Category Archives: Supreme Court

A Dead Justice and A Split Court: Deadlock and Uncertainty Threatens the Legitimacy of the US State


Overnight the death of justice Antonin Scalia has made the role of the US Supreme Court a major issue in this year’s presidential elections. It has also undercut activist moves by the Supreme Court conservative majority to curb presidential power and roll back liberal laws on abortion, public sector unions, affirmative action, and political representation.

There is no pretense any more that the Court is an impartial body standing above politics. Within an hour after the announcement of Scalia’s death, the Republicans, led by Mitch McConnell, vowed to block any Obama nomination – implicitly rejecting the legitimacy of the 2012 election and the authority of the presidential office. So it appears that for the next 11 months at least, the court will be split 4-4 between liberals and conservatives.

Scalia was a pugnaciously partisan ideologue, constructing a rigidly “originalist” interpretation of the constitution that rationalized the reversal or gutting of liberal laws by prioritizing legal texts over legislative intentions. He was part of the majority that struck down the Voting Rights Act and upheld Citizens United. Activist Bianca Jagger tweeted: “I have never forgotten this quote ‘Mere factual innocence is no reason not to carry out a death sentence properly reached’.”

The implications of some of the court’s recent rulings now come sharply into focus. One in particular is the conservative majority’s shock decision last week to place a hold on implementation of the Obama administration’s Clean Power Plan that set emission standards on power plants. A lower court had already rejected state and coal industry appellants’ demand that the regulations be blocked while the case was heard, and normally the Supreme Court would have waited until the lower court had made its decision. The hold has the effect not only of neutralizing Obama’s regulatory agenda, but also sabotages international agreements on curbing carbon emissions.

The New York Times commented: “A clear majority of Americans, including many Republicans, agree that global warming is or will soon be a serious threat. Nearly two-thirds said they would support domestic policies limiting carbon emissions from power plants. But flexibility, a generous time frame for compliance and public opinion were not enough to sway 27 states that sued to stop what they call a ‘power grab’ by the federal government and Mr. Obama’s ‘war on coal.’ Many of these states depend heavily on coal-fired plants for their power and many are run by Republican governors, who either willfully disbelieve well-established climate science or find it politically impossible to take steps necessary to reduce emissions.”

The majority’s decision was also an unprecedented challenge to the legitimacy of executive action. Talking Points Memo noted: “the eagerness of the court to intervene in the implementation of the Clean Power Plan also plays into a larger narrative of a conservative Supreme Court preparing to wage war over how Obama has used his executive power. Coupled with how the Supreme Court has framed a blockbuster immigration case heading its way, the stage is set for the court to engage in the question of whether Obama’s executive powers need to be reined in.”

It stood to concretize a split between the three branches of government, encouraged by the polarization of state legislatures, a stalemate in Congress, and Republican ideological denial of the dangers of global warming that prevents a rational energy policy. Essentially, the erstwhile Court majority had openly set itself up against public opinion and thrown in its hand with the oligarchical opponents of any kind of regulation.

According to ThinkProgress: “This particular challenge to the Clean Power Plan does not arise in a vacuum, however. It is really only one face of a multi-faceted effort to shrink the powers of the presidency and prevent agencies like the EPA from carrying out their lawful authority. Last November, at an annual convention of the Federalist Society — a conservative legal organization whose members include several sitting senators and three Supreme Court justices — the gathered attorneys appeared obsessed with various plans to limit agency actions. … The states challenging the Clean Power plan rely heavily on a 2014 opinion by Justice Scalia suggesting that ‘clear congressional authority’ may be necessary when an agency takes a novel regulatory action. … The challenge to the Clean Power Plan… is also one of the most ambitious attempts to rethink the role of government to reach the Supreme Court in years. And five justices thought this challenge had enough merit that they halted the Clean Power Plan before any lower court had even considered those rules.”

Since Congress is likely to be deadlocked for the indefinite future, such a challenge to the legitimacy of the executive branch’s actions would have made it virtually impossible for it to function. A Democratic president, whether Clinton or Sanders, would have found the power of the office severely curtailed.

Scalia’s death has brought this challenge to a screeching halt. Under the court’s rules, 4-4 split decisions will not set precedents and will leave intact the lower court rulings under review. Linda Hershman pointed out in the Washington Post: “Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. … Even if the GOP blocks [Obama’s] nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority.”

UPDATE: Talking Points memo notes: “Even if a Republican president ultimately names Scalia’s successor, the conservative legal movement will have suffered a dramatic setback by virtue of how many important cases it had queued up for this year that will be thrown into turmoil by a court with only eight justices and the potential for 4-4 tie votes. … the Supreme Court’s critics have been … pointing to a pattern in which a right-leaning justice sends a hint that the court is ready to take a case targeting some particular precedent, which in turn prompts legal activists to rush to get a case like that to the court’s doorstep. Legislators in red states have meanwhile pushed the envelope in legislation — with, for example, laws that restrict abortion access and voting rights — on the assumption they’d face friendly terrain if challenges to the laws made it to the Supreme Court. That advantage is no longer a given.”

Obama now has eleven months to craft his legacy. And the stakes in the presidential election have been raised significantly. As Josh Marshall commented: “Regardless of what happens with Justice Scalia’s replacement, there will be likely at least three other Justices to be appointed over the next 4-8 years of the next President’s term. The stakes on all the issues people care about—from abortion to guns, from campaign finance and voting rights to affirmative action and the environment, depend upon 9 unelected Justices who serve for life.”

Despite the Republicans’ plans to prevent Obama appointing a new justice, he must do so in order that government continues to function. He must not allow the extreme right to provoke a constitutional crisis that would benefit only the plutocracy in its economic and political assault on working poor and middle class Americans. Otherwise the US will further lose state legitimacy and become as fractured as the Republicans themselves.

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Filed under 2016 Election, Antonin Scalia, clean air act, judicial overreach, State legitimacy, Supreme Court, Uncategorized

Harris vs. Quinn: a Line in the Sand Against the Rights of American Workers


The majority on the U.S. Supreme Court has handed down a series of reactionary decisions, theoretically narrowly-demarcated but in fact capable of being extended broadly. In each case the justices had to bend the law to the extent of legislating from the bench. As well as their highly-publicized verdicts restricting access to contraception for women, their ruling in Harris vs. Quinn hammered another nail into the legal status of unions, laying the ground for further attacks on collective bargaining.

The decision undermines the way unions are financed from “fair share” provisions that mandate contributions from non-union members covered by collective bargaining agreements. According to the Guardian, the majority ruled that only “fully fledged” state employees should pay these fees. “The ruling split off a whole class of workers – in this case homecare aides who are paid by the state but, in the court’s view, still essentially employed by the individuals they care for – and ordered that in these cases, compulsory union dues were a violation of free speech rights.”

The justices thus created a whole new category of “partial public employee,” who in their view were not represented by a union in collective bargaining nor deserving of workplace protections. Justice Alito, who gave the decision, reportedly wanted to go further and eliminate the requirement that all government workers contribute to the cost of collective bargaining; the scathing language he used indicates support for future legal challenges to the rule.

In These Times correspondent Moshe Marvit explains that the suit was originally restricted to whether unionized home healthcare workers could be subject to the “fair share” contribution. “However, once the case arrived at the Supreme Court in 2013, the National Right to Work Legal Defense Foundation raised the stakes and argued that anything short of a right-to-work model—under which any employee covered by a collective bargaining agreement could forego paying any dues—for all public employees violated the First Amendment.  In the Court’s decision, a five-Justice majority held that fair share provisions for home healthcare workers were unconstitutional, and indicated repeatedly that the 1977 case that allows such provisions for all public sector employees is on shaky ground.”

The Legal Defense Foundation is funded by the National Right to Work Committee, formed in 1955 by Southern businessmen connected to the John Birch Society with the express purpose of undermining unions and applying to all public sector workers the so-called “right to work” laws that bar workers from obligating co-workers to join a union or pay dues, even in workplaces where a large majority vote to form a union. The Committee’s aim of de-funding unions to limit their strength has lately been coopted and financed by extremist billionaires (including the ubiquitous Kochs) and now been given the imprimatur of the Supreme Court majority.

However, this strategy of the one per cent is likely to blow back in their faces. Union bureaucracies have functioned historically as a way of controlling and diminishing labor unrest, and while the administration of unions will be hard hit by the elimination of part of their finances, the grassroots resistance to the plutocracy is growing irrespective of unions’ legal status. Workers and community activists are finding creative ways to organize despite legal restrictions, with groups like OUR Walmart and the campaign for a living minimum wage uniting activists with the low-paid to challenge the status quo.

Public sector workers already face legal constraints on union activity, such as laws making it illegal to strike. For example, New York City transit workers who struck in 2005 were fined a day’s pay for each day of the strike and their union fined $2.5 million. The leadership capitulated, but the members reorganized, elected a new leadership, rebuilt their strength and campaigned in the community they served for support, especially after they got the city moving again after Hurricane Sandy. They were able to generate enough political pressure on the state governor to gain a more favorable contract than other state unions were able to achieve.

Legal attacks are forcing a turn to a new pattern of trade unionism that turns outwards to connect with the community, like the Chicago Teachers Union, rather than the sectional pattern of industry-specific organizing that dominated the years after World War II.

In a parallel development, the two-party political system is being subverted by the successes of the Working Families party, the election of self-proclaimed socialists in Seattle, and moves by African Americans in the South to mobilize independently of the national Democratic party leadership. In Mississippi, African-Americans intervened in the Republican primaries to prevent an overtly racist and segregationist tea-partier from becoming their representative.

Political science professor Daniel Franklin comments: “The narrow re-nomination victory of six-term Republican Senator Thad Cochran in the Mississippi primary run-off may well mark a watershed moment in politics in the South. In his desperation to overtake Tea Party favorite Chris McDaniel, who beat him in the first round of the primary, Cochran hit upon a novel idea: to invite the black community into the final stage of the Republican Party nomination battle. … Mississippi’s black leaders recognized and took advantage of this historic opportunity, by urging their compatriots to vote in the GOP contest to gain a measure of meaningful clout in Mississippi politics.” While turnout increased everywhere in the primary, it jumped highest in Cochran’s strongest counties, which have the highest concentration of African Americans in the state.

Whatever Cochran’s character, the assertion of political clout by African Americans in America’s most racist state is significant. But it upset the national Democratic party leadership, who had been hoping for an extreme Republican candidate in order to potentially elect a Democrat as senator (albeit one with politics marginally less racist than Cochran’s). Their outlook was reflected in Donna Ladd’s Guardian comment: “the GOP cannot suddenly welcome a bunch of black Democrats to their tent. They voted almost exclusively for the federal money Cochran brings home – not for the party that abandoned African Americans back in the 1960s.” Franklin points out an alternative perspective: “At the very least, Cochran will now have to be cognizant of who kept him in office – and if he keeps the pivotal support of African American constituents in mind, he may well moderate his politics to inoculate himself against pressure from the far right.”

African Americans’ insistence on basic rights in Mississippi is also reflected in the state NAACP’s launch of four new efforts: a ballot initiative to better fund public education, a push for voter rights, funding community health centers, and defending workers’ rights. It organized a march on Nissan’s auto plant in Jackson, where nearly 75 percent of the workforce is black, during celebrations commemorating the passage of the Voting Rights Act 50 years ago. Nissan has resisted the efforts of the UAW to organize the plant in the right-to-work state, where full-time workers get $24 an hour, but over a thousand temporary contract workers are employed at just $12 an hour.

Student activists joined actor Danny Glover and Nissan workers to demand Nissan allow a fair union election and respect the civil and labor rights of workers by stopping anti-union intimidation and threats of workers who want to form a union. Activist Monica Atkins said: “Our rally showed that as long as Nissan workers can’t exercise their fundamental labor right to form a union, which is a civil right, then the civil rights struggles of 50 years ago will continue. And young people, again, will lead the way in that fight.”

The Supreme Court’s majority ruling in Harris is the latest line in the sand in that fight, but American men and women will not accept a loss of natural and civil rights by legislative fiat. In Seattle, in Chicago, and especially in the South, new social coalitions are forming that will revitalize American democracy beyond political ideology and defend Americans’ rights to organize and fight.

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Filed under African Americans, chicago teachers, low-waged, OUR Walmart, political analysis, Republicans, Supreme Court, Tea Party movement, UAW, walmart strikes

Executive Overreach and Its Season of Discontent: Judge Scheindlin Rebukes Stop-and-Frisk


In a landmark ruling on Monday, federal judge Shira A. Scheindlin found that the stop-and-frisk tactics of New York police violated the constitutional rights of minority youth. According to the New York Times, she said the NYPD had “adopted a policy of indirect racial profiling” and that the city was responsible for a battery of constitutional violations. While not ordering an end to the practice, she said the stops had to be carried out in a manner that “protects the rights and liberties of all New Yorkers.”

She found that the NYPD’s practices violated not only 4th Amendment rights but also the 14th Amendment’s equal protection clause, ruling that “Targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality.”

Writing before the verdict was announced, Guardian writer Gary Younge commented that the stop-and-frisk investigation, together with the trials of Bradley Manning and George Zimmerman, “raises fundamental questions about the function and purpose of the American state, the moral underpinnings of the legal system in which it is grounded, and the degree to which the law is designed to work for or against the people in whose name it operates … while [the state] has aggregated power, it has failed to garner the influence to sustain or justify it.” His implication is that the executive’s overreach has undermined the social consensus needed to maintain the state’s legitimacy.

Judge Scheindlin’s decision answered Younge’s questions by demonstrating that the U.S. state is not a monolithic entity but rather a complex of competing bureaucracies, in which sections of the judiciary as well as legislators who believe the law must work for the people coexist in an antagonistic relation with executive power. Judge Scheindlin is as much a part of the state as the Supreme Court and the National Security Agency, as are whistleblowers like Bradley Manning and Edward Snowden; the state as a whole is a battleground between competing interests, and its history is one of both repression and resistance, just as U.S. society embodies the history of savage racial discrimination and courageous movements for civil rights.

Instead of an informed and engaged public, as envisioned by the Constitution’s drafters, the national security state has a different objective.  Tom Engelhardt of TomDispatch argues that its goal “is to turn the American people into so much absorbable, controllable intelligence data, our identities sliced, diced, and passed around the labyrinthine bureaucracy of the surveillance world.” He adds: “thanks to our ‘spies’ [Manning and Snowden], we know a great deal more about how our American world, our government, really works, but we still don’t know what this thing that’s being built really is. … We lack words for what is happening to us.  We still have to name it.”

One feature of what has happened to us is the exponential growth of the security apparatus in relation to other state agencies. Juan Cole points out: “It is one of the problems with having a standing army and a huge intelligence-industrial complex, which the founding generation warned against – it becomes a lobby within the government for militarism and against civil liberties.” The excesses of the executive under Bush that have been continued by the Obama administration trace their roots to the military role of the U.S. state in policing the world. Since the late 1970s, the capture of government agencies by corporate and plutocratic interests has exacerbated anti-democratic tendencies, turning policing against Americans and their resistance to the social disruption and unemployment created by globalized production.

Even though Americans are divided culturally, most share a commitment to ideals of freedom and equality that originate with the American Revolution. That is why Edward Snowden’s revelations of NSA surveillance produced a visceral reaction of support that cut across party and ideological ties. He showed in detail how the security agencies cooperated closely with high-tech companies not only to carry out electronic surveillance but also to conceal and control the information available to the public.

After Amazon.com founder Jeff Bezos bought the Washington Post, Amy Goodman asked author Bob McChesney about the time Amazon shut down the servers it was renting to WIkileaks. McChesney replied: “I consulted people I knew fairly high up in the State Department off the record, and they said that they did not have to put pressure on … Amazon for that to happen, that Amazon was more than willing to cooperate. It was not a difficult sell, and there was no real pressure on them. … the large Internet giant monopolies, starting with, at the top of the list, Amazon, but really including Apple, Google, Facebook, Microsoft, AT&T, Verizon, right on down the list, they all have an extraordinarily cozy relationship with the national security state, with the military, the intelligence community. … we’ve created this military-digital complex of sorts.”

McChesney argues that the corporations have the dominant role in this relationship, adding: “How much power is in unaccountable monopolies? And these companies are really unaccountable to the government. You look at Obama running around trying to be on good terms with the companies. And now they control the news media directly, some of them, like Bezos.”

Glenn Greenwald, on the other hand, thinks that it was the government that initiated “the vast public-private surveillance partnership … as our reporting has demonstrated, most US-based tech and telecom companies (though not all) meekly submit to the US government’s dictates and cooperative extensively and enthusiastically with the NSA to ensure access to your communications.”

Whoever took the lead in forming the partnership, it would seem to me that both the tech corporations and security state have a joint dependency: the tech companies need state legislative sanction and government subsidies to operate, and the security forces need tech companies’ expertise in gathering data on individuals. There is a convergence of interests where economic exploitation of consumers and political surveillance of citizens come together.

Globalization has transformed states insofar as the executive is drawn closer to a corporate view of society as abstract consumers whose behavior needs to be monitored. This has led to a paranoid drive for secrecy and vindictive punishing of whistleblowers – because the security agencies require citizens to remain passive while they are being “protected,” and fear public reaction to what they are really up to.

Should we then call the U.S. state a plutocratic dictatorship, some kind of police state or “corporate totalitarianism,” as Chris Hedges believes? That would be jumping the gun, in my opinion, because the state is divided internally as a reflection of potential resistance from the public and of its own democratic traditions. Americans are energized today not just by outrage at government surveillance, but also by economic hardship. Since unions and strikes have been virtually legislated out of existence, the low-waged are driven to strike actions aimed at leveraging public opinion – such as the campaign for a $15 minimum wage – which inevitably turn towards political action, like the Washington DC City Council decision to mandate a $12.50 hourly wage for projected Walmart stores in the area.

So I would venture to characterize the U.S. as a transitional state in which there is a growing tension between democracy and the security forces, between the remaining institutions of the New Deal and neoliberal dispossession of the public estate. Its exact nature has still to be fought out, but thanks to courageous individuals within the state itself, the struggle is one in which the public is increasingly engaged.

UPDATE: Google has argued in court that users of its gmail service should expect to have their correspondence scanned for delivery of targeted ads.  There’s no technical difference between mining email content for ads and scanning it for dissent.

UPDATE 2: The Washington Post has reported that the NSA broke privacy rules on US citizens’ communications thousands of times since 2008. “One team of analysts in Hawaii, for example, asked a system called DISHFIRE to find any communications that mentioned both the Swedish manufacturer Ericsson and ‘radio’ or ‘radar’ — a query that could just as easily have collected on people in the United States as on their Pakistani military target.”

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Filed under Bradley Manning, Edward Snowden, low-waged, National Security Agency, Neoliberalism, political analysis, Supreme Court, Walmart

Making Racism Invisible in Post-Racial America: Trayvon Martin’s Death Goes Unpunished


The Zimmerman trial and verdict is symptomatic of the “post-racial” racism that characterizes US society today. Although open bigotry is legally banned, a deeply-embedded discrimination still exists that evokes the subterranean legacy of slavery. It is embodied in racial coding leveraged by Republican political propaganda and through social perceptions that find young black men threatening.

Some argue that the verdict proves nothing has changed since Reconstruction. I would disagree: there is a difference, in that the assertion of color-blindness is integral to the way white privilege and power is being renewed in the context of a changed demographic that makes people of color a majority in America.

The trial judge’s prohibition of any mention of racial profiling served to suppress jurors’ perception of Trayvon Martin’s real fears at being pursued, as a young black man, and enabled Zimmerman’s defense team to introduce coded racial markers to justify Zimmerman’s story of being in fear of his life. It also diverted attention away from the circumstances that led to their struggle, allowing Martin’s own fear to remain unimagined and Zimmerman’s guilt to remain unpunished.

Lisa Graves told Democracy Now that, although the defense did not resort to it, the judge’s instructions to the jury embodied Florida’s Stand Your Ground law. She said: “… the exact instruction to the jury was that Zimmerman had ‘no duty to retreat’ and had a ‘right to stand his … ground and meet force with force, including deadly force.’ That’s a direct quote from the jury instructions. Those jury instructions incorporate the Stand Your Ground law.”

Although it was Zimmerman who stalked Martin and precipitated the confrontation, juror B-37 explained how they took these instructions into account when concluding that he was not guilty of murder or manslaughter: “Because of the heat of the moment and stand your ground, he had a right to defend himself. If he felt threatened his life was going to be taken away from him or he’s going to have bodily harm then he had a right. That’s how we read the law, that’s how we got to the point of everybody being not guilty.”

She said she didn’t believe Zimmerman followed Martin because of his race, and that Martin was partly responsible for his own death. “I think George got in a little bit too deep, which he shouldn’t have been there, but Trayvon decided that he wasn’t going to let him scare him and get the one-over, up on him or something,” she said. “I think Trayvon got mad and attacked him.” By not walking away from the confrontation, “I believe he played a huge role in his death.”

Her sympathy for Zimmerman contrasted with her unconsciously racist assessment of Rachel Jeantel, the last person to speak to Martin and an important witness for the prosecution. She saw Jeantel as uneducated and stumbling in her testimony: “She just didn’t want to be there, and she was embarrassed by being there because of her education and her communication skills, that she just wasn’t a good witness.” In an interview after the trial, Jeantel explained to Piers Morgan it was difficult for her to answer aggressive defense questions because she was still dealing with the death of her best friend.  “It’s not that I didn’t want to be there. I was dealing with a lot of stress for 16 months. I was grieving.”

In court, Jeantel recounted her final phone conversation with Trayvon Martin, describing how Martin asked his pursuer “Why are you following me for?” and ended with him saying “Get off, get off.” Defense attorneys attacked her credibility and her use of slang terms, which were not understood by the jury. As James Baldwin wrote:  “It is not the black child’s language that is in question, it is not [her] language that is despised: It is [her] experience.”

What the court has now officially confirmed is whites’ legal privilege over African-Americans in Florida. Obama, who describes his own policies as color-blind, issued a statement after the verdict was announced to deflect protests onto the issue of gun violence. His surrogate, Eric Holder, called for a “hard look” at Florida’s Stand Your Ground laws, but not at the endemic racism of the courts, suggesting that parents having to advise their children how to behave if they are ever confronted by whites “is a sad reality in a nation changing for the better in so many ways.”

Author Michelle Alexander addressed this systemic racism on Democracy Now. She said the mindset that viewed young men of color as a problem to be dealt with has infected the whole social system and created a prison apparatus unprecedented in world history.  “It is the Zimmerman mindset, the mindset that some people, viewed largely by race and class, are a problem that must be dealt with harshly and just locked up and, you know, the key thrown away, that has helped to drive the adoption of many of these mandatory minimum sentence laws. … Although Attorney General Eric Holder does not have the authority to repeal mandatory minimum sentences and undo the legislation that has, you know, helped to create the prison-industrial complex, what he can do is … say that the passage of these mandatory minimum sentences was wrong and that it was done with a discriminatory mindset, that it was done with an attitude of overwhelming punitiveness towards poor people, in general, and poor people of color, in particular …”

Leftists have argued that the ideology of a post-racial society in which a black individual can become president serves to redirect attention away from structural inequality and racism. But, more than that, the notion functions to suppress the civil rights concept of social justice aimed at redressing the historical effects of poverty and discrimination. Jim Crow practices are renewed and implemented today through this post-racial myth, which was employed for this very purpose in the Supreme Court decision rolling back the Voter Rights Act.

White Americans view pro-gun laws and stand-your-ground laws as upholding the rights of all, but in practice they are applied by the police and courts to consolidate the hold of the rich and white on power. The de facto segregation of towns and suburbs through unequal wealth and the mass incarceration of black males exacerbates this social dysfunction.

In cities across America, from New York to Los Angeles, citizens have protested the verdict. The protests have been mostly multiracial and peaceful, and like the Occupy movement, reflect the demographic and political changes of the last ten years. Sociologist Darnell Hunt pointed out that the same community that celebrated Obama’s election as president was joining the protests. “People were hoping their view of justice would be served, and it wasn’t,” he said. “They’re having a hard time believing in the American dream and the idea that African-Americans had finally become full-fledged citizens.”

Immediately after the verdict the NAACP’s website crashed as thousands rushed to sign a petition calling for Zimmerman to face federal prosecution. It’s likely there will be more and larger protests on Saturday, and Martin’s parents have called on Obama to review the case “with a fine toothcomb.” Trayvon Martin’s death will not be in vain as millions of Americans join them in demanding answers about Obama’s post-racial society, one that actively targets Black and Brown youth.

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Filed under African Americans, Obama, political analysis, Stand Your Ground law, Supreme Court, Trayvon Martin

“We Hold These Truths to be Self-Evident”: Edward Snowden Reminds Us of the Purpose of Government


Edward Snowden has won worldwide popular support for his self-described “moral decision” to reveal how the US intelligence services monitor its own citizens’ as well as all countries’ emails and phone calls.

Americans accusing him of treason should dust off their copy of the Declaration of Independence, where the second paragraph states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

As Snowden goes into his fourth week of being stateless and stranded in Moscow Airport thanks to the Obama administration’s persecution, we cannot lose sight of his clear moral courage, political maturity, and the vision of citizens in the United States and around the world who have embraced Snowden as a hero for our times.

In his remarks at the airport, reported by The Guardian, Snowden praised Venezuela, Russia, Bolivia, Nicaragua and Ecuador for “being the first to stand against human rights violations carried out by the powerful rather than the powerless” and for “refusing to compromise their principles in the face of intimidation.”

“The government and intelligence services of the United States of America have attempted to make an example of me, a warning to all others who might speak out as I have,” he said. “I have been made stateless and hounded for my act of political expression.”

The public reaction in Latin America is extremely important to help Snowden gain political asylum from governments prepared to stand up to US diplomatic and economic pressure. US progressives should stand in solidarity with the anti-colonial sentiments of the global South and condemn their own government’s efforts at persecution.

A Quinnipiac poll released last week notes a clear shift in the US public’s mood since Snowden began his revelations: “by 45 percent to 40 percent, respondents said the government goes too far in restricting civil liberties as part of the war on terrorism. That was a reversal from January 2010, when in a similar survey 63 percent said anti-terrorism activities didn’t go far enough to protect the US from attacks, compared with 25 percent who disagreed.” This is huge, because sacrificing liberties for security is the ideological underpinning of the national security state.

By a clear majority of 55 to 34 percent across political affiliations, interviewees considered Snowden a whistleblower and not a traitor. Peter Brown, the poll’s assistant director, said: “The massive swing in public opinion about civil liberties and governmental anti-terrorism efforts, and the public view that Edward Snowden is more whistle-blower than traitor, are the public reaction and apparent shock at the extent to which the government has gone in trying to prevent future terrorist incidents … The verdict that Snowden is not a traitor goes against almost the unified view of the nation’s political establishment.”

Glenn Greenwald has pointed out that Democrats are the most vociferous in condemning Snowden, whereas they would have condemned Bush if the revelations had come under his presidency. “I can tell you that, by far, the most vehement and vicious attacks on our reporting and the stories that we’ve been writing come not from Republicans, but from Democratic partisans, both in politics and in the media,” Greenwald told Democracy Now.

Not only have they bought into the security state’s ideological justifications, many Democrats also conflate the executive wing with the state’s social functions, claiming that the state is essential to protect minorities and achieve social justice.  The official left has been coopted by Obama into supporting “their” president as the best alternative to Republicans.

Activist Jessica Bernstein pointed out: “During a recent interview on KPFA, Norman Solomon, former congressional candidate and co-founder of RootsAction, questioned why MoveOn, the largest online progressive group, has not taken action, asking, ‘Where are their clarion calls to defend and support Edward Snowden? Or for that matter Bradley Manning? They’re not happening’. … Solomon points out that when MoveOn began 15 years ago, it was largely around an anti-war platform, but if one were to look at what has happened on a policy level since, there has been a tremendous avoidance of not only anti-war efforts but almost any issue that does not function in tandem with the agendas of the Democratic National Committee.”

Some Obama supporters defend the government by citing Greenwald’s support for libertarian positions, reiterating some Washington insiders’ argument that libertarianism is akin to Confederate white supremacy, and aims to undermine the federal government whose intervention has been responsible for protecting the rights of minorities. “Confederate Libertarianism may oppose both big banks and Federal authority, but it is not doing so in the cause of social justice,” argues rootless_e in comments on an In These Times article defending PRISM.

This misguided analysis ignores the fact that it took great social movements to achieve steps toward social justice in the US, using all available political freedoms to challenge Jim Crow laws and force federal intervention in the South. The actual experience of living social movements today is that the federal state intervened to curtail these freedoms by using NSA and Homeland Security monitoring of cellphones and emails as a tool to suppress the Occupy movement, when open expression of hostility to big banks and the plutocracy threatened to gain mass support.

Political commentator Josh Marshall argues that Snowden is substituting his personal judgment for those of legislators who were democratically elected to make decisions about the US intelligence apparatus. He says: “… for all its faults, the US military is the armed force of a political community I identify with and a government I support. … I think a military force requires a substantial amount of secrecy to operate in any reasonable way.”

However, it has become clear that sections of the judiciary, acting in concert with the Supreme Court and the executive, have been secretly revising the laws that govern the US intelligence apparatus, with no input whatsoever from democratically-elected representatives. The New York Times reported that FISA judges have broadened the use of the “special needs” doctrine, intended as a narrow exception from privacy laws to allow drug testing of railway workers, to exempt NSA monitoring from the Fourth Amendment’s requirement of a warrant for searches and seizures.

And government officials have consistently lied to legislators. According to the Washington Post: “On three occasions since 2009, top Justice Department officials said the government’s ability to collect business records in terrorism cases is generally similar to that of law enforcement officials during a grand jury investigation. That comparison, some lawmakers now say, signaled to them that data was being gathered on a case-by-case basis, rather than the records of millions of Americans’ daily communications being vacuumed up in bulk.”

“[Republican congressman Jim] Sensenbrenner, who had access to multiple classified briefings as a member of the Judiciary Committee, called the practice of classified briefings a ‘rope-a-dope operation’ in which lawmakers are given information and then forbidden from speaking out about it. … Referring to public testimony from officials, Sensenbrenner added: ‘How can we do good oversight if we don’t get truthful and non-misleading testimony?’.”

Whistleblowers like Snowden and Bradley Manning are now regarded as heroes by many Americans, in sharp contrast to the fury of the Obama administration and the political establishment. The government’s emphasis on secrecy that has led it to carry out the largest number of prosecutions of leakers in history stems from its alignment with major corporations and the security apparatus.

However, its overreach in prosecuting Manning and charging Snowden under the Espionage Act has backfired and eroded its own legitimacy with the public, who are still deeply committed to government of, for, and by the people.

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Filed under Edward Snowden, Homeland Security, National Security Agency, occupy wall street, political analysis, Supreme Court, US policy, We are the 99 percent

Keep America a beacon of hope on Independence Day: Fight for the Fourth Amendment


Just days after Obama (“I’m not going to scramble jets”) and incoming National Security Advisor Susan Rice downplayed the significance of Edward Snowden’s revelations, a desperate behind-the-scenes manhunt to apprehend the whistleblower has led to a major crisis in relations with Latin America.

The forced diversion of Bolivian president Evo Morales’ plane on suspicion that Snowden was aboard has rekindled resentment against the legacy of European and US colonialism, and an emergency meeting of the Union of South American Nations convenes today to discuss what diplomatic action can be taken. This is much more serious than the posturing of European leaders like Merkel.

The issue for Obama’s administration is not just the embarrassment Snowden might cause if he is able to reach Bolivia or Venezuela, whose people are sick and tired of US bullying and would no doubt give him a hero’s welcome, but that it needs to intimidate other potential whistleblowers by visibly extreme government sanctions.

There have been serious misgivings in Congress about the information Snowden released. 26 senators signed a letter to intelligence chiefs complaining that the administration is relying on secret interpretations of law to collect massive amounts of data on US citizens. “This and misleading statements by intelligence officials have prevented our constituents from evaluating the decisions that their government was making,” they wrote, demanding that director of intelligence James Clapper answer a series of specific questions on the scale of domestic surveillance.

Senators Ron Wyden and Mark Udall also challenged the administration’s claim that internet surveillance was ended in 2011 as a result of “interagency review.” According to the New York Times, they said the program was abandoned “only after they repeatedly questioned its usefulness and criticized its impact on the privacy of American citizens.” Coming as close as possible to calling senior intelligence officials liars, they described the administration’s public statements about the scope of surveillance as “not always accurate.” “It is up to Congress, the courts and the public to ask the tough questions and press even experienced intelligence officials to back their assertions up with actual evidence,” they said.

Legal scholars Jennifer Granick and Christopher Sprigman commented on the government’s “criminal” evasion of statutory protections in a New York Times op-ed: “The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. … The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties. This hairsplitting is inimical to privacy and contrary to what at least five justices ruled just last year …”

The authors speculate that Snowden’s revelations have not enraged most Americans because they have been lulled by “the Obama administration’s claims that these ‘modest encroachments on privacy’ were approved by Congress and by federal judges,” and because Congressional leaders like Dianne Feinstein and liberal commentators have called the surveillance “legal.”

So far, there have not been widespread protests against the spying, although Obama’s approval has dropped, especially among the young, and a “Restore the Fourth” campaign in defense of the Fourth Amendment staged demonstrations in 100 cities throughout the US today. Mainstream media have focused on denouncing Snowden rather than on the substance of his leaks.

However, an article written in defense of the NSA by union organizer Louis Nayman throws some light on the thinking behind public acceptance of these claims. He writes: “From what we know, the National Security Agency’s collection of metadata on telephone and Internet records has been effective in keeping us safe. … the lack of attacks during the long stretch between 9/11 and the Boston Marathon bombings speaks for itself.” This kind of unconscious magical reasoning – “If I vote Republican, it will keep tigers away from my neighborhood.  There have been no tigers sighted recently, so voting Republican must be effective” – does give some insight as to why many Americans are not exercised about being spied on.

He has a more important argument when he goes on: “As people who believe in government, we cannot simply assume that officials are abusing their lawfully granted responsibility and authority to defend our people from violence and harm. … But the more the Left aids and abets the reactionary Right’s cynical critique of government, the more both sides make the case to replace collective mission and accountability with the free hand of the market.”

The problem here is that Nayman portrays government as an abstract principle, as an opposite to the principle of privatization. This is imposing a false binary on a complex situation.

Yes, we do need state institutions to enforce labor laws, health and safety laws, keep our lives and property safe from criminals, regulate traffic and dispense social security checks. We would like them to keep us safe from gun shooting deaths and offer universal health care, as well, but this is not happening. All of these functions, especially the courts, are arenas of political struggle, as any union organizer knows well. And that includes struggles over privatization.

The role of the military is another story. The executive branch is not using its power to keep Americans safe, but endangering them with a covert drone strike program which is creating thousands of potential suicide bombers daily. Author Fred Branfman told the Real News Network: “What we’ve got to understand is that the United States government is today failing to protect America and endangering national security because of its assassination strikes, both from the air with drones and on the ground with the first unit of American assassins in American history, called the Joint Special Operations Command … Let me just quote to you General McChrystal, our previous commander in Afghanistan. He says: ‘What scares me about drone strikes is how they are perceived around the world.’ ‘The resentment created by American use of unmanned strikes … is much greater than the average American appreciates. They are hated on a visceral level, even by people who’ve never seen one or seen the effects of one’.”

The US public has historically ignored foreign policy as long as they could improve their social situation and live the American dream. The executive branch has therefore been able to keep foreign wars as its fiefdom. But the Boston bombings demonstrated forcefully how the domestic and international functions of US policy intersect.

NSA spying is a technology that can – and has – been used against domestic dissent and against investigative journalists, intended to intimidate questioning of the dominant neoliberal ideology. And Obama is only telling half-truths when he says that your calls are not being overheard: they can be gathered digitally and listened to at some future date. So even if you are apolitical today, if tomorrow you decide to oppose government policies, the authorities can trawl through all your old phone calls and emails until they find something they can silence you with.

This is also the technology used to assess and judge assassination targets through signature strikes abroad. In These Times writer David Sirota points out: “That was the key discovery in NBC News correspondent Richard Engel’s report finding that ‘the CIA did not always know who it was targeting and killing in drone strikes’ approved by the president. Employing so-called ‘signature strikes,’ the president has been authorizing the assassination of people ‘based on their patterns of behavior’ according to Engel—that is, based simply on where a person ‘meets individuals, makes phone calls and sends emails’.”

Obama has continued and expanded the framework of a potential totalitarian government. But we are not today living in a police state. Investigative journalists going about their work and people fighting for their constitutional rights (no thanks to the supreme court) keep America a beacon of hope on Independence Day.

UPDATE: Venezuela, Nicaragua and Bolivia have all offered Snowden asylum following the forced downing of Bolivian president Evo Morales’ plane. Juan Cole, as ever, sums it up pithily: “Morales implied that the Europeans disrespected him because he is an indigenous Bolivian, and said they sought to humiliate his country after 500 years of looting it. They cannot, he said, because its people have gained a sense of sovereignty and dignity….  The US intelligence bright idea of telling Western European allies that Snowden was on the Bolivian jet has therefore backfired. France has hinted that the CIA misled Paris by not telling them it was Morales’s plane they wanted searched.”

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Supreme Court voting rights decision buried by hoopla over gay marriage


The euphoria over the striking down of the Defence of Marriage Act, asserting the constitutionality of gay marriage at the state level, has diverted attention from the Supreme Court’s much more significant gutting of the Voting Rights Act (VRA), one of the landmark achievements of the Civil Rights movement.

It was a signal to Republican-controlled legislatures to immediately implement new forms of voter discrimination, such as redistricting and purging of voter rolls. Texas governor Rick Perry has already signed a new congressional district into law to secure electoral advantage for Republicans.

In her dissent, Justice Ruth Ginsburg pointed out that the Court majority, in deciding that voter discrimination was no longer a problem, was usurping the judgment of Congress, which had renewed the Act as recently as 2006 after months of deliberations. A key role was played by Justice Roberts, who introduced a hitherto unknown principle of “equal sovereignty” among the states, arguing that so much has changed since 1965 that it is discriminatory toward the southern states for the federal government to proactively defend the rights of minorities.

E.J. Dionne pointed out: “Chief Justice John Roberts’s opinion involved little constitutional analysis. He simply substituted the court’s judgment for Congress’s in deciding which states should be covered under Section 4 of the Voting Rights Act, which required voting rules in states with a history of discrimination to be pre-cleared by the Justice Department.The court instructed Congress to rewrite the law, even though these sophisticated conservatives certainly know how difficult this will be in the current political climate.”

Ari Berman writes in The Nation: “[Roberts’s] sweeping and radical decision yesterday was more about ideology than the law, constitutional principles or congressional deference be damned.”

A story in the New York Times drew attention to Roberts’s methodical and systematic assault on the law. “Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories … On Tuesday, when the court struck down a part of the Voting Rights Act, Chief Justice Roberts harvested seeds he had planted four years before. In his 2009 opinion, writing for eight justices, he allowed the Voting Rights Act to stand. But the price he exacted from the court’s liberal wing was language quoted in Tuesday’s decision …”

By invalidating the requirement for preclearance with the federal government for any changes in voting arrangements by states with a history of discrimination, the decision forces victims of discrimination to later sue in court, where challenges will be expensive and time-consuming.

The Court’s highly-politicized conservative majority has kept southern white supremacy intact for the short term. For Republicans, it’s important to defend it because it’s the basis of their dominance of the House. At the same time, it confines their party to its white, southern base, when to gain the White House means winning over a more racially-diverse nation.

Berman told Democracy Now that the strongest political tendency in the southern states “is the tension between demographic change and voter suppression. A third of the country lives in the South right now. One of the consequences of the Voting Rights Act was that it turned the South from Democratic to Republican. It’s shifting back now Democratic. If you look at Barack Obama, he won three states of the old Confederacy. Republicans are aware of that. That’s why they’ve redistricted so aggressively since the 2010 election, and that’s why states like North Carolina, Virginia, Arkansas, etc., are rushing to pass new voting restrictions now.”

At the same time, Southern business models are extending into much of America through low-paid retail and anti-union business strategies. The Southern economy was always based on low wages, and from the time of the New Deal the Southern business elite has been virulently anti-union.

Washington Post writer Harold Meyerson notes: “Its anti-unionism was rooted in more than right-wing antipathy toward worker rights; it was also underpinned by fear that industrial unions would be racially integrated and become vehicles for African American power, as they were in the North. Today, Jim Crow laws are long gone, but the Southern suppression of worker rights and incomes — no matter workers’ race — continues. … Meanwhile, the transformation of the Republican Party into an organization based in and dominated by the white South has turned Northern Republicans more anti-union [as in Wisconsin, Michigan, and Indiana].”

However, as Walmart extends its reach into the North, it also encounters traditions of unionization and self-respect that are causing it major problems. The company is now victimizing those who went on strike recently and stood up to its intimidation, but this is further extending the protests and drawing in support from Congressional Democrats.

Josh Eidelson reports in The Nation: “OUR Walmart is alleging a new wave of retaliation against Walmart worker-activists, with terminations or other discipline targeting at least twenty-six of the hundred-some employees who traveled to Arkansas to protest the retail giant’s June 7 shareholder meeting. Congressmen Keith Ellison (DFL-MN) and Alan Grayson both condemned the firings in Saturday comments to The Nation; Ellison, who chairs the Congressional Progressive Caucus, called Walmart’s actions ‘completely unjust and illegal’.”

The effect of the Supreme Court’s decision in the short term is to help Republicans shore up their dwindling electoral support. It gives further opportunities for the plutocracy to assert outsized influence over elections and state-level legislation. In the longer term, it will galvanize and focus a new civil rights campaign of litigation, organization, mobilization, and coalition, bypassing Obama’s tepid appeal to a polarized Congress to repair the situation.

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