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NDAA: Pre-Emptive Prosecution Coming to a Town Near You |
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Wednesday, 20 February 2013 14:02 |
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Silver writes: "Obama fights tooth and nail to push through NDAA, which would allow indefinite detention of US citizens, and the definition of terrorism has expanded its unwieldy scope, casting a widening net that ensures more and more people are captured in its snare. "
The NDAA has been widely criticized for defying the judicial process. (photo: Muslim Public Affairs Council)
NDAA: Pre-Emptive Prosecution Coming to a Town Near You
By Charlotte Silver, Al Jazeera English
20 February 13
 n the US, due process - one of the defining features of a democratic judicial process - continues to be badly bludgeoned: Obama fights tooth and nail to push through NDAA, which would allow indefinite detention of US citizens, and the definition of terrorism has expanded its unwieldy scope, casting a widening net that ensures more and more people are captured in its snare.
The US has pursued "domestic terrorism" by practicing pre-emptive prosecution, that is, going after individuals who have committed no crime but are alleged to possess an ideology that might dispose them to commit acts of "terrorism". Maintaining that it can -and should - be in the business of divining intent, the government decimates crucial elements of the US justice system.
Thus, in cases where terrorism is charged, prosecutors need not prove guilt beyond a reasonable doubt. Rather, only the defendant's potential for committing a crime need be established in order to convict.
Consider the case of Tareq Abufayyad, a young Palestinian man and recent college graduate who was detained at San Francisco International Airport when he was on his way to unite with his family, all of them naturalised citizens of the US. Tareq was deemed inadmissible merely on the grounds that he had the potential to become a Hamas-operative.
FBI Agent Robert Miranda, the lead investigator into the government's case against the Holy Land Foundation, argued before the Immigration Judge presiding over Tareq's case that, because he was a well-educated man from Gaza, a strong-hold of Hamas, Tareq would be "attractive to Hamas" as a future recruit.
It's not hard to understand why David Cole, a professor of law at Georgetown University, concluded pre-emptive prosecution as an "inevitably speculative endeavour".
Project Salam, an organisation devoted to monitoring and documenting the US Justice Department's prosecution of terrorism cases, points out that the logic of pre-emptive prosecution - enthusiastically embraced after 9/11 - was derived in significant part from Dick Cheney's infamous "One Percent Doctrine". Ron Suskind explained Cheney's reasoning:
"Even if there's just a 1 percent chance of the unimaginable coming due, act as if it is a certainty…. Justified or not, fact-based or not, 'our response' is what matters."
Commenting on the impact Cheney's policy had on the role of evidence in judicial proceedings, Suskind writes:
"As to 'evidence', the bar was set so low that the word itself almost didn't apply."
Terrorism statutes
For the past 12 years, this wanton policy has been wielded primarily against Muslims in a frenzy of cases brought against US citizens and others in immigration, civil and criminal courts, with anguished and predictable devastation wrought on individuals and their families.
"If they are sufficiently 'Muslim', they are sufficiently 'predisposed'," writes Steve Downs, civil liberties lawyer and founder of Project Salam, in Victims of America's Dirty Wars.
In a telephone conversation with me, however, Downs noted that this policy has recently been extended to apply to those who hold other "ideologies", namely leftists and anarchists. Downs pointed to a handful of cases, including the "Cleveland 5", "RNC 8" and "Nato 3" that suggest the direction in which the policy of preemptive prosecution is going.
In the wake of 9/11, many states - including Illinois, New York, New Jersey and Oklahoma - passed terrorism statutes that included their own variations on the definition of terrorism. However, because it is the federal government that primarily handles cases of terrorism, states have rarely employed these laws.
Last year, for the first time, Illinois deployed its own statute against terrorism. Illinois' terrorism law states:
"A person commits the offence of terrorism, when with the intent to intimidate or coerce a significant portion of a civilian population; he or she knowingly commits a terrorist act."
The language used is vague, opaque and clearly lends itself to a chillingly broad landscape of prosecutorial action. But most significant, the statute does not require that an unlawful act be committed in order for a charge of terrorism to be brought against an individual in an Illinois court.
Indeed, civil rights lawyer Michael Deutsch believes, "The law could theoretically be used against labour strikes, acts of civil disobedience, demonstrations, and so on." In other words, acts that should be protected under the First Amendment are not exempted from the definition of terrorism.
We have already seen how the domestic front of the "War on Terror" has effectively turned lawful acts, like contributing to charities in the Middle East, into illegal "material support" of Foreign Terrorist Organisations. Staggering attacks on democracy and liberty continue as a growing list of activities that are framed as terrorism.
The only time the Illinois statute has been used was against a group of Occupy activists.
On May 16, 2012, days before the NATO summit was scheduled to take place in Chicago, the local police raided an apartment and arrested nine Occupy activists who had come together from around the country to protest the convention.
Over the next few days, all but three were released. Those who remained behind bars were: Brian Church, 22, and Brent Betterly, 24, from Florida, and Jared Chase, 27, from New Hampshire.
On May 19, they were indicted under the state's anti-terrorism statute and charged with conspiracy to commit terrorism and possession of explosives.
After announcing the charges, the State's Attorney, Anita Alvarez, released a document to the press that introduced the three young men as "self-proclaimed anarchists" and "members of the "'Black Bloc' group", and sketched out the plans they had been "conspiring" against the city of Chicago.
What the press release did not mention is that the group had been infiltrated and coached by two undercover police officers named "Gloves" and "Mo".
Definition of terrorism
Utilising one of the classic tactics perfected in time-honoured counter-intelligence operations used to intimidate, threaten and entrap people engaged with political groups out of favour with the government (from the Black Panthers, environmental protection groups, and Communists to protesters of the Vietnam war and others), the cops convinced the young men to concoct Molotov cocktails and, as soon as they did, phoned into police headquarters - triggering the raid.
After the charges were announced, Deutsch, the lawyer representing the three men, told the press that the case was "even worse than entrapment".
On the phone, Deutsch explained to me that this case fits within "the whole policy of pre-emptive prosecution, of creating the crime and then solving it".
Entrapment is consistently employed in these cases. However, where the presence of entrapment may have seen a case thrown out in the past, the logic of pre-emptive prosecution arms the state with the ability to justify its actions and successfully circumvent that defence, as noted by Project Salam:
"When the defendant claims as a defence to have been entrapped in a crime manufactured by the government, the government counters with the claim that the defendant was 'predisposed' to commit the crime, which would negate the entrapment defence."
On January 25, the Nato 3's lawyers filed a motion in the Circuit Court of Cook County, Illinois, challenging the constitutionality of the state's terrorism law. If the court agrees with them, the defendants will be charged with possession of explosives but will no longer face a 40-year prison sentence for terrorism.
While the Illinois court should find the law unconstitutional, the truth remains that the nebulous but potent charge of terrorism has been used to systematically curtail justice. In the words of Glenn Greenwald:
"It's just a manipulative slogan legitimising all forms of American violence against Muslims and delegitimising any acts meaningfully impeding US will."
As a New York Court of Appeals decision admitted last December, there is no real definition of terrorism beyond our "collective understanding" of it. But in the term's meaninglessness lies its limitless power to undermine justice everywhere.
Charlotte Silver is a journalist based in San Francisco and the West Bank. She is a graduate of Stanford University.
Follow her on Twitter: @CharEsilver
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Will the Supreme Court End Federal Limits on Campaign Donations? |
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Wednesday, 20 February 2013 13:44 |
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Winkler writes: "Our current campaign finance regime, after years of Supreme Court decisions like Citizens United, which freed up corporations and unions to spend unlimited sums and gave rise to super PACs, is remarkable mainly for how little spending it stops."
File photo, US Supreme Court. (photo: unknown)
Will the Supreme Court End Federal Limits on Campaign Donations?
By Adam Winkler, The Daily Beast
20 February 13
The justices have agreed to hear a challenge to the federal limit on how much individuals may donate to candidates and parties. They could use the case to declare all campaign contribution limits unconstitutional - but American elections are already flooded with money, says Adam Winkler.
t's said that villagers in remote parts of China take stones from dilapidated sections of the Great Wall to build their homes. From the villagers’ perspective, at least the stones are being put to good use, given that the wall long ago ceased being effective at keeping out invaders. Not much more useful, these days, is the edifice Congress built after the Watergate scandal to limit the influence of money in elections. Our current campaign finance regime, after years of Supreme Court decisions like Citizens United, which freed up corporations and unions to spend unlimited sums and gave rise to super PACs, is remarkable mainly for how little spending it stops. In January, the Federal Election Commission estimated that $7 billion was spent by candidates, parties, and outside groups in the 2012 elections. That’s an order of magnitude more than what was believed to be spent in the 1972 elections, which originally inspired Congress to enact systemic campaign finance laws.
And on Tuesday, the Supreme Court agreed to hear a case that offers the justices another chance to haul off with a few more stones. The case has the official name of McCutcheon v. Federal Election Commission but some people are already referring to it as “Citizens United II.” The issue is the constitutionality of federal law that caps the total amount of money individuals may contribute to candidates, parties, and certain political committees over a two-year period. Shaun McCutcheon, an active political contributor to the GOP and its candidates, challenged the caps, which are currently set at $117,000, as a violation of the First Amendment’s guarantee of freedom of speech.
Given the history of campaign finance laws in the Supreme Court since John Roberts and Samuel Alito joined the court in 2005, McCutcheon is likely to find a receptive audience. In fact, the Roberts Court has voted to limit or invalidate every campaign finance law it’s considered over the past seven years, usually by slim 5-4 margins. In 2006, the court said contribution limits may be constitutional, but struck down Vermont’s caps for being too low. In 2007, the court significantly narrowed a federal law barring the broadcast of “issue” ads in the weeks before an election if the ads mentioned a candidate’s name. In 2008, the court invalidated a public financing provision that raised the contribution limits for candidates running against privately financed opponents. In 2011, the justices held unconstitutional a law affording publicly financed candidates extra public funds to compete against the unlimited spending of candidates raising money privately.
Then there’s Citizens United. The court’s controversial 2010 decision was met with derision by reformers and celebration by opponents of campaign finance laws. According to some estimates, Citizens United and its progeny, like the lower court ruling that found limits on super PAC contributions unconstitutional, led to nearly $1 billion in additional campaign spending this past year. Citizens United also sparked an emergent movement to amend the Constitution to reverse the decision, as reflected in proposals unveiled this week by Minnesota Rep. Rick Nolan and California Rep. Adam Schiff.
No decision by the court in the McCutcheon case is likely to have the impact of Citizens United. That’s partly due to the fact that the question presented is a limited one: McCutcheon and his co-challenger, the Republican National Committee, are only challenging the aggregate, two-year cap, and not the annual contribution limits. If they win, the annual limits on the amount a person can give to any one candidate or committee will remain in place. Contributors will just be able to max out to more candidates and committees more often. More money will flow into the electoral arena, but it isn’t likely to significantly impact overall spending.
The wall has already been breached. How much does it really matter if a few of the remaining stones are carted away?
Of course, that’s what a lot of people said about Citizens United. The lawyers in that case didn’t ask the Supreme Court to strike down all restrictions on political spending by corporations. They only asked the court to recognize an exception in the law for their documentary, which they said wasn’t what Congress was aiming at when it barred corporate financed ads featuring candidates broadcast in the run-up to an election. The justices, however, were eager to strike a blow for what they saw as First Amendment freedoms, and went well beyond what anyone expected or asked of them.
Even if the court issues a narrow ruling in McCutcheon and the RNC’s favor, the case will be an important signal about what portions of the campaign finance wall first erected in the mid-1970s remain viable. For years, the court has held that contribution limits are constitutional, so long as they aren’t too low. If the court says that $117,000 over two years is too low, we can expect a new round of lawsuits challenging a whole range of campaign limits, including the annual contribution caps to individual candidates, which is currently set at $2,500.
The court could, of course, take the McCutcheon case as an opportunity to issue a broad ruling declaring all campaign contribution limits unconstitutional now. While such a ruling undoubtedly would incite claims that the justices had opened up the floodgates for money to influence our elections, that would be hyperbole. For good or ill, American elections are already flooded with money. The wall has already been breached. How much does it really matter if a few of the remaining stones are carted away?
Adam Winkler is a constitutional-law professor at UCLA.
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FOCUS | The Plan to Enrich the World's Wealthy |
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Wednesday, 20 February 2013 12:08 |
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Intro: "Wall Street billionaire Pete Peterson, through his many groups and allies, has pushed a dangerous austerity agenda."
Black: 'It does not matter how many times austerity makes the crisis worsen; the austerians are a one-trick pony.' (photo: unknown)
The Plan to Enrich the World's Wealthy
By Bill Black, New Economic Perspectives
20 February 13
 ohn Williamson, a Peterson Institute "senior fellow" coined the term "the Washington Consensus" at a conference in 1989. Williamson joined the Institute in 1981 when it was founded by Pete Peterson, the Republican billionaire from Wall Street who has dedicated his life to proselytizing for lower taxes on the wealthy, stringent spending cuts in social programs, and privatizing Social Security – the unholy grail of Wall Street that would provide our largest banks with hundreds of billions of dollars in additional investment fees. Peterson has funded many groups to evangelize for these neo-liberal dogmas.
Williamson’s statement of the "ten" "principles" of what he chose to label "the Washington consensus" parallels Pete Peterson’s policies. Williamson, the Reagan administration and the IMF did not see these principles as being of equal importance. A paper by Williamson makes clear that the focus of the Washington Consensus was on Latin America.
Here is Williamson’s introductory paragraph, in full.
"No statement about how to deal with the debt crisis in Latin America would be complete without a call for the debtors to fulfill their part of the proposed bargain by "setting their houses in order," "undertaking policy reforms," or "submitting to strong conditionality." The question posed in this paper is what such phrases mean, and especially what they are generally interpreted as meaning in Washington. Thus the paper aims to set out what would be regarded in Washington as constituting a desirable set of economic policy reforms. An important purpose in doing this is to establish a baseline against which to measure the extent to which various countries have implemented the reforms being urged on them."
The paragraph is critical to understanding the context of the creation of the Washington Consensus. It was all about the Latin American "debt crisis." It was all about a quid pro quo. The Washington Consensus was a consensus of creditors about how to deal with their debtors. Latin American debtor nations would be allowed to delay the repayment of their debts, but only if they "submit[ed]" to "strong conditionality" dictated by the Washington creditors. The creditors – the U.S. Treasury, the Federal Reserve, the IMF, and the largest U.S. banks – needed to develop a coordinated position on what to demand as their quid pro quofrom the Latin American debtors. The number one thing on their list from the beginning was austerity ("setting their houses in order").
The Washington Creditors were not willing to accept mere promises from the Latin America debtors. Williamson emphasized that a key purpose of creating an explicit Washington Consensus was to be able to use it as a scorecard to ensure that the Latin American debtor Nations were "submitting" fully to the Consensus’ requirements imposed by the Washington Creditors ("strong conditionality"). "An important purpose in doing this is to establish a baseline against which to measure the extent to which various countries have implemented the reforms being urged on them."
Williamson then (implicitly) acknowledged that the Washington Creditors’ ten principles bore three equivalents to an Achilles’ heel. First, he agreed that corruption could pervert the plan so that it would cause great harm. He admitted that the Washington Creditors had "at least some awareness" of this danger – a classic example of damning with faint praise. Williamson acknowledged that the Creditors who shared the Consensus believed that corruption in Latin America was "pervasive." Williamson was implicitly admitting that the Creditors had committed the classic economics error (and the defining joke of the economics profession) by "assuming the can opener." The Creditors implicitly assumed that privatization, deregulation, and the protection of private property (Consensus principles 8-10) would not be perverted by "pervasive" corruption (and I would add, private "control fraud").
Second, Williamson acknowledged that there were many matters that Latin Americans considered to be vital to their well-being that the Washington Creditors deliberately ignored – even though Latin Americans correctly viewed them to be essential if the Patricians’ ten principles were not to cause harm.
"For better or worse, however, these broader objectives play little role in determining Washington’s attitude toward the economic policies it urges on Latin America. Limited sums of money may be offered to countries in return for specific acts to combat drugs, to save tropical forests, or (at least prior to the Reagan administration) to promote birth control, and sanctions may occasionally be imposed in support of democracy or human rights, but there is little perception that the policies discussed below have important implications for any of those objectives."
Third, Williamson grudgingly acknowledged that the Washington Creditors who created the fauxConsensus had disabling conflicts of interest because they were creditors of Latin American governments and were strongly motivated by their desire to impose policies that would maximize the repayment of their debts.
"Political Washington is also, of course, concerned about the strategic and commercial interests of the United States, but the general belief is that these are best furthered by prosperity in the Latin countries. The most obvious possible exception to this perceived harmony of interests concerns the US national interest in continued receipt of debt service from Latin America. Some (but not all) believe this consideration to have been important in motivating Washington’s support for policies of austerity in Latin America during the 1980s."
I want to know which Washington Creditors told Williamson that debtors and creditors have a "harmony of interests." They have a wonderfully droll sense of humor. The powerful love to take the position that "what’s good for GM is good for America, so it is no surprise that the Washington Creditors were sure that the positions they forcing Latin American Nations to "submit" to "best furthered … prosperity in the Latin countries." We have centuries of history proving that Washington Creditors are the people who know best the needs of Latin Americans and are passionately committed to serving the poor. Austerity is frequently the enemy of "prosperity."
Williamson then set out his ten principles. His first was austerity and he called it the "central" policy that the Washington Creditors had long insisted that Latin American Nations "submit" to through "high-conditionality programs." That phrase is code for harsh austerity likely to throw the Nation into receivership and emasculate the Nation’s sovereignty by agreeing to "submit" to its creditors’ demands.
Fiscal Deficits
"Washington believes in fiscal discipline. The International Monetary Fund (IMF) has long made the restoration of fiscal discipline a central element of the high-conditionality programs it negotiates with its members that wish to borrow. Left-wing believers in "Keynesian" stimulation via large budget deficits are almost an extinct species."
Williamson is an ultra-hawk on austerity. Even running a budget surplus may not suffice for Williamson:
"Unless the excess is being used to finance productive infrastructure investment, an operational budget deficit in excess of around 1 to 2 percent of GNP1 is prima facie evidence of policy failure. Moreover, a smaller deficit, or even a surplus, is not necessarily evidence of fiscal discipline: its adequacy needs to be examined in the light of the strength of demand and the availability of private savings."
Williamson did not distinguish between Nations with sovereign currencies that they allow to freely float and who borrow in their own currency and Nations without fully sovereign currencies. He and the Washington Creditors shared this lack of understanding of sovereign currencies, which led them to demand that Latin American Nations "submit" to austerity when that policy would be economics malpractice analogous to the medical malpractice of bleeding patients.
The Washington Creditors’ succeeded in getting most of Latin America to "submit" to austerity, deregulation, and privatization. The resultant scandals enraged tens of millions of Latin Americans and led to the election of many national leaders running on the promise to refuse to "submit" to the Washington Consensus.
Neo-liberal economists and politicians, however, are prisoners of their pro-austerity dogmas. They repeatedly force nations back into recession or even depression. It does not matter how many times austerity makes the crisis worsen; the austerians are a one-trick pony. I believe that within five years we will see a series of political leaders elected in Europe on anti-austerity planks. The Washington Creditors’ Consensus is a leading cause of financial crises and human misery because of it self-destructive austerity and anti-regulatory principles. Austerity is the leading cause of the election of national leaders who promise that if elected they will stop "submitting" to creditors’ demands that they inflict austerity on their people.
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FOCUS | The Walker Way |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=11104"><span class="small">Charles Pierce, Esquire</span></a>
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Wednesday, 20 February 2013 11:32 |
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Pierce writes: "The election (twice!) of Scott Walker, the goggle-eyed homunculus hired by Koch Industries to run their midwest subsidiary formerly known as the state of Wisconsin, has caused a radical redefinition of the political culture unlike that taking place almost anywhere else."
Wisconsin Gov. Scott Walker speaks at the National Rifle Association convention in St. Louis, 04/13/12. (photo: AP)
The Walker Way
By Charles Pierce, Esquire
20 February 13
 he election (twice!) of Scott Walker, the goggle-eyed homunculus hired by Koch Industries to run their midwest subsidiary formerly known as the state of Wisconsin, has caused a radical redefinition of the political culture unlike that taking place almost anywhere else. The Wisconsin Idea - from which came many of the progressive notions that made the 20th century superior to the 19th, and the political manifestation of what became known as the Social Gospel - was the animating force behind Wisconsin politics for so many years that watching Walker recklessly destroy it is like watching the political equivalent of paving paradise and putting up the parking lot.
Much of the attention was paid to Walker's attempts to drain the power from organized labor. But he also was serving up almost the entire movement conservative buffet, including "tort reform." Working with the folks at ALEC, and with the assistance of the complete roster of the state's profiteers, Walker got passed the Wisconsin Omnibus Tort Reform Act of 2011. One group of profiteers was composed of the people who run the state's nursing homes and, as their participation ribbon in the game of dismantling The Wisconsin Idea, these gombeens got a provision in the law whereby any state records of abuse and/or neglect in the state's nursing homes has been ruled inadmissable and unavailable to attorneys seeking damages on behalf of the victims of said abuse and/or neglect. In other words, you have to prove abuse and/or neglect of some of the state's most vulnerable citizens without the help of the state to which they paid their taxes most of their lives. You can see where this is headed, right?
The Wisconsin Center For Investigative Reporting did.
Wisconsin's nursing homes have descended into deregulated chaos. The industry now combines all the worst elements of a monopolistic business model with the basic bureaucratic inhumanity of a spread sheet. What regulations are still in place are paralyzed because there aren't enough investigators to make them function. And the most obvious remedy outside government - the threat of huge penalties deriving from civil judgments - has been defanged by the tort reform bill.
But critics say making state investigation reports of nursing homes inadmissible in civil and criminal lawsuits - a change that took effect after Wisconsin adopted tort reform legislation in 2011 - means that more cases of alleged neglect or abuse will go undetected and unpunished. "Especially if it's a Medicaid facility, I really believe transparency is essential," Hanrahan said. "We need to see how tax dollars are being spent and what quality of care is being provided." In fact, the Wisconsin health department has cut its staff of full-time nursing home surveyors from 100 in 2002 to 64 in 2012. Smith said staff was reduced because the number and capacity of nursing homes in Wisconsin have decreased. She provided data showing that, during this same period, the number of facilities fell from 412 to 398, and that resident capacity declined from 43,268 to 35,183. The drop in inspectors (36 percent) was greater than the drop in facilities (3 percent) or capacity (19 percent). Meanwhile, the number of complaints the state received about Wisconsin nursing homes and assisted living facilities rose from 1,684 in 2000 to 2,562 last year - an increase of more than 50 percent.
I will grant you that I am a little bit bughouse on this because I lived in Wisconsin for five years and came to deeply love its tradition of progressive politics, which is now being trashed for private profit by a jumped-up county executive with his eyes on bigger prizes. Give Paul Ryan credit. He only wants to starve granny slowly.
Oh, and the state's supreme court is still a mess, too. But it does give me another opportunity to write, "Patience Roggensack."
Fallone and Megna argued that Roggensack is part of a dysfunctional Supreme Court that has suffered through high-profile altercations, including in 2011 when Justice Ann Walsh Bradley accused Justice David Prosser of choking her during an argument. Prosser denied the allegation and a special prosecutor declined to bring charges. Roggensack has tried to distance herself from that incident even though she witnessed it."I'm not connected to that inappropriate interaction," she said Tuesday.
She's "not connected" to it even though she witnessed it.
Profiles In Jell-O.
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