Dissident Veteran For Peace

    Among the prohibitions of international humanitarian law relevant to this case are the prohibitions against weapons which cause superfluous injury, weapons which do not differentiate between combatants and civilians, and weapons which do not respect the rights of neutral states.

***

    It is not to the point that such results are not directly intended, but are "by-products" or "collateral damage" caused by nuclear weapons. Such results are known to be the necessary consequences of the use of the weapon. The author of the act causing these consequences cannot in any coherent legal system avoid legal responsibility for causing them, any less than a man careering in a motor vehicle at 150 kilometres per hour through a crowded market street can avoid responsibility for the resulting deaths on the ground that he did not intend to kill the particular persons who died.

   The plethora of literature on the consequences of the nuclear weapon is so much part of common universal knowledge today that no disclaimer of such knowledge would be credible.

***

    An argument that has been advanced in regard to the principle regarding "unnecessary suffering" is that, under Article 23 ( e ) of the 1907 Hague Regulations, it is forbidden, "To employ arms, projectiles, or material calculated to cause unnecessary suffering" (emphasis added). The nuclear weapon, it is said, is not calculated to cause suffering, but suffering is rather a part of the "incidental side effects" of nuclear weapons explosions. This argument is met by the well-known legal principle that the doer of an act must be taken to have intended its natural and foreseeable consequences ... It is, moreover, a literal interpretation which does not take into account the spirit and under lying rationale of the provision — a method of interpretation particularly inappropriate to the construction of a humanitarian instrument. It may also be said that nuclear weapons are indeed deployed "in part with a view to utilising the destructive effects of radiation and fall-out".

Source: International Court of Justice, Advisory Opinion, On the Legality of the Threat or Use of Nuclear Weapons (8 July 1996), "Dissenting Opinion of Judge Weeramantry", pp. 255, 269-270, 276-277 (477, 491-492, 498-499).

Labels: law, nuclear weapons, quotations, War

U.S. support for partition of Palestine ... can be justified only on the basis of Arab and Jewish consent. Otherwise we should violate the principle of self-determination which has been written into the Atlantic Charter, the Declaration of the United Nations, and the United Nations Charter – a principle that is deeply embedded in our foreign policy. Even a United Nations determination in favor of partition would be, in the absence of such consent, a stultification and violation of UN's own charter.

Source: A "top-secret memorandum under date of October 15" [1947], by Gordon Merriam, Chief of the US State Department's Division of Near Eastern Affairs, as quoted in Evan M. Wilson, Decision on Palestine: How the U.S. Came to Recognize Israel (Hoover Inst. Pr. 1979), p. 99.

Labels: history, Israel, law, Palestine, quotations

When it comes to Palestine-Israel, Daniel Larison is better than most on the American Right. For instance, in 2019, he astutely observed, "Israel is not America's Ally". This may help explain why he is no longer a senior editor at The American Conservative, which, as of today, has said nothing about Israel's latest criminal "mowing the grass" in Gaza.

On May 12, 2021, Larison wrote:

Every time that the Israeli military carries out indiscriminate attacks on civilian areas in the occupied territories and kills Palestinian civilians, there is inevitably the rote response from American politicians and pundits that Israel has the “right to defend itself.” In almost all cases, this invocation of the right of self-defense is an all-purpose permission slip that gives any Israeli military action a stamp of approval ... What makes this all the more tedious is that no one actually disputes that Israel is permitted to defend itself. [emphasis added]

This is a little strange because in a different article Larison notes: "The Israeli government has gone out of its way in recent weeks to confirm that it is an apartheid state." Apartheid is a crime under international law. 

Objectively, in the case of Palestine, Israel is the aggressor, not the defender. Criminals have no right of self-defense in furtherance of their crimes or in securing the fruits of their crimes. Furthermore, occupying powers, such as Israel, have no legal right of self-defense against people resisting occupation. Moreover, even if Israel did have a right of self-defense that would not permit them, as they have repeatedly done, to violate the principles of distinction and proportionality.

Labels: apartheid, Carlos Latuff, Israel, law, Palestine, War

The prosecution in State v. Chauvin has presented, through its witnesses, an incoherent theory as to how Derek Chauvin allegedly killed George Floyd. Except for an opening statement, the defense has not yet presented it case.

Yet, the prosecution's witnesses have repeatedly given testimony that fundamentally undermines the prosecution's case against Chauvin. For instance, some witnesses testified Floyd died of "positional asphyxia" yet the only witness to perform an autopsy on Floyd testified there was no evidence of asphyxia (see also here). If the state cannot settle on how Chauvin supposedly killed Floyd then how can they honestly argue he is guilty beyond a reasonable doubt?

Minneapolis Police Dept. Excited Delirium training slide (cropped)

Judging by the currently available evidence, the Chauvin prosecution is a political show trial orchestrated by corrupt politicians and a corrupt mainstream corporate media. From the point of view of race grifters and their corrupt enablers the trial is a win no matter what happens. If Chauvin is convicted then they will argue that affirms the false narrative of state-sanctioned routine, deadly, racist police violence against Black people. If Chauvin is not convicted or not convicted of the most serious charge(s) then they will claim that proves Black people cannot get justice and you can expect more of the rioting, looting, arson, and violent crimes that we saw last summer and fall.

However, unless there is some smoking gun soon presented by the prosecution Judge Cahill should dismiss the charges "in furtherance of justice" pursuant to Minn. Stat. § 631.21 after the prosecution finishes presenting its case. Since it is extremely unlikely that Cahill, given his past performance, will do this defense counsel Eric Nelson should consider filing a motion for a judgment of acquittal pursuant to Minn. R.Crim. P. 26.03, subd. 18(1)(a).

It's unlikely that Cahill would grant such a motion on any of the three counts but it's not impossible that he might acquit on one or two of the counts against Chauvin and, from my armchair, non-lawyer perch, I don't see that the defense has a lot to lose by filing the motion. The calculus, of course, includes weighing the time and energy involved in preparing the motion and what possible impact a ruling by Cahill might have on the jury. If Cahill acquitted on one of the murder counts would the jury be more inclined to convict on manslaughter?

See also:

• Prosecution Opening Statement
• What was Derek Chauvin Thinking?
• George Floyd's Death: Test Your Knowledge

Labels: George Floyd, Justice, law, media, police, race

On December 8, 2020, I wrote about the State of Texas' motion in the Supreme Court to allow it to file a complaint over alleged problems in the 2020 election in several states. Back then I made two observations relevant to the present post.

First, I said: "I think the State of Texas should have standing but that is a necessary, but not sufficient, condition and it's motion comes awfully late." Second, I said: "If, as seems likely, the Supreme Court refuses to hear this complaint then it's probably game over for all the election challenges."

The Supreme Court did indeed reject Texas' motion. Here's the full text of the Court's unsigned order:

The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Now, it's clear Texas does not have an interest in how other states elect their own state officials. But the notion that they have no "judicially cognizable interest" in how other states elect the one President and VP of all of the United States defies logic and facially undermines constitutional republicanism. I'm not suggesting there were no reasonable grounds to deny Texas' motion but, rather, that the one the Court came up with was unreasonable. 

Supporters of Biden like to mention that many of the federal judges denying 2020 presidential election challenges have been Trump appointees. The implication is that the legal challenges have been so hollow that even Trump loyalists had to reject them.

There may truth to this but it doesn't follow that because Trump nominated these judges that they would necessarily do him any favors. That is the whole point of lifetime appointments for federal judges—to try to insulate them from political influence.

Also, Trump "relied on outside conservative legal organizations and Senate Majority Leader Mitch McConnell" to select and manage the confirmation of his judicial nominees. Moreover, these are people who were on the judiciary career path long before anyone took a Trump presidency seriously and who always knew they would likely be on the bench long after Trump was gone. They might even despise Trump but were willing to accept a nomination (or, possibly, reject an election lawsuit) to advance their own careers and political commitments.

Thus, there are scant grounds to think Trump necessarily got special or even fair consideration of his post-election legal complaints. I'm not saying he was treated unfairly but that you cannot infer much from the fact that some Trump judicial appointees rejected his election claims.

###

The January 6, 2021, Capitol rioters are criminals who should be prosecuted. They are also fools and idiots who played right into the hands of the "progressive" authoritarians and their program of racism and repression.

Trump has now been impeached a second time on purely political grounds—they're afraid he'll beat them in another election. Barring a miraculous transformation I hope Trump quietly retires to another, far away country.

In any event, I read the new article of impeachment and it presents no sound legal basis to claim that Trump criminally incited the rioters. If prosecutors believe there is probable cause that Trump committed a crime then they should seek an indictment.

Instead, the Democrats and their media allies are simply hyping and milking the riot for every political advantage they can extract no matter how dishonest the effort. Referring to the upcoming impeachment trial, Jonathan Turley writes: "A private citizen is being called to the Senate to be tried for removal from an office that he does not hold." 

The Democrats had some conceivable legitimate grounds to impeach Trump while he was president though not on events connected to Russia or Ukraine. For instance, the assassination of Iranian general Qasem Soleimani was, arguably, illegal under US and international law. It was also dangerous and counter to American strategic interests. Yet, because that attack was perceived to be in Israel's interests impeachment was never on the agenda for it.

Trump might also have been impeached for his attempt to suborn Mike Pence to violate the Constitution and federal law by unlawfully interfering with the certification of Electoral College votes on January 6, 2021. But, no, to impeach Trump for that would draw more unwanted attention to Pence who refused Trump's entreaties and followed the law while also undermining the Dems specious and profoundly hypocritical claims that for members of Congress to lawfully object to certification "borders on sedition or treason" and such.

###

The election of Donald Trump was always a symptom of the larger problems of, in no special order, economic inequality, toxic consumerism, empire, corporate globalization, Democratic race grifting for power, and the corruption of the media and political elites. Trump ran on a campaign that showed awareness of some of these problems but he was seemingly always a con man exploiting the justified grievances of millions of Americans. He betrayed them and never rose to the call of his office or of history.

Unfortunately, Trump's disastrous term has only worsened matters and emboldened "progressive" authoritarians to step up the repression of their political enemies, including the White working class, in general (which is not to say the GOP were ever their allies). This is Trump's fault, the fault of his many enemies, and, to no small extent, the fault of voters duped by him.

Biden claims he wants to unify the country but—and I hope I'm wrong when I say this—that's a lie to judge from so many of his other utterances and policy plans. When I saw recent photos of the unprecedentedly large military presence in the Capitol for the inauguration I was reminded of all the unpopular, repressive governments the US has propped in foreign countries over the years. Are chickens coming home to roost?

Virginia National Guard members in Washington, D.C. on Jan. 13, 2021 (U.S. Air National Guard photo by SSgt Bryan Myhr).

New Jersey National Guard members in Washington, D.C. on Jan. 12, 2021 (U.S. Air National Guard photo by MSgt Matt Hecht).

See also: Anointing Biden & Election Irregularity Allegations IV

 

Labels: Biden, class, Democrats, Empire, Iran, Israel, law, media, military, politics, race, repression, Supreme Court, Trump, voting

Yesterday, the Texas Attorney General filed a motion to have the US Supreme Court consider the State of Texas' complaint on 2020 presidential election irregularities and improprieties in Georgia, Michigan, Pennsylvania, and Wisconsin. The four defendant states have already submitted their certificates of ascertainment regarding their presidential electors to the National Archives.

In the complaint, which, again, the Court has not yet agreed to hear, Texas is thus asking the Court to order:

E. If any of Defendant States have already appointed presidential electors to the Electoral College using the 2020 election results, direct such States' legislatures, pursuant to 3 U.S.C. § 2 and U.S. CONST. art. II, § 1, cl. 2, to appoint a new set of presidential electors in a manner that does not violate the Electors Clause and the Fourteenth Amendment, or to appoint no presidential electors at all.

In sum, as I read it, Texas wants either the four defendant states' Republican-controlled legislatures or the US House of Representatives pursuant to the 12th Amendment ("the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote") to decide the election.

Here are my thoughts:

1. The Texas action is the best pled and most concise case I've seen so far alleging problems in the 2020 presidential election. It's far better than the dumpster fire pleadings offered by Sidney Powell that I've read.

2. I think the State of Texas should have standing but that is a necessary, but not sufficient, condition and it's motion comes awfully late.

3. I have not followed the lower state and federal court election cases closely enough to say how persuasive the evidence is of substantial issues with the election so I will not presume to know how the Supreme Court should or will rule (I mention this because the Texas complaint appears to rely heavily on lower court filings and opinions). If the allegations are substantially true as pled then I would hope the Court would agree to hear the complaint; however, I am skeptical that Texas is on solid legal and evidentiary ground.

4. I think the statistical evidence offered by Charles J. Cicchetti, PhD is flawed, unpersuasive, and harmful to the case. Cicchetti tested the hypothesis "that other things being the same" Hillary Clinton and Joe Biden "would have an equal number of votes" (see Cicchetti Declaration at ¶¶ 11-13). But we know "other things" beyond alleged election irregularities were far from the same in 2016 and 2020. For example, among other things, Trump was running as an incumbent heading an administration beset by personnel instability, incompetence, and a lack of discipline.

5. If, as seems likely, the Supreme Court refuses to hear this complaint then it's probably game over for all the election challenges.

6. If the Supreme Court agrees to hear this complaint then it's a game changer and, although I never want to underestimate their capacity for dishonesty, the mainstream media will probably be compelled to drop their mantra that claims of election irregularities are "baseless", etc. We'll probably also see violent protests by Trump haters.

7. If the Supreme Court agrees to hear this complaint then to open up the possibility that Trump stays in the White House for another term the Supreme Court would have to invalidate the election results in at least three of the four defendant states. If they do agree to hear the complaint then I predict they will overturn the election results in fewer than three states and send Biden to the White House with an unchanged or, more likely, smaller Electoral College margin.

See also:

• Anointing Biden & Election Irregularity Allegations III
• Anointing Biden & Election Irregularity Allegations V
  

Labels: Biden, law, media, politics, Supreme Court, Trump, voting

My primary source of daily news is National Public Radio, which, in my experience, was never a fountain of unadulterated truth. In the Trump era, although they profess otherwise, NPR has pretty much abandoned any vestige of a commitment to non-partisan truth-telling. Trump Derangement Syndrome has done that to a lot of people.

That said, I have always been keenly aware that NPR and other Left-liberal-Democratic outlets hold no monopoly on biased, dishonest journalism. The story and image below from Breitbart is a case in point.

I think the issue of transgender athletes, especially primary school and college amateurs, competing against cisgender athletes of the gender to which the transgender athletes have transitioned is not amenable to an obvious, straightforward solution. However, publishers, editors, and journalists with integrity will strive not to mislead their audience or play to their emotions. They will present them with all relevant facts about an issue. Sadly, such integrity is largely missing from outlets such as NPR and Breitbart.

Notice that the photo Breitbart used for their article (really a rehashed press release) is credited but un-captioned. I can only assume this is because Breitbart does not wish to trouble their readers with some facts that don't fit their agenda.

First, the short-haired wrestler dominating the other wrestler with a neck hold is Mack Beggs of Texas. Second, in that 2018 photo Beggs is a transgender boy competing against girls because he was prohibited from competing against boys. Beggs is not a "biological male" identifying as a girl/woman.

There are other facts the average reader would be unlikely to discern from the article alone. The press release Penny Starr all but plagiarized is from WOLF, a radical feminist organization. Here are a few things they believe:

•     That female humans, the class of people called women, are oppressed by men under a male-supremacist system called patriarchy.
•     That patriarchy is organized around the extraction of resources from female bodies and minds in the service of men, including reproductive, sexual, emotional, and labor resources.
•     That gender is a hierarchical caste system that organizes male supremacy. Gender cannot be reformed – it must be abolished.
•     That we are enmeshed in overlapping systems of sadistic power built on misogyny, white privilege, stolen wealth, and human supremacism, and all of those must be dismantled.

Breitbart and its readers are not known for their opposition to "patriarchy" and the other issues WOLF decries. But, tellingly, they'll climb into bed with WOLF to unite against transgender athletes.

Another undisclosed and ironic fact is that the Idaho law touted in the Breitbart article—even if it survives judicial scrutiny—would not prevent another transgender boy such as Mack Beggs from wrestling girls. You see the "Fairness in Women's Sports Act" only requires that "Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex." Under the Idaho law a transgender boy is a girl and permitted to compete against cisgender girls. So, all in all, the photo selected for the article could hardly be more misleading.

Labels: gender, law, LGBT, media, National Public Radio, politics, Trump

In the last couple of weeks I've discussed the death of Ahmaud Arbery with two people. Both of them had some familiarity with the matter and had seen William Bryan's video of the last few seconds of Arbery's life.

What was initially stunning to me is that their recall of the video was that the McMichaels were in motion in their vehicle and simply gunned Arbery down. I asked them if they had noticed that, in reality, the video clearly shows that at the time of the shooting the McMichaels were stopped with no one in the driver's seat. And that Arbery had run/jogged toward them and then alongside the passenger side of the McMichaels' truck before suddenly veering in front of it to attack Travis McMichaels, who was on the other side. They both denied noticing or recalling any of this.

The second person, I'll call her P., lives far south of the Mason-Dixon Line in a state where slavery was legal until 1865. P. is, arguably, herself of "redneck" stock. Nevertheless she reflexively denounced the McMichaels as vicious "rednecks". In all the years I've known she has never used that word, as she later acknowledged to me.

She also got angry that I characterized Arbery's final actions as "attacking a man armed with a shotgun". She objected to the word "attacking" even though, as I pointed out, that the word is neutral and if Arbery was engaged in actual self-defense, as she contended, he would have every legal right to attack the McMichaels.

Above I indicated I was initially stunned by the perspective of my friends. However, given the mainstream media's aggressively dishonest agenda-pushing it would be surprising if most people didn't accept the dominant narrative of the shooting. To be clear, my point is not that the McMichaels (and William Bryan) are innocent of any crime—although that seems to be the case based upon the evidence I've seen so far—but rather that the actual facts and the video alone paint a more complex picture of events than the simplistic characterizations of most mainstream and fringe Left/Right media outlets.

The McMichaels have both been arrested for aggravated assault and felony murder. The key charge the prosecution must prove is aggravated assault. If they are found guilty of that then perforce—because Ahmaud Arbery is dead—they must be guilty of felony murder (O.C.G.A. § 16-5-1). I was surprised that they were charged with aggravated assault (O.C.G.A. § 16-5-21) because, in my reading of the Georgia statute, I think the prosecution will have a more difficult time convincing a jury of that than of the charge of criminal attempt to commit false imprisonment (O.C.G.A. § 16-5-41), which is one of the charges against Bryan.

Going out on a limb here, I predict that, before they go to trial (assuming, as I do, that there will be a trial), the prosecutors will charge the McMichaels with criminal attempt to commit unlawful imprisonment in place of or in addition to aggravated assault. If they don't do that then I think the McMichaels will almost certainly be acquitted.

In any event, everyone interested in this case should critically scrutinize media and activist motives and narratives, consider the available evidence, and make up their own minds. Also ask yourself why some killings become national new stories with frequent updates and others get mostly ignored, nationally (see also here and here). Below is the best video (although the accuracy of the narration is spotty) of which I am aware of the events leading up to the shooting and some links to additional key case documents or sources.

• Glynn County Police Report of the Shooting
• Autopsy Report of Ahmaud Arbery
• DA George Barnhill's letter to Glynn County Police Department
• Ahmaud Arbery Murder Investigation | Georgia Bureau of Investigation

Labels: crime, critical thinking, guns, Justice, law, media, politics, race

In the United States you have no legal right to expect that the police will protect you from criminal acts or arrest the perpetrators after the fact. There's actually a lot of case law on this subject but I'll stick to just two cases.

In 1975, Carolyn Warren, Joan Taliaferro, and Miriam Douglas were victimized, at knife point, by Marvin Kent and James Morse in a rooming house in Washington, DC. The police were called numerous times but they dropped the ball with the result that "For the next fourteen hours the women were held captive, raped, robbed, beaten, forced to commit sexual acts upon each other, and made to submit to the sexual demands of Kent and Morse." The victims later "sued the District of Columbia and individual members of the Metropolitan Police Department for negligent failure to provide adequate police services" in federal court. In affirming the dismissal of their lawsuit the en banc District of Columbia Court of Appeals adopted the reasoning of a lower court (citations omitted):

The Court, however, does not agree that defendants owed a specific legal duty to plaintiffs with respect to the allegations made in the amended complaint for the reason that the District of Columbia appears to follow the well-established rule that official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection ... This uniformly accepted rule rests upon the fundamental principle that a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen ...

A publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order ... Accordingly, courts have without exception concluded that when a municipality or other governmental entity undertakes to furnish police services, it assumes a duty only to the public at large and not to individual members of the community. [Warren v. District of Columbia, 444 A.2d 1 (1981)]

In 1999, Jessica Gonzales' estranged husband, Simon Gonzales, abducted their three daughters in violation of a restraining order against him. She made repeated attempts to get police to enforce the restraining order and return her children to her. They did essentially nothing. Her husband murdered the girls and then committed suicide-by-cop.

She filed a lawsuit in federal court alleging that "the town of Castle Rock, Colorado, violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution when its police officers, acting pursuant to official policy or custom, failed to respond properly to her repeated reports that her estranged husband was violating the terms of a restraining order." The US Supreme Court reinstated the District Court's order dismissing the lawsuit. They concluded that Jessica Gonzales "did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband" (Castle Rock v. Gonzales, 545 U.S. 748 (2005)).

Labels: crime, law, police, United States

"[O]ne of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. ... [T]ruthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth."

Source: Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam) as quoted in You Have the Right to Remain Innocent by James Duane (Little A, 2016) p. 63.

As Duane persuasively explains in his book, the 5th Amendment has steadily been hollowed-out with the support of Democrats and Republicans alike and he therefore advises readers: "Don't plead the fifth" but "Plead the sixth".



See also: "Innocent? Don't talk to the police" by James Duane in the Los Angeles Times (Aug. 26, 2015). 

Labels: civil liberties, law, police repression, quotations, United States

In 1927, Justice Oliver Wendell Holmes, Jr. wrote the infamous majority opinion in Buck v. Bell, which gave the US Supreme Court's imprimatur to compulsory eugenic sterilization. While reading about Holmes in Adam Cohen's less-than-groundbreaking Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck (Penguin Pr., 2016) I was surprised to learn about Holmes' ties to prominent American Zionists.

Holmes' Zionist coterie included Louis Brandeis and Felix Frankfurter, both of whom eventually became US Supreme Court Justices. According to Alison Weir, author of Against Our Better Judgment: The Hidden History of how the United States was used to Create Israel (CreateSpace, 2014), quoting Peter Grose, Brandeis and Frankfurter were both members of "an elitist secret society called the Parushim, the Hebrew word for 'Pharisees' and 'separate,' which grew out of Harvard's Menorah Society." Also according to Weir, quoting Sarah Schmidt, membership in the Parushim required candidates to give "specific assurances regarding devotion and resolution to the Zionist cause ..."

According to Cohen (p. 228), it was Brandeis who raised the money to fund Holmes' law professorship at the Harvard Law School in 1882. Cohen also reports (p. 238) that Frankfurter and Walter Lippman, co-founder of the New Republic, formed the core of "the House of Truth", an "influential group" that "adopted Holmes" as their "progressive champion" on the Supreme Court. Once so adopted, "the pages of the New Republic and the Harvard Law Review began to fill up with accolades" for Holmes.

According to American Zionism: Missions and Politics by Jeffrey Gurock, ed., (Routledge, 1998, 2013) Lippmann was among those "co-opted to leadership or special assignments for the regular and emergency Zionist organizations" Brandeis "controlled" (p. 25). When Brandeis and Chaim Weizmann became embroiled in dispute following an international Zionist leadership conference in London in 1920, Lippmann tried to mediate (p. 66, n. 110).

Lippmann was also a key member of Col. House's "Inquiry," an unofficial post-war foreign policy planning group created to bypass the State Department. The secretive Inquiry was the brainchild of Felix Frankfurter (Godfrey Hodgson. Woodrow Wilson's Right Hand: The Life of Colonel Edward M. House (Yale UP, 2006) p. 158).

When a journalist publicly revealed the existence of the Inquiry "A furious Wilson suspected Frankfurter" and although Lippmann tried to provide cover for Frankfurter, "Colonel House was not dissuaded. 'The Jews from every tribe have descended in force, they seem determined to break in with a jimmy if they are not let in,' House complained to the President" (Ronald Steel. Walter Lippmann and the American Century. (Transaction Publishers, 2008) pp. 129-130).

One of the most important things that came out of the Inquiry was Woodrow Wilson's Fourteen Points, which Frankfurter claimed was "drafted more or less" by Lippmann (Howard Grief. The Legal Foundation and Borders of Israel Under International Law (Mazo Publishers, 2008) p. 297). Instead of promoting Arab self-determination, the twelfth point help lay the basis for the permanent dismemberment of the Ottoman Empire and the splitting off of Palestine, under a pro-Zionist British mandate, from Syria, under a French mandate.

Cohen describes Zionist Harold Laski as a mere "friend" of Holmes (pp. 245, 282). Laski was, in point of fact, Holmes' close confidant. When the extensive correspondence of the two men was published in 1953 (Harvard UP) as the Holmes-Laski Letters: The Correspondence Of Mr. Justice Holmes And Harold J Laski, 1916-1935, it contained a foreword by Felix Frankfurter.

It appears from Cohen's book that none of the Zionist members Holmes' "progressive claque" ever publicly criticized Buck v. Bell although Lippmann had written a series critiquing intelligence testing in 1922. Judging from their published letters, Laski apparently said nothing privately either even though Holmes referred to the case in three letters in 1927.

For his part Brandeis voted with Holmes in the majority to allow the State of Virginia to surgically sterilize Carrie Buck against her will. About a year later, Brandeis would cite Buck v. Bell affirmatively in his dissent in Olmstead v. United States. Brandeis cited the case in support of an argument for expansive state power, asserting the "general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which, 'a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.' "

Buck v. Bell would later be cited affirmatively in Nuremberg, Germany:

Karl Brandt was the chief Nazi medical officer; he was also Adolf Hitler's personal physician. Brandt's attorney introduced documents quoting extensively from the eugenics literature. He cited Harry Laughlin's 1914 proposal calling for the sterilization of fifteen million Americans, and also quoted a translation of the Buck opinion from a German text on eugenics. Other Nuremberg defendants also cited Buck, and a translation of the Holmes opinion appeared again as a defense example in the exhibit "Race Protection Laws of Other Countries."

See also:

• "Three Generations of a Hackneyed Apologia for Censorship Are Enough" on the Popehat blog regarding Holmes' majority opinion in Schenck vs. United States.
• A collection of primary source material for Buck v. Bell can be found here
• "Israel's Uncomfortable History of Racist Engineering" by Seth J. Frantzman in the Forward
• "History, Eugenics, And The Jews" by John Glad in the Jewish Press

Labels: eugenics, history, law, Oliver Wendell Holmes, Zionism

Felon (2008), starring Val Kilmer and Stephen Dorff, is certainly not a perfect movie but it is a generally good, if disturbing, film with an important message about America's out of control police-judicial-prison-industrial complex. The film was made in a New Mexico prison and was inspired by actual events. In 1996, the Los Angeles Times published "Tales of Brutality Behind Bars" concerning the brutality of prison guards at the California State Prison, Corcoran; this is the real-life background of Felon. Mark Arax's article and Felon illustrate that there is no shortage of criminal gang members wearing uniforms and badges. Without really trying, I found a more recent example of this in a St. Louis Post-Dispatch article, "Suit says guards made inmates fight 'gladiator-style' in St. Louis jail," from last year. Another point Felon makes is how vulnerable even the most seemingly unlikely people are to being ensnared in the system. Felon writer-director Ric Roman Waugh has followed up Felon with Snitch (2013), starring Dwayne Johnson and also inspired by true events, which deals with much the similar subject matter. At right is an infographic from the Snitch official web site.

Labels: art and literature, film & television, law, police repression, video

Recently, while reading about the post-Newtown national discussion on guns, I came across some interesting poll results from Rasmussen Reports. The first finding is based upon a survey of 1,000 likely American voters and was conducted on October 21-22, 2012. The reported margin of error is ±3% with a 95% level of confidence.

The question asked of the likely voters is: "The Declaration of Independence says that governments derive their authority from the consent of the governed. Does the federal government today have the consent of the governed?" The Rasmussen firm reports: "just 25% of Likely U.S. Voters think the federal government today has that consent. Sixty percent (60%) believe the federal government does not have the consent of the governed. Fifteen percent (15%) are not sure."

Last month, Rasmussen Reports polled 1,000 American adults asking them: "The Second Amendment to the Constitution provides Americans with the right to own a gun. Is the purpose of the Second Amendment to ensure that people are able to protect themselves from tyranny?" The reported margin of error and confidence level are the same as the October poll. Here's what the poll revealed:

Two-out-of-three Americans recognize that their constitutional right to own a gun was intended to ensure their freedom.

The latest Rasmussen Reports national telephone survey finds that 65% of American Adults think the purpose of the Second Amendment is to make sure that people are able to protect themselves from tyranny. Only 17% disagree, while another 18% are not sure. ...

Not surprisingly, 72% of those with a gun in their family regard the Second Amendment as a protection against tyranny. However, even a majority (57%) of those without a gun in their home hold that view.

Many gun control advocates talk of the right to gun ownership as relating to hunting and recreational uses only.

While there are often wide partisan differences of opinion on gun-related issues, even 54% of Democrats agree with 75% of Republicans and 68% of those not affiliated with either major party that the right to own a gun is to ensure such freedom. ...

Seventy-four percent (74%) of all Americans continue to believe that the U.S. Constitution guarantees the right of an average citizen to own a gun. Just 17% disagree. These views haven't changed in nearly four years of surveying.

There are at least two problems with the poll question. First, by prefacing the question with the affirmative statement "The Second Amendment to the Constitution provides Americans with the right to own a gun" Rasmussen may have introduced some bias into the results.

Whereas the prefatory sentence in the consent question accurately quotes from the Declaration of Independence, the gun-tyranny question does not; it takes some interpretive license. While it is an interpretation with which I happen to agree, American citizens and courts have long debated what the Second Amendment means--it is not exactly a picture of clarity. It was not until 2008, for instance, that the US Supreme Court, in a 5-4 decision, ruled that the amendment addresses an individual, rather than a collective, right.

Bias is further suggested in how Rasmussen reports their results. "Two-out-of-three Americans recognize ..." does not indicate a neutral understanding of the meaning of the Second Amendment on the part of the pollster. Constrast "think" and "believe" in the reporting on the consent question with "recognize" in the gun-tyranny results and you should see the difference. Generally speaking, professional, scientific polling organizations strive to refrain from interjecting their own views into poll questions and results.

The second, less serious, problem with the question is that, as many gun rights advocates and political scientists and Constitutional scholars, in general, will tell you, the "Bill of Rights" does not provide any rights whatsoever. In the classical Lockean liberal tradition of the main authors of the Constitution and Bill of Rights, the Second Amendment merely recognizes, affirms, or guarantees a right already conferred by God or nature.

Labels: civil liberties, guns, law, politics, United States

... historians don't just reconstruct the past from documents. They also deconstruct narratives of the past. Deconstruction is a term that often sounds like some sort of trendy, high-theory concept of little practical use. In fact, however, deconstruction is a way of getting at truths beyond the obvious, and is therefore highly useful in expanding the range of information we can extract out of documents, images, and other sources from the past.

Most sources contain intentional messages. That is to say, they were produced by some person or persons for the purpose of conveying information to an audience. Oral, written, and visual sources can all contain intentional messages. ... Often, the meaning is open to debate ... Nevertheless it is clear that there are intentional messages ... We call the practice of seeking to understand the information or messages that the authors of the text wanted to convey to their audience reading with the grain. ...

However, texts also contain messages that their authors did not intend to convey to their audience. Often these messages are a set of assumptions. ... By definition, these assumptions are not explicitly stated in the text because they are assumed by the author to be universal truths that anyone (or at least the audience) would immediately recognize.

It is necessary, therefore, to read against the grain--or to deconstruct our sources--in order to gain access to the assumptions. The practice of deconstruction generally involves a series of steps. The first of these is to establish the origins, author, and other evidentiary issues about the text and to read it with the grain. It is especially important to know as much as possible about the author--his or her status in society, life experiences, political and cultural outlook, and so forth.This is because the assumptions we are looking for are usually generated communally and shared among a group. ...

The next step in deconstruction requires the researcher to search for assumptions and figurative language--metaphors, similes, stereotypes, and the like. Often, it is useful to look at a range of documents as a way of identifying language that is commonly used by many people in the same society or social group. At the same time, it is important to read the document closely to see where explanations end and assumptions begin--in other words, to search out the points that the author assumes need no explanation.

     Source: Trevor R. Getz and Liz Clarke. Abina and the Important Men: A Graphic History (New York: Oxford UP,
     2012) pp. 126-127.

Labels: Africa, art and literature, civil liberties, freedom, history, law, quotations, slavery

Well, I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do. -Bankster J. P. Morgan

Source: Robert Heilbroner. The Worldly Philosophers (New York: Simon & Schuster, 1999) p. 215.

Labels: law, quotations

So you want to be king? You want to control the greatest nation in the world--perhaps control the world as well? As we’ve seen, you must first own the people, own their minds. You must be able to command their prejudices like one can toot a boy's horn. And, if you are to be king, you must also destroy their warriors.

The people are always the enemy of the king, "the stupid mob," as Hitler called them. The people can rise up. They always do in the end. It is only a question of when.

But how can the people fight against the king without their warriors, without champions to fight for their causes? Destroy their warriors and the people can holler and foam but they can do no harm, for even they who are aware enough to shake off the king's propaganda like a dog shakes off fleas, even they are helpless against the king if there are none who can enter the fight for them.

The warriors for the people are trial lawyers--those villains who are not to be trusted, not even when they are shackled and held helpless in those strait jackets of hate. And we have learned to hate them because every day through the King's media we are told outrageous stories of how trial lawyers have aborted the fetus of justice, and we hear malicious jokes so that we have come to believe that the cause of every ill that befalls us lies at their feet.

Source: Gerry Spence. "Kill All the Lawyers" (PDF).

Labels: Justice, law, quotations

Laws are like cobwebs, for if any trifling or powerless thing fall into them, they hold it fast, but if a thing of any size falls into them it breaks the mesh and escapes. --Anacharsis (ca. 600 BC).

Law and order are always and everywhere the law and order which protect the established hierarchy. --Herbert Marcuse (1898-1979).

Source: Epigraphs to ch. 12. of From Hell by Alan Moore and Eddie Campbell (Paddington, Queensland, Australia: Eddie Campbell Comics, 1999).

Labels: art and literature, Justice, law, quotations

The law will never make men free; it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it.

Source: "Slavery in Massachusetts" by Henry David Thoreau, 1854.

The moment we begin to fear the opinions of others and hesitate to tell the truth that is in us, and from motives of policy are silent when we should speak, the divine floods of light and life no longer flow into our souls.

Source: Elizabeth Cady Stanton's address to the National American Woman Suffrage Association Convention of 1890. Quoted in The History of Woman Suffrage, Vol. 4 by Susan B. Anthony & Ida Husted Harper, eds. (Rochester, NY: Susan B. Anthony, 1902) p. 166.

If you do not speak up when it matters, when would it matter that you speak? The opposite of courage is conformity. Even a dead fish can go with the flow.

Source: "A celebration of agitation" by Jim Hightower. Arizona Daily Star. July 28, 2002.

Labels: law, politics, quotations, resistance

Is there a fundamental or inherent difference between indigenous and white society? This is a relevant question, given the tendency of the dominant Western tradition to draw racial distinctions. Indigenous traditions, by contrast, include all human beings as equal members in the regimes of conscience ...

A deep reading of tradition points to a moral universe in which all of humanity is accountable to the same standard ... Though it may be emotionally satisfying for indigenous people to ascribe a greedy, dominating nature to white people, as an intellectual and political position this is self-defeating. It is more hopeful to listen to the way traditional teachings speaks of the various human families: they consider each one gifted and powerful in it own way, each with something different to contribute to the achievement to peace and harmony ...

The value of the indigenous critique of the Western world-view lies not in the creation of false dichotomies but in the insight that the colonial attitudes and structures imposed on the world by Europeans are not manifestations of an inherent evil: they are merely reflections of white society's understanding of its own power and relationship with nature. [pp. 20-21]

In his classic study Leadership (1978), James MacGregor Burns developed the concept of 'moral leadership'. Identifying a fundamental difference between what he called 'power -wielder' and true leaders, he argued that the manipulation of resources to effect the personal will or interest on the manipulator is not leadership at all; leadership must be rooted in a set of personal values consistent with and supportive of the collective's values. Burns's concept of moral leadership complements indigenous ideas. In particular, his critique of 'leaders' who are actually nothing more than politicians resembles the criticism expressed by many indigenous people with respect to their new leaders.

For Burns, the average politician in an electoral system is simply playing a power game in which he structures incentives to induce people to do what he wants--to vote for a certain party, support a particular policy, carry out a given order. [p. 45]

... sovereignty is an exclusionary concept rooted in an adversarial and coercive Western notion of power. Indigenous peoples can never match the awesome coercive force of the state; so long as sovereignty remains the goal of indigenous politics, therefore Native communities will occupy a dependent and reactionary position relative to the state. Acceptance of 'Aboriginal rights' in the context of state sovereignty represents the culmination of white society's efforts to assimilate indigenous people. [p. 59]

'in periods of calm the law may shape reality, in periods of change the law will follow reality and find ways to accommodate and justify it' [p. 83, quoting DJ Elazar, From Statism to Federalism--A Paradigm Shift," International Political Science Review 17(4), p. 428]

There is no inherent conflict between basic indigenous and non-indigenous values. Rather, it is the historical practice of politics (and the institutionalization of these patterns of governance) that contravenes the basic values of liberal-democratic and traditional indigenous philosophies alike. Manipulative mechanisms of control work against the best instincts of both Western and aboriginal value systems. [p. 132]

Source: Peace, Power, Righteousness: An Indigenous Manifesto by Taiaiake Alfred (New York: Oxford UP, 1999)

Labels: Empire, Indians, law, quotations, White folks

Yesterday, the US Senate confirmed Barack Obama's nomination of Elena Kagan to the US Supreme Court. The Voice of America's story on the confirmation includes this paragraph:

Democratic Senator Ben Cardin of Maryland said, "And when Elena Kagan is confirmed, she will, for the first time in America's history, be the third woman out of nine on the Supreme Court of the United States. I think that is going to give us more common sense justice in this nation, and certainly one that reflects the diversity of our country."

What Cardin neglected to mention is that there are now no Protestant Christian Justices on the Court and when Kagan is sworn-in tomorrow there will be six Roman Catholics and three Jews on the Court. How is that for "diversity"? As ABC News reported last May, "At least one Protestant justice has served at all times since the Supreme Court was established in 1789." But not any more.

Although about 50% of Americans identify as Protestant Christians, they will not be represented on the US Supreme Court. Roman Catholics, who comprise about 25% of the US population, will be over-represented by a factor of 2.7, while Jews, who comprise about 1.2% of the US population, will be overrepresented by a factor of 27.8. (All percentages in this paragraph are from the 2008 American Religious Identification Survey, which is a data source for the Census Bureau's Statistical Abstract of the United States).

In light of the apparent historical over-representation of Protestants on the Court, perhaps, a fair case could be made that they should be now under-represented for a while. However, there's a big difference between having half of the country's population under-represented and not having it represented at all. If one upholds the principle of representative government then you can't be indifferent to a complete lack of representation for the largest population segment.

The fields of critical race, class, and gender theory all tell us that personal identity and cultural background matter in influencing how we view the world and function in institutional settings. Diversity was supposed to help address and counteract biases created by minority exclusion and under-representation but somewhere along the way it seems that it was decided that representing majorities or pluralities didn't matter so much.

In April, before Kagan was nominated retired Supreme Court Justice Sandra Day O'Connor, an Episcopalian, said "I think that religion should not be the basis for an appointment, but if that were the case, one would expect somewhere in the nine to see a Protestant or two." But that expectation has been dashed. Why is that? Could it have something to do with the fact that Barack Obama was hailed in some quarters as the "first Jewish president"? What about the fact that Jews, such as Ben Cardin quoted above, are over-represented in the US Senate by a factor of at least 11?

See also:

• "Elena Kagan and the Supreme Court: A Barnyard Smell in Chicago, Harvard and Washington" by James Petras
• "Elena Kagan: Jewish Ethnic Networking Eases the Path of a Liberal/Leftist to the Supreme Court" by Kevin MacDonald
• "Ambition and orthodoxy (Kagan's hero is also Dershowitz's)" by Philip Weiss

Labels: Christianity, diversity, identity, Jews, law, Obama, Supreme Court, United States