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Conference To Shape Plans For Obtaining Prosecutions Of High-Level U.S. War Criminals

Sunday, September 14th, 2008

Visit the Conference Web Site http://war-crimes.info 

A conference on plans to bring high-level American war criminals to justice will be streamed live from Andover, Mass., September 13-14.

The conference has attracted eminent national and international legal authorities who will speak about the legal grounds for seeking prosecution of top administration officials, including George Bush, who appear to be guilty of war crimes.

The URL address to view the conference live or to view it afterwards from the archives is: http://www.ustream.tv/channel/warcrimesconference

“All viewers need to do to follow the proceedings is to visit the Web address and they can watch everything”, said the conference’s convener, Lawrence Velvel, a prominent legal educator.

Viewing hours will be from 9 a.m. to 5:15 p.m. Eastern Standard Time(EST) on Saturday, September 13, and from 9 a.m. to 2:30 p.m. (EST) on Sunday, September 14.

In the tradition of Justice Robert H. Jackson, America’s Chief Prosecutor at the Nuremburg War Crimes Trials after World War II, the Conference’s purpose is “to promote efforts to hold culpable officials accountable in courts of law”, said Velvel.

“Otherwise, the future could be threatened by additional examples of Executive lawlessness by leaders who need fear no personal consequences” for their actions, leading to “the possibility of more Viet Nams, and more Iraqs”, he added.

Attendees will hear from prominent authorities on international law, criminal prosecutions, and constitutional law who are determined to give meaning to Justice Jackson’s words: “The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.” MORE
http://free-pr-now.com/2008/09/09/war-crimes-conference-in-andover-ma-to-live-stream-on-the-net

The World Clock - Time Zones
http://www.timeanddate.com/worldclock

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Writers, Film-makers Defy Censors

Sunday, September 14th, 2008

IPS | “I don’t sell cocaine,” says the video vendor in Kano’s Rimi market when I ask for Adam Zango’s music video CD Bahaushiya. He is not referring to the white powder, but instead a new illegal substance — Hausa films that have not passed through the Kano State Censors Board.

The video CD I’m asking for is an especially hot drug: a series of six music videos satirising corrupt old men, lamenting fickle girlfriends, and featuring dancing Hausa girls. The musician, Adam Zango, also an actor and director in the Hausa film industry, was arrested and jailed for three months for releasing the collection during a ban on Hausa filmmaking in Kano.

The censors board in Nigeria’s northern Kano State was instituted in 2001 after the controversial implementation of Islamic shari’a law in Kano State. Film-making was at first banned outright, but the filmmakers’ association of Northern Nigeria (MOPPAN) suggested a “review” board as a compromise measure, which allowed the industry to continue, though with certain restrictions on language, dress and “close dancing between men and women.” (Five of the ten laws were specifically related to women’s clothing or interaction with men.)

The censors board and the film industry underwent an even more dramatic transformation in August 2007, when a private mobile phone video of a popular Hausa actress and her lover having sex was leaked to the public. The actress, Maryam “Hiyana”, and the man who had surreptitiously recorded the video immediately went into hiding.

Within days, hundreds of black market entrepreneurs in Kano, the centre of the Hausa-language film industry, were charging thousands of naira to see what was being called “the first Hausa blue film”. Outraged religious and political leaders called for an indefinite suspension of the Kano film industry and the mass expulsion of other performers suspected of “improper” behavior.

By late September, the Kano State Censorship Board, under the leadership of its new Director General, Abubakar Rabo Abdulkarim, had issued new, stricter guidelines to both filmmakers and writers in the state. Article 97 of the censorship regulations states that “Any person who… publicly exhibits any indecent stage show or performance, play or any show or performance tending to corrupt public morals, is guilty of an offence and is liable to imprisonment for 3 months or to a fine or to both such imprisonment and fine.”

The imprisonment clause has been put into effect several times. Besides Adam Zango, who was imprisoned in September 2007, pioneering Hausa director and former Kano State gubernatorial candidate Hamisu Lamido Iyan Tama was jailed after copies of his film Tsintsiya were impounded from a video shop in Kano in May 2008. He was accused of not registering his company Iyan Tama Multimedia with the censorship board.

(A court case reveals that the company had, in fact, registered and paid the required fees.) Ironically, the director was arrested the day of his return from the Zuma Film Festival in Abuja where Tsintsiya had won an award for Best Film on Social Issue.

The new censorship regime has had the effect of suppressing Hausa filmmaking in Kano, Northern Nigeria’s largest city. The exact size of the industry is hard to determine, but a 2002 study by the national censors board counted 133 Hausa films produced between January and August of that year, making the Hausa film industry second in size only to Yoruba.

Although filmmakers are still doing post-production in Kano, locations have been moved to neighboring states, the majority now being shot in neighbouring Kaduna State. Filmmakers bypass the Kano State Censors Board by marking “Not for sale in Kano” on their films and selling them in other states.

Following the exodus of the Hausa film-making scene from Kano State, Malam Rabo, the director general of the censors board, turned his attention to the writers in the state.

On Friday, Aug. 8, pamphlets from a mysterious “Organization for Islamic Values Protection” were distributed in the mosques around Kano claiming that writers in Kano State are agents of foreigners in a plot to destroy the Islamic upbringing of children and promote immorality. The flier specifically called for the restraint of Ibrahim Sheme, an award winning Hausa novelist to be “restrained”. According to his blog, Sheme has also received anonymous death threats.

The standoff between writers and the censorship board is escalating. A letter directed to the five writers’ organisations in Kano dated Aug. 12 confirmed a request first made in Jun. 5 for each writer in the state to register individually with the board before they can publish or distribute writing. The requirements included submission of a comprehensive list of association membership, bio-data and past publications of every member, and individual subject files to be created for each author.

In response, the writers’ associations, under the leadership of Ado Ahmad Gidan Dabino, chairman of Kano Association of Nigerian Authors, went “on strike” for three weeks. The strike ended on Aug. 16, with the writer’s associations promising, in a general communiqué, that “by next week new titles would flood the market.”

In an email update to the Association of Nigerian Authors, Dr Yusuf Adamu called on members to demand Rabo’s sacking. “Write in the papers please, people write… Those of you from the north should please write to your State Governors and complain about it.”

After an Aug. 25 meeting with both state and national leaders of the ANA, the censorship board agreed to require registration of writers’ associations rather than individuals.

Novelist Sa’adatu Baba speaks passionately against the censorship board, “I want the governor of Kano State to sack Malam Rabo from his seat. We need a reasonable person, a person who respects literature, a person who can judge us both writers and filmmakers, because I know that if we have somebody who loves literature, he cannot do this to us.”

Her passion is echoed in the responses of other artists, from Kano ANA chair Ado Ahmad Gidan Dabino, who has said in a radio interview that the government should build a new wing of the prison for writers, to Nazir “Ziriums” Hausawa, a hip hop musician who recorded a song requesting God to send plagues of piles to those who keep them from producing their art. Adam. Zango has responded to his 2007 imprisonment with a new song calling Rabo a donkey.

Such songs are banned from the radio, but pass virally from handset to handset.

The suppression of creativity in Nigeria is hardly a new phenomenon. Writers have been imprisoned and even executed like novelist and activist Ken Saro-Wiwa. However, the popular imagination combined with the subversive possibilities of such new technologies point to the impossibility of the task undertaken by the Censorship Board.

Filmmakers travel out of state to film and bring the digital tapes back in to edit, taking them back out of state to market. Writers, kept from publishing articles in local newspapers, repeat sentiments on blogs and pass digital photos of correspondence with the censors via email listserves.

Bus drivers plaster the windows of their ramshackle vehicles with stickers of “porn-star” Hiyana. Young people cite watching movies as inspiration for using their phones to record conversations with corrupt lecturers and authority figures who they then expose as hypocrites.

In the Clarendon lectures given at Oxford University in 1996, formerly imprisoned Kenyan novelist Ngugi wa Thiong’o theorised that whereas the state seeks to silence alternate stories, “art tries to restore voices to the land. It tries to give voice back to the silenced”. In Northern Nigeria , despite state-sponsored bans, book burnings, and imprisonments, it is becoming difficult to silence those voices in the first place. (END/2008)

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Making Money From Education

Sunday, September 14th, 2008

Kaplan is already prominent in the US, and they are not altogether alien to these shores either, having joint ventures with Nottingham Trent and Sheffield universities. It also owns the Dublin Business School. Kaplan generates revenues of over $1 billion per year, so it clearly knows how to squeeze a buck or two out of our public education system.

Those leading a campaign against the possibility of a profit driven university are likely to be the Coalition of Modern Universities, which represents about 30 ‘new’ universities in England. They have already criticised the government’s relaxing of laws on the awarding of degrees, because the changes could rob universities of vital funds and would unsurprisingly create an even more class-divided, elitist university system. A senior figure within the CMU said: “There has been absolutely no consultation on principle, mechanics or implications for sustainability.”

The group prides itself on being the biggest player in attracting students from poorer backgrounds to higher education. However, whatever the motivations and creation processes of the new laws, the introduction of profit-driven universities will open up the British higher education system to becoming more like American system, the most elitist and expensive in the world.

SAT scores

That the potential university will aim itself at the more wealthy customers is confirmed by its running of the SAT system for entry into such institutions. “The conventional wisdom is that the [SAT] test is just another leg up for rich kids who can shell out $1,000 for a test prep course. To some, the likes of Kaplan and Princeton Review have turned good SAT scores into a commodity, another saleable ticket into America’s Ivy League aristocracy,” says Kerry Howley, an American teacher. Once such a university comes into being over here, as is no doubt the government’s intentions, it would be in direct competition with public, established universities.

The law of the market would then be applied with ever greater force on our higher education system, and will inevitably erode what remains of its public character. In the light of this, the government’s plans to remove the cap on fees, allowing universities to charge as much as they like, are clearly a part of a larger plan. But it is not wise, even from a long-term capitalist perspective, to open up university education to speculation when this has recently proved to be so volatile as to threaten the entire world economy. Do we want the same logic that has lead to the food crisis and driven millions more into starvation, to also be applied to the way we learn? No way!

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What You Can Do to Put Bush and Cheney Behind Bars

Sunday, September 14th, 2008

By David Swanson | Remarks on September 14, 2008, at Justice Robert Jackson Conference on Planning for the Prosecution of High Level American War Criminals, Andover, Massachusetts.

I want to thank Dean Lawrence Velvel and also Sherwood Ross and Jeff Demers for putting this event together.

These remarks are posted at the top of AfterDowningStreet.org in a version that has links to materials and action pages that I reference. So you don’t have to catch everything I say.

I want everyone in this room to please do something before going to sleep tonight. Take a look at Alan Dershowitz’s op-ed in Friday’s Wall Street Journal and send a letter to the editor responding to it in your own words. It can be a sentence or three paragraphs. It should be polite and include all of your contact info. You’ll find links to the op-ed and the Email address in the version of these remarks at the top of AfterDowningStreet.org. Dershowitz thinks the rule of law is no more important than preventing a situation in which a prosecution results from an election, so he wants Obama not to prosecute. But he could have had both that result and the rule of law by asking Mukasey or McCain to prosecute. Dershowitz also suggests that the crimes of Bush and Cheney, IF there have been any, are no worse than those of any previous administration.

After you write to the Wall Street Journal objecting to Dershowitz’s op-ed, please copy it from the Wall Street Journal’s website and send it to the editorial page editor of your local newspaper asking when they are going to publish an editorial on the topic. They are far more likely to do that than to print a column favoring prosecution, and if they do they begin a debate they cannot win.

Tomorrow, Monday, September 15th, please go to http://ConvictBushCheney.org and do everything it says to do there. The first link will take you to a page that lays out Vince Bugliosi’s basic argument with an important addition. The fact is that many gold star families will oppose prosecution, but if we open the field up (admittedly as a second choice) to prosecuting attempted murder as well as murder, we may be able to work with any Iraq War veteran. You will find on the website a list of cities where we know gold star families who want to prosecute for murder, a list of cities where we know Iraq veterans who want to prosecute for attempted murder, a list of states and cities where we know of candidates for the office of prosecutor who want to prosecute, and a list of states and cities where we know of prosecutors who want to prosecute. You will also find a sample letter to send to your state and local prosecutors. Please do so.

The first argument the corporate media will use to attack this effort will be the one found in the title of Dershowitz’s column, the false claim that what you and I care about is vengeance and retribution. There is a way we can weaken that attack and make clear that our motivation is deterrence. We can oppose in the strongest terms the use of the death penalty. The death penalty does not deter. Rather it teaches that violence and revenge are right and good, and it is that mindset that people like Bush and Cheney exploit and without which they never could have launched these wars. What I want is to see Bush and Cheney behind bars for decades and communicating their regrets to their successors.

The second link you’ll find at http://ConvictBushCheney.org takes you to a page documenting the roles of the various lawyers and advisors and providing you with a how-to kit on making a citizen’s arrest. In July Judge William Price in Iowa heard the case of people arrested for trying to make a citizen’s arrest of Karl Rove. When he was told what they had done, he said “Well, it’s about time!” There is also information there and more to be added soon on filing complaints, removing from state bars, and denying tenure at universities. And I support academic freedom, but using that to defend John Yoo is as misguided as using confidentiality of sources to defend Judith Miller. A liar is not a source. And a facilitator of torture about whom the evidence is public knowledge has lost the right to freedom of any sort, academic or otherwise.

The third link you’ll find at ConvictBushCheney.org tells you how to Email or mail the International Criminal Court requesting prosecution, and what points you can use to persuade them.

The fourth link will take you to a kit for passing an ordinance in your town, as Brattleboro, Vt., has done, committing your police to arrest Bush or Cheney if they set foot in the area.

The fifth link is to conviction theme music. No revolutions without dancing, remember.

The sixth link is to buy an ARREST BUSH T-shirt, which is a major way in which you can reach people.

That’s six jobs for Monday.

On Tuesday, September 16th, our task is to define the power of the presidential pardon. We can start on Tuesday morning by all making three phone calls to (202) 224-3121 and asking for our representative and then our two senators. What we want is for them to immediately introduce a bill stating roughly this:

The presidential pardon power shall not include the power to self-pardon the president, or to pardon any staff or contractors of the executive branch, including the vice president, of crimes authorized by the president, or to preemptively pardon any individuals of crimes for which they have not yet been convicted.

If they tell you there is not time to pass it, tell them that the point is not to pass it. It would be vetoed or signing statemented or ignored. The failure of this Congress to recognize two years ago that there was nothing to be gained by passing bills has resulted in a great many deaths and tremendous suffering. The point is to get 100 cosponsors onto the thing in a week and put the issue of pardons into the news, and that is completely achievable, and the bill can be reintroduced in the next Congress.

Also on Tuesday, contact the Obama and McCain campaigns, their local offices and national, their discussion forums and staff. Find out when they will be in your area. Find out what groups are working on bird-dogging them, what groups are submitting surveys to them, etc. Plan any possible way in which you can insist that they publicly oppose the idea of presidential self-pardons and preemptive pardons. The purpose of this is not to use our issue to influence the all-important eighth consecutive Most Important Election of Your Lifetime. The purpose is to use the election to advance something much larger than any single election, the future life of a government of laws rather than a government of men and women.

Wednesday, September 17th, is Constitution Day. If you think we did a lot of work on Monday and Tuesday, you’d better eat a hearty breakfast on Wednesday. Let’s start by correcting two widespread beliefs. One is that the Clinton impeachment process took roughly forever. The other is that the Bush-Cheney era is more or less over. If these myths were both true, then four months would equal both eternity and nothing. I’m not a scientist, but I’m guessing that’s wrong. Another myth is that we need more information about the crimes of Bush and Cheney. We do not. We need to deter imitation of their crimes, and the fact is that they could be impeached in a morning and convicted the same afternoon. A little creative thinking is enough to realize that pressing for impeachment advances justice whether or not we get to impeachment.

We like to put our creativity into defeatism. When Bush came to Thomas Jefferson’s house Monticello this past July 4th a bunch of us who live near there decided to go protest him. And we did, and the protest was in the news around the world and was not reported in the horrible ways some people feared it would be. Some refused to protest because the day’s events included a naturalization ceremony for new citizens, and they feared the media would claim they were protesting that. Others refused to protest because Jefferson owned slaves and they feared the media would say they were defending Jefferson. I counted about 14 creative excuses not to act, each one stupider than the next. None were as stupid, though, as refusing to demand impeachment because Pelosi claims she doesn’t have the votes. She would have the votes if she asked for them and threatened and bribed for them, as she does for pro-war votes, and a failed impeachment would advance justice far beyond no impeachment at all.

We are told by our televisions and radios every day to stop being citizens and start being pundits and amateur strategists. We have to resist the desire to be pseudo-wise and predict failures. Every good thing ever done in this world has been predicted to fail. Our job is to act.

So, on Constitution Day, go to Washington, or call your representative and demand impeachment. Explain to them the electoral advantage, which is all they care about. Tell them we need the pressure to discourage pardons. Tell them that we need the pressure to discourage crimes and wars during the next four months. Tell them that we need impeachment after the election if not before, after the new Congress starts if not before, after Bush and Cheney leave office if not before, and after they are dead if not before, and that the movement to make it happen will only grow. Tell them that pardons are not the only danger. When Bush and Cheney are dragged into court, we do not want them to be able to say that the people of this country never impeached them. We want an impeachment to strengthen a prosecution.

If Congress will not impeach, will it commit to reissuing the subpoenas and contempt citations in the next Congress that were mocked and ignored during this one? Call the committee chairs and party leadership and Obama and McCain.

The appeals courts are going to dump the responsibility to enforce subpoenas right back where it always belonged, on Congress. Since the day this country began, Congress — either house and any committee — has had the power of inherent contempt, the power to send the Capitol Police to arrest and detain people for contempt of Congress. It’s been almost 75 years since Congress used this power, but it can use it now with Rove, Miers, et alia, or we can declare Congressional oversight dead. And you can kiss your truth and reconciliation commission goodbye too, because we can’t give subpoena power to a new institution if we don’t have it to give.

Before the business day ends on Wednesday, please do one more thing. Contact some New Hampshire state legislators to urge them to support HR24 on September 24th, which would require the state of New Hampshire to ask Congress to impeach. Yes, of course, Congress might not impeach. But we might elect a few better members to Congress, maybe even from New Hampshire.

On Thursday, lets devote our time to getting organized. There are almost no people in this room who are not white. The median age in this room doesn’t exactly suggest Sarah Palin levels of inexperience. Groups working on domestic issues are overwhelmingly outnumbered by groups working on international issues. And yet there are not enough people here from outside the country. We need to build alliances across all of these lines, and make the connections between torture in Gitmo and torture in a U.S. police station, the need to videotape interrogations in Iraq and in Illinois. We need to identify where all the money we need for a million useful things has gone. And we need to focus on wars of aggression, not just specific smaller war crimes. Doing so will bring people into our movement, and deterring wars of aggression is precisely what we have to do to survive. I recommend devoting exactly zero minutes to reading academics who try to distinguish humanitarian wars of aggression from the bad wars of aggression. Instead devote as much time as possible to explaining the simple and accurate concept of a war of aggression to others you can reach.

I also think we should consider the possibilities for prosecution opened up by the full range of crimes, and I’ve linked to a list of them, including illegal propaganda, illegal spying, misspending of funds, election fraud, etc., etc.

As we reach out to groups and build coalitions, I think we should consider ways to fund lawsuits, but also ways to set up a fund to guarantee the safety and legal defense and financial well-being of whistleblowers. I’m inclined to think that could be done in a way that would have far greater results than decades of Congressional hearings.

Friday, September 19th is the monthly Iraq Moratorium day, which means that at http://iraqmoratorium.com you can find events planned all over the country opposing the occupation of Iraq. Please go to one. Meet the organizers. Ask them to work with you on prosecuting Bush and Cheney. You’ll also find that the people doing these sorts of events tend to understand the weakest link in our civil society, which is the media. We have to learn to build our own media and support media outlets that support us. With all due respect to all the admirable groups that have bought advertisements in the corporate newspapers that daily destroy all that is good in the world, you can fund those beasts but you’d do as much good for yourself by going hunting with Dick Cheney.

Saturday the 20th is the Million Doors for Peace day, which means that at http://www.milliondoorsforpeace.org you can find people in your neighborhood making plans to knock on doors and talk with people about peace. Make flyers about prosecution and bring them along. Add that to the conversation.

And start conversations with peace groups about law suits they can file themselves, with your help. This past May 13th, the Rutgers/Newark Constitutional Litigation Clinic in New Jersey filed suit in the Federal District Court in Newark on behalf of New Jersey Peace Action against President Bush over the War in Iraq. The Complaint seeks a Declaratory Judgment that the President’s decision to launch a preemptive war against a sovereign nation violated Article I, Section 8 of the Constitution, which assigns to Congress the power to declare war.

Elizabeth de la Vega tells me there is a procedure called Qui Tam in the federal false claims act that allows individuals to sue if the government spends money fraudulently. This could potentially include not just fraudulent contracts to Halliburton but nonfraudulent contracts in a fraudulent war and a war begun secretly with funds appropriated for other things.

We also haven’t talked about suing contractors for torture, but such suits are underway. We need to look into all such possibilities with attorneys and organizations in our states and our circle of contacts.

September 21st is a Sunday, but we can forget about resting. Let’s devote the day to getting ourselves straight with the coming elections. That means funding pro-impeachment and prosecution candidates for Congress. I’ve linked to a list of over 100. And send photocopies of the checks you mail them to the other candidates and the media. It means assisting the Velvet Revolution with its ongoing lawsuit in Ohio attempting to depose key players in the election fraud of 2004. And it means getting prepared mentally and helping others get prepared mentally for the outcome of the election.

It is likely to be close, and it is likely to be stolen. If the guy you really want to lose wins, the world will not be over. Nobody can stop us from restoring democratic rights if we set our minds to it. If the guy you think is the better of the two choices wins, nothing is won in terms of serious checks on presidential power and our job is just beginning. But if the election appears stolen, let’s recognize that crime as what it is: the supreme domestic crime, differing only from other domestic crimes in that it contains within itself the accumulated evil of the whole.

At http://standingforvoters.org you can find a pledge that candidates can be asked to take, not to accept questionable election results. Regardless of the candidates, however, we should not accept questionable results. We should get organized now to immediately shut the country down until we can schedule an honest and verifiable election.

Have Your Say: What You Can Do to Put Bush and Cheney Behind Bars
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Playing with the Constitution

Sunday, September 14th, 2008

In a landmark election season hailed as historic for the inclusion of an African American and a woman as official party candidates, scarce discussion has arisen over the future of the Supreme Court. Undoubtedly, a crucial consequence of this election is a potentially radical alteration of the ideological identity of the Court. One which will possess the power to drastically alter the legal framework of this nation in regards to contentious legal issues, such as abortion, the 2nd amendment, and the limits of Executive Authority in waging “The War on Terror.” As recently witnessed by the controversial and divisive rulings on the 2nd amendment and the rights of Guantanamo prisoners, an uncomfortable battle has been brewing for the “judicial soul” of the nation.

In this exclusive interview, Professor Erwin Chemerinsky, one of the country’s most renowned, respected and opinionated constitutional law scholars and Dean of the newly established Donald Bren School of Law at the University of California, Irvine, tackles a gamut of questions on the critical legal maelstroms of today.

ALI: Abortion – many say – is arguably the most contentious, hot, and divisive topic that exits today. What should we see regarding the future of Roe v. Wade? Why is this subject, more so than any other, so vital to American society?

CHEMERINSKY: People care deeply whether women have the right to choose. For those who favor abortion rights, the central aspect is of a woman’s reproductive freedom, and therefore her liberty.  For those who oppose abortion, abortion is murder. And there’s no middle ground between these two positions.  The result of that is emotions are very deep.  Right now, the Supreme Court has 4 justices who would like to overrule Roe: Scalia, Roberts, Thomas and Alito.  And 5 who will vote to restrict abortion: Breyers, Stevens, Ginsburg, Souter and Kennedy. Justice Kennedy I think will vote to overrule Roe vs. Wade.

If McCain replaces Justice Souter or Justice Stevens or Justice Ginsberg with an anti- abortion Justice, then there will be 5 votes to overturn Roe. If Obama replaces them with a Pro-Choice Justice, the Court will stand about where it is right now.

ALI: What’s your opinion on the “constitutionally correct” take on Roe v. Wade?

CHEMERINSKY: I believe the Supreme Court got it right in Roe v. Wade. I agree that a fundamental right for a woman’s right to privacy is the ability to decide whether to have a child.

ALI: California Supreme Court now allows gay marriages. What’s your opinion on the constitutionality of gay marriage, and should it be left to the States, instead of the Federal government, to define what is marriage?

CHEMERINSKY: Marriage has always been a matter of state regulation, and I think the California Supreme Court was correct in finding a right to marriage equality under the California Constitution. Gays and Lesbians should have all the benefits of marriage as available to others in society. I think the United States Supreme Court has long recognized there is a fundamental right to marry and that discrimination against Gays and Lesbians is suspect, and I think it naturally follows from that that there should be a right to same sex marriage. I very much agree with the decision.

ALI: Mormons for example and some others say that their religion allows bigamy or polygamy. Should that be allowed? Or, should it be a state-by-state basis? Does it not hold muster under the U.S. Constitution?

CHEMERINSKY: Well, I would need to know a lot more about how bigamy and polygamy is actually practiced and whether or not it is an insubordination of women as it traditionally has been. I would want to know more and have that discussion. But to me that question is irrelevant to question should Gays and Lesbians have the same ability to express love and commitment, same ability to be disappointed or elated by marriage like the rest of us. And I see that as a basic aspect of human rights.

ALI: Recently, the Supreme Court made a controversial ruling – what many call “The 2nd amendment ruling” – allowing individuals to keep handguns for self defense. The NRA cited it as a great victory, but others sense this is the Court, yet again, catering to certain interest groups and not necessarily helping the gun violence problem in America. From a constitutional perspective, are handguns encompassed within the scope of the 2nd amendment?

CHEMERINSKY: There’s long been dispute over the meaning of the 2nd amendment. One side says that the 2nd amendment is about the right of individuals to have guns. The other side says that it is for the right to have guns for the purpose of militia service. Each side supports the text of the 2nd amendment, the amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

“Gun control” advocates say the amendment is clear. “It’s all about the right to having guns for the purpose of military service.” “Guns rights” advocates say, “…but it proclaims the right of people to keep and bear arms shall not be infringed.”

Now, the issue before the Supreme Court, not surprisingly, is divided 5 Justices to 4 Justices in the Conservative direction because 5 of the Justices are more Conservative; they ruled in favor of the “gun rights” position.

ALI: Regarding Conservative versus Liberal arguments: what’s your position on the Republican party’s claim that liberals dominate the Court and there is judicial activism – legislation through the bench? How realistic is that in your opinion?

CHEMERINSKY: It’s nonsense.  Judicial activism is the label for the decision that people don’t like. As far as liberal domination of the Supreme Court, 7 of the 9 Justices on the current Supreme Court - all but Justices Breyer and Ginsberg - were appointed by Republican Presidents.

Republican Presidents have appointed a majority of all of the lower federal court justices- it’s a substantial majority. Right now, President Bush has appointed over a third of all the lower federal court judges just himself. So, there’s no liberal domination of the bench.

In terms of judicial activism, I think by any measure the Supreme Court’s decision with regards to the 2nd amendment was judicial activism. The Courts for the first time in American history struck down a law on the basis of the 2nd amendment. The Supreme Court here for the first time in American history found that the 2nd amendment preserves an individual’s right to have guns. It’s this conservative judicial activism. So, I go back to what I said earlier, I just think judicial activism is used by people to attack the decisions they don’t like.

ALI: We have Justices Roberts, Alito, Scalia and Thomas, who lean more heavily “Right” than the other Justices lean “Left.” If we are to see a McCain presidency – and right now the polls are tied – will we see a domination of a “right wing” majority? And, will this be beneficial or detrimental for America if any ideological majority takes control of the bench?

CHEMERINSKY: The reality is the 2008 Presidential elections will determine whether the Supreme Court will be more conservative or will it stay ideologically where it is now.  It’s very unlikely the 2008 election will cause the Court to be more liberal. The reason is all of these vacancies come more from the “Left.”

Who are going to be the vacancies during the next administration January 2009 to January 2013? Well, John Paul Stevens is 88, he’s not likely to stay with the Court when he’s 93 in 2013. People always talk about Justices Souter and Ginsberg also retiring.

On the other [conservative] side, John Roberts is 54. Neither Samuel Alito nor Clarence Thomas had a 60th birthday. Antonio Scalia and Anthony Kennedy are 72, so they’ll be there at least another decade. So, if McCain replaces Stevens, Souter or Ginsberg, then the Court will be Conservative. If Obama replaces these Justices, he’ll be replacing people with the same ideology and the Court will stay the same.

ALI: Is it always better to have a majority leaning one way or another? What’s the best political ideological makeup of the bench that is healthy for the country?

CHEMERINSKY: I don’t think there is such a thing. I think if you’re liberal you want a Court that advances your views, if you are a conservative you want a court that advances your views. Ronald Regan set out, like Richard Nixon before him, of having a Conservative court. Franklin Roosevelt wanted a Liberal court. And, there’s not any perfect mix, it always is a function of what are your views and what do you want the Constitution to mean?

ALI: The U.S. government and their supporters of “The War on Terror” say the prisoners of Guantanamo should not be afforded habeas corpus and the rights afforded to U.S. citizens. Due to this stance, others have said this has been an egregious human rights violation. From a constitutional perspective, how accurate is this statement that the enemy combatants are not afforded any rights?

CHEMERINSKY: They’re not. The administration’s position from the beginning is that the non-citizens held as enemy combatants are not entitled to any protections whatsoever and the United States Supreme Court held on June 12th of this year that non-citizens held do have a right to come to federal court with a right of habeas corpus.

ALI: What will we see in regards to change as a result of this ruling? What’s the next step?

CHEMERINSKY: Now what we’re seeing is that the federal courts are hearing the habeas petitions of those in Guantanamo. I’ve been representing a Guantanamo detainee for 6 years now. I think we’re going to see – hopefully - that these individuals will finally get some Due Process. My client has been held for 6 years and has not gotten even a semblance of Due Process.

ALI: Since you’ve been following this for 6 years, what are the conditions like for these detainees? What have you personally witnessed?

CHEMERINSKY: My client is held essentially in solitary confinement for almost the entire week. He has limited amount of time out of his cell for exercise. He’s a man who has never been convicted of any crimes. Never even been accused for any crimes. Never even been tried for any crimes.

ALI: John Yoo, UC Berkeley law professor and legal advisor to President Bush, has given legal ammunition specifically for the Executive Authority to have “broad” wartime powers especially in the post 9-11 climate. From a constitutional law perspective, has the Executive Authority to wage the “War on Terror” curtailed our privacy rights –

CHEMERINSKY: (Quickly) Absolutely. There’s no doubt that things the government has done has greatly compromised our privacy without making us any safer. The government has engaged in massive warrant-less wiretapping and exceptional electronic communications – email communications - without following the law. The government is gathering information about individuals through so-called national security letters, where an FBI agent sends a letter to somebody’s bank or school just to get information. There’s no doubt that privacy has been compromised. What’s troubling is it is done without any reason to believe it has made us safer.

ALI: Many say that efficiency and justice and today’s environment warrant certain security measures such as these, so they question why people like you and other “liberals” wish to make America less secure? Why can’t the President and others of authority bypass some of these restrictive rules for the sake of overall security?

CHEMERINSKY: I agree the President should be able to make us safer. I do not want to make us unsafe in the slightest. But I want to make sure that before people lose their freedom there’s a basis for it: that we [as a country] really are made safer as a result. The President proclaims the authority to hold anybody anytime by saying it will make the country safe by just detaining people. But how do we know the President is right? Who is to say the President is making a mistake?

The framers of the Constitution were very distrustful of Executive Power. They wanted to make sure that before any person could be held by the government there was minimal due process, there was review by an independent judge, and that the President’s claim of authority to hold an enemy combatant without any Due Process – I don’t think that makes us safe. I don’t think Due Process would endanger the country. But it does risk that innocent people could be imprisoned for long periods of time without any protections.

ALI: Let’s discuss the death penalty. The international human rights community has contentious debates on how the U.S. can maintain such a “progressive image,” but at the same time tolerate the death penalty? From a constitutional point of view, is the death penalty “cruel and unusual punishment?” Do we have legal legs to stand on when we support the death penalty in the U.S.?

CHEMERINSKY: Well, it all comes down to defining that phrase: “cruel and unusual punishment.” What is “cruel and unusual punishment”? The Supreme Court in 1972 ruled in Furman v. Georgia indicating that the death penalty is inherently cruel and unusual punishment. Then, by 1976 the Court in Gregg v. Georgia backed away from that. Today, there are a number of Justices on the Court that question how the death penalty should be applied within the United States.

The fact is a number of people on death row did not have competent counsel representing them. The fact is that innocent people were convicted and sentenced to death. And, I don’t think we have a majority [of Justices] who want to identify the death penalty as cruel and unusual punishment, but certainly there are Justices who are implying that in their opinions.

ALI: What’s your take on it?

CHEMERINSKY: I think that our criminal justice system is terribly flawed especially in its failure to provide adequate counsel to people who are facing death sentences. I think the great risk that innocent people might be sentenced to death – over 100 innocent people have been discovered to be on death row because of the work of the Innocence Project. I therefore think it would be much better to have severe punishments, like life in prison without the possibility of parole, rather than the death penalty. I think the death penalty, as currently applied, is cruel and unusual punishment.

ALI: People of color and those who are poor have complained about a blind justice system; a duality of a justice system that is harsher on them.  Others say the laws are applied equally and these are just frivolous complaints. As a person who has studied the law so extensively, especially sentencing, does an inequity of justice occur with regards to class and color? If so, why?

CHEMERINSKY: Sure. Yes, there’s tremendous inequality in the justice system. The poor often can’t get lawyers nearly as good as those who are wealthy. Every way the poor are disadvantaged in the criminal justice system. Also color really matters – study after study has shown that if a Black and White offender commit the same crime, the same prior record or lack of it, the Black offender will get a lot more of a sentence than the White offender will. That’s because racism persists – especially unconscious racism in our society.

ALI: What’s the future now for affirmative action? We can’t have quotas because that is seen as race preference. But affirmative action was started mostly as an ameliorative measure to address the racial inequality in America. How do we combat racial prejudice in the system when many say there is now equality and Obama’s candidacy is the proof of that?

CHEMERINSKY: This is a country where slavery existed for the first 75 years; a country where segregation was mandated by law, allowed by the Supreme Court, until the mid 1950’s.  The legacy of those horrendous injustices continues to this day. The reality is without some form of affirmative action, key positions will only be held by a narrow category of people. Individuals of color, such as Blacks and Latinos, will be frozen out. I savor the day when we can be a colorblind constitution. But the time is now that we need affirmative action and it has to be color conscious.

ALI: There are complaints of many who say it’s preference, and that there should be a “level playing field.”

CHEMERINSKY: There’s never been a level playing field. The reality is it’s been easier to get into Harvard, Stanford or USC if you have a parent or grandparent who went there. But for a long time, those schools wouldn’t pick many Jews or racial minorities. That’s not a level playing field. No school accepts students just based on test scores and grades. It’s been easier to get into Harvard if you’re from Wyoming or North Dakota than if you’re from Boston or New York – that’s because they believe that diversity matters.

Well, what kind of diversity matters?  Racial diversity [matters] as well – and it won’t happen at elite schools without some form of affirmative action.

ALI: Speaking about schools, you’re going to take over the newly created UCI Law School. There have been many unsolicited suggestions written online for you about what courses to teach, how to teach and so forth. Have you been privy to all the websites that have popped up?

CHEMERINSKY: I’m not a reader of blogs. But some people have printed them out and sent them to me and I do have them. I welcome any advice and suggestions.

ALI: Here’s a question from some law professors: In California, especially, why do we need yet another law school and how will this law school be at all different?

CHEMERINSKY: I think we need another law school if it’s going to be different from the rest. We don’t need another law school like all the rest. I think the way in which we can be different and better is that we can do a much better job by preparing law students for the practice of law. I think we can also be a much better law school when it comes to interdisciplinary studies when compared to traditional law schools.

Wajahat Ali is a Muslim American of Pakistani descent. He is a playwright, essayist, humorist, and Attorney at Law, whose work, “The Domestic Crusaders” is the first major play about Muslim Americans living in a post 9-11 America. His blog is at http://goatmilk.wordpress.com/. He can be reached at wajahatmali@gmail.com 

Have Your Say: Playing with the Constitution
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Record Corporate Bailout Reveals the Bankruptcy of American Capitalism

Sunday, September 14th, 2008

WSWS | The US government takeover of the mortgage finance giants Fannie Mae and Freddie Mac has dealt a shattering blow to the ideology of market capitalism, which has been used for decades to justify a relentless assault on the working class and a vast transfer of wealth to the American ruling elite.

The endless invocations of the virtues of private enterprise, individual entrepreneurship and self-reliance, used to demonize socialism and defend a system that exploits the vast majority for the benefit of a financial elite, have been exposed as frauds. When it comes to big capital, losses are socialized. Only profits remain private.

The same forces who year after year have inveighed against “big government” in order to justify the removal of all legal impediments to the accumulation of corporate profits and private fortunes, and carry out the destruction of social safeguards for the working class, have engineered a massive expansion of government power to safeguard the interests of the financial elite.

The bailout has as well exposed the real relations of political power and influence behind the façade of American democracy. The largest government bailout of private companies in world history—whose ultimate cost to taxpayers is likely to reach hundreds of billions—was sanctioned in advance by the Democratic Congress and given instant approval by the leadership of both parties and both of their presidential candidates.

There have been no investigations into the greatest financial scandal in world history. Neither party has any interest in bringing to light the swindling and skullduggery of the Wall Street moguls, because they are both bound hand and foot to those responsible for the financial debacle.

What has been revealed is the existence in the United States, behind the increasingly tattered veneer of democratic institutions, of a plutocracy—the political rule of the rich. When it comes to the basic interests of the financial aristocracy, both parties and all of the official institutions of society snap to attention and do the bidding of their Wall Street masters.

The bailout of the two mortgage giants—which account for 80 percent of new home mortgages in the US—is a demonstration of the historic failure of American capitalism and the profit system on a global scale. It was precipitated by the deepest economic crisis since the Depression of the 1930s, whose epicenter is the United States. The Bush administration moved to take over Fannie Mae and Freddie Mac under conditions of a rapid erosion of international confidence in the solvency of not only these two companies, but of the United States government itself.

Over the past several months, global investors, including central banks and government investment funds, primarily in Asia and Russia, have been dumping their vast holdings in mortgage-backed securities issued by the US government-sponsored firms. Fannie Mae and Freddie Mac have a combined liability of $5.3 trillion in mortgage-backed securities which they own or guarantee. The run on their assets has not only intensified the crisis of the two companies, which are massively leveraged and have suffered billions of dollars in losses as a result of the collapse of the US housing market, it has thrown into question the status of all US government debt, including US Treasury bonds.

The US, by far the world’s largest debtor nation, with a current account deficit of nearly $800 billion, is sustained by the inflow of hundreds of billions of dollars from abroad. It currently imports $1 trillion in foreign capital every year, or over $4 billion every working day.

But the assumption by the US government of the debts of the two mortgage companies, while averting an immediate financial meltdown, only compounds the crisis of American capitalism. As Martin Wolf, the financial correspondent of the Financial Times, wrote on Tuesday, “As a result, US housing finance has been brought under direct government control and, in the process, the gross liabilities of the US government, properly measured, have increased by $5,400 billion, a sum equal to the entire publicly held debt and 40 percent of gross domestic product.”

At a stroke, US sovereign debt has doubled and is now roughly equal to America’s gross domestic product. On July 14, one day after US Treasury Secretary Henry Paulson called for legislation to give him unilateral and unlimited powers to use public funds to rescue Fannie Mae and Freddie Mac, the Wall Street Journal editorialized on the implications of a government bailout of the two companies. It wrote: “But with financial woes mounting, some investors are betting they may profit from weighing the unthinkable question: Could the US government default?”

This immense increase in US government indebtedness can only further undermine international confidence in the credit-worthiness of US Treasury bonds, resulting in a further decline in the dollar and a sharp increase in the interest paid by the US to borrow from its international creditors.

The claims made by the Bush administration, echoed by the US media, that the bailout of the two mortgage finance companies will consume at most $200 billion in public funds—itself a massive amount that eclipses previous corporate bailouts, including the $160 billion bailout of the savings and loans industry less than two decades ago—are not credible. An indication of the sums envisioned by US policy makers is the fact that the legislation passed last July giving Paulson the power to bail out Fannie Mae and Freddie Mac raised the US debt limit by $800 billion, increasing the cushion between the debt limit and current government indebtedness to $1.1 trillion.

Some sense of the social priorities of the US ruling elite and its two parties can be gleaned from a comparison between the sums being extended to bail out just these two companies and those allocated by the federal government in 2008 for education ($67.5 billion), unemployment benefits ($37.3 billion), highways and mass transit ($53.1 billion) and housing ($7.4 billion).

Moreover, the bailout of Fannie Mae and Freddie Mac is only the prelude to a far broader use of public funds to bolster the balance sheets of major corporations. Democratic presidential candidate Barack Obama and his Republican opponent John McCain are both supporting a $50 billion bailout of the US auto companies, which will inevitably entail further cuts in jobs and wages. And the plunge of the Wall Street investment bank Lehman Brothers toward bankruptcy—the firm’s stock fell by 45 percent on Tuesday—poses another rescue operation similar to the $29 billion bailout of Bear Stearns last March.

It is already being widely broached that the government establish a permanent mechanism for using taxpayer funds to buy billions of dollars in failing assets from major banks and financial companies. The Wall Street Journal wrote on Tuesday, “Creating a government-backed entity to buy up these assets could jump-start the market for home loans and relieve banks and other financial institutions, which are taking big hits to their balance sheets as they fall in value.”

The Financial Times sounded the same theme, declaring, “The US government might end up having to support the recapitalization of a much wider range of financial institutions in order to curb the credit crunch.”

These statements give the lie to the attempt to portray Fannie Mae and Freddie Mac as aberrations, which in their reckless speculation and pursuit of super profits departed from the norm. On the contrary, they typify the financial parasitism and outright criminality that have become pervasive characteristics of the workings of American capitalism and the social physiognomy of the US corporate elite.

The operations of the two government-sponsored firms are entirely in line with the unbridled speculation, based on an immense expansion of debt, that has become the hallmark of American capitalism. Their role in the housing and credit boom that has now come crashing down was of a piece with the creation of the vast edifice of paper values, engineered through the so-called “securitization” of debt, which sustained the super profits and immense salaries raked in by Wall Street.

In the wake of the bailout, press reports have noted the bloated salaries of the companies’ CEOs. Before they were sacked as part of the government takeover, Fannie Mae CEO Daniel Mudd and Freddie Mac chief Richard Syron took in between them $29.5 million over the several years they headed their respective corporations. And they stand to receive another $29 million as part of their exit packages.

But these sums are by no means exceptional. The Financial Times reported last week that compensation for major executives of the seven biggest US banks totaled $95 billion between 2005 and 2007.

The collapse of Fannie Mae and Freddie Mac is a paradigm of the US economy as a whole. Over the past three decades, the decay of American capitalism has taken the form of a vast growth of financial parasitism. At its heart, this involves the separation of wealth creation from the creation of real value in the production process. The American ruling elite has largely dismantled the productive base of the US economy, ruthlessly downsizing manufacturing at the cost of millions of jobs and the destruction of working class living standards, in order to reap higher profits from increasingly reckless forms of financial speculation.

The indices of the growth of financial speculation in the US economy are staggering: In 1982, the profits of US financial companies accounted for 5 percent of total after-tax corporate profits. In 2007, they made up 41 percent of corporate profits.

This process has generated ever greater levels of social inequality, the most telling symptom of the degenerate state of the US profit system. A report by the Congressional Research Service, updated July 31, provides a measure of the ever growing chasm between the ruling elite and the broad mass of the American people. It states that the share of national income accounted for by the top 1 percent of earners (as reported on tax returns) reached 21.8 percent in 2005—a level not seen since 1928. The report further noted that in 2006, corporate profits totaled 12.4 percent of national income, a level not reached in 50 years.

The cost of the ever-expanding bailout of American big business will be borne squarely by the working class. Even in the midst of growing unemployment and poverty and a flood of home foreclosures, there is much talk in the media about the American people “living beyond their means.”

That the next administration, whether headed by McCain or Obama, will sharply intensify the assault on working class living standards was spelled out by the New York Times, which editorialized Tuesday: “Senators John McCain and Barack Obama have both voiced support for the bailout, which shows good judgment. But what the next president will need to worry about, and both candidates need to talk about, is the depth of the country’s economic problems. It will take discipline and sacrifice to address them.”

The only alternative to a rapid lowering of working class living standards and the only rational and progressive solution to the financial crisis is a socialist program of nationalization of the entire financial system under the democratic control of the working people, with provisions to secure the investments of small depositors and share-holders. The wealth and resources of the country must be developed and allocated to meet the social needs of the population, not the money-mad strivings of financial speculators.

This policy can be carried out only through the independent political mobilization of the working class in opposition to the two-party system and the financial aristocracy which it serves. The Socialist Equality Party is dedicated to the building of such a mass socialist movement of the working class.

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Have Your Say: Record Corporate Bailout Reveals the Bankruptcy of American Capitalism
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