Category Archives: Supreme Court

Republican Supreme Court Triumph Against Background of National Discontent


Kavanaugh’s confirmation as a new Supreme Court justice is a pyrrhic victory for the Republicans. It achieves a solid right-wing majority on court decisions, but reduces the legitimacy of these decisions in the eyes of the public and the legal system.

His ranting attack on the Democrats at the hearing removed all pretence of judicial impartiality – it “pulled the cloak off the Wizard of Oz” as law professor Stephen Gillers put it, shattering public belief in the Supreme Court’s independent authority. It also exposed the supposedly moderate Republican senators who capitulated when Kavanaugh “pivoted to a pure message of aggression, anger and promises to fight the recognized set of political enemies that bind him to his mass and elite supporters … Early Thursday afternoon, Kavanaugh’s nomination was on life support. He went full Trump. And it worked,” Josh Marshall commented. “A scion of the [Washington] beltway political elite who received the country’s finest elite education, he made his name in the Bush White House. He is the epitome of the pre-Trump conservative establishment. Yet we can see here how seamless the transition was to full Trumpism, as it was for all the Republican Senators who rushed to his side after his Thursday afternoon performance.”

The right-wing bias of the court is now decidedly out of tune with the public on many issues, nullifying its role as a moderating bastion of government. The New York Times reported: “Several priorities of the conservative legal movement already conflict with public opinion. The movement’s biggest target is Roe v. Wade, the 1973 decision that identified access to abortion as a constitutional right, yet a poll in July by NBC News and The Wall Street Journal showed an all-time high in public support for the decision, with 71 percent saying that Roe should not be overturned. The conservative wing of the court has also focused on upholding voting restrictions, gerrymanders and purges of the registration rolls. In the 2010 Citizens United decision, the same justices opened the door to a massive amount of spending to influence elections. Polls show, however, that more than 70 percent of Americans don’t like extreme partisan gerrymandering and want to overturn Citizens United.”

The importance of judicial appointments is clear from the pushback of some federal judges against Trump’s immigration laws and the separation of children from parents seeking asylum at the border. For this reason, Senate Republican leader Mitch McConnell has made the justice system a partisan battleground. According to the Washington Post, “he’s been very attuned to the power of the courts and made judges a top priority. He has described the 2016 blockade of Merrick Garland after Antonin Scalia’s death as one of his proudest achievements.” He is ready to push through 30 more lifetime District and Circuit court nominees before November’s mid-terms, though under Senate rules Democrats could delay them.

It is a dangerous moment in US politics because the Republicans have spent the years since Nixon encouraging a racist pushback against civil rights legislation, building an aggrieved and aggressive right-wing base that connected with white supremacist movements in the course of Trump’s election campaign. Josh Marshall sums it up: “The politics of aggression, norm-breaking, the penchant for conspiracy theories, the increasingly explicit white nationalism – these were all present in 2014, 2010 and in a more attenuated form in 2004. What Trump did was, through some malign and impulsive intuition, fuse these together into a workable politics. He took what was still the underbelly of Republican politics, which nevertheless provided it with the bulk of the GOP’s motive force, and made it the face, the brand.”

But what it also poses is how the public can claw back legal protections from state assaults. The guilty verdict on Chicago police officer Jason Van Dyke for killing black teenager Laquan McDonald in 2014 shows a significant shift in public appreciation of state repression of African American youth. A dashcam video showing Van Dyke unloading 16 gunshots into the 17-year-old was allegedly suppressed ahead of the mayoral election in 2015, and mayor-elect Ralph Emanuel, a Democrat, together with the Chicago police department, was accused of overseeing a cover-up. In These Times reports: “In the aftermath of the video’s release, activists staged massive protests across the city, shutting down major business districts and thoroughfares. Soon after, then-Police Chief Garry McCarthy was fired by Mayor Emanuel. And later, States’ Attorney Anita Alvarez lost a high-profile election to reformer Kim Foxx. Last month, Emanuel announced that he will not be seeking re-election for a third term, meaning that the three most prominent officials associated with the alleged cover-up will soon no longer sit in their previous positions of power.”

The release of the video came after strenuous efforts of civil rights lawyers who challenged the city’s right to withhold it for more than a year. Together with civil rights organizers, “community members in and around Chicago refused to let justice die along with McDonald. It was not the notable activists and national leaders we see on television who ensured this story did not end like so many others before. It was the citizens who cared about their community and about justice being done,” writes the executive director for Human Rights Watch, Nicole Austin-Hillery.

Building mass opposition movements is important, but so is the battle for control of the state – as the sustained efforts of right-wing Republicans demonstrate. It has to be fought on all fronts. The Democratic base is furious at Kavanaugh’s appointment, but this has to be directed at mobilizing those who do not usually vote to come out in the November mid-term elections. That could overturn the Republican hold in both the House and the Senate, allowing the possibility of a renewed investigation into Kavanaugh’s misleading testimony and his potential impeachment.

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Judge and Fury: Kavanaugh’s Rage Exposes the Festering Politicization of Justice


For the last few days, America has been transfixed by the Kavanaugh confirmation hearings. The entirely believable testimony of Dr. Blasey Ford was contrasted with Kavanaugh’s aggressive, blustering, and enraged response at her accusations’ damage to his shot at a lifetime Supreme Court judgeship.

The Court is the highest and most visible part of the justice system which is theoretically independent of the legislature and the executive branches of US government. Whatever happens with Kavanaugh’s appointment, the Court’s independence and the Senate’s legitimacy are now facing intense public scrutiny. That is why, after voting in favor of Kavanaugh on committee but then being confronted in an elevator by two angry victims of sexual assault, Senator Jeff Flake brokered a week-long delay on the final Senate vote in order to allow the FBI to conduct an investigation.

The Washington Post reported: “After this [hearing], public perception is going to increasingly be that it’s more a political body than a judicial one,” said Benjamin Barton, a law professor at the University of Tennessee who studies the federal judiciary. “To me, this will be a disaster for them.” Added Jonathan Peters, a media law professor at the University of Georgia. “The court is a political institution, yes, but as much as possible it’s critical for the justices to be — and be regarded as — impartial, trustworthy and above the political fray. The justices have reason now to be concerned.”

Republican support for Kavanaugh is only the latest in extreme partisan interference in the normal workings of the justice system, with Senate leader McConnell delaying and frustrating Obama-era appointments until Trump’s election enabled them to fill hundreds of lower-court vacancies with conservative judges. The transformation of the judiciary into a weapon of mass incarceration is a project more important to the Republican leadership, it seems, than their success in the House and Senate mid-term elections.

The New York Times commented: “Party leaders have concluded that supporting Judge Kavanaugh’s nomination, in the face of sexual assault accusations against him, will all but ensure that Republicans lose control of the House in November even as their fortunes may improve in some tough Senate races. … Even as Mr. Trump and Senate leaders acceded to an F.B.I. investigation into the accusations against Judge Kavanaugh, Republicans say they did so grudgingly. Privately, they are determined to press ahead with the confirmation process despite the political risks and the possibility that Republican senators may still defect and oppose the nomination in the end.”

The Republican Senate committee members attempted to blame the Democrats for disrupting their staged confirmation by raising Dr. Ford’s objections. Kavanaugh himself raged: “This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups,” which apparently impressed Trump enough to tweet his support.

But the Democratic representatives are voicing a muted version of public hostility to the corruption of the political system that has been festering for many years before Trump took office. Kavanaugh is closely connected to this corruption: in earlier hearings, he lied skilfully about his involvement with formulating the legal justification for torture under the Bush administration, about his extreme partisanship during the Starr attempt to impeach Clinton, and the 2000 Supreme Court verdict that gave Bush the presidency.

The Democrats on their own could not prevent Trump and the Republicans from shifting the Supreme Court sharply to the right, endangering the Roe v. Wade decision and civil rights generally. But the glare of the spotlight on the raw machinations of power may well force a retreat on Kavanaugh’s elevation – who, despite the revelations about his character, will remain in an influential position on the Washington D.C. Appeals Court.

In any case, the Republican party has now clearly branded itself the party of white male entitlement, attracting those railing against the modern world that they believe “is hostile to their individual rights, political power and social status.” But in doing so, they are alienating themselves from the mass of people who don’t regularly vote, and may well be inspired to do so in November after the hearing’s demonstration of exclusive class privilege and of hostility to women.

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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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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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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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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