worded and speciously reasoned piece of legislation that calls for the expansion of domestic oil production in an effort to overtake and choke off Iran’s remaining crude oil supply. According to the bill, “by expanding oil production in the United States by 1,250,000 barrels per day” (the amount Sen. Inhofe estimates to be the current level of Iranian crude oil exports), “the United States will displace all oil exports from Iran on the world market.”
Inhofe accomplishes this in the bill by granting the president of the United States authority to “designate any area of Federal land that the President determines appropriate as an ‘Iranian Oil Replacement Zone,’” and that “Each Zone shall include any area of Federal land necessary for the transportation… of the oil produced in that Zone.” Moreover, Inhofe’s legislation would grant exclusive management of these zones to the individual states, thereby circumventing the federal agencies designated to protect and manage these territories. Finally, as a kicker, he exempts the entire act from both judicial review and environmental oversight under the National Environment Policy Act (NEPA) of 1969.
On nearly every level, this is a terrible bill. And Senator Inhofe and his co-sponsors likely understand this fact. But before we delve into the rationale behind floating a bill with almost no chance of succeeding, let me explain why it is so off-target.
First off, it’s important to know that this is not how the global crude oil market operates. By making the assumption that increased U.S. oil production can displace another country’s production ignores market fundamentals. As Gene Guilford, an expert in the field of energy policy, explains, “The Saudis, Libya and Iraq have already increased their output to some extent for this purpose. The excess crude oil production capacity that exists in the Middle East to take the place of Iranian production for export is already available.”
To most of us, the crude oil and gas market is a complex world. From drilling and transporting and buying and selling, it’s a murky realm of oil barons and commodities traders that speak a different language. But election cycles provide enough of a window inside to inform most Americans of this basic fact: The oil business is booming.
“We’re basically bursting at the seams with supply,” says Michael Masters, president of Masters Capital Management, an Atlanta-based hedge fund that specializes in the commodities sector. When oil prices spiked in 2008 and the derivatives market began to unravel, Masters provided important congressional testimony that gave U.S. lawmakers insight in to the inner workings of the commodities business. U.S. production has been so robust in recent years that Masters says, “I imagine in the second half of this year we won’t import any oil.”
This is a sentiment shared by Guilford, who talked about the remarkable turn of events in the U.S. fossil fuel industry. “In 2007 we were talking about peak oil,” says Guilford; “today we speak of the very real potential of the U.S. being the world’s leading crude oil producer by 2015 and U.S. energy independence.”
When I asked Masters specifically about Inhofe’s notion of displacing Iranian oil, he said, “It’s sort of a ridiculous theory because you’re not going to take it out of the market.”
In fairness, sanctions on Iran have lead to a serious decrease in Iranian crude oil exports. It’s estimated that Iran exported nearly 4 million barrels per day when President Obama took office. Today that figure is estimated to be anywhere between Inhofe’s proposed 1.25 million and 2 million per day. Either way, it’s a precipitous decline. But the decline has less to do with the supply of oil and more to do with pressure the U.S. brought to bear on those who purchase Iranian oil. So the question of whether or not the U.S. has the strength to convince the few remaining Iranian oil customers has less to do with availability and more to do with diplomatic ability.
To the extent that this is possible, the United States doesn’t necessarily hold all of the cards.
Because oil is a commodity that is traded globally it is obviously most responsive to price. According to Guilford, “Iran’s customers may well not care about alternative sources that are more expensive than Iran and that is one very likely reason Iran still has customers.” Knowing that Iran’s customers include nations such as China and South Africa, Guilford naturally questions our ability to drive the final nail in Iran’s coffin through sanctions asking, “Does the U.S. have the diplomatic ability to convince Iran’s buyers to pay more in order to isolate Iran?”
Nevertheless, this opens an important dialogue about the nature of sanctions themselves. There is no question that U.S.-lead sanction policy has been extremely effective in isolating Iran and wreaking havoc on its economy. Kate Gould, a lobbyist for Middle East Policy at the Friends Committee on National Legislation, believes that sanctions sometimes have the opposite of the desired effect by serving to “punish civilians, embolden hardliners and foreclose diplomatic options.” She explains her economic position saying, “We’ve seen huge growth in the black market, which is controlled by the Iranian Revolutionary Guard, so Iranians become dependent on going through these channels instead of legal channels.” Gould is quick to point out that despite decades of crippling sanctions against Iraq, “Saddam Hussein never missed a meal.”
Despite the backward logic inherent in Inhofe’s rationale, the bill currently has 11 other cosponsors, all Republican. Most hail from states with large swaths of federal land such as Arizona, Utah, North Dakota, North Carolina, Idaho, Kentucky and Missouri. Not surprisingly, Sen. Inhofe’s top campaign contributors between 2007 and 2012 are from the oil and gas industry, with Koch Industries being his single-largest donor.
Not surprisingly, the idea of manipulating federal regulations regarding drilling rights and ceding these rights to individual states is dangerous territory for the environmental community.
“Senator Inhofe would auction off America’s national parks and public lands to big polluters just so we could mimic Iran’s all-oil energy policy,” blasts Athan Manuel, Director of the Sierra Club’s Lands Protection Program. “We’d be better off embracing job-creating clean energy projects that protect our wild legacy and our future rather than selling off our nation’s crown jewels to the highest bidder.”
Legislative affairs specialists for the Bureau of Land Management (BLM), which controls the largest amount of federally protected land, did not respond to my request for an interview as of press time.
But Gould believes Inhofe’s bill is little more than a Trojan horse for U.S. oil and gas companies to gain access to land that is currently difficult to obtain.
“I think it’s a political stunt to try to disguise getting around environmental laws with sanctions,” she says, adding that sanctioning Iran, “generally has broad bipartisan support.”
Guilford sees it this way as well, but takes more of an academic approach to Inhofe’s proposal. He calls the “goal of increased domestic production a sound idea,” but says the “removal of judicial review and NEPA” would have “opposition that is only exceeded by those trying to stop the Keystone pipeline.”
The chances of Inhofe’s bill making it out of committee and eventually becoming law are slim. To put it into perspective, of the 3,716 Senate bills proposed between 2011 and 2013, only 449 (12 percent) made it to the floor. Of those, only 71 were enacted, or less than 2 percent. The fact that this particular bill was referred to the Senate Committee on Energy and Natural Resources, led by Sen. Ron Wyden (D-OR), means it will almost assuredly die in committee.
So why go through the machinations of compiling the language and amassing support for a bill that is practically dead on arrival?
The best way to view Inhofe’s bill is as a trial balloon—a way to test the effectiveness of certain angles and particular language.
“Perhaps for some the theory would be that U.S. domestic energy security isn’t reason enough to increase current production,” muses Guilford, “so the issue needs to be recast into a foreign policy and security debate about shutting down the remainder of Iranian production.”
Gould puts it more bluntly, saying it’s, “using the Iran bogeyman to advance an extreme agenda on another issue.”
No matter how you slice it, all roads lead back to Big Oil.
Pentagon Unilaterally Grants Itself Authority Over ‘Civil Disturbances’
The manhunt for the Boston Marathon bombing suspects offered the nation a window into the stunning military-style capabilities of our local law enforcement agencies. For the past 30 years, police departments throughout the United States have benefitted from the government’s largesse in the form of military weaponry and training, incentives offered in the ongoing “War on Drugs.” For the average citizen watching events such as the intense pursuit of the Tsarnaev brothers on television, it would be difficult to discern between fully outfitted police SWAT teams and the military.
The lines blurred even further Monday as a new dynamic was introduced to the militarization of domestic law enforcement. By making a few subtle changes to a regulation in the U.S. Code titled “Defense Support of Civilian Law Enforcement Agencies” the military has quietly granted itself the ability to police the streets without obtaining prior local or state consent, upending a precedent that has been in place for more than two centuries.
The most objectionable aspect of the regulatory change is the inclusion of vague language that permits military intervention in the event of “civil disturbances.” According to the rule:
Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.
Bruce Afran, a civil liberties attorney and constitutional law professor at Rutgers University, calls the rule, “a wanton power grab by the military,” and says, “It’s quite shocking actually because it violates the long-standing presumption that the military is under civilian control.”
A defense official who declined to be named takes a different view of the rule, claiming, “The authorization has been around over 100 years; it’s not a new authority. It’s been there but it hasn’t been exercised. This is a carryover of domestic policy.” Moreover, he insists the Pentagon doesn’t “want to get involved in civilian law enforcement. It’s one of those red lines that the military hasn’t signed up for.” Nevertheless, he says, “every person in the military swears an oath of allegiance to the Constitution of the United States to defend that Constitution against all enemies foreign and domestic.”
One of the more disturbing aspects of the new procedures that govern military command on the ground in the event of a civil disturbance relates to authority. Not only does it fail to define what circumstances would be so severe that the president’s authorization is “impossible,” it grants full presidential authority to “Federal military commanders.” According to the defense official, a commander is defined as follows: “Somebody who’s in the position of command, has the title commander. And most of the time they are centrally selected by a board, they’ve gone through additional schooling to exercise command authority.”
As it is written, this “commander” has the same power to authorize military force as the president in the event the president is somehow unable to access a telephone. (The rule doesn’t address the statutory chain of authority that already exists in the event a sitting president is unavailable.) In doing so, this commander must exercise judgment in determining what constitutes, “wanton destruction of property,” “adequate protection for Federal property,” “domestic violence,” or “conspiracy that hinders the execution of State or Federal law,” as these are the circumstances that might be considered an “emergency.”
“These phrases don’t have any legal meaning,” says Afran. “It’s no different than the emergency powers clause in the Weimar constitution [of the German Reich]. It’s a grant of emergency power to the military to rule over parts of the country at their own discretion.”
Afran also expresses apprehension over the government’s authority “to engage temporarily in activities necessary to quell large-scale disturbances.”
“Governments never like to give up power when they get it,” says Afran. “They still think after twelve years they can get intelligence out of people in Guantanamo. Temporary is in the eye of the beholder. That’s why in statutes we have definitions. All of these statutes have one thing in common and that is that they have no definitions. How long is temporary? There’s none here. The definitions are absurdly broad.”
The U.S. military is prohibited from intervening in domestic affairs except where provided under Article IV of the Constitution in cases of domestic violence that threaten the government of a state or the application of federal law. This provision was further clarified both by the Insurrection Act of 1807 and a post-Reconstruction law known as the Posse Comitatus Act of 1878 (PCA). The Insurrection Act specifies the circumstances under which the president may convene the armed forces to suppress an insurrection against any state or the federal government. Furthermore, where an individual state is concerned, consent of the governor must be obtained prior to the deployment of troops. The PCA—passed in response to federal troops that enforced local laws and oversaw elections during Reconstruction—made unauthorized employment of federal troops a punishable offense, thereby giving teeth to the Insurrection Act.
Together, these laws limit executive authority over domestic military action. Yet Monday’s official regulatory changes issued unilaterally by the Department of Defense is a game-changer.
The stated purpose of the updated rule is “support in Accordance With the Posse Comitatus Act,” but in reality it undermines the Insurrection Act and PCA in significant and alarming ways. The most substantial change is the notion of “civil disturbance” as one of the few “domestic emergencies” that would allow for the deployment of military assets on American soil.
To wit, the relatively few instances that federal troops have been deployed for domestic support have produced a wide range of results. Situations have included responding to natural disasters and protecting demonstrators during the Civil Rights era to, disastrously, the Kent State student massacre and the 1973 occupation of Wounded Knee.
Michael German, senior policy counsel to the American Civil Liberties Union (ACLU), noted in a 2009 Daily Kos article that, “there is no doubt that the military is very good at many things. But recent history shows that restraint in their new-found domestic role is not one of them.”
At the time German was referring to the military’s expanded surveillance techniques and hostile interventions related to border control and the War on Drugs. And in fact, many have argued that these actions have already upended the PCA in a significant way. Even before this most recent rule change, the ACLU was vocal in its opposition to the Department of Defense (DoD) request to expand domestic military authority “in the event of chemical, biological, radiological, nuclear, or high yield explosive (CBRNE) incidents.” The ACLU’s position is that civilian agencies are more than equipped to handle such emergencies since 9/11. (ACLU spokespersons in Washington D.C. declined, however, to be interviewed for this story.)
But while outcomes of military interventions have varied, the protocol by which the president works cooperatively with state governments has remained the same. The president is only allowed to deploy troops to a state upon request of its governor. Even then, the military—specifically the National Guard—is there to provide support for local law enforcement and is prohibited from engaging in any activities that are outside of this scope, such as the power to arrest.
Eric Freedman, a constitutional law professor from Hofstra University, also calls the ruling “an unauthorized power grab.” According to Freedman, “The Department of Defense does not have the authority to grant itself by regulation any more authority than Congress has granted it by statute.” Yet that’s precisely what it did. This wasn’t, however, the Pentagon’s first attempt to expand its authority domestically in the last decade.
During the Bush Administration, Congress passed the 2007 Defense Authorization Bill that included language similar in scope to the current regulatory change. It specifically amended the Insurrection Act to expand the president’s ability to deploy troops domestically under certain conditions including health epidemics, natural disasters and terrorist activities, though it stopped short of including civil disturbances. But the following year this language was repealed under the National Defense Authorization Act of 2008 via a bill authored by Vermont Senator Patrick Leahy (D-VT) who cited the “useful friction” between the Insurrection and Posse Comitatus Acts in limiting executive authority.
According to the DoD, the repeal of this language had more to do with procedure and that it was never supposed to amend the Insurrection Act. “When it was actually passed,” says the defense official, “Congress elected to amend the Insurrection Act and put things in the Insurrection Act that were not insurrection, like the support for disasters and emergencies and endemic influenza. Our intent,” he says, “was to give the president and the secretary access to the reserve components. It includes the National Guard and, rightfully so, the governors were pretty upset because they were not consulted.”
Senator Leahy’s office did not have a statement as of press time, but a spokesperson said the senator had made an inquiry with the DoD in response to our questions. The defense official confirmed that he was indeed being called in to discuss the senator’s concerns in a meeting scheduled for today. But he downplayed any concern, saying, “Congress at any time can say ‘we don’t like your interpretation of that law and how you’ve interpreted it in making policy’—and so they can call us to the Hill and ask us to justify why we’re doing something.”
Last year, Bruce Afran and another civil liberties attorney Carl Mayer filed a lawsuit against the Obama Administration on behalf of a group of journalists and activists lead by former New York Times journalist Chris Hedges. They filed suit over the inclusion of a bill in the NDAA 2012 that, according to the plaintiffs, expanded executive authority over domestic affairs by unilaterally granting the executive branch to indefinitely detain U.S. citizens without due process. The case has garnered international attention and invited vigorous defense from the Obama Administration. Even Afran goes so far as to say this current rule change is, “another NDAA. It’s even worse, to be honest.”
For Hedges and the other plaintiffs, including Pentagon Papers whistleblower Daniel Ellsberg, the government’s ever-expanding authority over civilian affairs has a “chilling effect” on First Amendment activities such as free speech and the right to assemble. First District Court Judge Katherine Forrest agreed with the plaintiffs and handed Hedges et al a resounding victory prompting the Department of Justice to immediately file an injunction and an appeal. The appellate court is expected to rule on the matter within the next few months.
Another of the plaintiffs in the Hedges suit is Alexa O’Brien, a journalist and organizer who joined the lawsuit after she discovered a Wikileaks cable showing government officials attempting to link her efforts to terrorist activities. For activists such as O’Brien, the new DoD regulatory change is frightening because it creates, “an environment of fear when people cannot associate with one another.” Like Afran and Freedman, she too calls the move, “another grab for power under the rubric of the war on terror, to the detriment of citizens.”
“This is a complete erosion of the rule of law,” says O’Brien. Knowing these sweeping powers were granted under a rule change and not by Congress is even more harrowing to activists. “That anything can be made legal,” says O’Brien, “is fundamentally antithetical to good governance.”
As far as what might qualify as a civil disturbance, Afran notes, “In the Sixties all of the Vietnam protests would meet this description. We saw Kent State. This would legalize Kent State.”
But the focus on the DoD regulatory change obscures the creeping militarization that has already occurred in police departments across the nation. Even prior to the NDAA lawsuit, journalist Chris Hedges was critical of domestic law enforcement agencies saying, “The widening use of militarized police units effectively nullifies the Posse Comitatus Act of 1878.”
This de facto nullification isn’t lost on the DoD.
The DoD official even referred to the Boston bombing suspects manhunt saying, “Like most major police departments, if you didn’t know they were a police department you would think they were the military.” According to this official there has purposely been a “large transfer of technology so that the military doesn’t have to get involved.” Moreover, he says the military has learned from past events, such as the siege at Waco, where ATF officials mishandled military equipment. “We have transferred the technology so we don’t have to loan it,” he states.
But if the transfer of military training and technology has been so thorough, it boggles the imagination as to what kind of disturbance would be so overwhelming that it would require the suspension of centuries-old law and precedent to grant military complete authority on the ground. The DoD official admits not being able to “envision that happening,” adding, “but I’m not a Hollywood screenwriter.”
Afran, for one, isn’t buying the logic. For him, the distinction is simple.
“Remember, the police operate under civilian control,” he says. “They are used to thinking in a civilian way so the comparison that they may have some assault weapons doesn’t change this in any way. And they can be removed from power. You can’t remove the military from power.”
Despite protestations from figures such as Afran and O’Brien and past admonitions from groups like the ACLU, for the first time in our history the military has granted itself authority to quell a civil disturbance. Changing this rule now requires congressional or judicial intervention.
“This is where journalism comes in,” says Freedman. “Calling attention to an unauthorized power grab in the hope that it embarrasses the administration.”
Afran is considering amending his NDAA complaint currently in front of the court to include this regulatory change.
As we witnessed during the Boston bombing manhunt, it’s already difficult to discern between military and police. In the future it might be impossible, because there may be no difference.
The disease of the liberal class is the specious, supposedly ‘professional’ insistence on objectivity. Before the rise of commercial newspapers, journals of opinion existed to influence public sentiment via arguments–not to stultify readers with lists of facts. Our oldest universities were formed to train ministers and inculcate into students the primacy of the common good. Labor unions had a vision of an egalitarian society that understood the inevitability of class struggle. Artists from Mark Twain to John Steinbeck sought not only to explain social, political, economic, and cultural reality, but also to use this understanding to fight for a social order based on justice. Movements that defied the power elite often started and sustained these liberal institutions, which were created as instruments of reform. One by one, these institutions succumbed to the temptation of money, the jargon of patriotism, belief in the need for permanent war, fear of internal and external enemies, and distrust of radicals, who had once kept the liberal class honest. And when it was over, the liberal class had nothing left to say.”
− from “Death of the Liberal Class” by Chris Hedges
The above is a cynical sentiment, if ever there was one, because it speaks to the failure of the liberal establishment in the past tense. In Death of the Liberal Class, Hedges reserves his venom for those who should know better: the liberal elite who, by design, are supposed to act as a buffer to the establishment; what Thoreau called “counter friction to stop the machine.” Instead, as a nation, we have submitted to the masters of the corporate state by handing them our thoughts. Even those who retain them–the liberal class of clergy, scholars and journalists Hedges speaks of–have either tempered or fully vanquished these thoughts for fear of systematic retribution, which is to say, loss of freedoms and livelihoods. Speaking out against corporate America or the government is to risk losing everything.
The indoctrination of an idea or of a complete ideology into the people of a nation happens in one of two ways. The first is by force. Noam Chomsky describes this authoritarian methodology of “consent without consent” as prescribed by the 19th century American sociologist Franklin Henry Giddings, who reasoned that an imperialist agenda–whereby a conquered nation is forced to adopt the ideological systems of the conqueror–could be a noble pursuit. According to Giddings, this validity of consent without consent is rationalized afterward when the conquered people “see and admit that the disputed relation was for the highest interest.” This was the imperialist rationale used in Southeast Asia and Latin America by the United States and in India by Britain. It’s nothing new.
But the world no longer buys in to American consent without consent. Our missions abroad have been too transparently imperialistic in the eyes of the world, which is why we are so routinely, yet cautiously, chastised by other nations. Selling wars that were waged abroad in the 20th century relied on this form of posthumous “consent” from people in nations we deigned to conquer. Obtaining consent at home proved far more difficult as Americans began to understand the specious, unconscionable motives behind our “democratic” efforts in Vietnam, in particular. But the rise of anti-war protests had less to do with American sentiment toward the people of Vietnam and more to do with conscription. The era of genuine protest ended with the discontinuation of the draft in 1973.
Undaunted, our belligerence has overcome the loss of faith entrusted in us by other nations after World War II and spurred America toward the “go it alone” philosophy adopted over the past few decades. This was best exhibited by George W. Bush’s “you’re either with us or against us” attitude in the months leading to our war in Iraq. Despite having the world’s sympathy after 9/11, America bullied other nations into a tepid alliance in support of our hostilities against Iraq–a country that simply had nothing to do with the terrorist attacks of 9/11, and was ruled by a regime more repressive of Islamic militants than any Western nation in the alliance.
Yet bullying the world into complicity was one thing. Gaining support among Americans was a different matter altogether. Americans were not going to be forcibly cajoled into supporting an invasion in Iraq. Thus began an explosion of anti-Islam and pro-war propaganda within the United States concealed in the language of jingoism. “When the resources of violence are limited,” writes Chomsky, “the consent of the governed must be obtained by the devices called ‘manufacture of consent.’”
Corporate media fell in line almost immediately with the government narrative after 9/11. Spreading democracy became the euphemism for sacking regimes. Caskets containing the bodies of U.S. soldiers were shielded from public view. The field of battle became known as “theater.” Despite sending our troops into harm’s way for undemocratic purposes, the phrase “support our troops” became ubiquitous and was spoken without irony. Laws that stripped Americans of civil liberties and privacy were passed in the name of “Homeland Security,” which itself has become more than a cottage industry. To wit, the Homeland Security Research Corporation, a D.C.-based research firm, estimates that just the U.S. market alone will “grow from $74.5 billion in 2012 to $107.3 billion in 2020.”
Journalists who spoke out against the war, such as Chris Hedges, were smeared and tarred as unpatriotic. Artists who criticized the war, such as the Dixie Chicks, were ostracized and threatened. Americans were whipped into a frenzy by a government that warned of imminent destruction in the homeland by radical Islamists. Officials spoke with urgency about “weapons of mass destruction.” Before anyone could process what was happening, we were at war, overthrowing Baghdad, the capital of Iraq, 1,500 miles away from Afghanistan, where we were told the jihadists had planned 9/11—1,500 miles away from another war we already started and soon forgot. A war that would eventually become America’s longest engagement in “theater.”
In his book Crude World, Peter Maas, who was reporting from Baghdad at the time of our invasion, wrote, “President George W. Bush insisted before the invasion that it had nothing to do with oil, that it was about weapons of mass destruction and, to a lesser extent, democracy. He was not being honest.” Maas describes how “in Baghdad, the Ministry of Oil turned into the Ministry of Truth… While most government buildings, including the National Museum, were looted of everything from artwork to computers and light bulbs, after which the remains were often set alight, the Oil Ministry…was untouched.” He quotes a ministry official who told him, “The Americans will not steal the oil but they will control it; they will pull the strings.” And indeed we do; we have.
Manufactured consent is essentially the end result of propaganda; the conformity of thought that exhibits itself in a nationalistic dogma. It comes from the repetition of twisted logic delivered through mainstream media channels, logic that somehow turns our authentic subconscious into synthetic reality. Blood for oil under the pretense of spreading democracy. Tax cuts for the wealthy as a way of helping the poorest among us. Corporate campaign contributions protected as free speech. Less regulation as a way to stabilize the financial markets. Bollox, every bit of it.
Manufactured consent: backward logic and nonsensical ideas sold as pragmatic solutions to social ills and economic misfortune bought hook, line and sinker by a public pounded into submission by a relentless barrage of misinformation from seemingly credible sources. Robert McChesney, in his introduction to Noam Chomsky’s People Over Profit, observes that “proponents of neoliberalism sound as if they are doing poor people, the environment, and everybody else a tremendous service as they enact policies on behalf of the wealthy few.”
Maddeningly, we have so much of the right information at our fingertips. As much as the digital age has given malevolent propagandists the ability to more easily disseminate false information, the same holds true for quality. Unfortunately, great information and quality journalism tend to be crowded out on social media by “listicles,” memes and pictures of cats. The world is complex and therefore the great stories (and there are many) take time to produce and time to digest. And time is slipping away from all of us.
[dropcap]A[/dropcap] single juror has the ability to acquit a defendant in a trial for any reason. Even if the juror believes the defendant is guilty. This is called jury nullification. This is not a loophole. Nor is it illegal. But it’s a secret and it shouldn’t be.
With that said, let’s begin.
A cursory review of prison statistics illustrates the nightmare that is African Americans’ experience with our criminal “justice” system. There are currently more than 7 million Americans caught up at some point in the prison system between probation, incarceration and parole.
Incredibly, 40 percent of our prisoners are black even though African Americans comprise only 13 percent of the total U.S. population. I live in a state where that number is closer to 50 percent. All told, America has 25 percent of the world’s incarcerated population despite only having 5 percent of the world’s population. This makes the sheer number of blacks in the prison system today even more overwhelming.
If you think there’s something wrong with this picture, continue reading, as there’s something that you can do about it. If you think this is because black people commit crime at a higher rate than white people do, then there’s a special place for you in hell or, worse, Congress.
Half of the prisoners in the United States are serving time for non-violent drug-related charges and 80 percent of those charges are for possession. Advocates and activists throughout the nation are attempting to reverse this trend, as the mass incarceration of black men specifically has become an epidemic. Despite the best efforts of groups such as the NAACP and the ACLU to reverse the trend, the problem persists unabated with most feeling helpless to change the system in a meaningful way.
But something can be done. By understanding your rights as a citizen to participate in the legal system, change can occur. Simply performing a civic obligation and reporting for jury duty gives every American the ability to weigh in on this issue.
Few people who are arrested on drug possession charges ever make it to trial for two reasons. One is that most cases are settled with a plea deal that a defendant often learns of for the first time while standing in front of a judge. The court-appointed attorney is basically there just to explain the plea to the defendant. The second reason is that plea deals are often considerably more attractive than the potential of losing in a trial and being sentenced by a judge, who is obligated to hand down sentences in strict accordance with the law. In states with mandatory minimum sentencing requirements, the risks are enormous.
But for those rare cases that do make it to trial, most people would be surprised to know that the most powerful person in the room is not an attorney or even the judge, for that matter. It’s the juror. One dissenting juror has the ability to decide whether or not a defendant should be set free no matter how the facts are presented. If a juror believes a defendant is guilty of breaking the law, but believes also that the law itself is not just, she has the right to vote with her conscience and not with the law.
Whether or not a judge has an obligation to inform a jury of this right has been battled over for two and a half centuries. As it stands now, judges are not required to inform a jury of their right to nullify a verdict; therefore, most do not.
Intrigued? Incredulous? Inspired? If you are brave enough to defy injustice and provide the last line of sane defense in an insane world, it’s best to arm yourself with an understanding of how we arrived at this point in history and your constitutional right to turn the tide.
The Modern “Middle Passage”
In order to properly describe the extent to which our criminal justice system is inherently and overwhelmingly racist, we must learn to speak about it with a new language. The current language, inculcated into the population by the government and corporate media over several decades, includes phrases such as “tough on crime,” “zero tolerance,” and “three strikes.” This type of rhetoric has been delivered repeatedly and enthusiastically since President Ronald Reagan declared the official start to the War on Drugs in 1982. Thirty years and a billion episodes of Law & Order later, we are all fluent in the language of narcotics.
Unfortunately, most of us have turned a blind eye to the mass incarceration of young black men in America during this time. Most of us shrugged it off. Most of us have failed to comprehend the rise of the prison industrial complex. Most of us, but not all of us.
In her book, The New Jim Crow, Michelle Alexander speaks to both the sociological and institutional aspects of racism in the American legal system. Since its publication in 2010, her book has been gradually galvanizing members of the black community around the concept of incarceration as a new form of slavery. And because of the efforts of outspoken leaders such as Dr. Cornel West, tireless advocacy from grassroots drug and prison reform groups and the comprehensive analysis provided by Alexander, the nation is beginning to speak about incarceration with a new language.
Rev. Roger Williams, pastor of the First Baptist Church in Glen Cove, N.Y., and president of the local NAACP chapter, says the reaction in the black community has been “multifaceted.” He says Alexander’s book has certainly inspired debate, with some putting “all of the onus on the black community,” others who have a “balanced understanding,” and “then you have those who feel like white folks are coming for you.” In every case, says Williams, “it’s almost like shoveling smoke trying to get a consensus, but it’s certainly stirring leadership.”
Fred Brewington, a prominent New York attorney and activist, has lectured frequently on this issue and even given sermons on The New Jim Crow, as he lives it every day in the criminal justice system.
“Unfortunately, the system has become the norm,” says Brewington. He shares Williams’ view that the book hasn’t necessarily filtered through the black community, but it has started to take root. “It’s not as though everyone is waking up and saying, ‘Where are all our African American men?’” But he calls Alexander’s book a “wonderful compilation of information that is there for the use of front-line advocates.”
Alexander’s book boldly equates the effects of today’s punitive drug laws to those of the Jim Crow laws that legalized segregation and unequal treatment under the law with respect to race. Specifically, she addresses the mass incarceration of black men in America under draconian drug statutes. For those who believe her analogy is a stretch, Alexander has a powerful weapon at her disposal: statistics.
Our modern journey to enslavement begins in 1972 in the years immediately following stark gains made during the Civil Rights movement. The prison population was around 350,000 as compared to 2.2 million people today. In 1972, violent crime had already peaked and was on the decline in the United States. The reason for the peak during the prior years was arguably the result of the Baby Boomers being between 18 and 25 years old—the prime adolescent years of criminal agitation—mixed with civil unrest and protests during the Vietnam War era.
But by the mid to late ’70s, conscription had formally ended, the Boomers were more worried about getting jobs than getting high and violent crime was precipitously declining. As Alexander notes in The New Jim Crow, the National Advisory Commission on Criminal Justice Standards and Goals recommended as early as 1973, “no new institutions for adults should be built and existing institutions for juveniles should be closed.”
Sociologists and criminologists had come to realize that punitive punishments and long-term sentences had little to no positive impact on crime statistics and that rehabilitation and treatment were more appropriate measures for all but the most violent criminals. Plus, the numbers were on their side. Despite a difficult economy, violent crime was falling—not only in the United States, but also around the globe. Given these circumstances, it was somewhat surprising that President Reagan declared an official “War on Drugs” in 1982, only two years into his first term. Surprising also because America didn’t really have a drug problem in 1982.
Ask enough people from a black neighborhood where “crack” came from, and it won’t take long for someone to tell you it was the CIA. This point has been hotly debated for years. But the fact remains that the period during which cocaine first began flooding the streets of American cities coincides precisely with the start of CIA operations in Central America, specifically Nicaragua. In the early 1980s guerrilla fighters in Nicaragua were suddenly flush with cash from American drug dealers—cash used to purchase American weapons in their fight against the Sandinistas, the Marxist government that aligned itself with Cuba.
In 1982, the U.S. Attorney General drafted a Memorandum of Understanding to the CIA establishing the United States’ interest in overthrowing the Sandinista government in Nicaragua; the same year the Reagan administration declared the War on Drugs. But crack cocaine had yet to reach the streets. It would take another three years for crack to begin appearing in the black neighborhoods; crack derived from cocaine funneled from Nicaragua. Call it a conspiracy or an incredible coincidence, but the timing is irrefutable. In the meantime, however, the Reagan administration didn’t sit idly by and wait for crack to become an epidemic. It had laws to change and a paradigm to shift. It didn’t take long.
Despite the downward trend of violent crime and no evidence yet of a rampant drug problem, the Reagan administration increased anti-drug funding for the FBI, Department of Defense and the Drug Enforcement Administration tenfold between 1980 and 1984; almost the exact size of the funding decrease to federal drug treatment, rehabilitation and education programs. Cocaine funneled from Central America hit the streets in 1985 in the form of crack and was deemed an epidemic by the media by 1986. By the end of 1986 the country had already adopted mandatory minimum sentencing requirements for drug-related felonies.
In less than five years a crisis had been fully manufactured in our cities and federal, state and local law enforcement agencies were given incentives in the form of military arsenals and cash to increase the number of arrests. Police departments were suddenly competing for cash grants, assault weapons and air power. The government’s sudden change of course and willingness to fund anything related to drug crimes also created an opportunity for private industry, which was only too anxious to jump into the fray.
In 1983, Corrections Corporation of America (CCA), the first privately held prison corporation, was formed. Despite the historically low prison population, the government’s drug war prompted private industry to suddenly jump into the incarceration game. Today, CCA is a nearly $2 billion (and growing) corporation with more than 90,000 “beds” under its control.
Allowing for privatization of our prisons is one of the more egregious examples of how divorced our policymakers are from common sense in this country. The goal of a private penal corporation is to profit from high and extended rates of “occupancy.” (CCA literally speaks in these terms as though it was part of the hospitality industry.) The private prison lobby in America has pressured lawmakers over the years to maintain harsh minimum sentencing requirements as corporations have little financial incentive to encourage rehabilitation of prisoners. As far as the private prison industry is concerned, the only useful felon is one who is incarcerated, not reformed.
Reagan’s “war” saw a clean population getting hooked on drugs. During this “war,” rehabilitation was replaced with recidivism. Treatment was abandoned in favor of solitary confinement. Education was upended by “stop and frisk.” Prevention was sacrificed in the name of incarceration. The result? Half of all inmates today are in prison for drug-related crimes, of which 80 percent are related to possession of marijuana. To say the black community bore the brunt of this war is an understatement. To wit, more black American men are in the prison system today than there were slaves just prior to the Civil War. Present the statistics any way you please. There’s no pretty picture to paint. Black America is once again in chains.
Each year, hundreds of thousands of “stop-and-frisk” acts are performed in black neighborhoods. They are rarely, if ever, conducted in white neighborhoods, office complexes or college campuses.
Nevertheless, politicians point to the success of “stop and frisk” in the absolute number of people arrested for carrying drugs instead of the miniscule percentage of people found carrying drugs who were searched. I’m no mathematician, but logic would dictate that if you only stop and search people in black neighborhoods, then when you find drugs on someone the chances are that person is going to be black.
The reasoning behind “stop and frisk” is so specious and the process itself so unconstitutional it defies logic. And yet, it’s generally upheld in court. In 2012, 533,000 people were subjected to “stop and frisk” by the NYPD, according to the NY Civil Liberties Union (NYCLU). Once again, even though blacks comprise 25 percent of the city’s population, they made up 55 percent of those who were stopped and frisked.
Many officers are unhappy with the “stop-and-frisk” protocol but are caught up in the nightmare due to pressure that comes from the top. Recently, the New York Daily News reported on a case where NYPD Officer Pedro Serrano testified against the department after taping his supervisor, Deputy Inspector Christopher McCormack, telling him to target “male blacks. And I told you at roll call, and I have no problem [to] tell you this, male blacks 14 to 21.” These kinds of orders are not unique. They stem from quotas that are often handed down from the police brass. And officers such as Serrano who speak out against these practices are often shunned by their colleagues.
But wrestling with one’s conscience and struggling to maintain police quotas is nothing compared to the hell that awaits a young black man swept up into the web of “stop and frisk.” Once in court, the odds are stacked against him. In a recent conversation, Brewington described the harrowing process of being caught by the police and ushered through the “system.”
Those with a prior arrest who are brought in on possession charges may meet an attorney such as Brewington in the holding cell. They’re actually one of the lucky ones, as a staggering number of accused felons make it all the way to sentencing in front of a judge without ever having spoken to an attorney. A far cry from what happens on TV. Brewington describes the encounter as something less than a conversation, as he advises his client to answer simply “yes” or “no” because everyone around him has an incentive to use his words against him in their own plea deal.
Time is of the essence, as he is typically carrying an offer from the D.A. that is set to expire quickly. Whether they want to go free is not a question he will raise. They’re in the system now. The only question is, how long? Risking an appearance in front of a jury means risking a much longer sentence.
“The fear is that you’re going to get a jury that’s really not of your peers,” says Brewington, who is loath to advise a jury trial. He says many of the young men he encounters “have not acquired the requisite skills to appear sympathetic” in front of a jury “that looks at you as though you must have done something wrong.”
The confusing whirlwind of circumstances between being frisked by law enforcement officials and accepting a plea deal is just the start, a piece of the legacy from Reagan’s “War on Drugs.”
But if Ronald Reagan was responsible for putting so many black people behind bars, it was Bill Clinton who was most responsible for keeping them there. In an effort to make Democrats appear “tough on crime,” the Clinton administration institutionalized punitive measures outside of the system, such as lifetime bans on some forms of welfare including access to food stamps, government jobs and public housing. Parolees, now branded as felons for life, were suddenly unable to leave their district while being forbidden from returning home, accessing food and gaining employment in the public sector.
“If the initiative is to eradicate the drug trade,” says Williams, the opposite occurred. “What you’re doing is inducing the necessary anger on the inside that will be accentuated when they come back. And the only thing that will accept them back is the game.”
Throughout the ’90s, recidivism spiked and parolees came face to face with President Clinton’s most punitive anti-crime measures—the “Three Strikes” rule and mandatory minimums. Under Clinton, life sentences were mandated for any third-time felon, or felon convicted of multiple counts, regardless of the nature or severity of the crime. Mandatory minimum sentences for even the lowest level drug offenders were implemented as outrage finally began to creep into American consciousness. Black churches and organizations were up in arms. Some judges resigned. Alexander even recounts the story of a notoriously harsh judge who wept when forced to hand down a 10-year sentence “for what appeared to be a minor mistake in judgment in having given a ride to a drug dealer for a meeting with an undercover agent.”
Beyond the practical hindrances a felon faces in attempting to re-enter society, there’s an emotional burden and stigma that is carried forever; a burden that extends to the family as well. Dr. Jeffrey Reynolds, president of the Long Island Council on Alcoholism and Drug Dependence, runs programs to counsel children of incarcerated parents. While their parents are on the inside, the kids “suffer guilt, shame and isolation,” says Reynolds, adding, “Seventy percent of kids of incarcerated parents, without intervention, wind up incarcerated themselves.” But he speaks to the effectiveness of intervention, saying, “None of our kids have been incarcerated. With a little bit of help and a little bit of energy, it makes a huge difference.”
Even those who are released carry with them the shame of having been on the inside and the painful memories that accompany incarceration. Horrifically, more than 70,000 prisoners are raped every year. Additionally, tens of thousands of prisoners are locked in solitary confinement at any given time in the United States, a punishment usually employed by totalitarian regimes that was all but outlawed in the United States prior to Reagan’s War on Drugs and the emergence of the modern prison industrial complex.
Nullification is a “Juror’s Prerogative”
Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?
—Henry David Thoreau, Civil Disobedience
You don’t have to agree that the “War on Drugs” was an intentional war on the poor, disenfranchised people of color in this country to understand that this was the result. Thinking, feeling people know these laws must be changed. And while we, as citizens, must indeed protest, engage in civil disobedience and write to Congress, there is more that can be done and it begins with understanding your rights.
In a New York Times op-ed last year, Alexander floated a question raised to her by a woman named Susan Burton. Her question was simple, but brilliant: What if there was a movement to convince “thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out?” Her supposition was that this would theoretically crash the criminal justice system. She’s right. But the risk would be enormous given the potential and very legal retribution the system provides for.
But if the black community is examining this option and weighing the risks of such a strategy, it is incumbent upon the white liberal community to do the same on the opposite side of the equation. In this scenario, African Americans have everything to lose and white people have nothing to lose. So to possess this knowledge, have nothing to lose and still refuse to be an “upstander” is to be silently complicit in modern-day slavery.
Most white Americans have only a casual relationship with our legal system. Their understanding of what is just and what is legal generally comes from watching television crime shows and movies. This is why most people have the impression that the sole responsibility of a juror is to deliver a verdict based upon legal facts and that his or her personal feelings of fairness and justice cannot be considered.
This is patently false.
If you manage to get by “voir dire,” the process of questioning jurors to sit for a particular trial, and are fortunate enough to be selected, you can participate in a revolutionary movement. You can hang a jury without ever having to explain why. Jurors such as this are referred to as “stealth jurors.” Quiet activists who are guided by conscience not convention, or as Fred Brewington says, “The jury becomes the advocate for society.”
But first, you have to be in the position to do so. The key to getting through voir dire is to answer honestly without revealing anything ideologically. There is a science to voir dire and cases are often determined by how adroit an attorney is at selecting a jury. So remember these simple facts:
1) Less is more: You cannot misrepresent yourself by exercising restraint during voir dire.
2) You are not the one on trial.
3) Your goal is to get on that jury.
Serving on a jury is tedious, time-consuming and may even be financially detrimental. There is nothing romantic about the inner-workings of our legal system, no matter how glorified it is on television. Moreover, only a handful of Americans will actually be selected for a trial that involves drug possession charges for the reasons I stated in the opening of this piece. The goal here is to make enough people aware that the reason our system was designed to have trials decided by a “jury of one’s peers” was to prevent unjust laws from unfairly condemning citizens to incarceration or any form of punishment.
Like I said, the chance of being picked for a jury that involves drug possession charges is extremely remote. But our ability to disseminate a simple message of civil obedience to encourage defiance in the face of injustice has never been greater. If millions of Americans know who Joseph Kony is and know how to dance “Gangnam-Style” then they can at least understand their legal right and moral obligation to hang a jury in the case of drug possession charges.
Twitter. Facebook. Smoke signals. Whatever your preferred method of communication, it’s time to spread the word and find the “one in twelve” willing to hang the jury.
*This article is an excerpt from Jed Morey’s forthcoming book titled The Great American Disconnect: Five Fundamental Threats to our Republic.
“America in Chains” Illustration by Jon Moreno “Dissenting Juror” Illustration by Jon Sasala “Hang The Jury” Video by Rashed Mian www.hangthejury.com created by Michael Conforti
Ah, the Great White North. America’s attic. Uncle Sam’s hat. The land of self-deprecation, Tim Hortons donuts and ice fishing. Less notably, it is the land of my birth. Although I became a U.S. citizen in the fifth grade, my Canadian roots were always a source of pride, despite precluding me from ever becoming president.
It has always amazed me how little we Americans think of our sister nation to the north. With the occasional exception of the tabloid coverage that accompanies “Bieber Fever,” the media here are devoid of Canadian news.
Perhaps it shouldn’t be surprising there hasn’t been a single article devoted to the indigenous Idle No More movement that has taken hold in Canada. As we witnessed during the early days of Occupy, corporate media are indifferent to dissent unless it’s displayed in a faraway nation by throngs of angry Arabic men. (Congrats again on winning Best Picture, Ben.) Recall that it took weeks for any established media to begin covering Occupy in any meaningful way, and when they finally did, they were largely dismissive of it.
Yet the American news media do spend a good deal of time and ink discussing the relationship between the United States and China. Any news of civil unrest in China is worrisome to corporate America because of our obsession with our mutual economic interests. After all, we are the global champions of human rights so long as we’re not stripped of our fundamental economic right to slave labor.
Missing from this equation is the fact that China is America’s second top trading partner. The first is Canada. Yes, the land that calls its one- and two-dollar coins “loonies” and “toonies” is our number one trading partner on the planet. This is why the lack of coverage of the Idle No More movement is rather astounding given that our economic interests are involved. Not only have Canadian Indians disrupted commerce, they are providing the strongest resistance on the Canadian side to the controversial Keystone XL Pipeline project that would run from Canada through several U.S. states.
In December of 2012, four Canadian activists named Jessica Gordon, Sylvia McAdam, Sheelah McLean and Nina Wilson founded Idle No More to protest the Canadian government’s passage of C-45—a massive omnibus bill containing anti-environmental provisions that might surprise many Americans. Since December, native people across Canada have disrupted major events and even gained international attention from a hunger strike waged by Attawapiskat Chief Theresa Spence. Protestors have closed off roads, blockaded bridges, cut off a road to a De Beers diamond mine and generally raised hell by attacking this bill for moving Canada further away from the path of sustainability.
Americans maintain a somewhat outdated vision of Canada as a nation of tree huggers and environmentalists. To wit, unlike every other industrialized nation in the world, Canada has regressed on climate change initiatives. In January, Global Legislative Organisation (GLOBE), an environmental NGO, issued its third report on the legislative initiatives of 33 nations. Of the 33 countries, which include China and the United States, GLOBE gave 32 of them credit for making progress in enacting and adopting beneficial environmental legislation. The only nation to go backwards? Canada.
John Kane, a native activist and writer who hosts a show on Indian affairs on WWKB-AM in Buffalo, says that Idle No More “is about water, land and sovereignty.” Like many who have observed Canadian politics of late, Kane laments that the dominion has been besieged by a warped conservative agenda, characterizing Canadian Prime Minister Stephen Harper as a “cross between Bush and Cheney.” Relations between the tribes and her majesty’s government, strained as they are, worsened as C-45 set off alarms among tribal leaders almost immediately.
“Harper initiated a suite of legislation,” says Kane, “that would lower the threshold to invade native lands and take streams, rivers, minerals, you name it.” Reading between the lines of a “jobs act” in the bill, Kane says that “job creation” is a euphemism for “the opportunity for other countries like China to participate in mineral extraction.”
Idle No More intersected with other activist movements in February when its members joined the massive rally in Washington, D.C., organized by the Sierra Club and 350.org, to call for President Obama to continue the U.S. obstruction of the Keystone XL Pipeline project. An estimated 30,000 to 40,000 protestors descended upon the National Mall. Michael Brune, head of the Sierra Club, was even arrested at the rally, breaking the organization’s longstanding prohibition against civil disobedience. (The rally was also woefully under-reported by corporate media.)
President Obama is clearly important in the process and the U.S. has to clear far more regulatory hurdles to move the Keystone project forward. But the pressure to begin construction is coming more from the Canadian government than anywhere else. The Harper administration, with tremendous support from Canadian petro companies, is hell-bent on exploiting the Alberta tar sands, no matter how environmentally catastrophic the process is.
“This is an area the size of Florida,” says Kane. “The bottom line is Canada can make a lot of money by raping Alberta.”
Idle No More goes beyond the Keystone Pipeline. This week I spoke with Yoni Miller, who is the president of Occupy Wall Street—an intentionally ironic title as Occupy continues to be an amorphous, leaderless and volunteer movement. I reached out to him because the Occupy outlets were among the relatively few areas to obtain any information outside of native publications. Regarding C-45 and the potential toll on native territory, Miller said, “We all know it’s more than that—it’s about the ongoing and existing process of colonialization.” He also believes the tribes have better insight to environmental issues because of “their unique relationship to the land.”
On Jan. 5 of this year Yoni was invited to Akwesasne, the Mohawk territory that straddles the St. Lawrence River between New York and Ontario. For several hours Iroquois members of Idle No More shut down the Seaway International Bridge between the U.S. and Canada—an experience Miller called “humbling.” When I asked him whether he felt Occupy had fueled any of the confidence in Idle No More, he was reluctant to take anything away from what had been accomplished.
“It may not have been possible without the energy from Occupy,” he said, but then quickly added, “but these people were activists before we were even born. Indigenous resistance has been going on since 1492. It’s what makes this different.”
Both Occupy and Idle are relatively quiet at the moment. But John Kane and Yoni Miller independently expressed the same sentiment that spring is the season of awakening and that both groups will be on the move. Perhaps they will jolt the mainstream media from their hibernation as well, though I doubt it. These particular bears appear to be idle, forever more.
Okay, so now we’re all armed. Present company included. Great job, America. Now what?
The debate over gun control would be uproarious if it wasn’t so pitiful. In typical American fashion we have taken to the streets and airwaves in the aftermath of Sandy Hook to engage in an irrational debate that, once again, places misguided ideology over common sense and humanity. If we’re going to have this conversation, let us at least place the discussion within its proper historical context so we may raise a more troubling question:
Why bother taking the guns when you can indefinitely detain their owners?
Lost in the emotion surrounding the debate over the Second Amendment is a far more insidious assault on the First Amendment. In no way am I diminishing the consternation over our right to bear arms as citizens; rather, I’m making a pragmatic case for a far more clear and present danger than the idea that federal agents will show up at our doorstep to commandeer our weapons. Before we get to this larger and more important point, let us dispense with the ridiculous.
Of course, we shouldn’t sell guns to crazy people, just like we don’t give a driver’s licenses to blind people. Of course, citizens shouldn’t own military-style weapons with enough ammunition to wipe out a village. Newsflash: the government has neither the authority nor the desire to seize our guns. We hold the dual distinction of being the planet’s most armed nation and its biggest dealer of arms. What does this mean? The gun culture is here to stay because it’s profitable as hell.
And another thing: Stop yelling sanctimoniously about what the Founding Fathers would say. Find out what they did say. Media pundits insult our intelligence by twisting the meaning of the Constitution and the rationale behind it. So instead of arming yourself with high-capacity weapons, arm yourself with knowledge and learn about the Second Amendment from those who wrote it.
Founding Father Knows Best
During the two short years between the ratification of the Constitution and the introduction of the Bill of Rights, three of the greatest minds in America publicly explored the rationale behind the country’s founding document. A trio of intellectual giants writing interchangeably under the name Publius—Alexander Hamilton, John Jay and James Madison—produced a collection of essays now known as The Federalist Papers. They are essentially crib notes to the Constitution left behind by the Founding Fathers.
These are treasured breadcrumbs of reasoning that lead us to understand that the great military concerns of the day were whether or not to allow a standing army and how to prevent one state from acquiring military dominance over another. (The nascent nation could ill-afford Virginia to sack Rhode Island.) This dilemma was at the heart of the federalist argument for a centralized authority. At the same time, the Founding Fathers knew that the great balancing act of the day was in maintaining enough military force to defend against external foes while simultaneously preventing armed insurrections from within.
Publius reasoned that neither citizens nor tyrants should have the ability to circumvent our legal system, therefore arms and force should be evenly rationed but employed by a central government when necessary. (For the politically impaired, this is the part about a well-regulated militia.) The framers of the Constitution were dubious when it came to having full-time, professional soldiers. After all, these men were revolutionaries themselves who intimately understood the danger of uprisings. Moreover, America was also flat broke and could never have paid for a standing army. They did, however, believe Congress should have the ability to organize a militia when necessary.
It was Hamilton (as Publius) who offered the most succinct viewpoint on the military. “To render an army unnecessary will be a more certain method of preventing its existence than a thousand prohibitions on paper.”
To have an army or not? If so, how best to regulate it? This was the debate. The easiest way to raise a militia was to call upon the armed citizenry should the need arise. (This is the right to bear arms part.) More importantly, it was cheap. The ability to compensate servicemen would become one of Hamilton’s central arguments in favor of a national bank—a far more delicate subject at the time than the right to bear arms would ever be.
It’s fair to say even the Founding Fathers could never have imagined modern warfare and the rise of the military industrial complex. Nor could they have imagined the destructive capability of assault weapons in the hands of citizens. This much is clear from their writings: the Founding Fathers would have punished any idiot who attempted to stockpile enough weapons to take on the government long before they tolerated government prohibition of speech.
On several occasions our founders saw fit to violently quell popular uprisings in order to preserve the central authority of the union. In this there was great philosophical unity among them. They argued more about banking than guns and cared more about protecting speech than organizing militias. It was John Adams who created a divide among them when, as president, he passed the Alien and Sedition Acts, jarring both Thomas Jefferson and James Madison out of retirement; not because they were fearful of his demagoguery with respect to force, but because these acts took away a more sacred right: free speech.
This brings us to the larger issue at hand.
Just as Jefferson and Madison recoiled at the behavior of Adams once in office, the great intellectual giants of our day have come together to challenge President Barack Obama’s authority.
The man who released “The Pentagon Papers” and forever changed the way in which we view our involvement in Vietnam. The award-winning multilingual journalist who quit the New York Times because it was too tepid and conservative. America’s foremost dissident who has influenced generations of thinkers and helped shape liberal intellectualism. When Daniel Ellsberg, Chris Hedges and Noam Chomsky, along with some of the world’s foremost political activists such as Jennifer “Tangerine” Bolen – the organizing force of the plaintiff’s team – join together to bring suit against you in U.S. federal court it’s fair to say you have a problem.
Such is the predicament Obama finds himself in today. The above group has brought suit against the government for infringing upon free speech as defined by the Constitution. Thus far, and thankfully, they are winning. Their lawsuit (which I refer to herein as the Hedges suit) not only challenges the government’s unconstitutional behavior, it casts a light on a dangerous trend in America and exposes a surprising secret weakness in the White House and the Justice Department.
“There are now more people under ‘correctional supervision’ in America—more than six million—than were in the Gulag Archipelago under Stalin at its height.” —Adam Gopnik, The New Yorker, 2012.
The woeful mash-up of Conservatives, Libertarians, Tea Party loyalists and Democrats who wouldn’t know a liberal idea if the ghost of Gore Vidal whispered it to them, are so busy deconstructing America’s gun culture they have ignored a more alarming cultural trend: the culture of incarceration.
In addition to being the most armed nation in the world, America also has the greatest percentage of its population behind bars. While this trend has steadily risen over the past few decades, it has gained a level of acceptability in the post-9/11 era. Perhaps, this is why so few bristled at the passage of the provision the Hedges suit aims at.
The plaintiffs in this suit have made the case in federal court that the Obama administration and Congress violated the First Amendment with the signing of the National Defense Authorization Act (NDAA) of 2012. The Act is a routine bill that organizes defense spending for the year and typically garners little attention from citizens and the media. But the 2012 Act contained a new provision authored in secret by Sen. John McCain—known as Section 1021—that was so alarming it prompted the above suit.
Essentially, Sec. 1021 expands the scope of existing law that allows the government to hunt terrorists in connection with 9/11 to include anyone seen as providing “substantial support” of terrorism. Ever. Anywhere. The provision offers vague language that attempts to couch it within existing statutes but its very existence is evidence that the government is seeking more expansive authority.
In September of 2001 the White House put forward several provisions that gave the government the power to prosecute those responsible for the terrorist attacks on 9/11. The joint resolution—the Authorization for Use of Military Force (AUMF)—passed Congress quickly and included nearly everything the Bush Administration requested. Everything, that is, except a provision that could have been interpreted as granting the government the ability to militarily detain U.S. citizens. This denial was subsequently upheld by the U.S. Supreme Court.
The Hedges suit argues that the broadness of Sec. 1021 and vagueness of the “substantial support” language endanger journalists and activists and theoretically expose U.S. citizens to indefinite military detention.
Katherine B. Forrest, district judge in the U.S. District Court Southern District of New York, presided over the opening salvo of the Hedges suit and delivered a resounding victory to the plaintiffs, and an injunction against enforcement of Sec. 1021, excoriating the government and its case in the process. In her decision she states, “The Government was unable to provide this Court with any assurance that plaintiffs’ activities…would not in fact subject plaintiffs to military detention.”
For its part, the government’s sole defense seemed to be inaction: If no one has yet been detained, then obviously there is no cause for alarm. Basically, their defense is that even though Sec. 1021 says that the government can punch you in the face if it doesn’t like your shirt, it hasn’t done it yet; therefore we must assume it won’t. Judge Forrest wasn’t buying it. Her decision examines various laws pertaining to what the government defines as criminal statutes related to terrorist activities of behavior in “material support” of such activities. In each case, laws are clearly designed to honor due process. She further argues that the plaintiffs are rightly concerned that Sec. 1021 falls outside the scope of constitutionality with respect to habeas corpus and is therefore not consistent with any legal precedent.
This is where it gets really, really interesting.
Judge Forrest: “Section 1021 appears to be a legislative attempt at an ex post facto ‘fix’: to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly broad interpretation of the AUMF.”
President Obama doesn’t have a journalism problem. He’s not afraid of liberal scholars, protests, or homegrown terrorism on the rise because of access to Jihadist websites. Barack Obama has a Guantanamo problem.
Ah, Guantanamo. Hundreds of suspected terrorists or their affiliates have been brought here for questioning. Scores have been indefinitely detained. Recall then-candidate Obama’s assurance that Gitmo would be closed. Upon becoming president, it didn’t take long for the political reality to set in that the remaining prisoners weren’t coming ashore to stand trial anytime soon.
On the one hand, the government makes the case that Sec. 1021 is no different than existing authority granted under the AUMF. On the other hand, the government stands by the need for this provision to continue its mission to find and prosecute suspected terrorists, as though AUMF isn’t sufficient enough. Judge Forrest barely shields her disdain for this conflicting stance and rightfully concludes that “Section 1021 is, therefore, significantly different in scope and language from the AUMF.” She goes on to wag her finger at the attorneys for the government, saying, “Shifting positions are intolerable when indefinite military detention is the price that a person could have to pay for his/her, or law enforcement’s, erroneous judgment as to what may be covered.”
Back to Hedges et al. for a moment. Stymieing the government’s continued attempt to cover up potential war crimes at Guantanamo may have been an incredible, yet unintended consequence of the Hedges suit. Remember, the plaintiffs in the Hedges suit aren’t suing over Guantanamo. That’s a different fight. Rather, they take issue with the inherent danger of the language to citizens, activists and journalists. Nevertheless, Sec. 1021 is still on the books as the suit is pending appeal. And regardless of whether or not any U.S. citizen has been specifically detained as a result of its passage (and how would we know?) it must disappear.
For his part, President Obama issued a signing statement distancing his presidency from Sec. 1021. But actions speak louder than words and in many ways he has been far more active in assaulting civil liberties than President George W. Bush ever was. Whether through the wide use of drone strikes in Pakistan, Yemen and Somalia or numerous examples of prosecutorial overreach—most recently the tragic case of “hacktivist” Aaron Swartz—or the failure to speak out against the alphabet soup of dwindling liberties (SOPA, PIPA, FISA) Obama has given the public little evidence that he cares about this issue. Perhaps even more troubling is that his tenure as a constitutional law professor has been touted so often that one can only assume he understands the complexity of the issue but has chosen to ignore it, or worse take advantage of it. Bush was able to play the no-nonsense (you’re either with us or against us) cowboy card. Obama has chosen to play the steely intellectual card, and in doing so has created legitimate cause for alarm.
All of which brings us back to the gun debate. As much as I am sympathetic to the right to bear arms, I refuse to capitulate to the cheap argument that it includes the right to possess combat-style weaponry. Furthermore, I’ve grown weary of the ignorant protestations from right-wing figures who poison the words of the Founding Fathers and miss the bigger picture altogether.
The more we divorce ourselves from the notion of liberty, the more abstract it becomes; the more divisive our discourse, the more perilous our future. The vociferous gun debate obscures the very real, current and existing assault on our civil liberties. And know this: Were they alive today, not only would Hamilton, Jay and Madison have joined Ellsberg, Hedges and Chomsky as plaintiffs in this lawsuit, they would challenge every right-wing blogger, talk radio host and television pundit who twisted their words to a duel.
With a pistol, not an assault rifle.
This version has been updated from the original that appears
in the February print edition of the Long Island Press.
[dropcap]T[/dropcap]he Republican Convention was going rather poorly. The crowd was homogeneous the speakers were flat and the enthusiasm in the room was manufactured at best. And Clint Eastwood hadn’t even begun a rambling conversation with a chair. The Republican Party’s best hope for the convention was for its candidate to appear “human.”
Although “Eastwooding” would eventually enter the American lexicon and Willard Romney would do his best to connect with his fellow Homo sapiens, it was a quiet delegate from New York who captured the essence of the modern GOP.
Wading in among his fellow delegates, billionaire industrialist David Koch smugly took in the proceedings. Though the convention offered little in the way of celebration, he told a group of supporters at a nearby reception later that he and his brother, Charles, were “in this for the long haul.” Indeed they are. The Koch brothers are part of a well-established movement designed to vilify liberalism and many of the core tenets of democracy.
They are hardly original. But they are unique in that they have elevated their insidious brand of propaganda to a high art form. Groups such as the nativist Know Nothings of the 1850s or the John Birch Society of the 1950s espoused similar hate-filled political messages as today’s GOP but they flamed out as quickly as their stars rose. In terms of longevity, the Kochs and their inspired think tanks such as Americans for Prosperity—busy these days attempting to deny Hurricane Sandy relief funds to our region—have succeeded where their predecessors have failed. For the first time in American history, a small band of angry white men has galvanized a vast number of Americans and irrevocably turned public policy on its ear. The modern American conservative movement has finally arrived.
Much of this has been accomplished through the elaborate and coordinated messaging emanating from the right-wing propaganda machine. Theirs is a two-part strategy. The first is to consistently contend that the media have a liberal bias when the opposite is true. Talk radio is virtually owned by the right wing. Fox News has become an insanely biased juggernaut and the print media, with few exceptions, has essentially fallen in line with the conservative agenda. Even the majority of the New York newspapers—The Daily News, Wall Street Journal, Newsday and New York Post—endorsed Mitt Romney over Barack Obama. But to hear conservative pundits talk about media bias, one would think the New York Times is the only newspaper on the planet.
The second part of the strategy is to plant false information from seemingly credible sources with patriotic names such as the Heritage Foundation, Americans for Prosperity and the American Enterprise Institute.
Representatives from these organizations, which are funded by billionaires such as the Koch brothers, routinely appear on right wing talk shows spouting bogus statistics. These sources are then quoted in newspaper articles that are again mentioned in on-air reports. This is what is known as “the echo chamber.”
The rationale behind their approach is simple and time-tested. Over time repetitious lies begin to have the resonance of truth, no matter how far fetched. Selling an idea as its exact opposite, a mirrored reality, via the continual amplification of such lies has been an effective strategy employed by tyrannical regimes since time immemorial. For example, Adolf Hitler extolled the virtues of physicality, and gushed over the domineering blond-haired, fair-skinned Aryan, who was tall, reasoned and even-tempered. But Hitler himself possessed none of these traits. He was short, pudgy, greasy, and ill tempered.
Likewise, the right-wing echo chamber has been successful in instilling a backward self-loathing belief system among its followers who blithely campaign on behalf of billionaires.
Witness the retired worker receiving Social Security and Medicare benefits carrying a sign bashing entitlements at a Tea Party rally. Or the middle-income wage earner resisting tax increases on the wealthiest Americans because they’ve been told it smacks of socialism. Or perhaps the enraged grandmother who believes “Obamacare” is a Communist plot, even though the concept was hatched in a conservative think tank and first passed into law by a Republican governor.
Brilliantly, there is no single face of modern conservatism, only a secret cabal of dangerous men such as Charles and David Koch, who work behind the scenes to pull the last remaining threads from our democracy. In another stroke of genius, the GOP has joined forces with Christian Fundamentalists to misappropriate scripture while wrapped in the flag to sell the American people on perverted interpretations of the teachings of Christ.
The GOP has wed itself to fundamentalist leaders such as Douglas Coe who, since 1969, as the head of a secret society known as “The Family,” has presided over several Washington “prayer cells” that have been linked to some of the most deadly despots in modern times such as Indonesia’s General Suharto, Haiti’s Papa Doc Duvalier and Yoweri Museveni of Uganda. Not only have Coe’s associates been linked to some of the most heinous genocidal acts in history, they were all at one time members of Family-sponsored prayer cells. Genocide, it seems, is easily overlooked in Coe’s movement so long as lip service is paid to Christ and oil and other natural resources are provided to well-heeled Family members.
Beyond warping the Bible to suit the Republican ideology, there are secular issues that have been upended by its truth-twisting dogma. The vilification of labor in this country, for one, is sickening and self-defeating. To wit, only 12 percent of the American workforce is unionized, but conservative pundits would have the public believe that unions are wholly responsible for our employment woes and lack of competitiveness. They would also have us believe that Social Security is collapsing under its own weight even though it is, by design, self sustaining and fully funded.
Equally as disturbing is the malicious stance toward immigrants in the United States. The extent of Republican soul-searching post election was to examine strategies going forward that would deal with the problem of changing demographics: how to woo more Latinos into the fold instead of actually adopting more progressive policies.
In fact, Republicans were anything but contrite in the wake of electoral defeat. Forgotten were the insults to women, equating nearly half of America with system-sucking leeches, and the notion of self deportation. The GOP has built a platform based upon misogyny, fervent nationalism, elaborate propaganda, and suppression of intellectualism—each one a hallmark of fascism. Others include high levels of incarceration, secrecy, militarism, and anti-union rhetoric.
These are the enduring legacies of a party gone horribly wrong. The problem we face is that the men behind the curtain believe this past election was a momentary setback, a bump in the road. But this stands to reason. They are, after all, in this for the “long haul.”