ReligiousLeftLaw.com

The Religious Right Gives Religious Liberty a Bad Name

North Dakota will soon vote on a measure that would require burdens on religious liberty to be justified by a compelling state interest, a test that applies to the Federal Government by statute and in more than twenty states. The Star Tribune in an overwrought editorial condemns the measure as “un-American,” right wing, “preferential treatment,” at odds with principles of equality and fairness, and leading to a Pandora’s Box that will threaten others rights. See here. I think the Star Tribune’s editorial represents an all-too-common kneejerk reaction against the religious right. The Star Tribune simply does not get that religious liberty is important to millions across the political spectrum. Tom Berg, one of the nation’s leading experts on religious liberty (who writes from a progressive perspective) gives a characteristically powerful  response.  See here.

Teach-Ins: Then & Now

Ann Lockwood Romasco, Bernard Lafayette, John Lewis, and others at the Highlander Folk School [Photo: Highlander Folk School Collection, Emory University]

Heretofore, I knew of the anthropologist Marshall Sahlins largely by way of his tempestuous debate several decades ago with Gananath Obeyesekere. I was pleased to learn of his intellectual engagement and activism during the Vietnam War in David L. Schalk’s War and the Ivory Tower: Algeria and Vietnam (2005 ed.) (which, in turn, cites a 1970 article from the New York Review of Books). In 1968, he signed the “Writers and Editors War Tax Protest” pledge, vowing to refuse tax payments in protest against the Vietnam War. And it was Sahlins who invented the “teach-in as a method of conveying information about the Vietnam War and related issues.” The Wikipedia entry on “teach-in” does not mention this, although it does state, sans any citation, that  a “teach-in at the University of Michigan [where Sahlins taught at the time] in May 1965 began with a discussion of the Vietnam war draft and ended with the logistics of a takeover of the University.” It was at the University of Michigan where the SDS (Students for a Democratic Society) organized the first major teach-in against the Vietnam War on March 24-25, 1965.

In several important respects, this specific tactic had strategic pedagogic and philosophical roots in the civil rights movement, in particular with with the Highlander Folk School. As Charles Payne notes in I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggles (1995),

“Many people who were to become well-known civil rights leaders—E.D. Nixon and Rosa Parks of Montgomery, James Bevel, Fred Shuttlesworth, C.T. Vivian, Bernard Lafayette, Bernard Lee, Dorothy Cotton, Andy Young, Hosea Williams of SCLC [Southern Christian Leadership Conference], John Lewis, Bob Zellner, Marion Barry, and Diane Nash of SNCC [Student Nonviolent Coordinating Committee]—attended Highlander workshops.”

It was also Highlander that pioneered, in 1954, “Citizenship Schools,” in the first place through the courageous and creative efforts of Esau Jenkins and Septima Clark on the Sea Islands off the coast of South Carolina and Georgia. In the late 1950s and early 1960s Citizenship Schools flourished, and it was Highlander that was responsible for their subsequent spread across the South, although in 1961 it turned over their administration to the SCLC.

In 2011, the Occupy Wall Street movement attempted to resuscitate the “teach-in,” especially with regard to the nature of neoliberal capitalism. In varying degrees of formality it seems, these were led by both individuals and groups (a few examples of the latter: the Sylvia Rivera Law Project, Bowdoin College students, The New School, Center for Women’s Global Leadership).

Please note: For a wonderful collection of photographs associated with Highlander, please see the collection maintained by Wisconsin Historical Images of the Wisconsin Historical Society. One picture I would have used here had I the time to acquire permission, was from a 25th anniversary event at Highlander and included Rosa Parks, Myles Horton, Aubrey Williams, and Martin Luther King, Jr. among others.

Addendum to Vietnam War Bibliography

Appearances to the contrary, and while not unrelated, this is not my Memorial Day post (for which, see below). I simply wanted to add some essential titles to the Vietnam War bibliography posted at Ratio Juris on May 18.

• Appy, Christian G. Working-Class War: American Combat Soldiers and Vietnam. Chapel Hill, NC: University of North Carolina Press, 1993.
• Bodard, Lucien. The Quicksand War: Prelude to Vietnam. Boston, MA: Little, Brown and Company, 1967.
• Capps, Walter. The Unfinished War: Vietnam and the American Conscience. Boston, MA: Beacon Press, 2nd ed., 1990.
• Egendorf, Arthur. Healing from the War: Trauma and Transformation after Vietnam. Boston, MA: Shambhala Publications, 1986.
• Falk, Richard A., ed. The Vietnam War and International Law, 4 Vols. Princeton, NJ: Princeton University Press (sponsored by the American Society of International Law), 1968-1976.
• Fall, Bernard B. Street Without Joy: From the Indo-China War to the War in Viet-Nam. Harrison, PA: Stackpole Books, (1961) 1967.
• Fall, Bernard B. Hell in a Very Small Place: The Siege of Dien Bien Phu. Boston, MA: Da Capo Press, 2nd ed., 2002 (1966).
• Franklin, H. Bruce. M.I.A. or Mythmaking in America. New Brunswick, NJ: Rutgers University Press, 1993.
• Franklin, H. Bruce. Vietnam and Other American Fantasies. Amherst, MA: University of Massachusetts Press, 2000.
• Hershberg, James G. Marigold: The Lost Chance for Peace in Vietnam. Washington, DC: Woodrow Wilson Center Press/Stanford, CA: Stanford University Press, 2012.
• Khong, Yuen Foong. Analogies at War: Korea, Munich, Dien Bien Phu, and the Vietnam Decisions of 1965. Princeton, NJ: Princeton University Press, 1992. 
•  Proceedings of the Russell International War Crimes Tribunal (John Duffett, ed.) Against the Crime of Silence. New York: Bertrand Russell Peace Foundation/Flanders, NJ: O’Hare Books, 1968. 
• Russell, Bertrand. War Crimes in Vietnam. New York: Monthly Review Press, 1967.
• Shay, Jonathan. Achilles in Vietnam: Combat Trauma and the Undoing of Character. New York: Simon & Schuster, 1994.
• Shawcross, William. Sideshow: Kissinger, Nixon, and the Destruction of Cambodia. New York: Simon & Schuster, 1979; revised ed., Copper Square Press, 2002.
• Vietnam Veterans Against the War. The Winter Soldier Investigation: An Inquiry into American War Crimes. Boston, MA: Beacon Press, 1972.
• Vogelgesang, Sandy. The Long Dark Night of the Soul: The American Intellectual Left and the Vietnam War. New York: Harper & Row, 1974. 
• Wilcox, Fred A. Scorched Earth: Legacies of Chemical Warfare in Vietnam. New York: Seven Stories Press, 2011.
• Wilcox, Fred A. Waiting for an Army to Die: The Tragedy of Agent Orange. New York: Seven Stories Press, 2nd ed., 2011.

Memorial Day: Arlington West in Santa Barbara, California

This is a picture from Arlington West, in my hometown of Santa Barbara, California. This project is now under the auspices of the Santa Barbara chapter of Veterans for Peace. The introduction that follows is from the website of the Santa Barbara group.

“The first Sunday of November 2003, a group of local activists erected 340 wooden crosses on the beach immediately west of Stearns Wharf, marking the death of U.S. servicemen and servicewomen in Iraq.

Outraged that the Bush administration had barred U.S. media from photographing returning coffins containing the war dead from Iraq, founder Stephen Sherrill, along with a small group of local activists, erected the first installation of what has become widely known as the Arlington West memorial. ‘I didn’t feel that the American people were mindful of the terrible price we were paying – and were about to pay – for the invasion and occupation of Iraq,’ says Sherrill. ‘The statistics in the newspapers were just tiny little numbers, too easy to breeze over.’ Since the first installation of about 340 crosses in November of 2003, the number of American soldiers killed in Iraq has grown beyond 4,500. Formerly held every Sunday morning, and now erected on a twice-a-month basis (first and third Sunday of each month), members of Veterans for Peace and volunteers from the community place crosses in the sand by Stearns Wharf in Santa Barbara, CA, in remembrance of those whose lives have been sacrificed in Iraq. Hundreds of observers from across the nation and around the world visit Arlington West every week. To date, there have been approximately twenty duplications of the original Arlington West all across America, including their weekly ‘sister memorial’ in Santa Monica, CA. In the intervening years since the memorial started, Veterans for Peace members and volunteers have effectively transformed what began as an angry anti-war protest into a genuine memorial — somber, chilling, and irresistibly moving. The memorial has been deliberately de-politicized in an effort to make Arlington West a non-threatening experience for everyone, regardless of their political affiliation. Gone are the placards denouncing George W. Bush that were there in the beginning. In their place are flowers, flags, and the names of the dead attached to the crosses and posted on makeshift bulletin boards. The crosses are planted in straight, tight rows, covering over an acre of beach that every Sunday make a stunning visual statement. In the background, the sound of ‘Taps’ can be heard playing nonstop from a nearby recorder. At sunset, the music ends and the crosses are taken down, packed up, and stored away until the coming week.

Adjacent to one of the most heavily traveled intersections in Santa Barbara, Stearns Wharf has always been a favorite place for tourists to stroll. But now, it has also become a place where friends and relatives of the deceased can pay their last respects. ‘Until you’ve held a weeping mother in your arms who has lost her child – or worse, her only child – in Iraq, it’s difficult to grasp the enormity of the pain and the sorrow and the grief that has resulted from this war that WE started,’ says Sherrill. Everyone involved with Arlington West has a similar story to tell. Nearly a thousand of the crosses have been visited by friends, comrades, or loved ones. ‘We never realized it would get so gigantic,’ says Pat Chamberlin-Calamar. ‘Every time I place flowers by a cross, I say a little prayer.’”

 As the Wikipedia entry on Arlington West notes, “In August 2010, the members of the Santa Barbara chapter of Veterans for Peace decided to replace the traditional Arlington West memorial with one which focuses on the War in Afghanistan. The 3000+ crosses for the casualties in Iraq were removed and replaced with 1200+ plastic tombstones representing the fatalities in Afghanistan, ending the memorial dedicated specifically to the Iraq war.” It seems, however, that crosses are once again being used, and now for marking those who died in both wars.

When Innocent Clients Plead Guilty

At the Legal Ethics Forum (LEF), John Steele has a post on the Brian Banks story in the news the last couple of days. First, we’ll introduce the basics of the story, courtesy of the Los Angeles Times (May 25, 2012). What follows are the comments to date at LEF, where John asks, “The focus should be on Brian Banks, but I can’t help but wonder: what is it like for a lawyer to advise an innocent client to plead guilty?”

“A Ten-Year Nightmare [for] Rape Conviction is Over”

Brian Banks spent years in prison, branded a rapist. Then his accuser provided the key to getting his conviction dismissed.

By Ashley Powers

“Brian Banks logged onto Facebook last year, and a new friend request startled him. It was the woman who, nearly a decade ago, accused him of rape when they were both students at Long Beach Poly High School. Banks had served five years in prison for the alleged rape, and now he was unemployed and weary. So he replied to Wanetta Gibson with a question: Would she meet with him and a private investigator? She agreed.

At the meeting, which was secretly recorded, Gibson said she had lied. ‘No,’ she was quoted as saying, ‘he did not rape me.’ That admission set off an extraordinary chain of events that culminated Thursday morning. A Los Angeles County Superior Court judge dismissed Banks’ conviction, ending 10 years of turmoil in a hearing that lasted less than a minute. [….]

In the summer of 2002, Banks was considered a top college football prospect. A 6-foot-4, 225-pound middle linebacker at Long Beach Poly High, Banks said he had been courted by USC, UCLA, and other football powerhouses. He was attending summer school, and asked his teacher for permission to leave class so he could make a phone call, according to court papers. Then Banks, a senior, ran into Gibson, a sophomore. Banks said they fooled around, but that their sexual contact was consensual. His mother, Leomia Myers, believed him, and said she sold her condo and her car to pay for his defense. ‘I knew I didn’t raise my son to do something so horrendous,’ she said.

Gibson’s version shifted over the years. She could not be reached Thursday for comment. [….] But when she testified during Banks’ preliminary hearing, Gibson faced the rigorous questioning typical in sexual assault cases. She changed some details and added others, Banks’ attorneys alleged in court documents.

Banks had a choice: He could take the he said-she said case to trial and, if convicted, risk being sentenced to 41 years to life in prison. Or, as his lawyer advised, he could accept a plea deal.

Banks pleaded no contest to one count of forcible rape, spent five years in prison and, upon his release, was forced to register as a sex offender and wear an electronic monitoring bracelet. At one point, he begged the California Innocence Project in San Diego for help, but he was told that without new evidence, there was nothing its attorneys could do. [….]

Meanwhile Gibson and her family sued the Long Beach schools. They settled the case for $1.5 million. Gibson’s mother, Wanda Rhodes, could not be reached Thursday for comment. [….]

According to Banks and his private investigator, Gibson refused to tell prosecutors that she had lied, so that she wouldn’t have to return the money she and her family had won in court. She also said she feared it would affect her relationship with her children, Banks’ attorney alleged in court papers. But her taped admission was enough to interest the Innocence Project attorneys, who said they had never before taken the case of someone already released from prison. When they reexamined Banks’ case, said Innocence Project attorney Justin Brooks, investigators also found other evidence to back up his claims.

After the alleged rape, no male DNA had been detected on Gibson’s underwear, his attorneys said. Also, the classmate Gibson first told about the alleged attack — via the note — said Gibson later admitted to making up the story so her mother wouldn’t find out she was sexually active, attorneys said. More recently, Gibson has backed off her recantation, Brooks said. Nevertheless, when presented with the Innocence Project’s findings, Los Angeles County prosecutors agreed that the case should be thrown out. [….]

Yours truly begins the comments at LEF (hyperlinks added):

“I can’t answer the question, but I suspect this occurs more often than we’d care to admit, especially for indigent defendants,* and given both the case loads of public defenders (including their wish to maintain a decent or working relationship with the prosecutor) and the nature and degree of the discretionary power of the prosecutor during the (largely invisible) plea bargaining process. For example,

‘Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.’ Martin Yant, Presumed Guilty: When Innocent People Are Wrongly Convicted (1991)

William J. Stuntz provides us with another explanation in The Collapse of American Criminal Justice (2011), ‘In the inevitably selective business of criminal punishment, selections are often made on perverse criteria. The lack of careful investigation that characterizes most felony prosecutions virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit. And within the much larger universe of guilty defendants, those who are punished most severely are often those who made the worst deals, not those who committed the worst crimes.’ As Stuntz also notes, plea bargains ‘are no longer a means of settling easy cases, which is their proper role.’Two examples that are perhaps representative and at least illustrative: See the case of Emma Faye Stewart as told in Angela J. Davis’s Arbitrary Justice: The Power of the American Prosecutor (2007): 50-52, as well as the 2008 film, American Violet. The latter

 ‘tells the story of Dee Roberts (Nicole Beharie), a 24 year-old African-American single mother of four, living in a small Texas town (based after Hearne, Texas where the real incident took place). One day, while Dee is working a shift at the local diner, the powerful local district attorney (Michael O’Keefe) leads a drug bust, sweeping Dee’s housing project. Police drag Dee from work in handcuffs, dumping her in the women’s county prison. Indicted based on the uncorroborated word of a single and dubious police informant facing his own drug charges, Dee soon discovers she has been charged as a drug dealer.

Even though Dee has no prior drug record and no drugs were found on her in the raid or any subsequent searches, she is offered a hellish choice: plead guilty and go home as a convicted felon or remain in prison and fight the charges thus, jeopardizing her custody and risking a long prison sentence.’

Dee’s public defender counsels her to take the deal, and it appears he knew the charges were likely false:  ‘In the film, the public defender urges the character named Dee Roberts to accept a plea bargain. The actual public defender claims he never tells innocent clients to take a plea.’ Of course not, what public defender would publicly confess to such behavior?”

* Keep in mind that even “grossly incompetent lawyering,” as Monroe Freedman reminds us, “is not enough to establish ineffective counsel,”and that the current criminal justice system—especially for poor people—is, in Freedman’s pithy characterization, “unethical, unconstitutional, and intolerably cruel.”

Monroe Freedman: “I agree with Patrick about the evils of plea bargaining, which are heightened by prosecutors’ overcharging for bargaining purposes, and by incompetent defense lawyers.

However, the defendant is entitled to know how the system works (i.e., coercing pleas to avoid the expense to society of honoring the right to trial by jury) and to be counseled to take a plea to a lesser offense rather than taking the substantial risk of spending the rest of is life in prison, or being executed. The issue is discussed in Understanding Lawyers’ Ethics (4th ed., 2010): 58-62, including a discussion of the dilemma of the lawyers representing the Unabomber, who was refusing to take the plea that would have saved his life.”

John Steele: “Patrick, thanks. There is also a well-done scene in the movie Criminal Justice where the lawyer and client discuss the pros/cons of pleading guilty to a crime that they know the client didn’t commit.”

Alice Woolley: “I think this is one of the most difficult ethical dilemmas for defense lawyers, and it is heightened by criminal justice systems which make the consequences of conviction so extreme. In Canada it is unethical for a lawyer to counsel a client to accept a guilty plea unless the client can honestly attest to the factual and mental elements of the offence (i.e., does not plausibly maintain his or her innocence). But as we move to a more extreme criminal justice system, with the introduction of severe mandatory minimum sentences for a broad variety of crimes, criminal defence lawyers have to weigh the factors noted by Monroe. That is, they need to be honest with their clients about the likelihood and consequences of conviction given how the system works. What is the balance between the existential harm of a wrongful confession and the lived harm of a life of incarceration and all of the subsequent consequences to that?

When I present this issue to my students they generally want to avoid the hypothetical - show how they will be able to obtain an acquittal for the client. But that just evades the basic problem.

I think one of the best discussions of this is in Abbe Smith’s book, Case of a Lifetime: A Criminal Defense Lawyer’s Story (2008) when she talks about the fact that the client she represented did not take a favourable plea deal because the client was innocent, and ended up spending decades in jail as a result. Abbe does a terrific job of laying out the ethical problem, and making it clear where she thinks the duties of the lawyer lie.

Ultimately perhaps this is a case where the solution lies with the prosecutor - to not play the game of piling on charges to make the consequences of not taking a plea so extreme. But prosecutors are under pressure too, and they have to live with a system which puts the mandatory minimum sentences in place. It’s not obvious that simply declining to apply the laws is ethical for a prosecutor either.” 

The Catholic Republican Elephant

As the Catholic Church clamps down on Nuns and Girl Scouts (among others) while accenting its conservative credentials and becoming an arm of the Republican Party, there is increasing criticism. For example, Jamie Manson in the National Catholic Reporter (here) is moving from its place as a Church in the modern world to that of a sect. Unlike a Church,  “A sect, ‘tends to demand more conformity in its members, is exclusive in its membership, distances itself from the concerns of the larger society, and also claims to be the bearer of religious truth.’ Sects are ‘exclusivist, inward looking, and in some tension with larger culture.’Examples of modern-day sects in our country would be the Amish or Hasidic Jews.”

He continues: “The hierarchy is so caught up in ideology, it has forgotten that there are complex, human stories behind issues like contraception, women's ordination and same-sex marriage. It is no wonder they are so afraid of women religious, who have built up a church of integrity and moral credibility by immersing themselves in the reality of human life and by courageously engaging a world filled with suffering, brokenness, unpredictability and paradox.

“Rather than allow the ministry of the church to grow and evolve with the human community, the hierarchy seems to be choosing the path of a religious splinter group. In doing so, they are willingly abandoning those who have endeavored for decades to remain faithful to the church, even through the disgrace of sex abuse and the gradual rescinding of the promises of Vatican II.”

Meanwhile E.J. Dionne here points to the fact that there are Bishops who are uncomfortable with the partisan character of the Catholic religious freedom battle which is accompanied by rhetoric and law suits against Obama. No doubt he is accurate; those Bishops exist. He expects them to make moves to enter public consciousness. But I think he is whistling in the dark. They are outnumbered. Conservative, partisan Bishops dominate the American Catholic scene. For progressive Catholics, it must be increasingly difficult to ignore the elephant in the room.

 

Wrongful Conviction(s)

Yesterday we watched the 2010 film Conviction, based on a true story, with Hilary Swank as Betty Anne Waters and Sam Rockwell as her brother “Kenny” Waters. This called to mind several similar films I’ve recently seen, including The Hurricane (1999), and American Violet (2008). Conviction is an extremely powerful film, so much so I had it fresh on my mind upon awakening. My morning ritual includes reading the paper (the actual paper, not the cyberspace version) and, lo and behold, after scanning the baseball scores (the Dodgers won again!), I landed on an article about a new national database tracking wrongful convictions since 1989. I suppose this falls under the rubric of serendipity or synchronicity. I’ve pasted the entire article below, followed by a list of titles that help us begin to make sense of the disturbing number of (both documented and unknown) wrongful convictions. In other words, these books should enable us to better understand the possible reasons for the incredible number of wrongful convictions in our adversarial criminal justice system.

“Registry Tallies Over 2,000 Wrongful Convictions Since 1989”

Los Angeles Times (May 21, 2012)

By David Savage

The national database, said to be the largest of its kind, covers the period since DNA testing came into common use. Its sponsors hope to shed light on the legal system’s failings.

“More than 2,000 people have been freed from prison since 1989 after they were found to have been wrongly convicted of serious crimes, according to a new National Registry of Exonerations compiled by University of Michigan Law School and Northwestern University. Its sponsors say it is by far the largest database of such cases, and they hope it will help reveal why the criminal justice system sometimes misfires, prosecuting and convicting the innocent. ‘The more we learn about false convictions, the better we’ll be at preventing them,’ said Samuel Gross, a University of Michigan law professor.

The registry covers the period since DNA came into common use and revealed, to the surprise of many prosecutors and judges, that a significant number of convicted rapists and murderers were innocent. The Innocence Project in New York says DNA alone has freed 289 prisoners since 1989. Criminal law experts have been studying the growing number of exonerations. Some cases have involved police corruption or witnesses who recanted. Experts have also pointed to faulty eyewitness testimony and lying witnesses as common problems. Beyond that, a surprising number of cases involved suspects who confessed to crimes they didn’t commit. [emphasis added]

‘Nobody had an inkling of the serious problem of false confessions until we had this data,’ said Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University. Under persistent and prolonged questioning by investigators, some suspects confessed to crimes such as rape, even though DNA later revealed they were not the perpetrators.

Among the states, Illinois has the most exonerations listed in the new registry, and among counties, Cook County and Chicago led the way, followed by Dallas and Los Angeles. However, the sponsors of the new registry do not contend that their data permits strong comparisons across counties or states because only about 900 of the cases were examined in detail by jurisdiction. ‘It’s clear that the exonerations we found are the tip of the iceberg,’ Gross said. For example, several counties in California with more than 1 million residents, including San Bernardino and Alameda, listed no exonerations. By contrast, Cook County had 78 and Dallas County 36. ‘Obviously there are false convictions in those [other] counties. We just don’t know about them,’ he said.

The figures are also constantly changing. Last week, shortly after a report on the registry was completed, prosecutors in Lake County, Ill., dropped sexual assault charges against Bennie Starks. He had been convicted of the 1986 rape of an elderly woman and had served 20 years in prison. DNA evidence taken from the victim pointed to a different man. Updating the registry, Warden said Illinois now had 103 exonerations.”

Recommended Reading:

• Abramsky, Sasha (2007) American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment. Boston, MA: Beacon Press.
• Alexander, Michelle (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
• Allen, Francis A. (1981) The Decline of the Rehabilitative Ideal. New Haven, CT: Yale University Press.
• Banner, Stuart (2002) The Death Penalty: An American History. Cambridge, MA: Harvard University Press.
• Burnett, Cathleen (2002) Justice Denied: Clemency Appeals in Death Penalty Cases. Boston, MA: Northeastern University Press.
• Butler, Paul (2009) Let’s Get Free: A Hip-Hop Theory of Justice. New York: The New Press.
• Cole, David (1999) No Equal Justice: Race and Class in the American Criminal Justice System. New York: The Free Press.
• Cusac, Anne-Marie (2009) Cruel and Unusual Punishment: The Culture of Punishment in America. New Haven, CT: Yale University Press.
• Davis, Angela J. (2007) Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press.
• Demleitner, Nora, Douglas A. Berman, Marc Miller and Ronald Wright (2007, 2^nd ed.) Sentencing Law and Policy: Cases, Statutes and Guidelines. New York: Aspen Publ.
• Dow, David R. (2005) Executed on a Technicality: Lethal Injustice on America’s Death Row. Boston, MA: Beacon Press.
• Dubber, Markus Dirk (2006) The Sense of Justice: Empathy in Law and Punishment. New York: New York University Press.
• Forst, Brian (2004) Errors of Justice: Nature, Sources and Remedies. Cambridge, UK: Cambridge University Press.
• Friedman, Lawrence M. (1993) Crime and Punishment in American History. New York: Basic Books.
• Garland, David (2001) The Culture of Control: Crime and Social Order in Contemporary Society. Chicago, IL: University of Chicago Press.
• Garrett, Brandon L. (2011) Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press.
• Harcourt, Bernard E. (2011) The Illusion of Free Markets: Punishment and the Myth of Natural Order. Cambridge, MA: Harvard University Press.
• Huff, C. Ronald, Arye Rattner, and Edward Sagarin (1996) Convicted But Innocent: Wrongful Conviction and Public Policy. Thousand Oaks, CA: Sage.
• Irwin, John (2004) The Warehouse Prison: Disposal of the New Dangerous Class. Los Angeles, CA: Roxbury Publ.
• Kennedy, Randall (1997) Race, Crime, and the Law. New York: Pantheon Books. 
• King, Gilbert (2008) The Execution of Willie Francis: Race, Murder, and the Search for Justice in the American South. New York: Basic Civitas.
• Lawless, Joseph F. (3^rd ed., 2003) Prosecutorial Misconduct. Charlottesville, VA: LexisNexis.
• Marquart, James W. (1994) The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990. Austin, TX: University of Texas Press.
• Mauer, Marc (2^nd ed., 2006) Race to Incarcerate. New York: The Free Press.
• Medwed, Daniel S. (2012) Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent. New York: New York University Press.
• Mello, Michael A. (1997) Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison, WI: University of Wisconsin Press.
• Mello, Michael (2001) The Wrong Man: A True Story of Innocence on Death Row. Minneapolis, MN: University of Minnesota Press.
• Messerschmidt, Jim (1983) The Trial of Leonard Peltier. Boston, MA: South End Press.
• Miller, Jerome G. (1997) Search and Destroy: African-American Males in the Criminal Justice System. Cambridge, UK: Cambridge University Press.
• Ogletree, Charles J., Jr. and Austin Sarat, eds. (2006) From Lynch Mobs to the Killing State: Race and the Death Penalty in America. New York: New York University Press.
• Prejean, Sister Helen (1993) Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Random House.
• Reiman, Jeffrey (2005, 7^th ed.) The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice. Boston, MA: Allyn & Bacon.
• Rhode, Deborah L. Access to Justice (2004) New York: Oxford University Press.
• Rhodes, Lorna A. (2004) Total Confinement: Madness and Reason in the Maximum Security Prison. Berkeley, CA: University of California Press.  
• Russell, Katheryn K. (1999) The Color of Crime: Racial Hoaxes, White Fear….  New York: New York University Press.
• Saks, Elyn R. (2002) Refusing Care: Forced Treatment and the Rights of the Mentally Ill. Chicago, IL: University of Chicago Press.
• Sarat, Austin (2001) When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press.
• Sarat, Austin, ed. (1999) The Killing State: Capital Punishment in Law, Politics, and Culture. New York: Oxford University Press.
• Simon, Jonathan (2007) Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. Oxford, UK: Oxford University Press.
• Stuntz, William J. (2011) The Collapse of American Criminal Justice. Cambridge, MA: Harvard University Press.
• Temple, John (2009) The Last Lawyer: The Fight to Save Death Row Inmates. Jackson, MS: University Press of Mississippi.
• Tonry, Michael (1996) Malign Neglect: Race, Crime and Punishment in America. New York: Oxford University Press.
• Turow, Scott (2003) Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty. New York: Farrar, Straus, and Giroux.
• Wacquant, Loïc (2009, English ed.) Punishing the Poor: The Neoliberal Government of Social Insecurity. Durham, NC: Duke University Press.
• Welsh-Huggins, Andrew (2009) No Winners Here Tonight: Race, Politics, and Geography in One of the Country’s Busiest Death Penalty States. Athens, OH: Ohio University Press.
• Western, Bruce (2006) Punishment and Inequality in America. New York: Russell Sage Foundation Publ.
• White, Welsh S. (2005) Litigating in the Shadow of Death: Defense Attorneys in Capital Cases. Ann Arbor, MI: University of Michigan Press.
• Zimring, Franklin E. (2003) The Contradictions of American Capital Punishment. New York: Oxford University Press.
• Zimring, Franklin E. (2005) American Juvenile Justice. New York: Oxford University Press.
• Zimring, Franklin E. and Gordon Hawkins (1997) Crime is Not the Problem: Lethal Violence in America. New York: Oxford University Press.
• Zimring, Franklin E. and Gordon Hawkins (1986) Capital Punishment and the American Agenda. Cambridge, UK: Cambridge University Press.
• Zimring, Franklin E. and Gordon Hawkins (1997) Incapacitation: Penal Confinement and the Restraint of Crime. New York: Oxford University Press.
• Zimring, Franklin E. and Bernard E. Harcourt, eds. (2007) Criminal Law and the Regulation of Vice. New York: Thompson West.

[I’ve had to close comments owing to incessant spam.]

File Under: “Unintentional but Beneficial By-Product Effects,” Or, “The Resuscitation of Prefigurative Politics” *

[Arizmendi Bakery is a worker-owned cooperative specializing in morning pastries, artisan breads and gourmet pizza. They are located in the Inner Sunset, just two blocks from Golden Gate Park.]

In today’s Los Angeles Times, Neal Gabler has an inspirational and incisive piece on the “do-it-yourself” approach of the youth today to progressive political change, an approach which has as its axiomatic premise the belief that the social transformation one wants to see take place, begins with oneself, in concert with others, such that the “means-ends” formulas typically intrinsic to conventional power politics are in some sense transcended. The aim, with Gandhi, is to “be the change we want to see in the world,” or with the anarchist tradition (at least its more philosophically-inclined and politically astute component), to build the new world within the shell of the existing—and decaying—order. As Richard D. Sonn writes in his introduction to the doctrine and movement of anarchism:

“Anarchists hoped to make the services of the state redundant by performing them themselves. People needed to form alternative communities, businesses, schools, newspapers, cafés, marriages, libraries, and so on that were nonhierarchical, nondominative, nonexploitive. In a negative sense the anarchist doctrine might imply sabotaging the boss’s factory or not paying the rent to the landlord; in a positive sense, anarchists wished to form mutual aid societies and credit banks, personal relationships that could be terminated by mutual consent, schools featuring what anarchists like to call ‘integral education’ of both manual and intellectual skills. The anarchists tended to believe that a change in attitudes must precede any large-scale social transformation. Power-mad people would simply institute new regimes of power. To destroy rather than replace relations of power, new anarchist values had to predominate.” See Sonn’s book, Anarchism (New York: Twayne Publishers, 1992)

Another way to think of this is along the lines Gandhi conceived of the relationship between means and ends:

1. It is enough to know the means. Means and ends are convertible terms.
2. We always have control over the means but not over the end.
3. Our progress toward the goal will be in exact proportion to the purity of our means.
4.  Instead of saying that means are after all means, we should affirm that means are after all everything. As the means so the end.

From Raghavan Iyer’s chapter, “Means and Ends,” in Parapolitics: Toward the City of Man (New York: Oxford University Press, 1979)

And now, from Gabler’s LA Times article:

“Welcome to the DIY generation”

“Barack Obama wanted to be a transformational president, and as we head into the general election, he may have gotten his wish — just not the way he or his supporters might have thought. Obama seems to have transformed the cohort of 18- to 29-year-olds, a whopping 66% of whom preferred him over John McCain, from passionate voters who thought Obama really did offer change they could believe in, into people feeling, in the words of veteran political analyst Charlie Cook, ‘disappointment and disillusionment.’

Democratic pollster Stan Greenberg recently found Obama leading Romney among these same voters just 55% to 43%. And focus groups of young undecided voters in Ohio and North Carolina, conducted by the Republican organization Resurgent Republic, found them unhappy with the direction of the country, skeptical about an improving economy and deeply disappointed with the president. He ‘promised the moon,’ one young voter told pollsters, ‘and couldn’t even deliver the upper atmosphere.’

Disillusionment with partisan politics is certainly nothing new. Obama’s fall from grace, however, may look like a bigger belly flop because his young supporters saw him standing so much higher than typical politicians. Yet by dashing their hopes, Obama may actually have accomplished something so remarkable that it could turn out to be his legacy: He has redirected young people’s energies away from conventional electoral politics and into a different, grass-roots kind of activism. Call it DIY politics.

We got a taste of DIY politics last fall with the Occupy Wall Street sit-ins, which were a reaction to government inaction on financial abuses, and we got another taste when the 99% Spring campaign mobilized tens of thousands against economic inequality. OWS and its tangential offshoots may seem political, but it is important to note that OWS emphatically isn’t politics as usual. It isn’t even a traditional movement.

Movements have vectors; they head in a direction. The Occupiers don’t have a coherent program or clearly identified leaders or a political dimension even in the way, say, the tea party does. OWS is more just a festival of grievance populated by those (mostly young people) who find no place for themselves in the system, which made the metaphor of their ‘occupying’ the seat of American economic power ironic.

All of this is perhaps best defined as a consciousness — a way of thinking about change rather than a schema for it. That’s one reason the Occupiers could collect so many disparate elements. OWS has spoken to a mounting sense among the disaffected that nothing quite works in America and that you can’t really fight politics with politics anymore. In fact, you have to forget about traditional institutions, power and systems entirely. Americans typically don’t think this way.

OWS is only the most visible manifestation of this consciousness; there are many other subterranean components. Their adherents find one another on the Internet or in community meetings or in groups like the 99% Spring. Though many of the young seem to have given up trying to change the establishment frontally, what they are doing, though they may not realize it, is slowly creating a melding of minds that could eventually result in a new kind of politics in which traditional political institutions are basically irrelevant.

The DIY impulse seems to start with the most basic politics of all: individual agency. If it takes hold it will be from the bottom up, translating a way of thinking into a way of doing. Already you can see DIY politics in action, not just in young people camping outside City Hall but in their joining service organizations and NGOs where they can do good and seemingly apolitical — or at least extra-governmental — work. They don’t abide endless debate and tit-for-tat strategies that result in gridlock.

I have seen this firsthand in my family. One of my daughters has spent the last few years in the developing world working in healthcare and will be returning to this country this year to attend medical school. My other daughter spent a year in American Samoa in the World Teach program, another year in AmeriCorps, and is now in graduate school in social work. Neither cares one whit about the political system generally or electoral politics specifically. When we talk about their lack of interest in the current campaign or about legislative initiatives, they tell me, ‘We live our politics.’ [….]

There is a scathing irony in the fact that some attribute the rise in civic commitment to an ‘Obama effect,’ by which they mean Obama has kindled this idealism the way President Kennedy inspired young people to join the Peace Corps. (Of course, many more attribute it to the economy and the lack of jobs for recent grads.) Unfortunately, none of these surveys investigates reasons for increased volunteerism, but the data suggest another possible Obama effect: that he has driven them out of politics and into service.

Many longtime politicos find that outcome troubling. They fret that if young people abandon the system, the system will abandon the public good. Of course, to many of the young, it is the system that has abandoned them. If the polls are accurate, most of them will still vote for Obama but with less enthusiasm than in 2008 and with fewer illusions about what he will accomplish. Instead, they will assume the social burden themselves, opting out of organized politics to ‘do it themselves’ with a politics of one that adds up to millions of ones.”

* Further reading (toward an understanding of radical, nonviolent, and democratic prefigurative politics):

• Bahro, Rudolf. Building the Green Movement (Philadelphia, PA: New Society Publishers, 1986)
• Bahro, Rudolf. Avoiding Social and Ecological Disaster: The Politics of World Transformation (Bath, UK: Gateway Books, 1994)
• Breines, Wini. Community and Organization in the New Left, 1962-1968: The Great Refusal (New Brunswick, NJ: Rutgers University Press, 1989) [The term ‘prefigurative politics’ comes from Breines’ book, although the concept itself is found in the anarchist tradition and is central to Gandhi’s political philosophy.]
• Carson, Clayborne. In Struggle: SNCC and the Black Awakening of the 1960s (Cambridge, MA: Harvard University Press, 1981)
• Case, John and Rosemary C.R. Taylor, Co-Ops, Communes & Collectives: Experiments in Social Change in the 1960s and 1970s (New York: Pantheon Books, 1979)
• Cheney, George. Values at Work: Employee Participation Meets Market Pressures at Mondragon (Ithaca, NY: ILR Press, 1999)
• Clastres, Pierre. Society Against the State: Essays in Political Anthropology (New York: Zone Books, 1987; first published in French, 1974)
• Clave, Pierre. The Progressive City: Planning and Participation, 1969-1984 (New Brunswick, NJ: Rutgers University Press, 1986)
• Coy, Patrick, ed. A Revolution of the Heart: Essays on the Catholic Worker (Philadelphia, PA: Temple University Press, 1988)
• DeLeon, Richard Edward. Left Coast City: Progressive Politics in San Francisco, 1975-1991 (Lawrence, KS: University Press of Kansas, 1992)
• Dolgoff, Sam, ed. The Anarchist Collectives: Workers’ Self-Management in the Spanish Revolution, 1936-1939 (New York: Free Life Editions, 1974)
• Elster, Jon, and Karl Ove Moene, eds. Alternatives to Capitalism (Cambridge, UK: Cambride University Press, 1989)
• Erasmus, Charles J. In Search of the Common Good: Utopian Experiments Past and Future (New York: The Free Press, 1977)
• Flacks, Richard. Making History: The Radical Tradition in American Life (New York: Columbia University Press, 1988)
• Galston, William A. Justice and the Human Good (Chicago, IL: University of Chicago Press, 1980)
• Gendron, Richard and G. William Domhoff. The Leftmost City: Power and Progressive Politics in Santa Cruz (Boulder, CO: Westview Press, 2008)
• Havel, Václav (Jan Vladislav, ed.). Václav Havel: Or Living in Truth (London: Faber and Faber, 1987)
• Iyer, Raghavan, “Means and Ends in Politics,” in his book, The Moral and Political Thought of Mahatma Gandhi (Santa Barbara, CA: Concord Grove Press, 1983; 1st edition, Oxford University Press, 1973)
• Kanter, Rosabeth Moss. Commitment and Community: Communes and Utopias in Sociological Perspective (Cambridge, MA: Harvard University Press, 1972)
• Kazin, Michael. American Dreamers: How the Left Changed a Nation (New York: Alfred A. Knopf, 2011)
• King, Sallie B. Socially Engaged Buddhism (Honolulu, HI: University of Hawai’i Press, 2009)
• Lakey, George. Powerful Peacemaking: A Strategy for a Living Revolution (Philadelphia, PA: New Society Publishers, 1987 revised ed.)
• MacLeod, Greg. From Mondragon to America: Experiments in Community Economic Development  (Sydney, Nova Scotia: University College of Cape Breton Press, 1997)
• Morrison, Roy. We Build the Road as We Travel (Philadelphia, PA: New Society Publishers, 1991)
• Nichols, John. The “S” Word: A Short History of an American Tradition…Socialism (London: Verso, 2011)
• Payne, Charles M. I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (Berkeley, CA: University of California Press, 1995)
• Piehl, Mel. Breaking Bread: The Catholic Worker Movement and the Origins of Catholic Radicalism in America (Philadelphia, PA: Temple University Press, 1982)
• Pitzer, Donald E., ed. America’s Communal Utopias (Chapel Hill, NC: University of North Carolina Press, 1997)
• Queen, Christopher S., ed. Engaged Buddhism in the West (Boston, MA: Wisdom Publications, 2000)
• Ruddick, Sara. Maternal Thinking: Toward a Politics of Peace (Boston, MA: Beacon Press, 1995)
• Sale, Kirpatrick. SDS (New York: Random House, 1973)
• Santos, Boaventura de Sousa Santos, ed. Democratizing Democracy: Beyond the Liberal Democratic Canon—Vol. 1 of Reinventing Social Emancipation: Toward New Manifestos (London: Verso, 2007)
• Santos, Boaventura de Sousa Santos, ed. Another Production is Possible: Beyond the Capitalist Canon—Vol. 2 of Reinventing Social Emancipation: Toward New Manifestos (London: Verso, 2007)
• Taylor, Michael. Community, Anarchy and Liberty (Cambridge, UK: Cambridge University Press, 1982)
• Thomas H. and C. Logan. Mondragon: An Economic Analysis (London: Allen and Unwin, 1982)
• Whyte, William Foote and Kathleen King Whyte. Making Mondragon: The Growth and Dynamics of the Worker Cooperative Complex (Ithaca, NY: Cornell University Press, 1988)
• Wright, Erik Olin. Envisioning Real Utopias (London: Verso, 2010)

Bishops Investigate the Girl Scouts: Really?

And here I thought it was a joke. Or a reductio. But no, the Bishops are investigating the Girl Scouts for their association with allegedly sinful organizations like Doctors Without Borders. The Bishops have mastered the art of looking foolish.

Joan Chittister nicely puts this in its pathological perspective here. After tracing the Church's obsession with authority and control, the staggering decline in Church membership, and the leadership's willingness to preside over a purer, smaller, more obedient Church, Chittister suggests an alternative: "Maybe we ought to try the Gospel again, the one that understands people who lift their work animals out of a ditch on the sabbath, or get caught in adultery, or are shunned because of their leprosy, or decide that circumcision is only one culture's sign of commitment, not theirs, or are the wrong sex, as was the Woman at the Well, to preach the Word of God. Let's try again the one that doesn't use investigations or intimidation or silencing or excommunications for the sake of control rather than make compassion the mark of the church. . . .

"The results," she says, "cannot possibly be worse than the ones we're getting. But one thing's clear. I know my own problem now: I was a Girl Scout."

The Vietnam War: A Rather Select & Idiosyncratic Bibliography

My bibliography for the Vietnam War is available for download at the Ratio Juris blog.

 

I Returned to My Native Village

 

O my native land—emerald in the shade of the coconut trees,

 I return today! A dream I never dared hope.

So many of the ones I love have fallen on this earth.

But here, everything still stood.

I could see again the faces I loved.

I looked, I stared, as if I were lost.

My hands trembled, their hands clasped in mine.

They burned with all the longing, the loss.

 

I saw again—the old stretch of road

I walked across in dreams.

I could hear the distant cracking of hammocks.

And the singing—“Ah!…how much I love, how much I miss”

The white trang flowers.

Like the purity and the steadfastness of your love.

Like the carmine brilliance of your heart.

The small river where I swam as a child

Stood there still. Its current still ran the same course,

And the water hyacinth dyed its banks violet.

 

My mother—her back stooped, her hair white,

Told me stories in a sorrowful voice.

On the way back from school

Eight children killed in a napalm attack.

The ten in the hamlet killed by the enemy;

Villagers piled their bodies on a sampan,

Took them to Ben Tre to confront the soldiers.

The times bombs flattened our village,

Bamboo hedges torn, coconut trees uprooted;

To hide from the wind and rain my mother made a simple tent.

I had no idea that in that tent of my mother’s

A burning fire was lit beneath the earth.

Morning and night, my mother broke her back,

Supported our people in hidden tunnels.

 

Her entire life she made fearless sacrifices.

Twenty years she held onto the home,

She held onto the land

Mother! You are the mother of the South.

I had no idea the young sister I remembered

In that tent had now grown up.

So beautiful, like the springtime in flower.

So beautiful, the rifle strapped on her shoulder.

O sister! How fragrant your hair.

Have you just passed through a durian grove?

I love your crystal-like laughter,

Sweet as the xiem coconut milk.

I love your walk across the monkey bridge,

As gentle as a lovely angel.

You are a courier, you are a guerrilla,

You are my native land.

For eleven years I’ve missed you, eleven years I’ve dreamed

 

Tonight, the first night I sleep again in my village.

I feel a strange rush of warmth.

Even when the monsoon rains fall hard,

And cannon fire shakes the thatched walls,

How beautiful is our native land!

Even with the roads still pockmarked with bomb craters

Even with your shirt still peppered with patches!

In this return, dear sister, I have no present to give you

Except what’s in the heart—faith, boundless love,

And the rifle in my hand

Burning hot with indignation.

—Lê Anh Xuân September 1965

Lê Anh Xuân’s given name was Ca Lê Hiên. He died on May 24, 1968, in the suburbs of Saigon. “He worked briefly as an assistant lecturer in the history department of Hanoi University. At the end of 1964, he volunteered to return to the South and worked in the educational subcommittee, then in the literature branch of the Liberation Association of Literature and Arts for South Vietnam.” He published several books of poetry and one prose collection. This poem is found in Kevin Bowen, Nguyen Ba Chung, and Bruce Weigl, eds., Mountain River: Vietnamese Poetry from the Wars, 1948-1993 (Amherst, MA: University of Massachusetts Press, 1998, and published with the support and cooperation of the William Joiner Center for the Study of War and Social Consequences).

 

Please Note (May 20, 2012): One book inexplicably missing from the bibliography is Walter Capps’ The Unfinished War: Vietnam and the American Conscience (Boston, MA: Beacon Press, 2nd ed., 1990). Inexplicable and inexcusable as I was a Reader and Teaching Assistant for a couple of Capps’ courses at UC Santa Barbara, including his groundbreaking (and nationally renowned) course, “Religion and the Impact of the Vietnam War,” in the 1980s.

Sincerity, Commerce, and Politics

On an international flight last weekend, United Airlines offered me a choice of lasagna or chicken. I took the lasagna. Imagine my surprise when the plastic wrapper covering the lasagna revealed that the pasta was “homemade.” I suppose some passengers did not focus and got a warmer feeling (starting from a low point to begin with – we are talking about airline food) about the pasta they were about to consume. But for those who focused, what were we to think? Clearly, this mass produced food is not homemade. The airline knows it and we know it and the airline knows we know it. How are we to respect the communications of an airline that does not respect us?

United Airlines is not special in this respect though this is a particularly blatant example of the commercial culture of manipulation in which we are embedded. Moreover, this culture carries over into politics. When Mitt Romney was accused of homophobic assault in his youth, he said he did not remember forcibly cutting the hair of a gay youngster or hurling homophobic insults. But, of course, he did remember, and he knows we know he remembers. Yet the cynical communicators at United Airlines and cynical politicians believe that insincere communication is better than straight talk. It’s a shame that these are not isolated examples, but typify our commercial and political culture.

Five Reasons Drone Assassinations Are Illegal

 

By Bill Quigley.  Bill is a human rights lawyer who teaches law at Loyola University New Orleans and works with the Center for Constitutional Rights.  A longer version of this article with sources is available.  You can contact Bill at [email protected]

 

 

US civilian and military employees regularly target and fire lethal unmanned drone guided missiles at people across the world.  Thousands of people have been assassinated.   Hundreds of those killed were civilians. Some of those killed were rescuers and mourners.   

 

These killings would be criminal acts if they occurred inside the US.  Does it make legal sense that these killings would be legal outside the US?

 

Some Facts about Drone Assassinations

 

The US has used drones to kill thousands of people in Afghanistan, Iraq, Pakistan, Yemen and Somalia.   But the government routinely refuses to provide any official information on local reports of civilian deaths or the identities of most of those killed.

 

In Pakistan alone, the New America Foundation reports US forces have launched 297 drone strikes killing at least 1800 people, three to four hundred of whom were not even combatants.   Other investigative journalists report four to eight hundred civilians killed by US drone strikes in Pakistan.

 

Very few of these drone strikes kill high level leaders of terror groups.  A recent article in FOREIGN AFFAIRS estimated “only one out of every seven drone attacks in Pakistan kills a militant leader.  The majority of those killed in such strikes are not important insurgent commanders but rather low level fighters, together with a small number of civilians.”

 

An investigation by the Wall Street Journal in November 2011 revealed that most of the time the US did not even know the identities of the people being killed by drones in Pakistan.  The WSJ reported there are two types of drone strikes.  Personality strikes target known terrorist leaders.  Signature strikes target groups of men believed to be militants but are people whose identities are not known.  Most of the drone strikes are signature strikes.

 

In Yemen, there have been at least 34 drone assassination attacks so far in 2012 alone, according to the London based Bureau of Investigative Journalism.  Using drones against people in Yemen, who are thought to be militants but whose names are not even known, was authorized by the Obama administration in April 2012, according to the Washington Post.   Somalia has been the site of ten drone attacks with a growing number in recent months.

 

Civilian deaths in drone strikes are regularly reported but more chilling is the practice of firing a second set of drone strikes at the scene once people have come to find out what happened or to give aid.  Glen Greenwald of Salon, a leading critic of the increasing use of drones, recently pointed out that drones routinely kill civilians who are in the vicinity of people thought to be “militants” and are thus “incidental” killings.  But also the US also frequently fires drones again at people who show up at the scene of an attack, thus deliberately targeting rescuers and mourners.

 

Here are five reasons why these drone assassinations are illegal.

 

One.  Assassination by the US government has been illegal since 1976

 

Drone killings are acts of premeditated murder.  Premeditated murder is a crime in all fifty states and under federal criminal law.  These murders are also the textbook definition of assassination, which is murder by sudden or secret attack for political reasons.

 

In 1976 U.S. President Gerald Ford issued Executive Order 11905, Section 5(g), which states "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." President Reagan followed up to make the ban clearer in Executive Order 12333. Section 2.11 of that Order states "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." Section 2.12 further says "Indirect participation.  No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order."  This ban on assassination still stands.

 

The reason for the ban on assassinations was that the CIA was involved in attempts to assassinate national leaders opposed by the US. Among others, US forces sought to kill Fidel Castro of Cuba, Patrice Lumumba of the Congo, Rafael Trujillo of the Dominican Republic, and Ngo Dinh Diem of South Vietnam. 

 

Two.  United Nations report directly questions the legality of US drone killings

 

The UN directly questioned the legality of US drone killings in a May 2010 report by NYU law professor Philip Alston.  Alston, the UN special rapporteur on extrajudicial, summary, or arbitrary executions, said drone killings may be lawful in the context of authorized armed conflict (eg Afghanistan where the US sought and received international approval to invade and wage war on another country).  However, the use of drones “far from the battle zone” is highly questionable legally.  “Outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.” Can drone killings be justified as anticipatory self-defense?  “Applying such a scenario to targeted killings threatens to eviscerate the human rights law prohibition against arbitrary deprivation of life.” Likewise, countries which engage in such killings must provide transparency and accountability, which no country has done.  “The refusal by States who conduct targeted killings to provide transparency about their policies violates the international law framework that limits the unlawful use of lethal force against individuals.”

 

Three.  International law experts condemn US drone killings

 

Richard Falk, professor emeritus of international affairs and politics at Princeton University thinks the widespread killing of civilians in drone strikes may well constitute war crimes.  “There are two fundamental concerns. One is embarking on this sort of automated warfare in ways that further dehumanize the process of armed conflict in ways that I think have disturbing implications for the future,” Falk said. “Related to that are the concerns I’ve had recently with my preoccupation with the occupation of Gaza of a one-sided warfare where the high-tech side decides how to inflict pain and suffering on the other side that is, essentially, helpless.”

 

Human rights groups in Pakistan challenge the legality of US drone strikes there and assert that Pakistan can prosecute military and civilians involved for murder. 

 

While stopping short of direct condemnation, international law expert Notre Dame Professor Mary Ellen O’Connell seriously questions the legality of drone attacks in Pakistan.  In powerful testimony before Congress and in an article in America magazine she points out that under the charter of the United Nations, international law authorizes nations to kill people in other countries only in self-defense to an armed attack, if authorized by the UN, or is assisting another country in their lawful use of force.  Outside of war, she writes, the full body of human rights applies, including the prohibition on killing without warning.  Because the US is not at war with Pakistan, using the justification of war to authorize the killings is “to violate fundamental human rights principles.”

 

Four.  Military law of war does not authorize widespread drone killing of civilians

 

According to the current US Military Law of War Deskbook, the law of war allows killing only when consistent with four key principles: military necessity, distinction, proportionality, and humanity.   These principles preclude both direct targeting of civilians and medical personnel but also set out how much “incidental” loss of civilian life is allowed.  Some argue precision-guided weapons like drones can be used only when there is no probable cause of civilian deaths.  But the US military disputes that burden and instead directs “all practicable precautions” be taken to weigh the anticipated loss of civilian life against the advantages expected to be gained by the strike.     

 

Even using the more lenient standard, there is little legal justification of deliberately allowing the killing of civilians who are “incidental” to the killings of people whose identities are unknown.

 

Five.  Retired high-ranking military and CIA veterans challenge the legality and efficacy of drone killings

 

Retired US Army Colonel Ann Wright squarely denies the legality of drone warfare, telling Democracy Now:  “These drones, you might as well just call them assassination machines.  That is what these drones are used for: targeted assassination, extrajudicial ultimate death for people who have not been convicted of anything.”

 

Drone strikes are also counterproductive.  Robert Grenier, recently retired Director of the CIA Counter-Terrorism Center, wrote, “One wonders how many Yemenis may be moved in the future to violent extremism in reaction to carelessly targeted missile strikes, and how many Yemeni militants with strictly local agendas will become dedicated enemies of the West in response to US military actions against them.”

 

Recent polls of the Pakistan people show high levels of anger in Pakistan at US military attacks there.  This anger in turn leads to high support for suicide attacks against US military targets.

 

US Defense of Drone Assassinations

 

US officials claim these drone killings are not assassinations because the US has the legal right to kill anyone considered a terrorist, anywhere, if they can argue it is in self-defense.  Attorney General Holder and White House counterterrorism advisor John Brennan recently defended the legality of drone strikes and argued they are not assassinations because the killings are in response to the 9/11 attacks and are carried out in self-defense even when not in Afghanistan or Iraq.  This argument is based on the highly criticized claim of anticipatory self-defense which justifies killings in a global war on terror when traditional self-defense would clearly not.  The government refuses to provide copies of the legal opinions relied upon by the government.

 

Growing Resistance to Drone Assassinations

 

In signs of hope, people in the US are resisting the increasing use of drones. 

 

CODEPINK, the Center for Constitutional Rights and the London-based human rights group Reprieve co-sponsored an International Drone Summit in Washington DC to challenge drone assassinations.   Investigative journalist Jeremy Scahill noted that Congress only managed to scrape up six votes to oppose the assassination of US citizens abroad.  “What is happening to this country? We have become a nation of assassins.   We have become a nation that is somehow silent in the face of the idea that assassination should be one of the centerpieces of US policy.”

 

The American Society of International Law issued a report “Targeting Operations with Drone Technology: Humanitarian Law Implications” in March 2011.   Concerned that drones may be the future of warfare, scholars examined three questions in the US use of drone technology: the scope of armed conflict (what is the battlefield upon which deadly force of drone killing is authorized); who may be targeted; and the legal implications of who conducts the targeting (since it is often not military but clandestine CIA agents who decide who dies).   Concluding that the US may soon find itself “on the other end of the drone” as this technology expands, they criticize official US silence on these key legal questions.

 

Others are taking direct action.  Select examples include: fourteen people arrested in April 2009 outside Creech Air Force base in Nevada in connection with a protest against drones by the Nevada Desert Experience; in January 2010 people protested drones outside the CIA headquarters in Langley Virginia; in April 2011, thirty-seven were arrested at Hancock Air Force base in upstate New York as part of a four hundred person protest against the use of drones;  in October 2011, as part of the International Week of Protest to Stop the Militarization of Space there were protests outside of Raytheon Missile Systems plant in Tucson;  in April 2012, twenty-eight people were pre-emptively arrested on their way to protest drones at Hancock Air Force Base.

 

There is a brilliant new book, DRONE WARFARE authored by global activist Medea Benjamin which documents the nuts and bolts of the drone industry and the money involved in their production and operation.  She collects many global media reports of innocent civilian deaths, investigations into these deaths, and gives voice to international opposition groups like her own CODEPINK, Voices for Creative Nonviolence, Fellowship of Reconciliation, War Resisters International, Human Rights Watch, the Catholic Worker movement, Campaign for Nuclear Disarmament, and others working against the drones.

 

As National Public Radio and The New Republic jointly editorialized, there is good reason to doubt the veracity of US claims that drone killings are even effective.  Drone use has escalated and expanded the US global war on terror and thus should be subject to higher levels of scrutiny than it is now.  As the use of drones escalates so too does the risk of killing innocents which produces “legitimate anti-American anger that terrorist recruiters can exploit….Such a steady escalation of the drone war, and the inevitable increase in civilian casualties that will accompany it, could easily tip the delicate balance that assures we kill more terrorists than we produce.”

 

There is incredible danger in allowing US military and civilians to murder people anywhere in the world with no public or Congressional or judicial oversight.  This authorizes the President and the executive branch, according to the ACLU and the Center for Constitutional Rights, to be prosecutor, judge, jury and executioner.      

 

The use of drones to assassinate people violates US and international law in multiple ways.  US military and civilian employees, who plan, target and execute people in Pakistan, Yemen and Somalia are violating the law and, ultimately, risk prosecution.  As the technology for drone attacks spreads, protests by the US that drone attacks by others are illegal will sound quite hollow.  Continuation of flagrantly illegal drone attacks by the US also risks justifying the exact same actions, taken by others, against us. 

 

 

Palestinian Hunger Strike

I suppose it’s to be expected, but no less lamented, that mass media coverage of a Palestinian hunger strike will be poor or nonexistent in this country in comparison, say, with the frenzied coverage of a terrorist act committed by a Palestinian or group of Palestinians. In fact, this is nothing new, as nonviolent Palestinian struggles generally have received scant coverage in the media, reminding me of the following from Todd Gitlin’s seminal study, The Whole World is Watching: mass media in the making & unmaking of the new left (Berkeley, CA: University of California Press, 1980):

 “[In our day,] …political movements feel called upon to rely on large-scale communications in order to matter, to say who they are and what they intend to publics they want to sway; but in the process they become ‘newsworthy’ only by submitting to the implicit rules of newsmaking, by conforming to journalistic notions (themselves embedded in history) of what a ‘story’ is, what an ‘even’ it, what a ‘protest’ is. The processed image then tends to become ‘the movement’ for wider publics and institutions who have few alternative sources of information, or none at all, about it; that image has its impact on public policy, and when the movement is being opposed, what is being opposed is in large part as set of mass-mediated images. Mass media define public significance of movement events or, by blanking them out, actively deprive them of larger significance. Media images also become implicated in a movement’s self-image; media certify leaders and officially noteworthy ‘personalities;’ indeed, they are able to convert leadership into celebrity, something quite different. The forms of coverage accrete into systematic framing, and this framing, much amplified, helps determine the movement’s fate.”

In this case, the hunger strike may soon be ending, nonetheless, I still think it worth introducing to our readers, courtesy of a recent piece by Richard Falk and Noura Erakat in Jadaliyya (I have added emphasis throughout with color highlighting):

“On his seventy-third day of hunger strike, Thaer Halahleh was vomiting blood and bleeding from his lips and gums, while his body weighs in at 121 pounds—a fraction of its pre-hunger strike size. The thirty-three-year-old Palestinian follows the still-palpable footsteps of Adnan Khader and Hana Shalabi, whose hunger strikes resulted in release. He also stands alongside Bilal Diab, who is also entering his seventy-third day of visceral protest. Together, they inspired nearly 2,500 Palestinian political prisoners to go on hunger strike in protest of Israel’s policy of indefinite detention without charge or trial.

Administrative detention has constituted a core of Israel’s 1,500 occupation laws that apply to Palestinians only, and which are not subject to any type of civilian or public review. Derived from British Mandate laws, administrative detention permits Israeli Forces to arrest Palestinians for up to six months without charge or trial, and without any show of incriminating evidence. Such detention orders can be renewed indefinitely, each time for another six-month term.

Ayed Dudeen is one of the longest-serving administrative detainees in Israeli captivity. First arrested in October 2007, Israeli officials renewed his detention thirty times without charge or trial. After languishing in a prison cell for nearly four years without due process, prison authorities released him in August 2011, only to re-arrest him two weeks later. His wife Amal no longer tells their six children that their father is coming home, because, in her words, ‘I do not want to give them false hope anymore, I just hope that this nightmare will go away.’

Twenty percent of the Palestinian population of the Occupied Palestinian Territories have at one point been held under administrative detention by Israeli forces. Israel argues these policies are necessary to ensure the security of its Jewish citizens, including those unlawfully resident in settlements surrounding Jerusalem, Area C, and the Jordan Valley—in flagrant contravention of the Fourth Geneva Convention’s Article 49(6), which explicitly prohibits the transfer of one’s civilian population to the territory it occupies.

The mass hunger strike threatens to demolish the formidable narratives of national security long propagated by Israeli authorities. In its most recent session, the United Nation’s Committee for the Elimination of Racial Discrimination concluded that Israel’s policy of administrative detention is not justifiable as a security imperative, but instead represents the existence of two laws for two peoples in a single land. The Committee went on to state that such policies amount to arbitrary detention and contravene Article 3 of the Convention on the Elimination of All Forms of Racial Discrimination, which prohibits ‘racial segregation and apartheid.’ Nevertheless, this apartheid policy has so far escaped the global condemnation it deserves. In general, Palestinian grievances are consistently evaded with the help of media bias that accords faint coverage to signs of resistance, including even this extraordinary non-violent movement mounted by Palestinian victims of institutionalized state abuse. 

Although there has not been a principled or total abandonment of armed struggle by Palestinians living under occupation, there has been a notable and dramatic shift in emphasis to the tactics of nonviolence. For years liberal commentators in the West have been urging the Palestinians to make such a shift, partly for pragmatic reasons. Even President Obama echoed this suggestion in his 2009 Cairo address when he said,

Palestinians must abandon violence….For centuries, black people in America suffered the lash of the whip as slaves and the humiliation of segregation. But it was not violence that won full and equal rights. It was a peaceful and determined insistence upon the ideals at the center of America’s founding.

But when Palestinians act in this recommended manner, the West averts its gaze and Israel responds with cynical disregard, dismissing near-death Palestinian hunger strikers as publicity stunts or cheap tricks to free themselves from imprisonment. Today, Palestinians have epitomized the best of American values that reflect the global history of non-violent resistance, as they wage a mass hunger strike, engage in a global boycott, divestment, and sanctions (BDS) movement against Israeli Apartheid, and risk their bodies on a weekly basis in peaceful protests against the Annexation Wall. The latter continues to expand its devastating encroachment upon and around Palestinian lands in defiance of a near unanimous Advisory Opinion of the International Court of Justice as well as countless Security Council Resolutions.

Yet, this America chooses to label the hunger strikers’ prison guards, the architects of racist laws and policies, as well as the engineers of the Apartheid Wall, as the sole and exemplary democracy in the Middle East. Rather than condemn Israel’s colonial practices, which constitute the core of Arab grievances and explain the widespread resentment of the US role in the Middle East, a US Congressional House panel has just now approved nearly one billion US dollars in additional military assistance to augment Israel’s anti-missile defense program. If passed, Israel will receive a record amount of four billion dollars in military aid next year—more than any country in the world.

There is a stark contrast between the round-the-clock coverage given to Chen Guangchen, the blind Chinese human rights activist who escaped from house arrest to the safety of the US Embassy, and the scant notice given this unprecedented Palestinian challenge to the Israeli prison system that is subjecting the protesters to severe health risks, even death. What is more, such hunger strikes are part of a broader Palestinian reliance on a powerful symbolic appeal to the conscience of humanity in their quest for long-denied rights under international law. Said deprivations include a disavowal of a peace process that has gone nowhere for decades, while a pattern of settlement expansion has made any realization of the widely endorsed ‘two-state solution’ increasingly implausible. The prolonged nature of the occupation also steadily transforms what was supposed to be a temporary occupation into a permanent arrangement best understood as a mixture of annexation and apartheid.

In the face of this opportunity to place pressure upon Israel to comply with international law and human rights norms, the international community of governments and inter-governmental institutions has been grotesquely silent as Palestinians place their very lives at sacrificial risk. [….]

It is hard to deny the irony of tacit approval, at worst, or timid condemnation, at best, in the United Nations, the United States, or elsewhere. In its 2008 Boumedienne decision, the US Supreme Court declared that (arguably) the world’s most villainous and immoral persons are entitled to habeas corpus review in US courts in order to avoid the cruelty of indefinite detention. Yet, Israel’s policy of detaining indigenous Palestinians who inhabit the lands the State seeks to confiscate and settle for more than four decades has denied those Palestinians exactly such legal protection. What are Palestinians to do in the face of such frustrating circumstances? What message does the lack of international support for their strong displays of nonviolence, self-sacrifice, and personal bravery send to them and to their Arab and Muslim counterparts who are once more exposed to blatant US hypocrisy in the region?

Palestinian civil society is now mainly opting for explicit acts of collective nonviolent resistance to register their dissatisfactions with the failures of the United Nations—or inter-governmental diplomacy in general—to produce a sustainable peace that reflects Palestinian rights under international law. The main expression of this embrace of nonviolence is the adoption of tactics used so successfully by the anti-Apartheid campaign to change the political climate in racist South Africa, yielding a nonviolent path to multiracial constitutional democracy. At the present time the growing BDS movement is working to achieve similar results.

Let us recall that successful global nonviolent movements are not restricted to fasts and marches, but include the boycott, non-cooperation, and civil disobedience tactics deployed by Palestinians today. Though President Obama, encumbered as he may be by a domestic election cycle, may feel compelled to ignore Palestinian responses to his call, the rest of the world should not.  Certainly, US-based and global citizens should demand that the Western media begin to act responsibly when dealing with injustices inflicted on the Palestinian people, and not sheepishly report human rights abuses only when committed by the adversaries of their state. The media itself is a tactical target and a residual problem. In solidarity with the hunger strikers, civic allies should address the institutional edifice upholding administrative detention. It extends from a discriminatory core and therefore its requisite treatment includes ensuring the enjoyment of internationally guaranteed rights; rights enshrined by the BDS call to action and reified by the movement’s steady and deliberate progression.” 

Further Reading:

• Awad, Mubarak. Nonviolent Resistance in the Middle East. Philadelphia, PA: New Society Publishers, 1985.
• Awad, Mubarak E. and R. Scott Kennedy. Nonviolent Struggle in the Middle East. Philadelphia, PA: New Society Publ., 1985.
• Barghouti, Omar. BDS: Boycott, Divestment, Sanctions—The Global Struggle for Palestinian Rights. Chicago, IL: Haymarket Books, 2011.
• Cypel, Sylvain. Walled: Israeli Society at an Impasse. New York: Other Press, 2006.
• Dunsky, Marda. Pens and Swords: How the Mainstream American Media Report the Israeli-Palestinian Conflict. New York: Columbia University Press, 2008.
• Gordon, Neve. Israel’s Occupation. Berkeley, CA: University of California Press, 2008.
• Hajjar, Lisa. Courting Conflict: The Israeli Military Court System in the West Bank and Gaza. London: University of California Press, 2005.
• Hiltermann, Joost R. Behind the Intifada: Labor and Women’s Movements in the Occupied Territories. Princeton, NJ: Princeton University Press, 1991.
• Kattan, Victor, ed. The Palestine Question in International Law. London: British Institute of International and Comparative Law, 2008.
• Kaufman-Lacusta, Maxine, ed. Refusing to be Enemies: Palestinian and Israeli Nonviolent Resistance to the Israeli Occupation. Reading, UK: Ithaca Press/Garnet, 2010.
• King, Mary Elizabeth. A Quiet Revolution: The First Palestinian Intifada and Nonviolent Resistance. New York: Nation Books, 2007.
• Kretzmer, David. The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories. Albany, NY: State University of New York Press, 2002.
• Makdisi, Saree. Palestine Inside Out: An Everyday Occupation. New York: W.W. Norton and Co., 2008.
• Nusseibeh, Sari. What is a Palestinian State Worth? Cambridge, MA: Harvard University Press, 2011.
• Quigley, John. The Statehood of Palestine: International Law in the Middle East Conflict. Cambridge, UK: Cambridge University Press, 2010.
• Ring, Kenneth, with Ghassan Abdullah. Letters from Palestine: Palestinians Speak Out about Their Lives, Their Country, and the Power of Nonviolence. Tucson, AZ: Wheatmark, 2010.
• Roy, Sara. Hamas and Civil Society in Gaza: Engaging the Islamist Social Sector. Princeton, NL Princeton University Press, 2011.
• Said, Abdul Aziz, et al., eds. Peace and Conflict Resolution in Islam: Precept and Practice. Lanham, MD: University Press of America, 2001.
• Stephan, Maria J., ed. Civilian Jihad: Nonviolent Struggle, Democratization, and Governance in the Middle East. New York: Palgrave Macmillan, 2009.

 

Malcolm X and Martin Luther King, Jr.: Violence & Nonviolence

John M. Kang has published an intriguing article, “Martin V. Malcolm: Democracy, Nonviolence, Manhood,” (West Virginia Law Review, Vol. 114, No. 937, 2012) which examines the role of socio-cultural circumstances and conditions of one’s birth and upbringing (psychologically and phenomenologically speaking, as ‘personal life experiences’) as important factors in why leaders (and by implication, those they lead) choose violence or nonviolence as alternative means to accomplish their socio-economic and political ends.

Kang contends that “By sifting through their words [i.e., those of Malcolm X and Martin Luther King, Jr.], we may gain a better idea about why someone would choose nonviolence over violence (or vice versa). Through them, we also may understand better how personal life experiences, rather than formal study in ethics or philosophy, are responsible for shaping a person’s conception of democracy.” In short, “Malcolm’s defense of violence in furtherance of political action was, like King’s creed of nonviolence, explainable in part by looking to personal history:”

“King lived in an economically comfortable family that afforded stability and certainty. He ‘went right on through school and never had to drop out to work or anything.’ Growing up in an upper middle-class neighborhood, King was blessed with a father who was “able to provide us with the basic necessities of life with little strain. [….] Malcolm grew up in violence. …[He] also grew up very poor. This too would affect his worldview.” [….]

Kang’s tentative and qualified conclusion takes the form of a generalization that admits, therefore, of exceptions:

“It is hard to generalize why an individual may embrace peaceful means of democratic change while another may embrace violence. [….] Those leaders who, like King, have been blessed with a loving and financially comfortable upbringing are probably more likely to embrace nonviolence and an account of democracy that seeks peaceful coexistence with those who were once their oppressors. On the other hand, violence and separatism are likely to appear more attractive to those who have lived Malcolm’s life, a life damaged by violence as well as sustained by its power.”

One exception to the generalization (which readily comes to mind after Steve Shiffrin’s recent post) I think is worthy of deep consideration is that of the leading members of the Weathermen (later, ‘Weather Underground’) that evolved out of the Students for a Democratic Society (SDS) in the late 1960s. The Weathermen were clearly the most “violent” (in quotes, as their putatively ‘revolutionary’ violence was comparatively tame: it resulted in several deaths, to be sure, but it was largely directed against various forms of property, and included advance warnings to the authorities), of the factions that emerged within the SDS and helped ensure its eventual implosion and demise. Its leaders stood apart from even other leaders in the New Left student movement generally owing to their privileged upbringing and decisive affluence. As Todd Gitlin writes, “They radiated confidence as if to the manner born, in no small part because they were children of cornucopia par excellence. Compared to the general run of SDS members, and the previous leadership groups, they came from wealth, they were used to getting what they demanded, stamping their feet if they had to, wriggling away without punishment.” Gitlin proceeds to document and fill out this characterization in his classic study, The Sixties: Years of Hope, Days of Rage (New York: Bantam Books, 1987). 

Kang is not the first person to raise the question of how “personal life experiences” played determinative roles in the shaping of Malcolm and Martin’s respective worldviews in general and views on violence and nonviolence in particular. James H. Cone’s book, Martin & Malcolm & America: A Dream or a Nightmare (Maryknoll, NY: Orbis Books, 1992), sketches the importance of family and the relevance of social context in comparing these two remarkable black leaders from the 1960s, hence, for example, the respective chapters, “The Making of a Dreamer,” and “The Making of a ‘Bad Nigger.’” In addition, Eugene Victor Wolfenstein’s incisive study (which ‘contains’ a ‘psychobiography’ but is much more than that), The Victims of Democracy: Malcolm X and the Black Revolution (London: Free Association Books, 1989), helps one understand in a very vivid way how the social circumstances of one’s upbringing and life (in this case, owing to the determination of race and class variables) can deeply impinge upon and in some measure shape the (‘worldview-type’ and significant) moral and political choices one perceives and comes to make over time.

In a future post, I will address the role of violence as part of the quest for progressive (here: ‘revolutionary’) personal and social transformation with the Weathermen and the Black Panther Party in the 1960s and early 1970s.

Ministers Who Lose Their Faith

The largest religious denomination in the U.S. is Roman Cathoilc, assuming you disaggregate the Protestants. The second largest denomination is former Catholics. For those Catholics leaving their religious home is no small deal. But NPR focuses on soul searching of even larger worldly consequence. Suppose you are a minister and after a long bout with doubt, you realize that you have lost your faith, that you no longer believe in God. Along the way who do you talk to? What happens when you reveal your loss of faith? For a moving account of one such minister and the difficulty in determining how many such ministers there are, see http://www.npr.org/2012/05/07/152197685/when-religious-leaders-lose-their-faith.

One More on Connolly: Agonistic Respect and Militant Pluralism

Thank you, Taryn and Steve, for your kind words in comments to my previous post. As for favorite Connolly reads, maybe its like arguing over barbecue. We could argue over Kansas City versus East Carolina sauces, but why fight over multiple riches?

Chapter Four of Identity/Difference is a marvelous read, especially as Connolly cautions against the cruel drive to attribute responsibility for trauma which Christians, among others, are often tempted towards (Augustine, for example, suggesting that the women raped during the sack of Rome may have been too haughty and thus were being 'humbled' by God!)
What really won me over to Connolly was his remarkable response to a critique of his reading of Augustine by the feminist theologian Kathleen Roberts Skerrett. Rather than repeat the obvious criticisms of Augustine, which it is all too easy to do, (see above), he acknowledged his own tendency to over-react to Augustine, as well as the way in which his 'agonistic respect' for the African bishop was something very important to his own work.

Here is militant pluralism at work, in which Connolly senses that in Augustine's doctrine of grace, there is a note of the tragic which resonates significantly with his own views. (Skerrett too has a profound theology of mourning in her work drawing on Augustine) Here's where Connolly's recent work on the fragility of things seems very significant to me, as it is here that we can begin to draw connections with our opponents, as we witness their own and our vulnerabilities intermingle.  

Connolly is also, in spite of his spirited critique of right wing evangelicalism, a wonderful resource for evangelicals with both environmental interests and a desire to engage the interface of theology and science. His indebtedness to Stuart Kauffman's book Reinventing the Sacred: A New View of Science, Reason, and Religion is deep, and his critique of secularism and defense of the role of religious voices in democratic movements  in Why I am Not a Secularist  is brilliant. 

Finally, Connolly has something I for one think cannot be underestimated in a philosopher: a wicked sense of humor. Here's his barb at members of his own guild, political science, for their hand-wringing over 'events' like the recent Arab Spring whose emergence caught them entirely by surprise:

“How come we did not predict this?”, whisper political scientists to each other, before they catch themselves enough to recall that they only promise to predict hypothetical events under conditions in which the “variables” are strictly specified, not to explain actual events in the messy, ongoing actualities of triggering forces, contagious actions, complex and floating conflicts, obscure purposes, subterranean anxieties, and contending hopes. But why do so many remain committed to these protective maneuvers in the domains of the intelligence, the media, political leadership and the human sciences? Do they demand a world in which they can be in charge so much they are hesitant to sink into the messy reality of things underway?

...Many practitioners of the human sciences increasingly believe that proponents of classical practitioners of quantitative, predictive inquiry in those sciences simplify the world to make it clean enough for them to use their preset categories and demands. Maybe when they played in the mud as young boys their mothers called them in too soon to wash up.

May Connolly's militant pluralistic tribe increase!

Let's Blow Up a Bridge?

No doubt, violence can play a role in revolutionary change. And, I would guess that confrontational politics whether violent or non-violent is ordinarily an indispensable part of such change. But I doubt that violence can be effective in bringing about such change in the absence of massive support. Without that support, violence is typically counterproductive. I would guess that the violence of the Black Panther Party (as opposed to other of its activities) and the Weathermen did more to hurt the cause of change than to help it.

It is in that context that I read this morning’s news that allegedly five clueless youngsters were arrested for plotting to blow up an Ohio bridge in an effort to advance the cause of the Occupy movement which they thought is not violent enough.

Societies for the most part rely on younger people to participate in demonstrations. Too often, however, when revolutionary change does not come, a splinter group will turn to violence that is ineffective and counterproductive. It is hard to see how blowing up a bridge in this context would have been helpful. What did the clueless five expect ? A frenzied epidemic of copycat revolutionary activity leading to overthrow of the government? Really? Or did they just need an outlet for their anger?

I have no idea. I do think that we need to be humble enough to recognize that we personally may not bring about revolutionary change. We need to be patient enough to recognize that our actions are designed for the long haul. And we need to be mature enough to recognize that random acts of violence make it harder to promote serious change.

Theology, Law, and Social Change: a response to Steve on William Connolly's recent Cornell talk

I too was at the recent lecture here at Cornell by William Connolly, of whose writing I have long been an admirer. Connolly's talk of cowboy capitalism's imbrication with right-wing evangelicalism and the need for an alliance of secular-religious left bodies ought to be required reading for those seeking social change. For those on the religious left working in secular settings like Cornell's, his book, Why I am Not a Secularist is also invaluable.

Connolly is worried about cynicism on the left, and seeks allies among theologians like Catherine Keller  and  complexity scientists like Stuart Kauffman,  who  like him, are seeking to cultivate what he calls 'little spaces of enchantment'. At the lecture, one questioner suggested, in a somewhat bemused tone, that at times Connolly, an avowed atheist, sounded almost mystical! Indeed, and for those of us schooled in the thought of Foucault, Derrida, Cixous, Peguy, as well as in Eckhart, the Beguine mystics and others, such a 'mystical atheism' resonates rather deeply and provocatively in our search for a politically robust, pluralistic form of religious mysticism. Connolly is a remarkable interlocutor and a very important ally! 

In this way, I find Connolly to have tapped into the 'spirit of resistance movements' which Steve wrote about a few posts ago. His own deep engagement with Augustine has made him very leery of the majoritarian strand of Christian thought, with its politics of hell and  'deployment of hell to organize life'.

But in Keller, among others, he has found a different politics of hell, one willing to enter its fires in solidarity with non-identical others, not to seek their conversion, but to join in solidarity. To cite again the passage from Frank Pasquale which Steve noted in his earlier post, this alternative  theo-politics joins the resistance by means of "simple insistence on doing acts because they seem right or just or sacred, without regard to consequences,[it] is part of the beauty, mystery – and, yes, frustration generated by a religious point of view."

This 'without regard to consequences' is what a number of 13th century medieval mystics fighting the politics of their church's political 'deployment of damnation' called the resignatio ad infernum, or a willingness to be damned in order to resist their own age's life-destroying 'resonance-machines'.  And hell, we should not forget, is the most pluralistic place of all--all are most welcome there and in some of the early writings of the tradition (ones Augustine loathed, incidentally), hell, once the saints entered its precincts,  became the site of some rather remarkable resistance movements against none other than God himself! What we might call a mystical a-theism of love.  

(As an aside, much of Connolly's remarkable talk can be found in blog form on his website.) 

 

Sundry Reflections & Proposals in Celebration of International Workers’ Day (May Day)

“Once again the time has come to take Marx seriously.”—Eric Hobsbawm, How to Change the World: Reflections on Marx and Marxism (New Haven, CT: Yale University Press, 2011)

“In the Marxist tradition, self-realisation is the full and free actualisation and externalisation of the powers and the abilities of the individual.”—Jon Elster

“Under suitable conditions, both [political democracy and economic democracy] can be arenas for joint self-realisation.”—Jon Elster

The Capabilities Approach to Human Development

 “Considering the various areas of human life in which people move and act, this approach to social justice asks, What does a life worthy of human dignity require? At a bare minimum, an ample threshold level of ten Central Capabilities is required. Given a widely shared understanding of the task of government (namely, that government has the job of making people able to pursue a dignified and minimally flourishing life), it follows that a decent political order must secure to all citizens at least a threshold level of these ten Central Capabilities:

1. Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living.
2. Bodily health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter.
3. Bodily integrity. Being able to move freely from place to place; to be secure against violent assault, including sexual assault and domestic violence, having opportunities for sexual satisfaction and for choice in matters of reproduction.
4. Senses, imagination, and thought. Being able to use the senses, to imagine, think, and reason—and to do these things in a ‘truly human’ way, a way informed and cultivated by an adequate education, including, but by no means limited to, literacy and basic mathematical and scientific training. Being able to use imagination and thought in connection with experiencing and producing works and events of one’s own choice, religious, literary, musical, and so forth.
5. Emotions. Being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one’s emotional development blighted by fear and anxiety. (Supporting this capability means supporting forms of human association that can be shown to be crucial to their development.)
6. Practical reason. Being able to form a conception of the good and to engage in critical reflection upon the planning of one’s life. (This entails protection of the liberty of conscience and religious observance.)
7. Affiliation. (A) Being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction; to be able to imagine the situation of another. (Protecting this capability means protecting institutions that constitute and nourish such forms of affiliation, and also protecting the freedom of assembly and political speech.) (B) Having the social bases of self-respect and nonhumiliation; being able to be treated as a dignified being whose worth is equal to that of others. This entails provisions of nondiscrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin.
8. Other species. Being able to live with concern for and in relation to animals, plants, and the world of nature.
9. Play. Being able to laugh, to play, to enjoy recreational activities.
10. Control over one’s environment. (A) Political. Being able to participate effectively in political choices that govern one’s life, having the right of political participation, protections of free speech and association. (B) Material. Being able to hold property (both land and movable goods), and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure. In work, being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers.”—Martha Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, MA: Belknap Press of Harvard University Press, 2011)

Eleven Criticisms of Capitalism

1.  Capitalist class relations perpetuate eliminable forms of human suffering.
2. Capitalism blocks the universalization of conditions for expansive human flourishing.
3. Capitalism perpetuates eliminable deficits in individual freedom and autonomy.
4. Capitalism violates liberal egalitarian principles of social justice.
5. Capitalism in inefficient in certain critical respects.
6. Capitalism has a systematic bias towards consumerism.
7. Capitalism is environmentally destructive.
8. Capitalist commodification threatens important broadly held values.
9. Capitalism in a world of nation-states fuels militarism and imperialism.
10. Capitalism corrodes community.
11. Capitalism limits democracy.—From Erik Olin Wright’s Envisioning Real Utopias (London: Verso, 2010)

The Worker as Artist

“We have gone so far as to divorce work from culture, and to think of culture as something to be acquired in hours of leisure; but there can only be a hothouse and unreal culture where itself is not its means; if culture does not show itself in all we make we are not cultured.”—Ananda K. Coomaraswamy

“Industry without art is brutality.”—Ananda K. Coomaraswamy

A Civic Minimum: A Reform Programme

Making work pay: “All those who are expected to satisfy a minimum work expectation must receive a decent minimum income in return for doing so. This includes not only a level of post-tax earnings sufficient to cover a standard set of basic needs, but also a decent minimum of health-care and disability coverage…. The model of a minimum wage combined with in-work benefits for the low-paid, including child-care subsidies for low earners, is certainly one credible approach to this task.”

From a work-test to a participation-test: “Work-tests within the welfare system are…legitimate in principle. But in order that different forms of productive contributions can be treated equitably, social policy must be structured in a way that acknowledges the contributive status of care work. This implies a need to offer some public support for care workers, relieving their need to do paid work to maintain access to the generous basic needs package described above. Relevant policies here might include payment of a decent social wage to those engaged in looking after the elderly or the handicapped on a full-time basis and publicly subsidized paternal leave from paid employment. In other words, access to the generous basic-needs package should be conditional not on satisfying a work-test, narrowly construed in terms of paid employment, but on satisfying a broader participation-test, where participation is understood to include paid employment and (at least in addition) specified forms and amounts of care work.”

Towards a two-tiered income support system: “[T]he debate over ‘welfare reform’ is often polarized between supporters of an unconditional basic income that is not subject to any work- or participation-test, nor to any time limit, and supporters of time-limited workfare. An alternative approach…looks to establish a two-tiered system of income support. The first tier, which we may call conventional welfare, would be contractualist in kind. It would offer support through a mix of income-related and universal benefits, but support that is also linked to, and conditional on, productive contribution. While work- or participation-tested, support at this level would not be time-limited. [….] The second tier might then consist of something like the time-limited basic income…. This would be an additional income grant, not subject to any work- or participation-test, but which would be time-limited. Citizens could trigger the entitlement for a fixed amount of time over the full course of their working lives, but would not enjoy it indefinitely.”

Universal capital-grant or social drawing rights: “[We previously] set out the case for instituting a generous capital endowment as a basic right of economic citizenship. …[A] scheme of universal capital grants might in part incorporate the time-limited basic income mentioned above. Otherwise, the grants could be linked to activities that are related to productive contribution in the community, such as education, training, setting up a business, and, perhaps, care work….

Accessions tax: “[We have also made] the case for heavy taxation of wealth transfers (inheritances, bequests, inter vivos gifts). Such taxation is important to help prevent class inequality and violation of reciprocity. There is a strong case for hypothecating the funds from taxation of wealth transfers to the funding of a universal capital-grant scheme.”

“[T]his short list is not, by any means, exhaustive of the policies and institutions that might be necessary, or helpful, [in order to] reform the terms of economic citizenship so as to meet the demands of fair reciprocity (in its non-ideal form).”—Stuart White, The Civic Minimum: On the Rights and Obligations of Economic Citizenship (New York: Oxford University Press, 2003.

Economic Democracy

“I have argued that economic Democracy, as a system, will be less alienating than Laissez Faire. To summarize the reasons: Workers will have more participatory autonomy under Economic Democracy, because the degree of workplace democracy will not be restricted by the capitalists’ need to keep open all options for profit. The labor-leisure trade-off should be more in accordance with the general interest under Economic Democracy, because workers will have a greater interest in promoting more flexible, less frantic, more meaningful working arrangements, as well as shorter hours and longer vacations, than do capitalists, who bear the costs and risks of such changers (under Laissez Faire) but do not receive the full benefits. Workers are likely to be more skilled under Economic Democracy, because neither competitive pressures nor the need for control will push so hard toward deskilling.”—David Schweickart, Against Capitalism (Boulder, CO: Westview Press, 1996)

America the Possible: The Values

[….] Many thoughtful Americans have concluded that addressing our many challenges will require the rise of a new consciousness, with different values becoming dominant in American culture. For some, it is a spiritual awakening—a transformation of the human heart. For others it is a more intellectual process of coming to see the world anew and deeply embracing the emerging ethic of the environment and the old ethic of what it means to love thy neighbor as thyself. But for all, the possibility of a sustainable and just future will require major cultural change and a reorientation regarding what society values and prizes most highly.

In America the Possible, our dominant culture will have shifted, from today to tomorrow, in the following ways:

• from seeing humanity as something apart from nature, transcending and dominating it, to seeing ourselves as part of nature, offspring of its evolutionary process, close kin to wild things, and wholly dependent on its vitality and the finite services it provides;
• from seeing nature in strictly utilitarian terms—humanity’s resource to exploit as it sees fit for economic and other purposes—to seeing the natural world as having intrinsic value independent of people and having rights that create the duty of ecological stewardship;
• from discounting the future, focusing severely on the near term, to taking the long view and recognizing duties to future generations;
• from today’s hyperindividualism and narcissism, and the resulting social isolation, to a powerful sense of community and social solidarity reaching from the local to the cosmopolitan;
• from the glorification of violence, the acceptance of war, and the spreading of hate and invidious divisions to the total abhorrence of these things;
• from materialism and consumerism to the prioritization of personal and family relationships, learning, experiencing nature, spirituality, service, and living within limits;
• from tolerating gross economic, social, and political inequality to demanding a high measure of equality in all these spheres.

We actually know important things about how values and culture can be changed. One sure path to cultural change is, unfortunately, the cataclysmic event—the crisis—that profoundly challenges prevailing values and delegitimizes the status quo. The Great Depression is the classic example. I think we can be confident that we haven’t seen the end of major crises.

Two other key factors in cultural change are leadership and social narrative. Leaders have enormous potential to change minds, and in the process they can change the course of history. And there is some evidence that Americans are ready for another story. Large majorities of Americans, when polled, express disenchantment with today’s lifestyles and offer support for values similar to those urged here.

Another way in which values are changed is through social movements. Social movements are about consciousness raising, and, if successful, they can help usher in a new consciousness—perhaps we are seeing its birth today. When it comes to issues of social justice, peace, and environment, the potential of faith communities is vast as well. Spiritual awakening to new values and new consciousness can also derive from literature, philosophy, and science. Consider, for example, the long tradition of “reverence for life” stretching back over twenty-two hundred years to Emperor Ashoka of India and carried forward by Albert Schweitzer, Aldo Leopold, Thomas Berry, E. O. Wilson, Terry Tempest Williams, and others.

Education, of course, can also contribute enormously to cultural change. Here one should include education in the largest sense, embracing not only formal education but also day-to-day and experiential education as well as the fast-developing field of social marketing. Social marketing has had notable successes in moving people away from bad behaviors such as smoking and drunk driving, and its approaches could be applied to larger cultural change as well.

A major and very hopeful path lies in seeding the landscape with innovative, instructive models. In the United States today, there is a proliferation of innovative models of community revitalization and business enterprise. Local currencies, slow money, state Genuine Progress Indicators, locavorism—these are bringing the future into the present in very concrete ways. These actual models will grow in importance as communities search for visions of how the future should look, and they can change minds—seeing is believing. Cultural transformation won’t be easy, but it’s not impossible either. [….]—From James Gustave Speth’s “America the Possible: A Manifesto, Part II,” Orion magazine (May/June 2012)

Global Justice

“[A]ffluent people in developed countries have duties to respond to globalization with measures that would strengthen developing economies because otherwise they would take advantage of people in developing countries. A person takes advantage of someone if he derives a benefit from her difficulty in advancing her interests in interactions in which both participate, in a process that shows inadequate regard fro the equal moral importance of her interests and her capacity for choice. In the case of globalization, the central difficulties are bargaining weaknesses due to desperate neediness.”

“[M]ajor unmet transnational responsibilities [are located] in two aspects of globalization. The first corresponds to the familiar charge that transnational corporations exploit. In transnational processes of production, trade, and investment, people in developed countries currently take advantage of bargaining weaknesses of individuals desperately seeking work in developing countries, in way that show inadequate appreciation of their interests and capacities for choice. Responding to this moral flaw, a citizen of a developed country ought to use benefits derived from this use of weakness to relieve the underlying neediness. The other aspect corresponds to familiar charges of inequity in the institutional framework that regulates world trade and finance. The multinational arrangements that sustain globalization depend on tainted deliberations in which the governments of developed countries take advantage of the weak capacity to resist their threats of governments of developing countries. Citizens of developed countries should support arrangements that would be the outcome of responsible deliberations based on relevant shared values, a shift that would entail giving up large current advantages to promote the interests of people in developing countries.”—Richard W. Miller, Globalizing Justice: The Ethics of Poverty and Power (New York: Oxford University Press, 2010)

Please note: An earlier, more historically oriented post on May Day is found here.