Monday, September 24, 2012
A decision of Judge Royce Lamberth of the US District Court in Washington, DC on September 6, 2012 shows why President Obama has completely failed as a leader and changed nothing, choosing instead to govern lawlessly by decree. It is time for change yet again.
Judge Lamberth made his decision in response to the Obama Administration’s remarkable efforts to deprive the Guantanamo detainees of access to counsel. The US Supreme Court already ruled that the detainees had the right of habeas corpus, which includes the right to counsel, and several federal courts sought to enforce the detainee right to counsel. One federal court four years ago entered a Protective Order setting the ground rules for detainee access to counsel. Despite this history of litigation, Candidate Obama’s promise and President Obama’s order to close Guantanamo, it remains open. And this year President Obama, who is the Commander in Chief of all US military forces, attempted to ignore all of these rulings and impose a new set of rules at Guantanamo that, among other things, left it up to the base commander to decide when, if and how any detainee would get to see his lawyer.
In Judge Lamberth’s court, among the many absurd arguments that the President’s lawyers advanced was the assertion that if the detainees did not like it, they could write a letter to the court; and this assertion was made with full knowledge that some of the detainees are completely illiterate, i.e. they cannot read or write, and they do not speak English.
Judge Lamberth’s legal analysis began like this: “It is a sad reality that in the ten years since the first detainees were brought to Guantanamo Bay not a single one has been fully tried or convicted of any crime. Despite this, the Government has fought to deny detainees the ability to challenge their indefinite detentions through habeas corpus proceedings.” He noted “it is the duty of the courts to remedy lawless Executive detention.” This rule of law has existed since King John agreed to the Magna Carta at Runnymede in 1215 AD. Judge Lamberth said, “If the separation-of- powers means anything, it is that this country is not one ruled by Executive fiat.”
But rule by Executive fiat is precisely what the Obama Administration has done at Guantanamo and too many other places right here at home. By decree, the Transportation Security Administration granted itself the right to force us to take off our shoes and belts and grope us at the airport, and now the TSA will sniff the coffee bought at Starbucks inside the security point. The President argued for and signed legislation granting him the right to seize citizens without warrant. His Justice Department allowed the Fast and Furious sale of guns to Mexican Drug Cartels, some of which were used to kill a US Border Patrol agent and, according to Mexican officials, hundreds of Mexican citizens. By fiat the Federal Government ordered Catholic Universities and Hospitals to violate their religious beliefs. And just a few months ago President Obama ordered the Immigration Service to halt deportations of illegal residents.
We may agree or disagree about the policy issues at the heart of each of those decisions. For example, as to immigration, my view is mi casa es su casa; those who want to come here to work, educate their children and make a better life should be welcomed.
But the reason we are such a great nation is that we adhere to the rule of law. As Judge Lamberth stated so plainly, this country is not one ruled by Executive decree. Tin horn dictators like Venzuela's President Chavez rule by decree. President Obama must not be granted four more years to rule by Executive decree.
Saturday, February 18, 2012
As I see it, we have been in a state of war since 1946. After the defeat of Germany and Japan the newspaper headlines said "War is Over" but the reality is the wars America fights continued uninterrupted and continue today. We started with the cold war and then in unending succession we fought wars in Korea, Vietnam, Kuwait, Iraq, Afghanistan, and Libya with excursions in Lebanon, Panama, Grenada, the Balkans, Somalia, the tribal regions of Pakistan, and now we fight rapidly escalating drones wars all over the world. And those are just the better known military wars.
We have also been fighting wars on poverty, drugs, and terror; and every one of these wars, I submit, have resulted in damage to our liberty and the values that we hold dear. In some cases, these wars have failed miserably. In roughly 1965 Lyndon Johnson declared a war on poverty and today there are more folks living below the poverty line than any time since the Great Depression. The war on drugs has enriched the drug cartels, imprisoned hundreds of thousands of Americans, and done very little to stop drug consumption. And the latest war, the war on terror, has enabled the government to spy on our citizens and grope us at the airport; and most recently Congress authorized the military seizure of citizens without trial.
I am not a pacifist; I served in the US Marine Corps for seven years, and I know the world presents many dangers that require a strong military and the capability to protect our interests and project force when necessary. When the bad guys hit us we need to respond and sometimes that may require preemptive action. But we should go to war only when Congress has declared war as set forth in the Constitution. If we go to war Constitutionally then we are more certain to fight only those wars that the American citizenry have chosen and are willing to finance and make the other sacrifices that will be required.
Thursday, July 28, 2011
John came into my office today -- right after I started to hear Mr. Tu's claim in arbitration. When he saw I was busy, he retreated quietly and closed the door.
Mr. Tu came to the U.S. from Vietnam 4 years ago, and now he runs a small coffee shop in Seattle. On the way home from work one day, he was rear-ended by a gal from the south side of the tracks. It was all her fault, and it didn't help that she had a petty criminal record three pages long.
Today was also the day we learned that the voice of America died. You know, the voice of a Horse With No Name, Sandman, Ventura Highway, and Lonely People. I love those songs; and I love John like a brother, and he was one of the lonely people today.
After I made my award I went in to John's office to talk about it; I gave Mr. Tu a modest award for his trouble. And John told me about SRB; he wanted to talk about it first thing this morning; it turns out that today was the anniversary of SRB's death in Vietnam, 41 years ago. SRB was from Great Falls, Montana and he was the first man to die under John's command. John's roots are deep in Montana, too.
Just made a Corporal and in country hardly long enough to be in charge of anyone, the CO made John a Squad Leader, in charge of 12-15 men whose job it was to patrol dense jungle trails and kill the bad guys when they found them. One day the usual point man complained about his job, and SRB said "fuck it, I'll take the point". And he headed up the trail and within a few minutes he ran into a booby trap that blew him to pieces.
A helicopter medivac'd SRB out of there, and the next day the Gunny told the men he died of his wounds. This was 41 years ago.
I said, "John, if you're up for a wee dram I'm game." I call it our Boston Legal.
He said, "I have a conference call with an expert witness at 4 and I'll be right over when I'm done."
Shortly later, he brought the Glen Morange and we finished it off, and we drank a toast to SRB.
He died today 41 years ago.
Sunday, August 22, 2010
Completed in a feverish 5 weeks following Generalissimo Francisco Franco’s bombardment of the city of Guernica in the Basque region of Spain in 1937, Guernica portrays one of the many acts of 20th Century’s state sponsored terrorism. Using the newest Luftwaffe bombers on loan from Hitler and help from Mussolini’s air force, too, Franco turned the city center into rubble and massacred all who happened to be there that sunny morning. And to avoid getting caught, Franco banned all journalists or other reporting, although reports trickled out, and Spain’s greatest 20th Century historian, Pablo Picasso, painted the report of the atrocity so that all would know it happened.
Professor Clark’s Picasso scholarship is well respected among academics in the art world and he walked the audience through the surviving photographs of Picasso at work on his masterpiece and the sketches that helped Picasso develop the work. Among other themes, Picasso’s work explores spatial relations between objects in a room, such as dancers in a cabaret or the objects that furnish our lives; and more profoundly, Picasso addresses the relation of the outside to the inside or the public to the private. In a growing surveillance society these were and continue to be important issues. Professor Clark introduced these themes early in his presentation and then wandered off into irrelevancy.
Guernica depicts what one might imagine the horror to have been, with dismembered animals, crushed humans, an anguished mother clutching her bombed child, and frightened citizens peering out the windows of their homes to see the carnage in the street. In one of Picasso’s early sketches, he drew a fist rising from the arm of a fallen victim and it rises from the rubble and chaos in the middle of the image. In a later sketch the arm and fist grow larger. And in the completed work, the fist is gone, and no remnant of it remains.
Professor Clark saw the fist as a homoerotic sexual metaphor, he invited the audience to snicker when the fist swelled larger in its manly act, and he was distracted also by what he saw as the sexuality of the women in the painting. By doing so, he missed a very important question about Picasso’s work. The painting is not an exploration of sexuality, it has nothing at all to do with sexuality; it is a political statement. Guernica was created to shed light on the atrocity of total war waged on a government’s own citizenry.
The victim’s fist rises, not as a phallus, but as another, far more profound statement with another kind of sexual content that screams out “fuck you Franco”. You who turned the inside out by bombing open our homes, by dismembering our bodies and animals, by opening our guts to the public, by turning what was once rational and ordered into total chaos – your brutal oppression – must be resisted by all the strength we have left. The clenched fist is the symbol of the socialist workers’ resistance to the dehumanizing growth of capital, and it was raised again during the Paris riots of 1968, by Carlos Smith on the podium at the Mexico City Olympics, and the May Day marchers two days after Professor Clark’s lecture. It is the symbol of resistance.
But if my interpretation is correct, what then do we make of Picasso’s decision to obliterate the image of the raised fist from Guernica? Did Picasso not believe in the value of resistance? Did he conclude that resistance was futile or ill advised? Or was the destruction of the old order all that he wanted to show us?
Monday, March 29, 2010
Some wonder why the global community was able to agree to ban the use of chemical and biological weapons in war and yet fail to agree on reductions to the emission of green house gases. Assuming for the moment that the science of man’s central contribution to the problem is solid – recall that humans were believed to be the center of the universe at other times in history and Galileo was tried and convicted of heresy for suggesting the truth was something else – the reference to the Geneva Convention is apt, but not for the reasons usually stated.
The problem is, I submit, that lay persons and maybe some experts expect too much of international agreements like the ones sought at Copenhagen. The New York Times reported that the agreement finally patched together in Copenhagen by President Obama and leaders from China, India, Brazil, South Africa set a commitment to limit global warming to 2 degrees Celsius, or 3.6 Fahrenheit. Am I the only one to believe that such arrogance rivals that of Galileo’s accusers?
The best example, I think, of the apparent futility of such agreements is the treaty signed in 1928 by which the states that exercised sovereign power over essentially the entire planet renounced war and pledged to resolve all future disputes peacefully. The full text of Articles I and II is set forth here:
ARTICLE I. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.
ARTICLE II. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.
Its promises were simply and unambiguously stated; it was ratified by the US Senate by a vote of 85-1, and I believe it is still the law today.
As it would happen, we know that the states of the world began to ignore its promises almost before the treaty’s ink was dry.
So, it seems to me that Copenhagen should not be seen as a failure but rather as proof that public international law is best created, not by top down agreements from world leaders who promise too much, but rather by the accretion of consistent state practice and an acknowledged sense of obligation. Those things must happen on a local scale before they can acquire global significance.
Wednesday, October 21, 2009
There is near universal agreement among those who pay attention to such issues that the debt load of the world’s poorest developing countries is obstructing their efforts to climb out of a very deep hole of poverty. The premise of this view, which seems unassailable, is that the resources necessary to pay even the interest on the debt consumes the resources that otherwise would be available to finance development. The debt is owed to developed country governments, the international financial institutions and, to a lesser extent, private investors. It is sovereign debt and, as they have done throughout history, private investors have acquired some of the debt at bargain basement prices, speculating on a future in which the debts might be paid.
Developed countries and their financial institutions implemented measures to provide debt relief to the developing countries with the Heavily Indebted Poor Countries (
Nibbling at the margins of the task, some have argued that the private investors’ punts may pay off only because the governments, i.e. the taxpayers, have written off the debt they held, thereby releasing the hold on the resources needed to pay off the balance owed and now held by the private investors. Comparing them to “vultures” that prey on the carrion of dead animals, Members of Parliament and the U.S. Congress have proposed legislation to prevent the investors from profiting from the generosity of debt relief. Sally Keeble MP introduced a Restriction of Recovery Bill in the House of Commons in May 2009, and Congresswoman Maxine Waters introduced her Stop Vulture Funds bill in Congress in June. The UK legislation would set a cap on recovery of “non-cooperating” investors who won’t voluntarily take less than they are owed, unless the courts consider it just and equitable to order otherwise; while the more draconian US bill would bar the investor’s access to the federal courts altogether.
The fundamental problem is that there is no global mechanism for the resolution of sovereign bankruptcy. When a going concern like General Motors has liabilities greater than its assets and ability to pay, bankruptcy exists to re-organize or liquidate its debts and start over. Under most bankruptcy schemes, everybody “cooperates” whether they want to or not and receive less than they are owed or nothing at all, and often the wage earner comes out poorly in the end. But so far, a country like
The proposed medicine may be worse than the illness it is intended to remedy, and we might question whether the illness is life threatening in any event. According to HM Treasury’s consultation, only $4.3 billion in debt relief is expected from the private sector, and claims totaling $1.2 billion have been already litigated, with no new cases filed in 2007-2008. In relative terms, these are puny sums and the proposed remedies beggar thy neighbor.
Of greater concern yet, is the impact of these proposals on such bedrock principles as the rule of law, rights to property, access to justice and compensation for expropriation. To be sure, legislatively reducing the amount of a debt, outside of a bankruptcy in which the interests of all stakeholders is adjudicated, is the equivalent of expropriating the investor’s property and seemingly in violation of the European Convention on Human Rights’ protections for property rights and requirements of proportionality. In the
Developing country debt is every bit as toxic as any traunch of ill advised securitized sub-prime residential mortgages in the developed world. While the world’s public and private bankers continue to work themselves out of the current conditions, now is a good time to enact comprehensive and meaningful cancellation of developing country debt. It should be done while respecting the rule of law.
Wednesday, April 29, 2009
First, a U.S. investor served notice of intent to file an international arbitration claim against Canada under NAFTA, the North American Free Trade Agreement, for the actions of Newfoundland and Labrador, an allegedly developed and democratic province. The investor alleges that the government seized its property after the company gave notice that it had to shut down one of its newsprint making plants due to the world wide collapse of the need for newsprint. Unhappy that the company’s shut down would result in hardship to the locals, the government acted within weeks of the announcement by enacting new laws simply taking the investor’s property without compensation and barring recourse to the courts.
Second, an international arbitration tribunal awarded Dutch farmers substantially their entire claim against Zimbabwe, which seized their farm lands and never paid any compensation. The tribunal was appointed pursuant to an investment treaty between Zimbabwe and The Netherlands. There, too, Zimbabwe sought to cloak its seizure with law by enacting Constitutional amendments permitting the seizures.
And then, Philip Stephens, writing in the April 24, 2009 edition of the Financial Times, notes that the Bush administration’s memos justifying “harsh” interrogation “remind us how legal bureaucratese can empty the law of any real meaning.”
The common thread in these three unrelated events is the abuse of law by government, and I can now say with confidence that we are all bozos on this bus.