Mark Joseph Stern writes: In the spring of 2005, Tarek Mehanna began translating radical Arabic books and videos into English for the website At Tibyan. The materials had an undeniable flavor of terrorism, encouraging readers to join al-Qaida and kill American soldiers in Iraq. But even the government acknowledges that Mehanna never translated anything at the direct behest of al-Qaida operatives—which is why it’s rather surprising that the government successfully prosecuted him for providing “material support” to a terrorist organization and sentenced him to 210 months in prison.
Everybody agrees that Mehanna supported al-Qaida’s cause; At Tibyan is a fairly popular terrorist forum, and Mehanna translated its content with the clear intention of swaying opinion toward the jihadist cause. But translating, publishing, and praising ideological texts, no matter how morally vile, is generally considered to be a basic free speech activity. Everyone knows that the First Amendment protects translations of Mein Kampf. Why did Mehanna’s translation of jihadist hosannas land him behind bars?
That’s the question Mehanna is asking the Supreme Court, which will decide whether to take his case later in September. If the justices do agree to review Mehanna’s conviction, it’ll be wading into a constitutional controversy at once timeless and novel. The court has long recognized that cheerleading for terrorism may eventually cross the line from free speech to a criminal act. But the Internet’s ability to spread ideas and connect like-minded people may now force the justices to reconsider that boundary. And if the court lets Mehanna’s conviction stand, it may wind up drawing the line dangerously close to the kind of Internet activity some of us engage in without a second thought.
The Supreme Court has been grappling with the question of dangerous speech for as long as America has been attempting to suppress dissent in the name of national security — that is, pretty much forever. For our first century or so, nobody thought that criminalizing anti-American speech raised a real First Amendment concern. But in a 1919 case called Abrams v. United States, Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, cracked the orthodoxy wide open, issuing a stunning dissent from the conviction of a revolutionary anarchist who advocated a violent overthrow of the U.S. government. Holmes described a constitutional command to tolerate anti-government speech, explaining that censorship of “opinions that we loathe and believe to be fraught with death” is unacceptable unless those opinions “imminently threaten” the country’s safety.
Today, Holmes’ view is more or less the law. But that hasn’t kept Congress from passing censorship laws on the theory that a certain group’s speech qualifies as a clear and present danger to the country. [Continue reading...]
Trevor Timm writes: If you blinked this week, you might have missed the news: two Senators accused the Justice Department of lying about NSA warrantless surveillance to the US supreme court last year, and those falsehoods all but ensured that mass spying on Americans would continue. But hardly anyone seems to care – least of all those who lied and who should have already come forward with the truth.
Here’s what happened: just before Edward Snowden became a household name, the ACLU argued before the supreme court that the Fisa Amendments Act – one of the two main laws used by the NSA to conduct mass surveillance – was unconstitutional.
In a sharply divided opinion, the supreme court ruled, 5-4, that the case should be dismissed because the plaintiffs didn’t have “standing” – in other words, that the ACLU couldn’t prove with near-certainty that their clients, which included journalists and human rights advocates, were targets of surveillance, so they couldn’t challenge the law. As the New York Times noted this week, the court relied on two claims by the Justice Department to support their ruling: 1) that the NSA would only get the content of Americans’ communications without a warrant when they are targeting a foreigner abroad for surveillance, and 2) that the Justice Department would notify criminal defendants who have been spied on under the Fisa Amendments Act, so there exists some way to challenge the law in court.
It turns out that neither of those statements were true – but it took Snowden’s historic whistleblowing to prove it. [Continue reading...]
Yochai Benkler writes: Tuesday’s US supreme court arguments involved a seemingly basic legal question about the future of the Fourth Amendment: do police officers need a warrant to search the cellphone of a person they arrest? But the two privacy cases pit against each other two very different conceptions of what it means to be a supreme court in the first place – and what it means to do constitutional law in the 21st century.
“With computers, it’s a new world,” several justices reportedly said in the chamber. Are they ready to be the kinds of justices who make sense of it?
Cellphones expose so much of our most personal data that the decision should be a 9-0 no-brainer. The basic problem that makes it a harder call is that lawyers and judges are by training and habit incrementalists, while information and communications technology moves too fast for incrementalism to keep up. [Continue reading...]
Robert Reich writes: The supreme court is composed of five justices appointed by Republican presidents, and four appointed by Democratic ones. In the McCutcheon v FEC case decided on Wednesday, the five Republican appointees interpreted the first amendment to protect the right of individuals to pour as much as $3.6m into a political party or $800,000 into a political campaign.
The decision by those justices allows individual donors to buy – and federal officeholders to solicit – unparalleled personal influence in Washington. McCutcheon drowns out the voices of ordinary citizens.
Presumably, the individuals who were of concern to the majority of the court have incomes larger than the median US family income of roughly $50,000 a year and wealth in excess of the median American family’s wealth of approximately $70,000. It is very likely that these individuals have huge incomes and enormous wealth.
The decision rests on the court’s dubious finding that such spending does not give rise to corruption. That’s baloney, as anyone who has the faintest familiarity with contemporary American politics well knows. As Justice Stephen Breyer noted in his dissenting opinion: “where enough money calls the tune, the general public will not be heard”.
The majority’s decision to open the floodgates to big money would be less important if the distribution of income and wealth in America were more equal. But it has become extraordinarily unequal. Together, the richest 400 Americans now possess more wealth than the bottom half of the American population. A handful of billionaires are, at this moment, deciding on whom to place their multi-million dollar bets in the 2014 midterm election. The McCutcheon decision makes it easier for them to do so than ever before. They don’t need to go through political action committees or so-called “social welfare” organizations. The rich can now make their bets directly.
We have returned to the gilded age of the late 19th century, when the lackeys of robber barons placed sacks of money on the desks of pliant legislators. If this is not corruption, what is? [Continue reading...]
The New York Times reports: The Supreme Court on Wednesday issued a major campaign finance decision, striking down some limits on federal campaign contributions for the first time. The ruling, issued near the start of a campaign season, will change and most likely increase the already large role money plays in American politics.
The decision, by a 5-to-4 vote along ideological lines, with the Court’s more conservative justices in the majority, was a sequel of sorts to Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions. But that ruling did nothing to affect the other main form of campaign finance regulation: caps on direct contributions to candidates and political parties.
Wednesday’s decision in McCutcheon v. Federal Election Commission, No. 12-536, addressed that second kind of regulation.
It did not affect familiar base limits on contributions from individuals to candidates, currently $2,600 per candidate in primary and general elections. But it said that overall limits of $48,600 by individuals every two years for contributions to all federal candidates violated the First Amendment, as did separate aggregate limits on contributions to political party committees, currently $74,600.
Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the First Amendment required striking down the limits. “There is no right in our democracy more basic,” he wrote, “than the right to participate in electing our political leaders.”
Dissenting from the bench, Justice Stephen G. Breyer called the decision a blow to the First Amendment and American democracy. “If the court in Citizens United opened a door,” he said, “today’s decision may well open a floodgate.” [Continue reading...]
Who can keep up? The revelations — mainly thanks to the documents Edward Snowden took from the National Security Agency — are never-ending. Just this week, we learned that GCHQ, the British intelligence agency whose activities are interwoven with the NSA’s, used a program called Optic Nerve to intercept and store “the webcam images of millions of internet users not suspected of wrongdoing” (including Americans). As the Guardian reported, “In one six-month period in 2008 alone, the agency collected webcam imagery — including substantial quantities of sexually explicit communications — from more than 1.8 million Yahoo user accounts globally.” Yahoo is now outraged; the Internet Association, a trade group for the giants of the industry, has condemned the program; and three U.S. senators announced an investigation of possible NSA involvement.
At about the same time, Glenn Greenwald revealed that GCHQ was engaging in “extreme tactics of deception and reputation-destruction.” These included “‘false flag operations’ (posting material to the internet and falsely attributing it to someone else), fake victim blog posts (pretending to be a victim of the individual whose reputation they want to destroy), and posting ‘negative information’ on various forums.” Again, this was evidently happening with the knowledge, if not collusion, of the NSA.
Meanwhile, with Washington entering a self-proclaimed era of “reform” when it comes to spying on Americans, we just got a striking you-can’t-win-for-losing Catch-22 message from the front lines of the surveillance wars. Claiming that recent pending lawsuits make it necessary, the Obama administration has requested permission to hang on to phone metadata “on billions of U.S. phone calls indefinitely instead of destroying it after five years.” Hmmm… this may be the only example we have of the U.S. intelligence community fighting tooth and nail to stick to the letter of the law.
And mind you, that’s just dipping a toe in the positively oceanic global surveillance waters. It’s been nine months since the Snowden revelations began and who can keep it all straight? Nonetheless, it’s possible to put everything we know so far into a simple message about our American world-in-the-making: the surveillance part of the national security state has, in its own mind, no boundaries at all. As a result, there is no one, nor any part of communications life on this planet, that is out of bounds to our surveillers.
Given what we now know, it’s easy to ignore what we don’t know about how our government is acting in our name. That’s why the figure of the whistleblower — and the Obama administration’s urge to suppress whistleblowing of any sort — remains so important. How are we ever to know anything about the workings of that secret state of ours if someone doesn’t tell us? As a result, TomDispatch remains dedicated to documenting the Obama administration’s ongoing war against those who have the urge to bring the secret workings of the national security state to our attention — especially in cases like Robert MacLean’s, where otherwise little notice is paid in the mainstream media. So today, we’re publishing a follow-up to our earlier story about MacLean, again by TomDispatch regular Peter Van Buren. Himself a State Department whistleblower, Van Buren takes another deep dive into the dark territory he has dubbed post-Constitutional America. Tom Engelhardt
Silencing whistleblowers Obama-style
Supreme Court edition?
By Peter Van Buren
The Obama administration has just opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.
Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate — a contradiction in terms when it comes to whistleblowing — could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.
Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes — and there’s no guarantee of that — this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”
Steven Rosenfeld writes: Pundits across the political left should be careful about heaping too much praise on U.S. District Judge Richard Leon for this week’s dramatic ruling that the National Security Agency’s electronic dragnet capturing Americans’ online activities is “significantly likely” to be unconstitutional, even though it is a powerful rebuke to America’s spymasters.
That’s because Leon, a longtime Republican warrior, is as much of a legal loudmouth and rightwing activist judge as U.S. Supreme Court Justice Antonin Scalia. More importantly, his elbows-out 68-page opinion is not going to be the last word on the government’s data mining. Leon’s ruling is one of several NSA-related suits moving through the federal courts, including rulings that have reached the opposite conclusion.
“It should be noted that last month Judge Jeffrey Miller of the Southern District of California found the NSA business records program to be constitutional,” Sen. Dianne Feinstein, Senate Intelligence Committee chairwoman, said Tuesday. “Leon’s opinion also differs from those of at least 15 separate federal district court judges… Only the Supreme Court can resolve the question on the constitutionality of the NSA’s program.”
These conflicts will likely trigger a review by the Supreme Court, where the conservative majority already has sanctioned NSA electronic eavesdropping and is known for elevating government searchs over individual rights. In other words, Leon’s rebuke may help put the issue in front of a court majority that is poised to codify national security over privacy rights. [Continue reading...]
Wired reports: The Supreme Court today rejected a challenge to the National Security Agency’s once-secret telephone metadata spying program.
The justices, without comment, declined to entertain a challenge from the Electronic Privacy Information Center seeking to halt the program that was disclosed in June by NSA leaker Edward Snowden.
The court’s inaction means that the there isn’t likely to be any court resolution to constitutional challenges to the metadata program for years. Legislation, however, is pending to gut the program.
What’s more, several cases challenging the snooping are pending in federal courts across the country. EPIC’s petition was unusual in that it went directly to the Supreme Court without first being litigated in the lower courts.
The Washington, D.C. based non-profit privacy group went straight to the justices after Snowden’s leak because of the gravity of the phone spying, which includes telephone companies having to provide the NSA the phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls. [Continue reading...]
In an editorial, the Washington Times says: The New York Times intends to take its case against the Obama administration to the Supreme Court. In July, the 4th U.S. Circuit Court of Appeals sided with administration lawyers in ruling that New York Times reporter James Risen must reveal the confidential sources he used for a series of articles and a 2006 book, “State of War,” about the CIA’s bungled efforts to stop Iran’s nuclear program. On Tuesday, the 4th Circuit refused to change its mind, leaving the Supreme Court with the final say in the matter.
Mr. Risen’s investigative work has assumed new significance now that we’ve learned the breathtaking scope of the National Security Agency collection of telephone calls, emails and GPS location data. Mr. Risen won the 2006 Pulitzer Prize for exposing the existence of a domestic wiretapping program. This was a thin slice of the larger program, but it was a hotly guarded secret at the time. Attorney General Eric H. Holder Jr. personally authorized government agents to go after Mr. Risen in court, which gives his instructions every appearance of payback.
The federal government should never be allowed to engage in vendettas against the press, and this is not special pleading for newspapers. Exposing embarrassing foreign-policy failures and the existence of constitutionally questionable domestic surveillance enterprises is precisely the job of reporters in a free society. The Founding Fathers understood this, which is why the language of the First Amendment plainly says that Congress can’t do anything to abridge the freedom of the press. James Madison explained further that “the liberty of conscience and of the press cannot be canceled, abridged, restrained or modified by any authority of the United States.” Abridging press freedom is abridging the speech of everyone. [Continue reading...]
Ars Technica: Not long after widespread NSA phone surveillance was revealed by a series of leaks this summer, the Electronic Privacy Information Center, a privacy-oriented nonprofit, tried a bold and novel legal tactic: it appealed straight to the Supreme Court, asking for an immediate shutdown of the program.
The high court was the only place to turn, wrote EPIC, because it can’t go to Foreign Intelligence Surveillance Court (FISC), which actually authorized the orders. EPIC’s argument was straightforward: the FISC could only authorize NSA spying on foreigners, not Americans.
Now Solicitor General Donald Verrilli, who represents the Obama Administration at the Supreme Court, has advised the justices not to take the case. It’s not a surprising move. Just the publicity of a Supreme Court debate over NSA spying would be a giant headache for the administration; not to mention, the government obviously doesn’t want the program shut down.
Andy Kroll reports: On Thursday evening, residents of 83 towns and cities throughout the country—places like Marietta, Georgia, and East Troy, Wisconsin, and Anchorage, Alaska—will make their way to the home of a friend or neighbor or outright stranger for a night of partying. But these aren’t holiday parties. They’re the ground-level rumblings of a growing campaign to roll back one of the most game-changing Supreme Court decisions in recent memory, Citizens United v. Federal Election Commission.
In a year packed with populist uprisings, in which Time named "the protester" its person of the year, the fight against Citizens United is gaining momentum with battle fronts in Congress, statehouses, city halls, and the homes of hundreds of Americans. The decision, handed down in January 2010 by the court’s five conservative justices, effectively gave corporations the same free speech rights as people, gutted key provisions of the 2002 McCain-Feingold campaign finance law, and green-lighted unlimited spending by corporations and labor unions in American elections. Fred Wertheimer, president of Democracy 21, a pro-reform campaign finance organization, called it "the most radical and destructive campaign finance decision in Supreme Court history."
The campaign to counter Citizens United sprang to life immediately after the ruling was announced. Led by Public Citizen, the good government group founded by Ralph Nader, its goal is to pass a constitutional amendment that neutralizes the ruling’s effects. But the effort didn’t fully take off until this year—the public needed time to see what the decision had wrought. To influence the 2010 midterm elections, super-PACs and other independent spending outfits that sprung in the wake of Citizens United spent hundreds of millions of dollars.
Eric Lewis writes: As a candidate in 2008, President Obama stated categorically, “We’ll reject torture — without exception or equivocation.” During his first month in office, he made good on his pledge, signing an executive order prohibiting torture or inhumane treatment. There is no reason to doubt that the order has been followed. This was a huge step forward for the United States.
But if he loses the presidency next year, Obama’s failure to deal with the legacy of torture that he inherited may turn out to be a huge problem. He has left the door open for state-sanctioned torture to be part of the next administration’s tool kit for dealing with the “global war on terror.” The leading Republican candidates understand that in many circles advocating torture is good politics. In their debates and in their foreign policy pronouncements, they are effectively capitalizing on a series of decisions that the Obama administration made as it failed to enshrine its own ban on torture as an absolute legal norm. Torture remains on the table as a future policy choice.
So what happened? The president has rejected three clear opportunities to erect a high legal wall against the return of torture: he has made it clear that criminal prosecutions for torture will not go forward; he has opposed the creation of a truth commission to examine events comprehensively; and he has affirmatively intervened to stop civil litigation by detainees against their torturers.
When President Obama took office, I was in the midst of litigating a civil case against former Secretary of Defense Donald Rumsfeld and the military chain of command for torture. A panel of judges from the United States Court of Appeals for the District of Columbia Circuit had found that as “aliens without presence or property in the United States,” Guantánamo detainees had no right not to be tortured under the Constitution and, in any event, even if there were such rights, there was no reason that Rumsfeld and other military leaders should have been aware that the right to be free from torture was “clearly established.” Accordingly they were immune from suit. In 2009, the Supreme Court directed that the Court of Appeals reconsider its decision in light of its recent finding in Boumediene v. Bush of a constitutional right to habeas corpus for detainees at Guantánamo.
Surely, I thought, the new administration would weigh in and support the argument that there was an inarguable and fundamental right not to be tortured by the government of the United States. What’s more, supporting civil actions for damages would have allowed the facts of torture to emerge through judicial proceedings, avoiding the political conflict of direct executive involvement.
Instead, the Obama administration slammed the door on constitutional challenges to torture. It reiterated the Bush administration’s position, arguing that “aliens held at Guantánamo do not have due process rights,” limiting the Supreme Court’s decision in Boumediene to habeas corpus only. In other words, it was the position of the Obama administration that even though the Supreme Court had found a constitutional right for detainees to challenge their confinement, detainees had no constitutional right not to be tortured while in confinement. The Obama administration also insisted that it was not sufficiently clear that the Constitution prohibited torture of aliens, and so “a reasonable officer would not have concluded that plaintiffs here possessed Fifth and Eighth Amendment rights while they were detained at Guantánamo.”
Yet reasonable officers have known since the founding of the republic that military law prohibits torturing prisoners and, since the 1930s, that it was cruel and unusual punishment and a violation of due process to torture prisoners in the custody of the United States. What these officers apparently could not have been expected to figure out was whether by bringing prisoners to Guantánamo, they could evade the Constitutional ban on torture or prisoners. Finally, the Obama administration warned that civil remedies for torture would “enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches.” In plain English, it is up to us — the executive — and not you — the courts — to decide whether detainees can be tortured or not.
From Britain, Larry Elliott writes:
For the past two centuries and more, life in Britain has been governed by a simple concept: tomorrow will be better than today. Black August has given us a glimpse of a dystopia, one in which the financial markets buckle and the cities burn. Like Scrooge, we have been shown what might be to come unless we change our ways.
There were glimmers of hope amid last week’s despair. Neighbourhoods rallied round in the face of the looting. The Muslim community in Birmingham showed incredible dignity after three young men were mown down by a car and killed during the riots. It was chastening to see consumerism laid bare. We have seen the future and we know it sucks. All of which is cause for cautious optimism – provided the right lessons are drawn.
Lesson number one is that the financial and social causes are linked. Lesson number two is that what links the City banker and the looter is the lack of restraint, the absence of boundaries to bad behaviour. Lesson number three is that we ignore this at our peril.
From Washington, Steven Pearlstein writes:
Another great week for Corporate America!
The economy is flatlining. Global financial markets are in turmoil. Your stock price is down about 15 percent in three weeks. Your customers have lost all confidence in the economy. Your employees, at least the American ones, are cynical and demoralized. Your government is paralyzed.
Want to know who is to blame, Mr. Big Shot Chief Executive? Just look in the mirror because the culprit is staring you in the face.
J’accuse, dude. J’accuse.
You helped create the monsters that are rampaging through the political and economic countryside, wreaking havoc and sucking the lifeblood out of the global economy.
Did you see this week’s cartoon cover of the New Yorker? That’s you in top hat and tails sipping champagne in the lifeboat as the Titanic is sinking. Problem is, nobody thinks it’s a joke anymore.
Did you presume we wouldn’t notice that you’ve been missing in action? I can’t say I was surprised. If you’d insisted on trotting out those old canards again, blaming everything on high taxes, unions, regulatory uncertainty and the lack of free-trade treaties, you would have lost whatever shred of credibility you have left.
My own bill of particulars begins right here in Washington, where over the past decade you financed and supported the growth of a radical right-wing cabal that has now taken over the Republican Party and repeatedly made a hostage of the U.S. government.
When it started out all you really wanted was to push back against a few meddlesome regulators or shave a point or two off your tax rate, but you were concerned it would look like special-interest rent-seeking. So when the Washington lobbyists came up with the clever idea of launching a campaign against over-regulation and over-taxation, you threw in some money, backed some candidates and financed a few lawsuits.
The more successful it was, however, the more you put in — hundreds of millions of the shareholders’ dollars, laundered through once-respected organizations such as the Chamber of Commerce and the National Association of Manufacturers, phoney front organizations with innocent-sounding names such as Americans for a Sound Economy, and a burgeoning network of Republican PACs and financing vehicles. And thanks to your clever lawyers and a Supreme Court majority that is intent on removing all checks to corporate power, it’s perfectly legal.
And from Omaha, Nebraska, Warren Buffett writes:
Our leaders have asked for “shared sacrifice.” But when they did the asking, they spared me. I checked with my mega-rich friends to learn what pain they were expecting. They, too, were left untouched.
While the poor and middle class fight for us in Afghanistan, and while most Americans struggle to make ends meet, we mega-rich continue to get our extraordinary tax breaks. Some of us are investment managers who earn billions from our daily labors but are allowed to classify our income as “carried interest,” thereby getting a bargain 15 percent tax rate. Others own stock index futures for 10 minutes and have 60 percent of their gain taxed at 15 percent, as if they’d been long-term investors.
These and other blessings are showered upon us by legislators in Washington who feel compelled to protect us, much as if we were spotted owls or some other endangered species. It’s nice to have friends in high places.
Last year my federal tax bill — the income tax I paid, as well as payroll taxes paid by me and on my behalf — was $6,938,744. That sounds like a lot of money. But what I paid was only 17.4 percent of my taxable income — and that’s actually a lower percentage than was paid by any of the other 20 people in our office. Their tax burdens ranged from 33 percent to 41 percent and averaged 36 percent.
If you make money with money, as some of my super-rich friends do, your percentage may be a bit lower than mine. But if you earn money from a job, your percentage will surely exceed mine — most likely by a lot.
To understand why, you need to examine the sources of government revenue. Last year about 80 percent of these revenues came from personal income taxes and payroll taxes. The mega-rich pay income taxes at a rate of 15 percent on most of their earnings but pay practically nothing in payroll taxes. It’s a different story for the middle class: typically, they fall into the 15 percent and 25 percent income tax brackets, and then are hit with heavy payroll taxes to boot.
Back in the 1980s and 1990s, tax rates for the rich were far higher, and my percentage rate was in the middle of the pack. According to a theory I sometimes hear, I should have thrown a fit and refused to invest because of the elevated tax rates on capital gains and dividends.
I didn’t refuse, nor did others. I have worked with investors for 60 years and I have yet to see anyone — not even when capital gains rates were 39.9 percent in 1976-77 — shy away from a sensible investment because of the tax rate on the potential gain. People invest to make money, and potential taxes have never scared them off. And to those who argue that higher rates hurt job creation, I would note that a net of nearly 40 million jobs were added between 1980 and 2000. You know what’s happened since then: lower tax rates and far lower job creation.
In The Nation, Mark Ames and Mike Elk report:
On the eve of the November midterm elections, Koch Industries sent an urgent letter to most of its 50,000 employees advising them on whom to vote for and warning them about the dire consequences to their families, their jobs and their country should they choose to vote otherwise.
The Nation obtained the Koch Industries election packet for Washington State—which included a cover letter from its president and COO, David Robertson; a list of Koch-endorsed state and federal candidates; and an issue of the company newsletter, Discovery, full of alarmist right-wing propaganda.
Legal experts interviewed for this story called the blatant corporate politicking highly unusual, although no longer skirting the edge of legality, thanks to last year’s Citizens United Supreme Court decision, which granted free speech rights to corporations.
“Before Citizens United, federal election law allowed a company like Koch Industries to talk to officers and shareholders about whom to vote for, but not to talk with employees about whom to vote for,” explains Paul M. Secunda, associate professor of law at Marquette University. But according to Secunda, who recently wrote in The Yale Law Journal Online about the effects of Citizens United on political coercion in the workplace, the decision knocked down those regulations. “Now, companies like Koch Industries are free to send out newsletters persuading their employees how to vote. They can even intimidate their employees into voting for their candidates.” Secunda adds, “It’s a very troubling situation.”
The Kochs were major supporters of the Citizens United case; they were also chief sponsors of the Tea Party and major backers of the anti-“Obamacare” campaign. Through their network of libertarian think tanks and policy institutes, they have been major drivers of unionbusting campaigns in Wisconsin, Michigan and elsewhere.
“This sort of election propaganda seems like a new development,” says UCLA law professor Katherine Stone, who specializes in labor law and who reviewed the Koch Industries election packet for The Nation. “Until Citizens United, this sort of political propaganda was probably not permitted. But after the Citizens United decision, I can imagine it’ll be a lot more common, with restrictions on corporations now lifted.”
David Cole challenges the Supreme Court’s idiotic ruling on the definition of “material support” offered to designated terrorist organizations.
Did former Attorney General Michael Mukasey, former New York Mayor Rudolph Giuliani, Tom Ridge, a former homeland security secretary, and Frances Townsend, a former national security adviser, all commit a federal crime last month in Paris when they spoke in support of the Mujahedeen Khalq at a conference organized by the Iranian opposition group’s advocates? Free speech, right? Not necessarily.
The problem is that the United States government has labeled the Mujahedeen Khalq a “foreign terrorist organization,” making it a crime to provide it, directly or indirectly, with any material support. And, according to the Justice Department under Mr. Mukasey himself, as well as under the current attorney general, Eric Holder, material support includes not only cash and other tangible aid, but also speech coordinated with a “foreign terrorist organization” for its benefit. It is therefore a felony, the government has argued, to file an amicus brief on behalf of a “terrorist” group, to engage in public advocacy to challenge a group’s “terrorist” designation or even to encourage peaceful avenues for redress of grievances.
Don’t get me wrong. I believe Mr. Mukasey and his compatriots had every right to say what they did. Indeed, I argued just that in the Supreme Court, on behalf of the Los Angeles-based Humanitarian Law Project, which fought for more than a decade in American courts for its right to teach the Kurdistan Workers’ Party in Turkey how to bring human rights claims before the United Nations, and to assist them in peace overtures to the Turkish government.
But in June, the Supreme Court ruled against us, stating that all such speech could be prohibited, because it might indirectly support the group’s terrorist activity. Chief Justice John Roberts reasoned that a terrorist group might use human rights advocacy training to file harassing claims, that it might use peacemaking assistance as a cover while re-arming itself, and that such speech could contribute to the group’s “legitimacy,” and thus increase its ability to obtain support elsewhere that could be turned to terrorist ends. Under the court’s decision, former President Jimmy Carter’s election monitoring team could be prosecuted for meeting with and advising Hezbollah during the 2009 Lebanese elections.
At the heart of the Supreme Court justices view of terrorism is that it can be defined more in terms of who terrorists are than in what they do. In essence, it declares: once a terrorist, always a terrorist (unless the US government decides otherwise).
This view has become almost a religious orthodoxy in the United States over the last decade. Hence, it is only among hardcore advocates of human rights that the fact that men now being imprisoned primarily because of fears about what they might do in the future, is seriously being challenged.
But if this once-a-terrorist-alway-a-terrorist view was actually applied with rigor, how could the United States justify its support for Israel? Former prime minister Menachim Begin was a terrorist. Tzipi Livni’s parents were terrorists. Terrorism played a vital role in the creation of Israel. And yet material support from the US government to Israel flows in abundance. Different strokes for different folks, I guess.
On June 14, the Supreme Court buried the prospect of justice for Maher Arar, a Canadian citizen of Syrian origin who was “extraordinarily rendered” by the United States (via Jordan) to Syria in 2002. Arar was suing the US officials who authorized his secret transfer, without charge, to a country infamous for torture. With the justices’ 22-word statement, the case of Arar v. Ashcroft exited the American legal system and entered the annals of American legal history under the category “grave injustice.” Alphabetically, Arar precedes Dred Scott v. Sanford, which upheld slavery, and Korematsu v. United States, which upheld the internment of Japanese Americans. In this case, however, the grave is literal: Arar spent ten months of his year in Syrian custody confined in what he describes as “an underground grave.”
It seems hard to fathom but the evidence is now overwhelming: if someone repeats the word “terrorist” often enough their brain will become functionally useless.
Consider the Supreme Court’s decision on Monday in support of the Obama administration’s sweeping definition of “material support” as applied to so-called Foreign Terrorist Organizations (FTO) — a designation applied by the State Department.
If an NGO such as the Humanitarian Law Project (HLP) wants to train a group such as the Kurdistan Workers’ Party (PKK) on how to use humanitarian and international law to peacefully resolve disputes, then the HLP risks criminal prosecution. Why? Such training could help legitimize the PKK and also free up resources that it can dedicate to its terrorist activities.
Solicitor General Elena Kagan (who is nominated to become a Supreme Court Justice) argued the case for the Obama administration.
The Court ruled that even though pure speech is entitled to a high level of constitutional scrutiny, it would forgo such scrutiny and defer to Congress and the executive branch, which asserted unsupported, theoretical findings that support aimed at countering violence can somehow indirectly support violence. The Court’s reasoning was that the matter involves national security.
With its overly deferential approach, the Court failed to fulfill its responsibilities in the checks-and-balances system that keeps our democracy healthy. If it had looked behind the broad generalizations cited by the government, it would have seen there are no facts either in the Congressional Record or elsewhere that support the Congressional or State Department “findings.” And even if there are some circumstances where conflict mediation and human rights training can be co-opted to support violence, it is not inevitable that it will happen in all cases.
For an obvious example of the fault in the findings, one need look no further than the Good Friday Accords that brought a lasting peace to Northern Ireland for the first time in more than eight centuries. For years, non-governmental organizations (NGOs) had worked to bring violent factions of Catholics and Protestants to the bargaining table. Their work behind the scenes was instrumental in persuading those groups — “terrorists” in the eyes of most of their captive civilian populations, as well as the governments seeking to disarm them — to put down their weapons and negotiate a peaceful resolution to 850 years of violence.
If the “material support” law had been in place, as authorized by the Supreme Court today, those organizations would have been criminals. And the people of Northern Ireland would likely still be victims of sectarian violence that only a very few supported.
“Orwellian” doesn’t begin to describe a law that makes it a crime to promote peaceful conflict resolution.
If the administration actually intends to uphold the law in the way they argue it should be applied, then the Israeli-Palestinian conflict can be expected to continue forever.
There is a rather broad consensus among foreign policy analysts in the US and Europe, that Hamas, a designated FTO, has far too much grassroots political support among ordinary Palestinians for the organization to be destroyed. Neither Israel’s war on Gaza nor it’s internationally supported siege of Gaza, succeeded in bringing the Islamist organization and democratically-elected government to its knees.
If the Obama administration wants to revive the Middle East peace process, sooner or later Hamas will have to be involved. It’s hard if not impossible to anticipate that those involved in the initial efforts to open dialogue with Hamas can avoid falling foul of the broad definition of “material support” that the Supreme Court has just upheld.
The Obama administration told the Supreme Court that the United States is engaged in an effort to “delegitimize and weaken” groups such as Hamas, yet it would behoove Washington and democratic governments everywhere to remember where political legitimacy springs from: not idiotic Supreme Court rulings, but the will of the people — and that includes the Palestinians.
Yousuf v. Samantar is the first human rights suit arising from abuses committed in Somalia under the brutal regime of Siad Barre. It is currently pending before the Supreme Court, where an odd coalition of defenders has filed briefs on behalf of the defendant, Mohammed Samantar, a prime minister under Barre and an alleged war criminal.
Among his defenders are five pro-Israel organizations — the American Jewish Congress, the Zionist Organization of America, the American Association of Jewish Lawyers And Jurists, Agudath Israel of America, and the Union of Orthodox Jewish Congregations of America in Support of Petitioner — each with a professed interest in keeping Samantar out of court. Allowing the case to proceed, they warn, would set an inviting precedent for Israel’s detractors in the human rights community, exposing current and former Israeli officials to an avalanche of litigation.
This suit was brought by the Center for Justice and Accountability and pro bono co-counsel Cooley Godward Kronish LLP in 2004 on behalf of five torture survivors: Bashe Abdi Yousuf, a young business man detained, tortured, and kept in solitary confinement for over six years; Aziz Mohamed Deria, whose father and brother were abducted by officials and never seen again; John Doe I, whose two brothers were summarily executed by soldiers; Jane Doe, a university student detained by officials, raped 15 times, and put in solitary confinement for over three years; and John Doe II, who was imprisoned for his clan affiliation and was shot by a firing squad, but miraculously survived by hiding under other dead bodies.
A strange alliance at the Supreme Court
By Sam Singer, War in Context, April 4, 2010
Mohammed Ali Samantar is the only living vestige of the Barre regime, the last government in two decades to exercise central control over Somalia and, not coincidentally, the last that was impudent enough to try. When Siad Barre was finally overthrown in 1991, Samantar, who had served as defense minister and prime minister, fled, in a storm of bullets, to Italy. He eventually made his way to Fairfax, Virginia, where he lived in suburban obscurity until a group of Somali nationals discovered him, hired a lawyer, and sued for damages. According to his accusers, the Barre regime committed unforgivable acts of violence against them and their families, offenses spanning a range of brutality from arbitrary detention, to torture, rape and extrajudicial killing. Samantar was allegedly aware of the crimes being perpetrated against civilians and yet failed to stop them. The suit was dismissed by a federal district court and then reinstated by the US Court of Appeals for the Fourth Circuit. It is now pending before the Supreme Court, where a peculiar coalition of defenders is urging reversal. Among them, to the confusion of some observers, are five prominent pro-Israel organizations, each with a professed interest in keeping Samantar out of court. In joint amicus briefs, the groups insist that as a former government official, Samantar should be immune from suit. To hold otherwise, they warn, would violate international law and set an inviting precedent for Israel’s enemies and their supporters in the human rights community.
The arrival of the Israel lobby adds geopolitical intrigue to a case that already read like a Ludlum thriller. And because it speaks to real and immediate consequences, it lends concreteness to a discussion that would have otherwise carried on in the abstract. It is one thing for a lawyer to appeal to legal authority for the proposition that the courts of one nation ought not sit in judgment of the acts of another; it is quite another for five groups purporting to represent the interests of the Israeli government to advise that doing so in this case would be to declare open season on Israeli officials in US courts.
It is not without some irony that organizations claiming to represent Israel, a state conceived in the wake of unprecedented state-sponsored violence, find their wagon hitched to the cause of an alleged war criminal. Nor does the position square, at least not at first glance, with less expansive interpretations of sovereign immunity advanced by the lobby’s constituents in the past. Just this year, Israeli victims of rocket fire on the Lebanese border sued the Iranian government, by way of its central banks, on the theory that it provided material support to Hezbollah, the source of the rockets. Last December, a pro-Israel group in Europe sued leaders of Hamas in a Belgium court, invoking what it described as the court’s “universal” jurisdiction over cases arising from war crimes. In both cases, sovereign immunity was an obstacle standing between Israeli interests and a favorable judgment; here, in Samantar’s case, supporters of Israel invoke it as a shield.
In fact, Israel is far more likely to find itself on the receiving end of a human rights suit. According to one report, nearly 1,000 suits have been filed globally against Israeli officials and military personnel alleging war crimes and other abuses. The defense ministry expects some 1,500 more will follow, many stemming from military operations in the coastal territories, but also some taking aim at the less violent aspects of Israeli anti-terror strategy, including one suit describing the security fence as a “crime against humanity.” An Israeli newspaper published a “wanted” list of current and former officials who are among the common named defendants. The list, which was republished in briefs to the Court, reads like a who’s who in Israeli political and military history. The forums for these suits vary, but they commonly feature developed Western countries that have lowered the drawbridge for human rights litigants. Steering many of the cases are nongovernmental organizations (NGOs), some based in the Middle East with ties to the Palestinian government, others based in the West and backed by the likes of the Center for Constitutional Rights and George Soros’s Open Society Institute.
In these suits supporters of Israel see pretext. They describe a more sinister objective, a coordinated effort to bring Israeli officials into federal courtrooms. The idea is to delegitimize Israel, but not before dragging officials through an invasive and costly discovery process. Do it enough and Israeli officials will start thinking twice before traveling to the United States, or, worse yet, before assuming roles that could expose them to suit. Defense experts believe the strategy fits the definition of “lawfare,” think-tank speak for the use of legal methods to achieve military goals.
In the immediate term, the briefs warn, relations between the US and Israel will suffer. Like any partnership, the US/Israeli alliance benefits from a rich and ongoing exchange of people and ideas. For the exchange to thrive, current and former Israeli officials must be able to travel to and within the United States without fear of being served with a lawsuit. By way of illustration, the American Jewish Congress recounts the story of Moshe Ya’alon, a retired Israeli general who was recently summoned to court upon arriving in Washington, D.C. for a think tank forum. The complaint, which sought damages for civilian deaths resulting from a battle on the Lebanese border between Israel and Hezbollah, was perfunctory. With respect to Ya’alon, it alleged only that he served in the army chain-of-command during the relevant period. The district court dismissed the case on jurisdictional grounds and the D.C. Circuit affirmed, concluding that the immunity of a foreign state extends to its former officials. Ya’alon never had to step foot in a courtroom. Now suppose that instead of Washington, he had been served with the suit 15 minutes away, in Arlington, Virginia. In that event the dismissal of his suit would have been appealed to the Fourth Circuit, which, as we learned in Samantar’s case, does not share the D.C. Circuit’s view on official immunity. In other words, had Ya’alon booked a hotel across the river, he might well still be there today.
A Statutory Nightmare
Naturally, US-Israeli relations didn’t figure into the Supreme Court’s questioning at oral arguments. The justices had assembled to resolve a disagreement among the federal circuit courts over whether sovereign immunity extends to officials. Accordingly, they trained their focus on Samantar and his theory of the case, which rests on the off-stated maxim that one equal has no dominion over another equal. That this saying, which encapsulates the principle of sovereign immunity, is most commonly recited in Latin suggests something about its vintage. It is as close to a truism as a proposition can come in a foggy discipline like international law, and it is an animating principle of the Foreign Sovereign Immunity Act (FSIA). That law changed the way US courts process suits against foreign governments. Before 1976, a court needed the go-ahead from the State Department before docketing such cases. When this approach proved unwieldy, Congress vested gate-keeping authority in the federal courts and then cabined it by stripping them of jurisdiction over suits against foreign states that don’t fit within a narrow set of exceptions.
Until recently it was generally accepted that these same protections applied to foreign officials. After all, a suit against a foreign official acting on behalf of a state is effectively a suit against the state. True, the caption may list the Minister of Defense rather than the Ministry of Defense, and the plaintiff may have his sights set on a personal bank account rather than the national treasury, but in either case the court is sitting in judgment of the state’s actions. It has intuitive appeal, this idea. It also has the support of the majority of the federal circuits.
But as the Fourth Circuit pointed out below, the argument is without support in the one place it needs it most–the text of the FSIA. FSIA extends sovereign immunity to “foreign states” as well as their “agencies and instrumentalities”, but it remains conspicuously silent on the matter of foreign officials. For supporters of broad immunity, this omission is proof that the identity of interests between a foreign sovereign and its officials is self-evident. Congress, they argue, had no reason to split hairs, to try to distinguish the indistinguishable. Opponents, who harbor a less attenuated view, insist that if Congress wanted to extend immunity to foreign officials, it would have said so.
The theory that foreign officials are immune from suit encounters an more mystifying problem in the Torture Victim Protection Act (TVPA), a federal law that permits victims of state-sponsored torture to bring suit in the United States against culpable foreign officials. The TVPA is one of the statutes supplying the cause of action in the suit against Samantar, but that’s not why it’s important. Rather, as Justice Kennedy pointed out during oral arguments, the text of the TVPA appears to make a mockery of the proposition that foreign officials are never amenable to suit in U.S courts. To read the law any other way would be to watch it evaporate, an entire congressional enactment rendered useless, leaving torture victims a right without a remedy. The Court, Justice Kennedy reminds, is not in the business of reading entire statutes out of existence.
Supporters of immunity for foreign officials counter that allowing the case to proceed against Samantar would be just as devastating for FSIA. As a preoccupation of Justice Breyer’s, this argument soaked up a fair amount of the Court’s time. The consensus is that opening officials to suit would allow litigants to undermine the intent of the FSIA without actually violating it. In Ya’alon’s case, instead of suing the Ministry of Defense, a lawyer with his wits about him would simply name Ya’alon, the former head of army intelligence, and the suit would survive. “What you are saying,” Breyer concluded, “is that FSIA is only good against a bad lawyer.”
Hedging, counsel for the plaintiffs reminded the Court that jurisdiction is not the only hurdle between a foreign official and liability. Once a plaintiff establishes jurisdiction, there are other age-old immunity doctrines that shield foreign officials from suit. There is the head of state doctrine, for instance, which protects current and former leaders from prosecution and civil liability, or the doctrine of diplomatic immunity, a similar, if more controversial, safeguard for diplomats and their staff. But there is no small difference between immunity from suit and immunity from liability. To have the former without the latter is to have comfort without convenience; it is, so to speak, the difference between putting up and showing up.
The Supreme Court is thus left to choose between two seemingly impossible outcomes. Extend sovereign immunity to foreign officials and the Torture Victim Protection Act is gutted, along with U.S. credibility in the human rights community. Expose them to suit and make hash of one of the core objectives of the Foreign Sovereign Immunity Act—saving key allies the expense and embarrassment of defending national security decisions in US courts. To the extent possible, courts generally try to read conflicting statutes in a way that gives effect to both. But even with so much hanging in the balance, coexistence between the TVPA and the FSIA appears impossible. Unimpressed and evidently undecided, the justices took the case under advisement.
Sam Singer is a 2009 graduate of Emory Law School and a Staff Law Clerk for the US Court of Appeals for the Seventh Circuit. His commentaries on law and politics have appeared in various publications, including The Beachwood Reporter and Culturekiosque.com. He has also reported and written articles for The Chicago Tribune and Market News International.