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Close Gitmo and End Unconstitutional Military Commissions Now

Thursday, November 13th, 2008

By Robert Greenwald |

 We have the chance to help President-elect Obama reclaim democracy and restore the rule of law in our country, which he can do on his first day in office. By shutting down the notorious Guantanamo Bay prison facility, Obama can take a major step toward redeeming our nation’s moral leadership in the world. And by ending unconstitutional military commissions and banning torture, he can cut ties with the highly controversial Bush era of national security.

We must seize this critical moment to end the abuses that the Bush administration has perpetrated for the past eight years. That’s why we partnered with the ACLU to bring to you our newest video.

This is the first in a series of videos underscoring the urgent need to close GITMO and end unconstitutional military commissions. We urge you to sign the petition and ensure that the human rights violations at GITMO never occur again. Then send this video to your friends and ask them to sign up as well.

The ACLU is taking this campaign even further by hosting an open Town Hall Meeting tonight at 8pm ET, when people from all across the country will gather via teleconference to discuss the state of civil liberties in our country. Take part in this important conversation, and help President-elect Obama take decisive action to close GITMO.

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Amnesty calls on Afghan government to halt executions

Thursday, November 13th, 2008

London - Amnesty International has called on the government of Afghanistan to repeal the death sentences against 111 people who are on death row. In a statement released in London Thursday, to coincide with a visit to London of Afghan President Hamid Karzai, Amnesty said it feared that the reported executions of nine people since last week would be followed by further death sentences being carried out.

 

“The sudden rush in executions is of serious concern, given that Afghanistan’s fledgling justice system is largely incapable of providing fair and sound trials,” said Sam Zarifi, Amnesty International’s Asia-Pacific director.

 

He urged the authorities to impose an immediate moratorium on all executions in Afghanistan, “with a view to abolishing the use of this horrific punishment.”

 

Amnesty said sentences for at least 111 people have been recently approved by Karzai, who signs the final execution orders.

 

The move was widely seen as an effort to bolster Karzai’s popularity among the Afghan people, Amnesty said.

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‘War in Iraq is over’ – US ‘media’

Thursday, November 13th, 2008

The wars in Iraq and Afganistan are now over and President George W. Bush has been indicted on treason charges, according to the New York Times. Sort of.

RT | Citizens of the Big Apple got a big shock when they picked up a ’special edition’ of the newspaper on the streets on Wednesday morning.

About 1.2 million spoof copies of the New York Times, dated July 4, 2009, were handed out by the liberal group the ‘Yes Men’, famous for their practical jokes.

Using an authentic New York Times template, they created a 14-page edition, which they also put online.

The parody newspaper announced the abolition of corporate lobbying, a maximum wage for CEOs and a recall notice for all cars that run on gasoline. It promised Americans national health insurance and resolution of the problems of the economy and global warming.

Time will tell if its predictions prove correct but some say that the newspaper came as a vision of what American Democrats would love to see under Barack Obama after he takes power in January

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Most Britons want troops out of Afghanistan: poll

Thursday, November 13th, 2008

AFP | More than two-thirds of Britons believe British troops should be pulled out of Afghanistan next year, according to an opinion poll released on Wednesday.

Sixty-eight percent said Britain should withdraw while 24 percent said British soldiers should stay in the violence-wrecked country.

Britain has over 8,000 troops in Afghanistan, largely battling Taliban insurgents in the south and more than 120 British servicemen have been killed.

Afghan Foreign Minister Rangin Dadfar Spanta, visiting London on Wednesday, called for the international coalition to deploy more combat troops to the south, where the fighting is most intense.

His British counterpart David Miliband, backed his call, saying Britain was looking for increased “burden sharing” from its NATO allies.

Prime Minister Gordon Brown said Tuesday that Britain would consider sending more troops to Afghanistan if US president-elect Barack Obama commits more US soldiers in an Iraq-style ’surge’ operation to crush the insurgents.

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Blackwater likely to be fined millions in Iraq weapons case

Thursday, November 13th, 2008

By Warren Strobel | The State Department is preparing to slap a multi-million dollar fine on private military contractor Blackwater USA for shipping hundreds of automatic weapons to Iraq without the necessary permits.

Some of the weapons are believed to have ended up on the country’s black market, department officials told McClatchy, but no criminal charges have been filed in the case.

The expected fine is the result of a long-running federal investigation into whether employees of the firm shipped weapons hidden in shrink-wrapped pallets from its Moyock, N.C. headquarters to Iraq, where Blackwater is the State Department’s largest personal security contractor.

Since the arms shipment allegations first became public 14 months ago, Blackwater, which has received $1.2 billion in federal contracts, according to the Web site fedspending.org, has consistently denied involvement in illicit arms trafficking.

However, the State Department found that Blackwater shipped 900 weapons to Iraq without the paperwork required by arms export control regulations, one department official said. Of that number, 119 were “particularly … erroneous,” he said. He and the other officials spoke on the condition of anonymity because the decision hasn’t been announced.

Federal laws require obtaining a license before exporting military hardware, including automatic weapons, overseas.

Blackwater spokeswoman Anne Tyrrell said Wednesday that the company had “not been informed of an intent to impose a fine, however … we have been cooperating with the government to respond to inquiries into our export processes.”

The State Department’s “resolution of export matters with other significant defense contractors, such as Boeing, L-3, Lockheed-Martin and General Dynamics has typically resulted in some payment” to the government, she said in an e-mail exchange.

Blackwater last month announced what it billed as a major new initiative to ensure that the company complies with rules for exporting military hardware.

Saying that “our company has experienced remarkable growth in the last few years,” Blackwater CEO Erik Prince said: “This growth, our work for the U.S. Government around the world, and the nature of the services we offer have created compliance challenges.”

Blackwater said it created the position of Vice President of Export Compliance and created a three-person independent oversight committee whose members include former U.S. Rep. Asa Hutchinson, R-Ark.

The amount of the planned fine couldn’t be learned, but one State Department official said it was “way in the millions.” The official said the fine could be announced as early as this week. A second official, however, cautioned that it’s not imminent.

Jay Greer, a spokesman for the State Department Bureau of Politico-Military Affairs, which implements defense export controls, declined comment.

The weapons case became public in September 2007 as part of a House Oversight and Government Reform Committee inquiry into then-State Department inspector general Howard Krongard.

The Raleigh, N.C., News & Observer, a McClatchy newspaper, first reported that two former Blackwater employees, Kenneth Wayne Cashwell and William Ellsworth “Max” Grumiaux, had pleaded guilty to weapons charges and were cooperating with federal prosecutors in North Carolina.

What became of the weapons may never be known.

Iraq has a brisk black market for weapons. Pentagon probes have found that Defense Department-supplied weapons intended for Iraq’s security forces were diverted. The Turkish government has complained that some ended up in the hands of the Kurdistan Workers Party, or PKK, which Washington and Ankara consider a terrorist group.

Blackwater employees are also the subjects of a Justice Department probe into the killing of 17 Iraqi civilians in Baghdad’s Nisoor Square on Sept. 16, 2007. That incident sparked outrage over the actions of private military contractors and forced the State Department to impose tighter rules on the contractors.

A federal grand jury is weighing whether to indict the Blackwater guards who were involved in the killings.

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Obama Pressured to Back Off Iraq Withdrawal

Thursday, November 13th, 2008

IPS | The promotion of Robert M. Gates as President-elect Barack Obama’s secretary of defence appears to be the key element in a broad campaign by military officials and their supporters in the political elite and the news media to pressure Obama into dropping his plan to withdraw U.S. troops from Iraq in as little as 16 months.

Despite subtle and unsubtle pressures to compromise on his withdrawal plan, however, Obama is likely to pass over Gates and stand firm on his campaign pledge on military withdrawal from Iraq, according to a well-informed source close to the Obama camp.

Within 24 hours of Obama’s election, the idea of Gates staying on as defence secretary in an Obama administration was floated in the New York Times, which reported that “a case is being made publicly by columnists and commentators, and quietly by leading Congressional voices of Mr. Obama’s own party — that Mr. Gates should be asked to remain as defence secretary, at least for an interim period in the opening months of the new presidency.”

The Wall Street Journal reported Tuesday that two unnamed Obama advisers had said Obama was “leaning toward” asking Gates stay on, although the report added that other candidates were also in the running. The Journal said Gates was strongly opposed to any timetable for withdrawal from Iraq, and it speculated that a Gates appointment “could mean that Mr. Obama was effectively shelving his campaign promise to remove most troops from Iraq by mid-2010.”

Some Obama advisers have been manoeuvering for a Gates nomination for months. Former Navy Secretary Richard Danzig publicly raised the idea of a Gates reprise in June and again in early October. Danzig told reporters Oct. 1, however, that he had not discussed the possibility with Obama.

Obama advisers who support his Iraq withdrawal plan, however, have opposed a Gates appointment. Having a defence secretary who is not fully supportive of the 16-month timetable would make it very difficult, if not impossible for Obama to enforce it on the military.

A source close to the Obama transition team told IPS Tuesday that the chances that Gates would be nominated by Obama “are now about 10 percent”.

The source said that Obama is going to stick with his 16-month withdrawal timeline, despite the pressures now being brought to bear on him. “There is no doubt about it,” said the source, who refused to elaborate because of the sensitivity of the matter.

Opposition to Obama’s pledge to withdraw combat troops from Iraq on a 16-month timetable is wide and deep in the U.S. national security establishment and its political allies. U.S. military leaders have been unequivocal in rejecting any such rapid withdrawal from Iraq, and news media coverage of the issue has been based on the premise that Obama will have to modify his plan to make it acceptable to the military.

The Washington Post published a story Monday saying that Adm. Michael Mullen, chairman of the Joint Chiefs of Staff, opposes Obama’s timeline for withdrawal as “dangerous”, insisting that “reductions must depend on conditions on the ground”. Along with Gen. David H. Petraeus, now the head of CENTCOM and responsible for the entire Middle East, and Gen. Ray Odierno, the new commander in Iraq, Mullen was portrayed as part of a phalanx of determined military opposition to Obama’s timeline.

Post reporters Alec MacGillis and Ann Scott Tyson cited “defence experts” as predicting a “smooth and productive” relationship between Obama and these military leaders “if Obama takes the pragmatic approach that his advisers are indicating, allowing each side to adjust at the margins.” But if Obama “presses for the withdrawal of two brigades per month,” the same analysts predicted, “conflict is inevitable.”

The story quoted a former Bush administration National Security Council official, Peter D. Feaver, who was a strategic planner on the administration’s Iraq “surge” policy, as warning that Obama’s timetable would precipitate “a civil-military crisis” if Obama does not agree to the demands of Mullen, Petraeus and Odierno for greater flexibility.

Underlying the campaign of pressure is the assumption that Obama’s 16-month timetable is mainly posturing for political purposes during the primary campaign, and that Obama is not necessarily committed to the withdrawal plan.

Feaver, who has returned to Duke University, said in an interview with IPS that he did not believe such a crisis was likely, because, “It is unlikely Obama will come in and do what he said he would do during the campaign.” Obama has given himself “enough wiggle room to change the plan”, Feaver said.

Similarly CNN Pentagon correspondent Jamie McIntyre also reported Nov. 7 that Obama “gave himself some wiggle room” to respond to military demands for more flexibility. McIntyre said he had “pledged to consult U.S. commanders and adjust as necessary”.

Obama’s website makes no such pledge to “adjust” the timetable. Instead it says the “removal of our troops will be responsible and phased, directed by military commanders on the ground and done in consultation with the Iraqi government.” It defends the rate of withdrawal of one or two brigades per month and offers to leave a “residual force” in Iraq to “train and support the Iraqi forces as long as Iraqi leaders move toward political reconciliation and away from sectarianism.”

When Obama met with Petraeus in Baghdad in July, Petraeus presented a detailed case for a “conditions-based” withdrawal rather than Obama’s timetable and ended with a plea for “maximum flexibility” on a withdrawal schedule, according to Joe Klein’s account in Time Oct. 22.

But Obama refused to back down, according to Klein’s account. He told Petraeus, “Your job is to succeed in Iraq on as favourable terms as we can get. But my job as a potential commander in chief is to view your counsel and interests through the prism of our overall national security.” Obama defended his policy of a fixed date for withdrawal in light of the situation in Afghanistan, the costs of continued U.S. occupation and the stress on U.S. military forces.

Opponents of Obama’s plan outside the Bush administration appear to be unaware of the fact that the Bush administration has already given up the “conditions-based withdrawal” that the U.S. military has called for in agreeing to Iraqi demands for complete U.S. withdrawal by the end of 2011.

Feaver, the former strategic planner for National Security Adviser Stephen J. Hadley, said he assumes that, “if the U.S. agreed to it, it preserves the flexibility that Petraeus and Odierno say they’ve needed all along.”

But even the small loophole left in previous versions of the text, allowing the 2011 deadline to be extended if the pact were revised with the agreement of the Iraqi parliament, has now been closed in the “final” version which the Bush administration submitted to the Maliki government last week, according to a Nov. 10 report by Associated Press, which had obtained a copy of the text.

*Gareth Porter is an investigative historian and journalist specialising in U.S. national security policy. The paperback edition of his latest book, “Perils of Dominance: Imbalance of Power and the Road to War in Vietnam”, was published in 2006

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Constitutional Dead Letters

Thursday, November 13th, 2008

by Roger Roots | Historians of Soviet Russia occasionally note that the communist workers’ paradise was originally intended to adhere to a written constitution that expressly guaranteed freedoms such as speech, press and assembly. In practice, however, none of the freedoms guaranteed in the Soviet constitution were recognized in the country’s legal system, and millions of dissenters and suspected dissenters were imprisoned or killed for disagreeing with the commissars of the state.

The United States Constitution, by contrast, is thought to be in good standing. Yet there are numerous provisions of the U.S. Constitution that are never enforced. These provisions, analogous to “dead letters” in the U.S. Postal System, are either totally ignored by federal judges or given such a narrow construction that they might as well not exist. As columnist and curmudgeon Joseph Sobran has written, the Supreme Court has, in essence, exercised a “line-item veto” over the document, totally ignoring provisions that interfere with the justices’ national vision or social objectives.

When the Supreme Court switched to discretionary certiorari in 1925 (thus allowing the court to pick and choose its own docket), the Court paved the way for a highly selective treatment of the Constitution. While some constitutional provisions (e.g., the First Amendment and the Fourth Amendment) are routinely accorded Supreme Court consideration, many others are almost completely ignored.

It can hardly be a coincidence that all of the dead letters happen to place limitations on the scope and power of government. In contrast, the few provisions of the Constitution granting powers to government have been interpreted expansively. The clause giving Congress power to regulate interstate commerce, for example, has been interpreted by the courts to allow Congress to imprison people for acts that can be linked to either commerce or interstate activities only by a tenuous series of conceptual inferences.

There are even provisions which were included in the Constitution to limit government but which have now been interpreted to empower government. The Takings Clause, which states that no person shall be deprived of property “without due process of law; nor shall private property be taken for public use, without just compensation,” was recently construed by the Supreme Court to give government at all levels near carte blanche power over all property. In a 2005 decision entitled Kelo v. City of New London, the Court reinterpreted the phrase “for public use” to mean for whatever use any government desires – including private use.

Similarly, the Fifth Amendment Grand Jury clause was placed in the Constitution in order to limit government but has now been interpreted in a way that empowers government. As the criminal law grew more complicated during the 1800s, courts began allowing public prosecutors to appear and discuss cases before grand juries (a practice strictly forbidden at the time of the Founding). This became embedded in grand jury practice by the 1900s. Today’s Federal Rules of Criminal Procedure state that prosecutors may be present before grand juries at all times and prohibit grand jurors from issuing independent presentments.

There is nothing new about this insidious trend. The Necessary and Proper clause was originally intended to bind Congress to legislating only in ways that were “necessary” to carry out the few limited powers the national government had been granted. By the early nineteenth century, however, the Supreme Court had already interpreted “necessary and proper” to mean only “proper” – in the eyes of the government. As Jefferson observed, “[t]he natural progress of things is for liberty to yield and government to gain ground.”

Courts have increasingly subjected all rights mentioned in the Constitution to balancing tests, meaning that rights have become mere interests to be balanced against the (always pressing) interests of government. Thus, it is asserted that “no rights are absolute” and that courts may deny the application of a right where “the Government’s regulatory interest in community safety

. . . outweigh[s] an individual’s liberty interest.” However, the Supreme Court has abandoned any pretense of balancing tests with regard to governmental powers (such as those found in the Tax Clause or the Spending Clause), for which the Constitution’s provisions are described as plenary.

Some rights enshrined in the Constitution are rendered dead by the lack of any remedy to enforce them. For example, in 1974, the Supreme Court held that no taxpayer ever has standing to challenge the secret budget of the CIA (which clearly violates Article 1’s requirement that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; and a regular Statement and Account . . . of all public Money shall be published”).

Finally, there are newly invented “maxims” of law that have crept into modern jurisprudence by means of pronouncements that they are long-recognized. One such so-called maxim originated with Justice Stone’s “Footnote Four” in the 1938 case of United States v. Carolene Products Company. Justice Stone proclaimed that most congressional enactments are “presumed constitutional” and will be struck down only if they blatantly contradict explicit constitutional protections. Stone’s “presumption of validity” has been cited in dozens if not hundreds of appellate decisions to turn away constitutional challenges.

As many scholars have pointed out, this “presumption of constitutionality” was enunciated nowhere in the many letters and speeches that punctuated ratification debates in the late 1700s. In fact, Founding-era voices more than occasionally expressed the opposite opinion. A widely-distributed editorial by Alexander White, a member of the First U.S. Congress from Virginia, proclaimed (in opposition to proposals for a bill of rights) that “In America it is the governors not the governed that must produce their Bills of Rights: unless they can shew the charters under which they act, the people will not yield obedience.” Moreover, the Carolene Products presumption of validity can be said to overrule the plain text of the Ninth Amendment (”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) as well as the Tenth Amendment (”The powers not delegated to the United States by the Constitution . . . are reserved to the States . . . or to the people”).

A list of other recently invented “maxims” would include (1) Justice Robert H. Jackson’s proclamation in 1949 that the Constitution is not a “suicide pact” (i.e., it should never be interpreted to mean the government is not always in control), and (2) the doctrine of “harmless error” (invented in 1967 in Chapman v. California) by which an appellate court may concede a constitutional violation but uphold a criminal conviction by proclaiming that the defendant would have been convicted even if the Constitution had been followed. There are also insidious doctrines such as “sovereign immunity” (which allows government agents to escape liability for illegal acts – on the ground that they are with the government) and the “state secrets” doctrine (which deprives citizens of any redress by the assertion that proof of a constitutional violation would expose intelligence sources or methods), which are found nowhere in the text or the original understanding of the Constitution.

Of course, liberty dies incrementally, and the leviathanic government we see today took generations to bring about. It has been largely forgotten that the prohibition of intrastate liquor sales in the early twentieth century required a constitutional amendment (the Eighteenth) because policymakers and judges recognized that Congress had no constitutional authority to regulate intrastate sales of any commodity. The Supreme Court even wrote in a 1932 decision that “sales of [ ] forbidden drugs qua sales” was “a matter entirely beyond the authority of Congress.” The recent Gonzales v. Raich decision (upholding federal drugs laws as trumping California’s medical marijuana protections) highlights the fact that recent generations of Supreme Court justices have amended the Constitution without formal process.

A list of constitutional dead letters follows below. I honestly don’t know what weight to give some of the Bush Administration’s “unitary executive” practices such as its warrantless domestic eavesdropping and treatment of detainees at Guantanamo Bay, which amount to complete abdications of the procedural rights laid out in the 4th, 5th, 6th and 8th Amendments. (If such matters are considered, it becomes arguable that the entirety of the Bill of Rights is a dead letter even if some of the rights are partially recognized for some people.) The list enumerated below, to paraphrase the dead-lettered Ninth Amendment, should not be considered all-inclusive, and there are, no doubt, other dead-lettered constitutional provisions I have neglected to identify.

• The House origination clause, Art. 1, § 7, requiring that all “Bills for raising Revenue shall originate in the House of Representatives,” has been rendered a dead letter by neglect. As Congressman Ron Paul has pointed out, the 2008 bank bailout bill with all its tax implications was deliberately introduced in the Senate after House members rejected it – a plain violation of this clause. Similar practices have gone on for many years.
• The congressional declaration of war clause, Art. 1, § 8. No “war” in the constitutional sense has been declared since 1941, although the executive branch has engaged in numerous undeclared wars and military escapades around the globe.
• The public accounting clause Art. 1, § 10: As already discussed, the secret budget of the CIA is in plain conflict with Article I of the Constitution (”No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time”).
• The Legal Tender Clause, Art. 1, § 10, prohibiting states from making “any Thing but gold and silver Coin a Tender in Payment of Debts.” The application of the Federal Reserve Act and many other statutes and executive orders are in plain violation of this clause. State and Federal governments demand and provide payment in paper currencies that are unbacked by any precious metals.
• The prohibition against bills of attainder, Art. 1, §10 – which was supposed to ensure that no one could ever be punished by the legislature – has been addressed only four times by the Supreme Court. Congress regularly enacts new laws placing extrajudicial punishments on various groups (felons, convicted sex offenders, disfavored corporations such as Wal-Mart, and even entire industries (e.g., “Big Tobacco”)).
• The Contract Clause, Art. 1, § 10, prohibiting states from impairing contractual obligations. Long dead and buried. Today the federal courts uphold wage, work, production, pricing, licensing and advertising regulations of every manner, irrespective of the Contract Clause.
• The Second Amendment right to bear arms. Despite the recent Heller decision (which issued a “landmark” ruling that the Amendment protects an individual right), there are still thousands of felons and other persons in federal prison for the mere possession of firearms. No defendant has ever been released from prison or cleared of gun charges in federal court on account of judges recognizing the right to bear arms. The gist of the Heller decision is that the Amendment protects a “reasonable” right to bear government-approved arms so long as you are government-approved. Of course, such a limited and conditional reading of the Second Amendment renders it a dead letter. The leaders of the American Revolution were themselves accused (and some convicted) felons, and several were notorious criminals (e.g., John Hancock, an accused tax evader and smuggler; John Paul Jones, a twice-indicted murderer who adopted his name as an alias to avoid arrest).
• The Fifth Amendment Grand Jury clause. While federal grand juries do still exist, they are now wholly subject to the control of federal prosecutors – the very persons the Clause was intended to limit. The grand juries known to the Framers were civilian institutions that acted independently of prosecutors, could investigate prosecutors, and could indict prosecutors. Today, prosecutors dispense all evidence, witnesses and testimony to the grand jurors, who then retire to a deliberation room to vote on whether to approve the prosecutors’ wishes. (A “no” vote will just mean that the prosecutors will coerce another grand jury to vote on the same case.)
• The Fifth Amendment Double Jeopardy clause. Today, the federal government commonly charges defendants who have been previously charged with essentially the same offense in state court (and vice versa). This usually happens after an acquittal or a “light” sentence in the first prosecution. Because Congress has federalized almost every state crime over the past four decades (something the Founders could never have imagined), federal and state prosecutors are able to get two bites at the apple despite the double jeopardy clause.
• The Sixth Amendment right to jury trial in criminal cases. My inclusion of this one may puzzle some readers, because thousands of jury trials take place in American courtrooms annually. But the right to jury trial has been stripped for the vast majority of criminal prosecutions. Supreme Court rulings beginning in the late 1800s confined this right to cases of “serious” rather than “petty” crimes (i.e., punishable by less than six months’ imprisonment). This distinction exists nowhere in constitutional text, which explicitly guarantees a jury trial “[i]n all criminal prosecutions ” and for “all crimes.” The change has allowed government to impose its will on the populace with far greater efficiency. Justices Black and Douglas observed in a 1970 concurrence that their colleagues on the Supreme Court had effectively amended the Constitution by applying a balancing test and that “[t]hose who wrote and adopted our Constitution and Bill of Rights engaged in all the balancing necessary. They decided that the value of a jury trial far outweighed its costs for ” all crimes” and “[i]n all criminal prosecutions.”
• Of course, plea bargains have replaced jury trials in most “serious” cases, allowing government to prosecute and imprison a far higher proportion of the American population than the Framers could have anticipated. And even where defendants take their charges to trial, they are tried before emasculated juries that are ordered to follow the judges’ interpretations of the Constitution and the laws. The Founders would have condemned this wholesale takeover of juries by modern judges.

• The Sixth Amendment vicinage clause (requiring an “impartial jury of the State and district wherein the crime shall have been committed”). In practice today, most federal court proceedings have been centralized into the largest urban areas of each federal court district, leaving rural defendants in many cases to face trials before urban juries drawn from jury districts that do not include the scene(s) of the alleged offense(s).
• The Seventh Amendment right to jury trial in civil cases where the amount in controversy exceeds twenty dollars ($20). The eternal drive of government officials at every level to collect petty duties, traffic and parking tickets, fees and other tributes has necessitated that they circumvent the plain language of the Seventh Amendment. Today the Seventh Amendment is one of three articles in the Bill of Rights not incorporated into state court practice by the Fourteenth Amendment. Even in federal courts, the civil remedies mandated by the Seventh Amendment are painted into an extremely narrow corner.
• The Ninth Amendment protection of other “rights retained by the people.” As already discussed, this important provision, insisted upon by the Anti-Federalists in 1791, has been dead-lettered by a combination of judicial doctrines, maxims and sophistries that in essence leave the people with few or no reserved rights.
• The Tenth Amendment. At the heart of the Supreme Court’s dead letter file is the abandonment of federalism in order to create a centralized regime run from Washington. Under the Founders’ intent, of course, each state was to retain its own sovereignty while the federal government was to act as the states’ mutual delegate in matters of foreign and interstate affairs. The absence of this rule in the pre-amendment Constitution precipitated massive resistance across the colonies. Yet today the federal courts regard the Tenth Amendment as a quaint “truism” – a mere statement that the States get to keep whatever jurisdiction is not overtaken by the federal government.
• The Fourteenth Amendment Privileges and Immunities clause, which was intended to require states to recognize legal rights recognized by the federal government and other states, was mostly dead-lettered in 1873 in The Slaughterhouse Cases, in which the Supreme Court held the provision applied primarily to freed slaves. In recent decades, courts have looked to the Fourteenth Amendment Due Process clause to replace the dead-lettered Privileges and Immunities clause.
• The Twenty-Seventh Amendment, which requires that “No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened,” has been rendered a dead letter by means of the Supreme Court’s “standing” jurisprudence.

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John Pilger: What “Change” In America Really Means

Thursday, November 13th, 2008

By John Pilger |

My first visit to Texas was in 1968, on the fifth anniversary of the assassination of president John F Kennedy in Dallas. I drove south, following the line of telegraph poles to the small town of Midlothian, where I met Penn Jones Jr, editor of the Midlothian Mirror. Except for his drawl and fine boots, everything about Penn was the antithesis of the Texas stereotype. Having exposed the racists of the John Birch Society, his printing press had been repeatedly firebombed. Week after week, he painstakingly assembled evidence that all but demolished the official version of Kennedy’s murder.

This was journalism as it had been before corporate journalism was invented, before the first schools of journalism were set up and a mythology of liberal neutrality was spun around those whose “professionalism” and “objectivity” carried an unspoken obligation to ensure that news and opinion were in tune with an establishment consensus, regardless of the truth. Journalists such as Penn Jones, independent of vested power, indefatigable and principled, often reflect ordinary American attitudes, which have seldom conformed to the stereotypes promoted by the corporate media on both sides of the Atlantic. Read American Dreams: Lost and Found by the masterly Studs Terkel, who died the other day, or scan the surveys that unerringly attribute enlightened views to a majority who believe that “government should care for those who cannot care for themselves” and are prepared to pay higher taxes for universal health care, who support nuclear disarmament and want their troops out of other people’s countries.

Returning to Texas, I am struck again by those so unlike the redneck stereotype, in spite of the burden of a form of brainwashing placed on most Americans from a tender age: that theirs is the most superior society in the history of the world, and all means are justified, including the spilling of copious blood, in maintaining that superiority.

That is the subtext of Barack Obama’s “oratory”. He says he wants to build up US military power; and he threatens to ignite a new war in Pakistan, killing yet more brown-skinned people. That will bring tears, too. Unlike those on election night, these other tears will be unseen in Chicago and London. This is not to doubt the sincerity of much of the response to Obama’s election, which happened not because of the unction that has passed for news reporting from America since 4 November (e.g. “liberal Americans smiled and the world smiled with them”) but for the same reasons that millions of angry emails were sent to the White House and Congress when the “bailout” of Wall Street was revealed, and because most Americans are fed up with war.

Two years ago, this anti-war vote installed a Democratic majority in Congress, only to watch the Democrats hand over more money to George W Bush to continue his blood fest. For his part, the “anti-war” Obama never said the illegal invasion of Iraq was wrong, merely that it was a “mistake”. Thereafter, he voted in to give Bush what he wanted. Yes, Obama’s election is historic, a symbol of great change to many. But it is equally true that the American elite has grown adept at using the black middle and management class. The courageous Martin Luther King recognised this when he linked the human rights of black Americans with the human rights of the Vietnamese, then being slaughtered by a liberal Democratic administration. And he was shot. In striking contrast, a young black major serving in Vietnam, Colin Powell, was used to “investigate” and whitewash the infamous My Lai massacre. As Bush’s secretary of state, Powell was often described as a “liberal” and was considered ideal to lie to the United Nations about Iraq’s non-existent weapons of mass destruction. Condaleezza Rice, lauded as a successful black woman, has worked assiduously to deny the Palestinians justice.

Obama’s first two crucial appointments represent a denial of the wishes of his supporters on the principal issues on which they voted. The vice-president-elect, Joe Biden, is a proud warmaker and Zionist. Rahm Emanuel, who is to be the all-important White House chief of staff, is a fervent “neoliberal” devoted to the doctrine that led to the present economic collapse and impoverishment of millions. He is also an “Israel-first” Zionist who served in the Israeli army and opposes meaningful justice for the Palestinians – an injustice that is at the root of Muslim people’s loathing of the United States and the spawning of jihadism.

No serious scrutiny of this is permitted within the histrionics of Obamamania, just as no serious scrutiny of the betrayal of the majority of black South Africans was permitted within the “Mandela moment”. This is especially marked in Britain, where America’s divine right to “lead” is important to elite British interests. The once respected Observer newspaper, which supported Bush’s war in Iraq, echoing his fabricated evidence, now announces, without evidence, that “America has restored the world’s faith in its ideals”. These “ideals”, which Obama will swear to uphold, have overseen, since 1945, the destruction of 50 governments, including democracies, and 30 popular liberation movements, causing the deaths of countless men, women and children.

None of this was uttered during the election campaign. Had it been allowed, there might even have been recognition that liberalism as a narrow, supremely arrogant, war-making ideology is destroying liberalism as a reality. Prior to Blair’s criminal warmaking, ideology was denied by him and his media mystics. “Blair can be a beacon to the world,” declared the Guardian in 1997. “[He is] turning leadership into an art form.”

Today, merely insert “Obama”. As for historic moments, there is another that has gone unreported but is well under way – liberal democracy’s shift towards a corporate dictatorship, managed by people regardless of ethnicity, with the media as its clichéd façade. “True democracy,” wrote Penn Jones Jr, the Texas truth-teller, “is constant vigilance: not thinking the way you’re meant to think and keeping your eyes wide open at all times.”

www.johnpilger.com

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Illegal tax scheme gives $140 billion to biggest US banks

Thursday, November 13th, 2008

By Bill Van Auken |

 

An extra-legal measure quietly enacted by the Treasury Department in the shadow of the $700 billion Wall Street bailout package will hand the country’s biggest banks another $140 billion windfall, the Washington Post reported this week.

In a five-sentence memo issued on September 30, on the eve of the first House vote on the bailout bill, the Treasury Department unilaterally overturned a two-decade-old tax law passed by Congress. The measure denied profitable companies the ability to shield their profits from taxation by buying up bankrupt firms as shell companies and using their losses as a tax dodge.

The law, section 382 of the tax code, was enacted by Congress in 1986. It was aimed at curtailing what was seen as an egregious corporate scamming of the tax system. The Republican right and corporate lobbyists have been pushing for the measure’s repeal or amendment ever since.

Treasury Department spokesman Andrew DeSouza defended the action, telling the Post that the administration had the power to overturn a law passed by Congress as part of its mandate to interpret the tax code. He further insisted that the action was a necessary means of rescuing the banks from the financial meltdown.

“This is part of our overall effort to provide relief,” he said.

The Post reported in its November 10 article: “More than a dozen tax lawyers interviewed for this story - including several representing banks that stand to reap billions from the change - said the Treasury had no authority to issue the notice.”

“Did the Treasury Department have the authority to do this? I think almost every tax expert would agree that the answer is no,” George K. Yin, the former chief of staff of Congress’s Joint Committee on Taxation, told the Post. “They basically repealed a 22-year-old law that Congress passed as a backdoor way of providing aid to banks.”

The action by the Treasury Department has been dubbed the “Wells Fargo Ruling,” as it apparently provided direct aid to the successful bid by Wells Fargo to buy up the failing Wachovia bank. According to sources cited by the Post, the tax change will net Wells Fargo $25 billion from the deal.

In other similar takeovers, PNC bank, enjoyed a windfall of $5.1 billion in its takeover of National City as a result of the scrapping of the tax law, while the Spanish Banco Santander gained another $2 billion because of the change when it gobbled up Sovereign Bancorp.

The clear aim of the tax measure was to steer the hundreds of billions of dollars that have been injected into the biggest private banks into the profitable buying up of their weaker competitors, thereby facilitating the concentration of economic power in the hands of a few giant banks, allowing them to exercise monopoly control over the financial system.

The cost of the measure will be paid by American working people, who will be faced with the slashing of funds for health care, education and other vital social programs in order to make up for the tax giveaway to the banks.

The most revealing aspect of the Post article is its depiction of the reaction of the Democratic leadership in the US Congress to the Treasury Department’s usurpation of power through the unilateral repeal of a law by executive fiat.

As the article makes clear, neither Treasury Secretary Henry Paulson nor anyone else in the department bothered to inform Congress of the action.

While leading legislators were described as “outraged” when they discovered the action days later, they acted deliberately to keep it from being revealed to the American people.

“Lawmakers worried about discussing their concerns publicly,” the Post reported. When a conference call was organized between Treasury and Capitol Hill staff members, the staff of Senator Max Baucus (Democrat-Montana), the chairman of the Finance Committee, “asked that the entire conference call be kept secret,” the Post reported.

The newspaper quoted one congressional aide as saying: “We’re all nervous about saying that this was illegal because of our fears about the marketplace. To the extent we want to try to publicly stop this, we’re going to be gumming up some important deals.”

Another aide told the Post, “None of us wants to be blamed for ruining these mergers and creating a new Great Depression.”

The newspaper cited legal experts who compared the Democrats’ spinelessness in their secret protests over the extra-legal measures by the Treasury Department to similar objections made before the Democratic leadership passed the measure granting the Bush administration unrestricted power to wage a war of aggression against Iraq.

This extraordinary episode has exposed the complete subservience of the Democratic Party to the interests of Wall Street and the willingness of its leadership to submit to an effective dictatorship exercised by finance capital in violation of the law and the US Constitution.

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Lest We Forget: Could the First World War Have Been Stopped?

Thursday, November 13th, 2008

By George Monbiot |

Like most people of my generation, I grew up with a mystery. I felt I understood the Second World War. The attempt to dominate and destroy, to eliminate the people of other races — though raised to unprecedented levels by the Nazis — is a familiar historical theme. The need to stop Hitler was absolute, and the dreadful sacrifices of the Second World War were unavoidable.

But the First World War, which ended 90 years ago today, seemed incomprehensible. The class interests of the men sent to kill each other were the same. While Germany was clearly the aggressor, the outlook of the opposing powers — seeking to expand their colonies and to dominate European trade was not wildly different. Ugly as the German state was, no one could characterize the war at its outbreak — with Tsarist Russia on the side of the Entente Powers — as a simple struggle between democracy and dictatorship. Neither did this resemble the current war in Iraq, in which legislators send the children of another class to die. The chances of being killed were at least five times higher for men who had been students at Oxford or Cambridge in 1914 than they were for manual workers.¹ The First World War was an act of social cannibalism, in which statesmen and generals on both sides murdered their own offspring. How could it have happened?

On July 1st 1999, consumed by the urge to understand the war before the century was over, I visited Thiepval on the Somme. This was the anniversary of the first great attack on the German salients, which caused devastating losses for British and Irish troops. Men carrying flutes and dressed in orange sashes — commemorating the Ulster Division — paced about. Beneath the arches of the Lutyens memorial a circle of evangelical Christians hugged and screamed and ululated, while a little boy dressed in combat gear played around their legs with a plastic machine-gun. I goggled at the names on the monument — the 73,000 commemorate only the British and South Africans who fell on the Somme and whose bodies were not recovered — but I couldn’t grasp the scale of what I saw.

Dizzied by these conflicting sights, unable to connect, I wandered behind the old German lines and into a field of sugar beet. Walking between the rows, trying to clear my head, I noticed a spherical pebble. I picked it up. It was strangely heavy. Then I looked around and saw that the field was covered with the same odd little balls. Almost every stone was in fact metal. Within a minute I picked up more grapeshot than I could hold. I found shell casings, twisted bullets, fragments of barbed wire, chips of armor plating. I stopped, overwhelmed by shock and recognition. It was a field of lead and steel; and every piece had been manufactured to kill someone.

There are plenty of words to describe the horrors of World War Two. But there were none, as far as I could discover, that captured the character of the First World War. So I constructed one from the Greek word ephebos, a young man of fighting age. Ephebicide is the wanton mass slaughter of the young by the old. But how did it happen, and why?

In his fascinating book The Last Great War, published a fortnight ago, Adrian Gregory shows that the notion that Britain was carried to war on a wave of patriotic enthusiasm is false.² The crowds that gathered around Buckingham Palace and in Downing Street when war was declared seem to have been more curious than excited. Most people appear to have greeted the war with resignation or dismay. Nor does voluntary enlistment provide clear evidence of enthusiasm. It is true that some wanted to fight, and others saw war as a more exciting prospect that working in a dead-end office job.³ But Gregory shows that voluntarism wasn’t all that it seemed. For many men fighting was the only employment on offer. The largest numbers volunteered not at the very beginning of war, but after the disaster at Mons on August 24th, when it became clear that there was a genuine threat to national defense.⁴

The speed with which the war began and Britain joined made effective resistance impossible to organize. By the time the anti-war meetings had been called, it was too late. And by then there was a genuine need to stop Germany. It was as rational to seek to curtail German expansionism in August 1914 as it was in September 1939.

But the narratives, like Gregory’s, which suggest that World War One was inevitable begin late in the sequence of events.⁵ Another anniversary, almost forgotten in this country, falls tomorrow. On November 12th 1924, Edmund Dene Morel died. Morel had been a shipping clerk, based in Liverpool and Antwerp, who had noticed, in the late 1890s, that while ships belonging to King Leopold were returning from the Congo to Belgium full of ivory, rubber and other goods, they were departing with nothing but soldiers and ammunition. He realized that Leopold’s colony must be a slave state, and launched an astonishing and ultimately successful effort to break the king’s grip.⁶ For a while he became a national hero. A few years later he became a national villain.

During his Congo campaign, Morel had become extremely suspicious of the secret diplomacy pursued by the British foreign office. In 1911, he showed how a secret understanding between Britain and France over the control of Morocco, followed by a campaign in the British press based on misleading foreign office briefings, had stitched up Germany and very nearly caused a European war.⁷ In February 1912 he warned that “no greater disaster could befall both peoples [Britain and Germany], and all that is most worthy of preservation in modern civilization, than a war between them.”⁸ Convinced that Britain had struck a second secret agreement with France that would drag us into any war which involved Russia, he campaigned for such treaties to be made public; for recognition that Germany had been hoodwinked over Morocco and for the British government to seek to broker a reconciliation between France and Germany.

In response British ministers lied. The prime minister and the foreign secretary repeatedly denied that there was any secret agreement with France.⁹ Only on the day before war was declared did the foreign secretary admit that a treaty had been in place since 1906. It ensured that Britain would have to fight from the moment Russia mobilized. Morel continued to oppose the war and became, until his dramatic rehabilitation after 1918, one of the most reviled men in Britain.

Could the Great War have been averted if, in 1911, the British government had done as Morel suggested? No one knows, as no such attempt was made. Far from seeking to broker a European peace, Britain, pursuing its self-interested diplomatic intrigues, helped to make war more likely. Germany was the aggressor; but the image of affronted virtue cultivated by Britain was a false one. Faced, earlier in the century, with the possibilities of peace, the old men of Europe had decided that they would rather kill their children than change their policies.

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