Just Books
Summary Judgment
08/06/10
Thirty years ago, a drunk driver killed my brother. I’ve been thinking about the homicidal driver ever since. Then, I found him on the Internet…
By Beth Greenfield
This past year, I wrote and published a book, Ten Minutes from Home, about how my family was affected by the drunk driving accident that killed my brother and my best friend nearly thirty years ago. While working on it, I began to wonder about what had happened to the man who hit us.
All I knew about him was that his name was Edward Pahule, that he was a Milwaukee native stationed at a Jersey Shore naval base, and that he was on a liquor-fueled bender on the June night my family and I happened to be heading home from my yearly ballet recital. When he hit us, he took the lives of my brother, who was 7, and my best friend, who was 13 — just a year older than me.
I found Edward Pahule quickly on the Internet. And I learned that he is back in Wisconsin, and that he is a blogger. I even found a photo of him—a tiny headshot, in which he looks like a normal-enough guy, with a graying beard and wire-framed glasses and a mellow smile—and I stared into his eyes for a while, conscious that I was, at last, looking into the face of Adam’s killer.
I used to fantasize about looking him in the eye.
Edward Pahule got off easy. He was sentenced to just six months in jail. This was New Jersey, 1982—the highest-record year for alcohol-related car fatalities in the state, and a low point for drunk driving laws and penalties. It was an irony that filled my grief-stricken father with a burning anger, and he set out to find ways to right our wrong.
“We’re just going to put those scumbags away!” he would report after returning home from frequent meetings of the New Jersey Task Force on Drunk Driving. He joined the group shortly after being released from his post-accident hospital stay, during which he’d recovered from a punctured lung, a broken shoulder and a bruised heart. “They want to suck down the booze and then get in their cars? Fine. No problem. We’ll let ’em rot in jail, that’s all.”
My mother, though, was not interested. “Is that going to bring him back?” she would shout, stone-faced, at my father who would sigh and look at the floor. “Then I don’t want to hear it!” She had no use for any form of revenge or justice, from what I could see, because none of it could make our family whole again.
My own thoughts on the subject hovered somewhere in between my parents’ two extremes. Mostly I didn’t think about blame or punishment, as I, too, saw it as useless—unable to make me a big sister to Adam or best friend to Kristin again. But I would sometimes think about meeting the drunk driver face to face. I would watch those early-’80s TV talk shows as they brought together sobbing, chest-thumping survivors with the killers of their children or parents or lovers, and something in me would long to be a part of the action—to walk onto Phil Donahue’s set and stand before Edward Pahule so he could crumple and apologize with the world watching.
Later, when I was in high school and working a part-time job in a clothing store at the mall, I would have distracting daydreams in which I would take someone’s credit card for a sale, look down at the raised-plastic cardholder’s name and see that it read EDWARD PAHULE. Some days I would think that every card handed to me would definitely be his—even if the purchaser was a woman, which it almost always was—and I would shake with anticipation and will myself not to read the name on the card until the moment before I handed it back so I could ready myself for an appropriately fired-up response. But what would I have possibly said? I had no idea. I just thought that making him see me would stir something in him and make him truly regretful.
My father’s brand of justice never appealed to me. In high school, when I learned that a few of my friends were banding together to form a chapter of SADD, I was horrified—self-conscious and guilty that I wasn’t involved. But I just couldn’t do it. I couldn’t risk sitting in a classroom after the final bell of the day had rung, hanging out with this handful of well-meaning peers and trying to look like anyone else, like a normal student who just happened to choose SADD as an extra-curricular activity, the same way I might’ve chosen debate club or field hockey or chess.
Eventually I’d head off to college—a private liberal-arts school in Connecticut—and it quickly dawned on me that I was among spoiled rich kids, and so I asked my parents, a pair of teachers, how we were able to afford such an education. “Money from the accident,” my father blurted out. It made me sick to know it, that we’d gotten money out of the deal, and that I was going to school with it. It didn’t only feel unjust, but rotten, and cheap. But it was the way of the legal system; money for the victims and jail time for the offenders was pretty much all it had to offer—and neither one, as far as I was concerned, could offer anything that worked to take the edge off grief.
All these years later, I haven’t thought much more than I had as a teen about seeking justice for what our family went through. The idea of more jail time for the man who hit us sounds like it would have been a good idea, but even if he was still locked up to this day, I know that fact alone wouldn’t have eased my years of grief and healing.
Beth Greenfield, is the author of Ten Minutes From Home.
Tags: Beth Greenfield, justice, Summary Judgment
06/02/10
And why it matters.
by Frances Fox Piven
Today I Googled “Cloward Piven crisis strategy” and got 27,700 hits. Then I Googled “Frances Fox Piven” and got 135,000 hits. I have been writing, teaching and doing politics for a very long time, but I have never gotten so much attention, and I want to tell you the story of what it is all about.
Early last February I received a call from someone who claimed he was a student at Western Michigan State University. His class, he said, was required to read my book Challenging Authority. So, to fulfill his term assignment, he wanted to interview me. This didn’t seem strange. I’m used to students who try to fill assignments with as little reading as possible and I was not eager to do the interview. I had just gotten out of the hospital after an auto accident and was a bit unsteady. But I also hate to say no to students, so I suggested we do the interview at my apartment, for only an hour, and then thought little of it.
A couple of weeks later clips from the interview showed up on the internet. I Googled the “student” and discovered that he was in fact an official of the Michigan Republican party and also the director of a small 501c4 devoted to attacking the Michigan teachers union. Now I was interested.
I Googled some more and discovered that I and my deceased husband, Richard Cloward, were being depicted as the central figures in a plan to foment crises that had led first to the creation of the National Welfare Rights Organization, then to ACORN, was somehow connected to George Soros, created the financial crisis, then brought Barack Obama to the presidency, and much more. (Recently Woodrow Wilson has been added to one of the diagrams, presumably because the roots of all of this trouble can be traced to the progressive movement.) This Cloward Piven crisis strategy had been featured on the Glenn Beck show, complete with fantastical diagrams, some 30-odd times, was also the subject of numerous right-wing blogs, and had even been the focus of a major address at the Tea Party convention.
Naturally, my students were on to this before I was, and they were delighted to have such a notorious and powerful professor. So, in a way, was I delighted. It was funny, just because it was so preposterous. The diagrams hinged on crazy connections, and the blogs were riddled with errors.
But there is also something serious going on here. There are lots of Americans who are ready to believe this and similar stories that single out particular people or groups, and make those real and palpable persons the villains in a narrative that explains vast political, cultural and economic changes in American society. What isn’t funny is that a lot of people discomfited by these changes — by changing family and sexual mores, by deindustrialization, by an African-American president — find the narrative convincing.
The story that Glenn Beck and others tell begins oddly enough with an article that Richard and I published in The Nation in 1966 with the title “A Strategy to End Poverty.” The article proposed a campaign to enroll eligible people in the welfare program. We knew from our work with Mobilization for Youth on the Lower East Side in New York City that the welfare department was turning many eligible people away, sometimes giving them bus tickets to go back south instead of processing their applications for benefits. We also learned from our research that this was a widespread practice, with the consequence that less than half of those who were eligible for welfare benefits were actually receiving them. So we tried to think through the consequences of a campaign for full coverage, including the fiscal and political troubles it would cause in the cities, and the policy responses of a Democratic federal government that depended on its big city base, including the increasingly militant poor minorities. We thought there was a good chance that such a welfare “crisis” in the cities would prompt a Democratic administration to intervene, federalizing the program to relieve fiscal pressures, and improving it to satisfy the minority poor. (In fact some of the categorical assistance programs were federalized with the creation of the Supplemental Security Income program in 1974.) Moreover, we could see no downside to the strategy because along the way desperately poor people got welfare, food stamps and Medicaid benefits. Of course, this was a considerably more modest strategy, and a strategy for reform rather than revolution, than Glenn Beck and his ilk perceive
Lest readers simply dismiss this sort of thing with a chuckle, I want to emphasize that slander campaigns of this sort can have serious consequences, and I don’t mean personal consequences for me. Of course, misleading people is of itself serious. But ACORN, the largest and most effective organization of poor and minority people in the country, was destroyed by this sort of campaign. One of the things that ACORN did was to register poor people to vote. A massive voter registration effort by ACORN in 2005 in the state of Florida succeeded in winning a big hike in the state minimum wage. That victory sparked a relentless series of attacks on ACORN as a criminal conspiracy to fraudulently register voters, attacks that were mindlessly echoed by the mainstream media, with the result that ACORN’s funding dried up.
I think the impulse to dismiss lunatic charges by the right in the hopes they will go away is a mistake. They aren’t going away because the attacks are effective. What we should do instead of ducking is rally to the defense of the individuals and groups that are under assault, and we should do that aggressively, proudly, even joyfully because we are standing with what is best in American politics, and especially with the social movements from below that have sometimes humanized our society. That is what drives the right crazy, and it is also what should make us proud.
Frances Fox Piven is a distinguished Professor of Political Science and Sociology at The Graduate Center, City University of New York, and the author of Challenging Authority: How Ordinary People Change America.
Tags: Frances Fox Piven, Glenn Beck, Summary Judgment
06/02/10
by Lorraine Adams
Adams, a Pulitzer Prize winning former Washington Post reporter, looks at what happens when innocents are swept up in counter-terror efforts.
Since Times Square bomber Faisal Shahzad turned out to be a Pakistani native, it’s been a trying season for Muslim immigrants—especially those from the would-be terrorist’ s home country. The Feds have told Pakistan leaders “Check your family and staff for terrorist ties.” Terrorists are “hiding within our midst,” warned White House Counter-terrorism adviser John Brennan. Last week, and no doubt in the coming weeks too, we can expect a big spike in the number of Pakistanis arrested for immigration violations and related charges.
Sounds reasonable, doesn’t it? For the guilty, yes. For those who are neither guilty nor entirely innocent, the aftereffects will last—and last.
1999 was a similar season — for Algerians. Customs agents discovered explosives in the trunk of a rental car at the end of that year and arrested the driver, Ahmed Ressam, an Algerian as he tried to cross the Canadian border into Seattle. The country was in a state of heightened alert as turn of the millennium was but two weeks away, and, after Ressam’s arrest, government officials began detaining Algerians across the United States, almost all on immigration charges.
One of those then detained was Aziz Ouali, a 26-year-old East Boston dishwasher. Hunted by terrorists in his own country during the brutal Algerian civil war of the 1990s that left over a 100,000 civilians massacred, Aziz stowed away on a natural gas tanker from his hometown of Arzew, Algeria in 1997. He spent 52 days in the hold, and then dove into Boston harbor and swam ashore. Eventually he found other Arzew stowaways to live with, and one of them, Abdelghani Meskini, had a cell phone number that was found in the pocket of Ressam, the Algerian with the explosives.
As a reporter for The Washington Post, I wrote about Meskini in a Sunday magazine piece that ran in June 2001. I wanted the article to include Aziz’s story—an account of a young Muslim Arab who didn’t become a terrorist—but my editor at the time found his tale too ambiguous and thus too inconsequential to warrant more than a passing reference.
Frustrated after twenty years of writing simple-to-grasp articles despite the fact that my reporting often uncovered tangles of conflicting facts, I quit. I was in New York City three months later, when Saudi terrorists crashed into the World Trade Center towers, and killed the first boy I’d ever kissed along with 2,752 other people.
In the days afterwards, I sat down to write what would become a novel about Aziz. In 2004, Knopf published it to critical acclaim. Aziz, whose English wasn’t strong enough to read Harbor, never knew of it. His wife, a Boston secretary named Kim Sullivan, did, but she said the period the novel drew upon was too distressing to her husband and she felt it better not to mention it to him.
Today, Aziz sits in a Plymouth County jail in Massachusetts. He’s been there since last August. Aziz isn’t allowed phone calls, so I can’t talk to him. A few weeks ago, Kim, Aziz’s wife of nine-years, called. She was distraught. Ten years after Aziz’s arrest on Jan. 4, 2000, Karen-Anne Haydon, Boston Field Office Director of the U.S. Citizenship and Immigration Services, had ordered Aziz’s deportation. To stay with him, Kim, a blue-eyed, blond and Irish Catholic woman who pronounces Boston as “Bahston,” would have to move to Algeria, a country beset with Islamist insurgency and anti-American hostility. Her parents, in their seventies, were a wreck.
Aziz’s story today is, once again, a phantasmagoria of complication. There are failings on all sides.
There’s the government, which granted conditional resident status in May 2002, but never sent Aziz the green card he was entitled to. He applied, per instructions, for a replacement card, but for four years, officials stamped his passport so he could travel in and out of the United States to see his parents, and told him not to worry. Indeed, if the card had simply arrived, Aziz would probably not be facing deportation.
There’s his lawyer, Jerry Friedman, who never filed a required form I-751 asking that the conditions on Aziz’s resident status be removed, an oversight he says he regrets, but can’t realistically remedy. “I feel somewhat responsible,” he told me over the phone last week. “I should have at some point picked up on the fact that he should have filed. But I can’t keep track of when and where all my clients have to file every last item.” Friedman’s right: the immigration bureaucracy is a morass of filings, forms and deadlines. But, the fact remains: if Friedman had filed the form, Aziz would not be eligible for deportation.
Finally, there’s Aziz’s record. When he landed in America, he was arrested twice, both times for shoplifting a pair of sneakers--the first time in the months right after he swam ashore, and a year later, in 1998. He stayed in jail a night each time, and with no English and little understanding of the criminal justice system, believed he’d paid his debt to society. As a result, he didn’t mention the arrests when he applied for permanent resident status in 2001. The government, which had fingerprinted him numerous times and scoured his criminal record, didn’t find the misdemeanor arrests, both of which were ultimately dismissed. In her decision, however, Field Office Director Hayden found that Aziz’s failure to disclose the prior misdemeanor charges part of “a flagrant disregard for the laws of the United States.” The government did discover the arrests—but not until December 2005. It was then officials told Aziz he’d never filed the I-751 form. Plus: deportation proceedings were initiated at that point, but only because of the unfiled I-751 form. Kim and Aziz filed the form in 2006. But they needed $2000 to file it and the raft of other forms they needed to re-file. Aziz’s work as a housepainter had dried up, and out of work, he accompanied an old Arzew acquaintance on a shoplifting expedition to a Maine outlet store.
He was found guilty of criminal trespass and spent 21 days in a York jail. Shortly after, Kim and Aziz fought bitterly—and he pushed her. She got a ten-day restraining order and he slept in a motel for two nights. “I think he was frustrated,” she told me. “And he lost it and blamed me. “This is your country, these are your laws,” he was saying. We were both hot-tempered and he didn’t hurt me. I wish I’d not done it.” The trespassing conviction and Kim’s order figured in Hayden’s deportation decision.
Plenty of blame to go around, right? Well, it would take another novel to adequately untangle what landed Aziz in jail seven months ago and sped the deportation proceedings.
After the shoplifting fiasco, Aziz joined a company to make ends meet. Last summer, the economy in free all, he was laid off. The boss told him he was eligible for unemployment. The first two checks, about $180 every two weeks, arrived; when the third didn’t, Aziz went to the unemployment office to inquire. He brought folders of his now voluminous immigration records; Kim knew he would be asked to prove his green card status. The woman at the counter studied the documents. She was about to give Aziz a check when her supervisor interceded, took Aziz lost check claim form and, Kim told me, “”ripped it up in his face.” Aziz asked her, “What are you doing?” She said, “You don’t have a green card. Get one and come back.” After all the years of waiting for a green card, Aziz made a fatal error. As Kim tells it, he said, “Do you know what I’ve been going through to get a green card? I have a green card; it just never got mailed to me. I’ve been here ten years working, ten years paying taxes and here’s the order from the judge. What do you want me to do? Do you want me to go to the JFK building and get a gun and make them give me a green card?”
Aziz left the unemployment office. Senator Kennedy had just died and Boston was swarming with federal agents; as the country had been at the turn of the millennium ten years earlier, Boston was on high alert. Two U.S. Homeland Security federal protective service agents turned up Aziz’s parents’ house in Winthrop two days later. They were looking for Aziz. Kim’s mother called the couple, and Aziz spoke to the agents on the phone. Kim said he got off and said everything was fine. But the agents kept her parents’ house under surveillance that night. The next day her mother and father started out, as they did every weekend, for a drive to their New Hampshire cottage. Agents pulled them over in East Boston. “My mother called me,” Kim explained. “She was in a real dither. My father was out of his mind.” Aziz and Kim drove to the parking lot where her parents were detained and met the agents. Kim says everyone was friendly. The agents frisked Aziz, searched his truck and discussed his immigration problems.
“Everything seemed cool,” Kim recalled. “All of a sudden a white Murano comes flying into the parking lot and four guys come out. They cuffed Aziz and took him away.”
Aziz has been at Plymouth County Correctional Facility ever since. He still has time to appeal last month’s deportation ruling, but Kim says he’s lost heart, and fears he won’t give her the go-ahead to keep trying.
“It’s a very sad case,” Aziz’s lawyer told me.” I keep hoping the judge is going to wake up in the middle of the night like I do and say, “I really screwed up this case.””
Lorraine Adams, a Pulitzer Prize winning former Washington Post reporter is the author of two novels, Harbor, and The Room and the Chair, Knopf, February 2010.
Tags: Aziz Ouali, civil rights, justice, Lorraine Adams, Summary Judgment
05/12/10
Alinsky’s biographer, Sanford D. Horwitt, reflects.
Like many of us, Saul Alinsky enjoyed being an author more than he enjoyed the process of writing. Nonetheless, early in his career, at age 36, he produced a national best seller, Reveille for Radicals. His timing was near-perfect. Published at the end of World War II when many American intellectuals had grave doubts about the viability of democracy, Alinsky struck a hopeful chord .with his inspiring account of how skillful, tough-minded community organizers could rouse ordinary people to band together and improve their communities
But the publication of Alinsky’s last book, Rules for Radicals, was not nearly as timely. Alinsky struggled writing it through much of the 1960s, easily distracted by his high-profile community organizing campaigns in Chicago, Rochester, New York and other cities. He also much preferred lecturing on college campuses and talking and arguing with student activists late into the night. When Alinsky finally turned in his manuscript and Random House published Rules for Radicals in 1971, the civil rights and anti-Vietnam War activism of the 60s was largely over; there were no large waves of protest to ride, and Alinsky’s book made only a modest splash. The following year, the father of community organizing died of a heart attack at 62.
Over the next four decades, Rules for Radicals, which Alinsky wrote as a handbook on how to organize for progressive political change, managed to stay in print, typically selling a few thousand copies a year—until last year. In the first six months of 2009, a period that included Barack Obama’s Inauguration and the rise of the Tea Party, an astonishing 37,987 copies of Rules for Radicals went out the door.
Yes, the Tea Partiers discovered Saul Alinsky! They are gobbling up copies of Rules for Radicals because many, if not most, believe that Alinsky is the reason we have a President Obama.
After all, didn’t candidate Obama say repeatedly that the best education he ever had was as a community organizer in Alinsky’s Chicago?
Didn’t young Obama attend a 10-day training conducted by Alinsky’s successors at his Industrial Areas Foundation?
And didn’t Barack Obama upset the seemingly invincible Hillary Clinton for the Democratic Party presidential nomination by employing Alinsky organizing techniques to win the pivotal Iowa caucuses and the caucus states that followed?
Since all of the above are true, how much of a stretch is it in Tea Party Land to conclude that without Saul Alinsky there would be no President Obama? No stretch at all. “Saul Alinsky Takes the White House,” a right-wing blogger proclaimed, and others referred to the then-new president as “Barack Hussein Alinsky.”
More than a year later, Alinsky’s name and Rules for Radicals are a daily presence on the Internet, especially in Tea Party blogs and, periodically, on Rush Limbaugh’s and Glenn Beck’s web sites. For most of these commentators, Alinsky is caricatured as a dark, sinister force whose spirit comes alive late at night in the Oval office. He is routinely labeled as a Marxist or Communist or Socialist, none of which he was.
But if Alinsky is typically vilified in conservative and Tea Party circles, there also are notable exceptions.
Last summer, an early Tea Party leader, Michael Patrick Murphy, published a book, Rules for Conservative Radicals, that at first glance looks like a dead ringer for Alinsky’s opus, with an identical red cover and distinctive black font. The subtitle begins with “Lessons from Saul Alinsky.” Leahy’s narrative includes grudging admiration for Alinsky’s understanding of human nature, how to motivate people and gain political power. Although Leahy is critical of what he asserts are Alinsky’s ethical, win-at-all-costs shortcomings, his larger message is that the Tea Party has a lot to learn from Alinsky’s organizing insights.
Echoing Leahy, Alinsky-style organizing is a centerpiece of Tea Party workshops around the country led by Washington-based FreedomWorks. Its top organizer, Brendan Steinhauser says: “I put together a PowerPoint on grassroots organizing and the favorite part for a lot of these [Tea Party] organizers was how this leftist community organizer Saul Alinsky was so effective and how we can use his tactics against the left.”
Alinsky has become a relevant figure to many of these grassroots folks because he speaks to their fundamental frustration: their political powerlessness. But the political left is not the only source of grassroots anger that is animating the Tea Party movement. The villains are not only Obama and a Democratic Congress. The mostly-Republican Tea Partiers in the hinterlands are increasingly venting their anger at office holders within their own corporate-dominated party who voted for the bank bailout and are generally perceived to be flabby when it comes to fighting for conservative principles. Witness the insurgent, Tea Party-supported candidates challenging establishment-backed Republicans in primaries this spring in Florida, Indiana, Kentucky and other states, including Utah, where the Tea Party is now claiming responsibility for defeating incumbent Sen. Robert F. Bennett at the Republican Party’s nominating convention.
At the beginning of his book, Alinsky said: “The Prince was written by Machiavelli for the Haves on how to hold power. Rules for Radicals is written for the Have-Nots on how to take it away.” Almost 40 years later, that message resonates with a new audience that Alinsky could not have imagined. Indeed, I wouldn’t be surprised if at this very moment a Tea Partier somewhere in America is underlining those very words in his copy of Rules for Radicals.
Sanford D. Horwitt is the author of Let Them Call Me Rebel: Saul Alinsky, His Life and Legacy.
Tags: Saul Alinsky, Summary Judgment
04/22/10
by Jonathan Hafetz
co-editor, The Guantanamo Lawyers: Inside a Prison Outside the Law (NYU Press)
Hafetz looks at news of reported rift in US counter-terror policy:
The New York Times recently reported on a “deep divide” on counter-terrorism policy among senior Obama administration lawyers. But while there may be some disagreement at the margins, the real story is the absence of any real division on the most fundamental issues surrounding Guantánamo and U.S. detention policy. In fact, if accurate, the recent news of a “rift” actually suggests a troubling consensus on continuing essential components of Bush’s post-9/11 policies.
President Obama has taken some significant steps in the right direction. Upon taking office, he announced that he was ordering the closure of the Guantánamo detention center within a year. That followed his inaugural address in which he told the American people that, “As for our common defense, we reject as false the choice between our safety and our ideals.” Last April, in an important speech at the National Archives, Obama reminded the country that “the existence of Guantánamo likely created more terrorists around the world than it ever detained.” President Obama also, upon taking office, took steps to ban torture. Together, these moves suggested Obama saw a clear contrast between Bush’s lawless “war on terrorism” and his new, rights-respecting approach to national security.
But, despite these actions, the president’s policies today have produced little actual change. A year after Obama announced he would close Guantanamo, the base remains open and there is no date scheduled for its closure. And while there is no indication that the administration intends to abandon that goal, it plans to continue to hold detainees indefinitely without charge or trial, including on American soil at a prison in Illinois. The Obama administration also continues to defend the extrajudicial detention of hundreds of prisoners at Bagram Air Base in Afghanistan. These prisoners include people seized in Afghanistan as well as prisoners collected in faraway locales – like Thailand – that officials brought to Bagram specifically so as to avoid habeas corpus review. The result: prisoners are held at Bagram, for years, without access to justice or a court, either U.S. or Afghan.
The administration plans to prosecute some detainees in a second-class system of military commissions rather than in the federal criminal courts. Indeed, the administration suggests it may retreat from its earlier decision to prosecute Khaled Sheikh Mohammed -- and four other Guantánamo detainees accused in the 9/11 attacks -- in federal court, even though these courts have, on hundreds of occasions, successfully handled terrorism-related cases without sacrificing due process rights or endangering national security. Such a reversal would represent a catastrophic setback for the rule of law and U.S. security.
To date, no senior lawyers in the Obama administration appear to have questioned the decision to subject suspected terrorists to indefinite military detention or to limit such detention power to a specific country in which U.S. forces are engaged in hostilities. The changes that have been implemented so far have mostly been cosmetic. The government now calls detainees “unprivileged belligerents,” and not “enemy combatants.” Current debate centers on tweaking the contours of the government’s military detention authority: Can an individual be detained indefinitely merely for providing support to al Qaeda? Or, must that support be such that it constitutes “membership” in the organization (whatever “membership” may mean in this context)? Should the asserted justifications for this sweeping new detention power rely on international law even though it does not support it? Worse, some media have reported the administration is paying close attention to proposals from Senator Lindsey Graham that would contemplate instituting indefinite detention policies as part of a political deal to close Guantánamo. This could expand the government’s detention powers in radical and dangerous ways and also make them permanent.
In short, there appears to be a consensus among administration lawyers that the Bush policy of military detention without trial for terrorism suspects captured far from any battlefield should be extended; the “debate,” such as it, concerns solely what legal rationale should be advanced in support of that policy.
Meanwhile, the “war paradigm” from which so many of the evils of Guantánamo flowed -- prolonged arbitrary detention, abusive interrogations, and excessive secrecy -- remains; so too does unprecedented executive power that threatens core constitutional safeguards. The administration—and the nation—gain nothing by trying to fix Guantánamo or recreate Guantánamo in the United States by moving prisoners there to Thomson, Illinois, or another location inside the country. Guantánamo is predicated on the assumption that the United States can and should detain indefinitely people whom it suspects may be dangerous without charging such people with any crime, even if they were picked up far from any active battlefield. This assumption violates the essence of its legal tradition embodied in the Bill of Rights.
Obama inherited a colossal mess. No question about that. And the efforts he has put forth -- like those to close Guantánamo -- have been met with significant obstacles both from within his administration and from Congress. But the administration must not fall victim to these obstacles or to political pressure to continue illegal policies like indefinite detention. It must adhere to constitutional principles and the rule of law, and that means reconstructing files and prosecuting -- in federal criminal courts -- cases in which there is reliable evidence, and repatriating or sending to safe havens detainees against whom no credible evidence exists. That is how a democracy functions.
It is time to turn the page on policies that have been an enormous detriment to our country in terms of our standing in the world, our commitment to upholding our values, and our security. So if reports of a “divide” within the administration meant officials were fighting for these principles, this would be a “divide” worth having. And a fight worth winning. So far though, there is no indication any one is fighting this fight.
Jonathan Hafetz is a staff attorney at the American Civil Liberties Union and Co-editor, The Guantanamo Lawyers - Inside a Prison/Outside the Law (NYU Press).
Tags: Executive Power, incarceration, Jonathan Hafetz, justice, Summary Judgment, Barack Obama
04/22/10
By Frank Colucci
author, Justice Kennedy’s Jurisprudence
Justice Anthony M. Kennedy’s recent majority opinion in Citizens United v. Federal Elections Commission provides the latest evidence of his pivotal role on the U.S. Supreme Court and of his broader substantive interpretation of the Constitution.
Citizens United was decided by a 5-to-4 vote. Since coming to the Court in 1988, Kennedy has been in the majority in more 5-to-4 decisions than any other Justice. In areas of abortion, affirmative action, federalism, the death penalty, and presidential power in time of war his opinion is often controlling. Hence, understanding Kennedy is essential to understanding the current Court.
Kennedy is the Justice most likely to strike government action as a violation of freedom of speech. Kennedy has repeatedly voted to invalidate most campaign finance legislation, dissenting in McConnell v. FEC (2003) as well as in Austin v. Michigan Chamber of Commerce (1990), which was overruled in Citizens United. In each of these cases, Kennedy fears that government will use its power to prevent individuals from expressing or hearing unpopular ideas. The limits imposed on Citizens United or of any corporation in the days before an election, he writes, constitute “classic examples of censorship.” Under the First Amendment, he writes, government cannot “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.”
Kennedy’s expansive, individualistic conception of free speech follows from his larger commitment to personal liberty. As he stated in his confirmation hearings, “the enforcement power of the judiciary is to insure that the word ‘liberty’ in the Constitution is given its full and necessary meaning, consistent with the purposes of the document as we understand it.” In defining that liberty, Kennedy seeks to discover “the essentials of the right to human dignity.”
Kennedy thus departs from originalists like Justice Antonin Scalia and adopts a moral reading of the Constitution similar in approach to that of former Justice William J. Brennan. For example, in Lawrence v. Texas (2003) the Court struck a state law criminalizing homosexual sodomy and overturned its earlier decision in Bowers v. Hardwick. “As the Constitution endures,” Kennedy wrote in the majority opinion, “persons in every generation can invoke its principles in their own search for greater freedom.”
The dissent in Citizens United by Justice John Paul Stevens echoes recurring criticisms of Kennedy’s approach as an unwarranted expansion of judicial power. “In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules,” Stevens writes. “At bottom, the Court's opinion is thus a rejection of the common sense of the American people.” Stevens thus echoes Justice Antonin Scalia’s objections in previous cases. “Persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else,” Scalia argues in Lawrence. “But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.”
As his opinion in Citizens United illustrates, Kennedy’s conception of personal liberty and human dignity often leads him to results much more conservative than those of Brennan. Kennedy is the Justice on the current Court who has most often struck actions of state and federal governments as unconstitutional, and his expansive conception of personal liberty leads him to increase the role of the judiciary in the American political system across many areas of constitutional law. Kennedy’s opinion in Citizens United—and his jurisprudence as a whole—invites further debate about how judges and all officials in our political system can act most effectively to accomplish the purposes our Constitution was established to secure.
Frank J. Colucci is assistant professor of political science at Purdue University Calumet and author of Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty (University Press of Kansas, 2009).
Tags: Frank Colucci, Supreme Court, Anthony Kennedy, Summary Judgment
04/02/10
Suddenly there is talk about the need for criminal justice reform. For thirty years, no one wanted to talk about this – unless the topic was how to be tougher on “them” – the dark-skinned ghetto dwellers who “happened” to be black and brown. The objects of national wrath and scorn were rarely referred to by race, but were described instead in the terms of socially acceptable euphemism, “members of the underclass.”
First introduced by segregationists, “law and order” and “get tough” rhetoric was embraced across the political spectrum as Democrats and Republicans competed for “swing” voters, those votes that might be cast by poor and working class whites resentful of and threatened by busing, desegregation, and affirmative action. Pollsters found these voters responsive to racially coded, “get tough” political appeals on crime and welfare, and, this discovery led to waves of harsh sentencing laws, the quintupling of our prison population, and the creation of a new racial undercaste.
We declared a drug war on them, stopped and frisked them, rounded up their children en masse for minor drug offenses, and locked them in cages. Then, we released them into a permanent second-class status -- a parallel social universe -- in which they were denied the right to vote, automatically excluded from juries, and legally discriminated against in employment, housing, public benefits, and education. Once “they” were branded felons, nearly all forms of discrimination supposedly abandoned with the Jim Crow era were, suddenly, legal once again.
When those locked up or locked out cried out and said, “this is discriminatory,” we shook our heads and said, “no, this is all your fault.”
In the midst of economic downturn, we see how expensive this has become. Officials who spent billions to incarcerate black and brown people for relatively minor, non-violent drug offenses, politicians suddenly and in the midst of an economic crisis, wonder whether scarce tax dollars might be better spent on schools, hospitals, or crumbling infrastructure, rather than prison cells. States have scaled back mandatory minimum sentencing laws; in some states, these resulted in now unaffordable life sentences for minor crimes, such as marijuana possession. California now releases non-violent offenders early, in order to save tax dollars.
Reformers say the tide is turning. Dozens of reform proposals are under consideration in state legislatures across the country. Many have been adopted. Senator Jim Webb created a bipartisan congressional commission to find out if our criminal justice system is working. There is, at last, talk about the failed drug war. Let’s seize the moment, many reformers say, and pass some of our favored policy proposals and pilot projects.
But, bolder – more inspired action – is required. To return incarceration rates to early 1980s levels, we would have to release 4 out of 5 people in prison today. This would cost more than a million criminal justice system employees their jobs. Prisons in rural communities -- some of which provide the primary economic base for struggling jobless towns -- would close. The sheer scale of this our current system of control is staggering. Nothing short of a broad-based social movement can possibly begin to dismantle the system we’ve built.
No more tinkering with this machine. Rather than piecemeal policy reform, we need a terribly overdue time of reckoning. We need to ask ourselves hard questions about how the “land of the free” managed to become the world leader in imprisonment. We must come to terms with the racial dimension of this tragedy -- the fact that mass incarceration as we know it would not exist today, but for the fact that a war was declared on an “enemy” that was racially defined. We must acknowledge the devastating consequences of our collective silence, as millions of Americans were rounded up, separated from their children and loved ones, locked in cages, and branded felons for life. We must awaken from our colorblind slumber and face the truth about what we have done. We have resurrected caste in America. Then, only then, can we begin the journey to justice.
Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press, 2010), is also associate professor of law at Ohio State University.
Tags: justice, Summary Judgment
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