The prosecutors of the UN’s International Criminal Tribunal for the former Yugoslavia had not done their homework, though their argument here is that it was a “clerical error”.  While it is not clear at this stage, it seems that between 2 million to 8 million pages of case files and witness statements were not disclosed to the defence team.  These altogether amount to 40 thousand documents relevant to the first 24 witnesses that would have been called between the end of this month and July (Telegraph, May 17).

How that disclosure did not take place is itself a reflection about what legal proceedings have become – a matter of downloading, uploading and retrieving documents from a database.  It so happened that those documents were never ‘uploaded’.  “We sincerely apologise for the inconvenience”, wrote the prosecutors to Mladic’s lawyer.

What this seemingly bungling prosecution hopes to show is that former Bosnian Serb president Radovan Karadzic issued instructions to Mladic to “create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica”.  Mladic himself, on hearing  of Karadzic’s document ‘Six Strategic Goals of Serbian People in Bosnia and Herzegovina’ presented on May 12, 1992, made no secret of the awe and bloody terror that was being proposed.  “Do you think you just move people like that, as if they were a set of keys?  What you are asking me to do, gentlemen, is called genocide”.

The statement has not been taken to be a mitigating one.  Journalist Refik Hodzic saw it less an appeal to the kinder side of humanity than a means “to ensure everyone was on the same page” (Al Jazeera, May 17). Commissioned to undertake the task, Mladic did proclaim after the fall of the not so protected enclave of Srebrenica that, “The time has finally come for revenge against Turks [Bosnian Muslims] who live in the area.”

Even with this apparent gold mine of documentary evidence, the prosecutors fudged it, showing how history can be made by seemingly small errors.  Judge Alphons Orie could only describe this failing as an “unpleasant surprise” while Mladic’s defence lawyer was crowing when describing the oversight as “unprecedented in the history of the tribunal”.

Till that surprise, the prosecutors had been setting the scene – the role Mladic is said to have played behind the killing of 8000 Muslim men and boys in Srebrenica.  He was portrayed as casual before massacre, a brute who proved happy to attend a wedding even as his Vojska Republike Srpske forces perpetrated their deeds.  “The VRS”, advanced UN prosecutor Peter McCloskey, “was a professional army which carried out orders with incredible discipline, organisation and military efficiency.  Capturing, transporting, murdering and burying over 7000 men and boys, at first in total secrecy from the outside world, was a truly amazing feat of utter brutality.”

The trial has already been pencilled in for two years, though court officialdom tends to be rather lax in matters of case management.  Such laxity can be fatal in the lessons of history, showing how court rooms are often inadequate venues of moral instruction.  They do, in some cases, become the forums for revisionist martyrs.  It certainly will have no constructive effect on individuals such as the president of Republika Srpska Milorad Dodik, who is on record as claiming that Sarajevo was never besieged.  To suggest otherwise, Dodik claims, is itself an act forecasting the cleansing of Serbs from the city.

To support my arguments, I will first provide an overview of how the criminal justice system works. From there I will offer an analysis on why the criminal justice system is flawed, and the racially discriminatory effect it has had on society. I will then discuss why the disproportionate number of minorities found in prison and impoverished in this country is directly tied to the contemporary ruling interests that were preserved by the U.S. Constitution. Showing that the system is inherently discriminatory, I propose an alternative method for viewing society through anarchism. I will spend time debunking myths regarding anarchism and explaining why it is a viable ideology. In the end, I will propose a restorative justice approach to criminal justice that requires neither the state nor the legal system.

Overview of criminal justice system

In theory, the function of the legal system, and the state is to provide a structure that creates an environment for society that protects individual and collective freedom. The intention of the legal system then, is to provide an objective set of rules for governing conduct and maintaining order in society. In order to cover all potential conflicts, the law is divided into two forms: (1) civil law, which are rules and regulations that decide transactions and grievances between individuals; and (2) criminal law, which are rules concerned with actions deemed dangerous or harmful to society as a whole, and are prosecuted by the state.

Relevant to this paper, the criminal justice system is the method by which society deals with individuals who violate criminal laws. It is the means for society to “enforce the standards of conduct necessary to protect individuals and the community.”¹ This system is composed of three parts: (1) police enforcement of the law; (2) adjudication of potential violations; and (3) punishment/rehabilitation for criminal acts.

The state authorizes police officers to enforce the law and maintain order. This permission allows the police to arrest individuals, and use deadly force when the circumstances permit. Since police officers are allowed to use their discretion in determining when there has been a violation of the law, and when to use deadly force, they are trained to be capable of assessing the situations they find themselves in, and acting accordingly.

As a check on the power given to police officers, state prosecutors are responsible for determining whether the charges have substance, and if the individual’s case should go to trial. In the words of Michelle Alexander, the prosecutor has the most power of any other criminal justice official, and is the person that “holds the key to the jailhouse door.”² This adds a special responsibility for prosecutors, according to Chief Judge, Isaac Christiancy:

The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner’s guilt, he must remember that though unfair means may happen to result in doing justice to the prisoner in the particular case yet justice so attained is unjust and dangerous to the whole community.³

If a prosecutor determines there is enough evidence for trial, the individual will be charged with committing a crime.

At trial, the adversarial system is used. This means the prosecutor will present evidence, in addition to arguments, explaining why the defendant is guilty of the alleged crime(s), and the defendant’s attorney, who is either appointed by the state or chosen independently, will do the same, except explaining why the defendant is not guilty. All this is presented before a judge, and sometimes a jury, who are regarded as objective third parties, and are responsible for determining the guilt of the defendant.

If an individual is convicted of a crime, they enter into the custody of the correctional authorities. An example of the stated role correctional authorities and prisons play in the criminal justice system is exemplified by the Federal Bureau of Prisons, which “protects society by confining offenders in the controlled environments of prisons and community-based facilities that are safe, humane, cost-efficient, and appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens.”⁴ Prisoners can receive medical, educational, religious, and career assistance to achieve the stated edification goals. Prisoners can be released before fulfilling their required time in prison by being placed on parole, which means they are released back into society with certain restrictions on their freedom. Ultimately, the objective of the correctional authorities and prisons is to protect society from criminals, while also providing rehabilitation to them so that they leave prison better than when they entered.

In its entirety, the criminal justice system is structured to deliver justice in a fair manner that upholds the ideals America holds for itself.

The problem — the illusion

Despite the stated intent of the criminal justice system, there are clear, systemic problems with how it functions that not only call its existence into question, but also the legal system that produced it as well. At the core of the problem is the fact that “justice” is determined by the state, and not the individuals involved. Worsening this is the fact that the origin of the state was built on discriminatory ideals. This has resulted in a criminal justice system that does not serve the people, but works to maintain oppressive and discriminatory, governmental authority.

The victims and alleged offenders have little, to no, say in the determination of justice throughout the criminal process. The state replaces the actual victim as the injured party for trial, and seeks justice based on its own standards. Defendants are advised to remain silent, and to allow their attorney to do most of the speaking for them. In describing this phenomenon, Alexandra Natapoff, writes:

The United States’s criminal justice system is shaped by a fundamental absence: Criminal defendants rarely speak. From the first Miranda warnings through trial until sentencing, defendants are constantly encouraged to be quiet and to let their lawyers do the talking. And most do. Over ninety-five percent never go to trial, only half of those who do testify, and some defendants do not even speak at their own sentencings. As a result, in millions of criminal cases often involving hours of verbal negotiations and dozens of pages of transcripts, the typical defendant may say almost nothing to anyone but his or her own attorney.⁵ [...]

Defendant silence also has systemic implications for the integrity of the justice process. In our democracy, individual speech has historically been seen as an antidote to governmental overreaching. Criminal defendant speech is perhaps the quintessential example of the individual defending his or her life and liberty against the state. Yet silent defendants rarely express themselves directly to the government official deciding their fate, be it judge or prosecutor, and are often punished more harshly when they do. The justice system assumes that conversations between counsel and clients, and counsel’s own speech on behalf of clients, fulfill the personal needs of defendants as well as systemic requirements that defendants be “heard.” Yet most defense counsel are overworked, appointed counsel with insufficient time to spend communicating with their clients or fully exploring their clients’ personal stories.⁶

Together, the practice of “representation” does not form an honest quest for justice, since it silences the only individuals that are truly capable of determining it.

Although America’s legal system has determined that justice is most effectively administered through the adversarial system, the reality of the process shows that this is a contrived conclusion. The adversarial system relies on prosecutors to “do justice,” and for defense attorneys to be “zealous advocates” for their clients, relying on both sides to present their strongest arguments, so that a third-party trier of fact can make the best decision.⁷ This system relies on justice being equated with victory, which encourages both sides to be as uncooperative as possible with each other.

In living up to their roles as zealous advocates for their clients, and encouraged by the adversarial system, defense attorneys can employ a number of tactics to win cases, that do not help the trier of fact make an informed decision. In his essay outlining the problems with these tactics, labeled “aggressive defense,” William H. Simon, provides a few troublesome examples:

Defense lawyers sometimes have opportunities to draw out and delay cases, for instance, by deliberately arranging their schedules to require repeated continuances. This can have the advantage of exhausting prosecution witnesses and eroding their memories.

Defense lawyers are sometimes asked to present perjured testimony by defendants. They sometimes find they can benefit their clients by impeaching the testimony of prosecution witnesses they know to be truthful. And they sometimes can gain advantage by arguing to the jury that the evidence supports factual inferences they know to be untrue. [...]

Lawyers occasionally find it advantageous to disclose or threaten to disclose information that they know does not contribute to informed determination on the merits because such disclosure injures the prosecution or witnesses.⁸

While these tactics are permissible, each exemplifies how the adversarial system promotes the goals of the individual defendant over that of overall justice.

Prosecutors are also encouraged by the adversarial system to give precedence to winning rather than obtaining actual justice. As a representative of the state, prosecutors must be conscious of how the public perceives their decisions. To ensure this, almost everywhere in America, (except Alaska, Connecticut, New Jersey, and the District of Columbia) the job of chief prosecutor is determined by an election.⁹ To secure election, or reelection, prosecutors often campaign on how “tough” they are on crime, something that is usually demonstrated by the number of convictions a prosecutor has made. This equates convictions with justice, which consequently, creates an imbalance in the pursuit of justice, as it implies justice lies on the side of the prosecutor, by default, and not the defendant. In arguing that judges should not be elected, Justice John Paul Stevens said, “A campaign promise to ‘be tough on crime,’ or to ‘enforce the death penalty,’ is evidence of bias that should disqualify a [judicial] candidate from sitting in criminal cases.”¹⁰ The same argument can be made for prosecutors as well. Thus, in order to show proficiency, prosecutors are often encouraged to convict individuals. However, the argument that convictions equal justice is a fallacy. If this were true, the rate of recidivism would be decreasing, yet it is increasing. According to a 2006 report released by the bipartisan Commission on Safety and Abuse in America’s Prisons, within three years of their release, 67% of former prisoners are rearrested and 52% are re-incarcerated.¹¹

Assisting the “convictions = justice” belief are economic incentives that permit individuals and corporations to profit from the number of prisoners a jail has. This is commonly referred to as the “private prison-industrial complex.” Between 1999 and 2010, the use of private prisons increased by 40% at the state level, and by 784% in the federal prison system.¹² This rise correlates with an increase in revenues as well: Corrections Corporation of America and the GEO Group, the two largest private prison companies, made over $2.9 billion combined in 2010.¹³ Explaining how these profits have been spent, the Justice Policy Institute states, “[a]s revenues of private prison companies have grown over the past decade, the companies have had more resources with which to build political power, and they have used this power to promote policies that lead to higher rates of incarceration.”¹⁴ Thus, a cycle exists where private prison facilities influence the criminal justice system through political and economic means, encouraging the flawed belief that convictions equal justice.

The confluence of economic and political motives for obtaining more convictions has had tremendously negative effects on society, and has helped usher in a period of “mass incarceration.” According to the International Centre for Prison Studies, the United States has the highest incarceration rate per 100,000 people of the national population, than any other country in the world.¹⁵ A New York Times article described the situation succinctly, “[t]he United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.”¹⁶

Furthermore, this period of mass incarceration has illuminated the racist character of America’s legal system. According to the Bureau of Justice Statistics, as of December 31, 2010, state and federal correctional authorities had jurisdiction over 1,612,395 prisoners, while a total of 7.1 million people were under the supervision of adult correctional authorities.¹⁷ Of the 1.6 million prisoners, 588,000 identified as Black, and 345,900 identified as Hispanic, representing 36% and 21%, respectively, of the prison population.¹⁸ This is alarming since, according to the 2010 U.S. Census, Blacks make up 12.6% of the American population, and Hispanics constitute another 16.3% of the population.¹⁹ Making the imbalance clearer, the estimated number of inmates held in custody in local, state, or federal prisons per 100,000 U.S. citizens, for Blacks, Hispanics, and Whites, respectively, is the following: 4,607; 1,908; and 769.²⁰ This means Blacks are nearly 6 times as likely as Whites to be in prison. Paul Butler writes:

Imagine a country in which more than half of the young male citizens [referring to Blacks] are under the supervision of the criminal justice system, either awaiting trial, in prison, or on probation or parole. Imagine a country in which two-thirds of the men can anticipate being arrested before they reach age thirty. Imagine a country in which there are more young men in prison than in college.²¹

The racial disparity is also present in death penalty cases. According to the Equal Justice Initiative, “[m]ore than half of the over 3300 people on death row nationwide are people of color; nearly 42% are African American. Prominent researchers have demonstrated that a defendant is more likely to get the death penalty if the victim is white than if the victim is black.”²² And according to Amnesty International, a 1990 report by the non-partisan U.S. General Accounting Office found, “a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty.”²³ As a result, the effect of criminal laws, their enforcement and prosecution, has disproportionately placed more Blacks and Hispanics in jail than in the nation’s history.

Causes for the discriminatory effects of the criminal justice system

The disproportionate number of racial minorities involved in America’s criminal justice system is not by chance, but intent, as it is a consequence of the racist and classist interests the U.S. constitution was designed to protect. Starting in the mid-15th century, after the violent acquisition of land belonging to long-established indigenous communities, Americans and Europeans engaged in the cruel transportation of over 11 million Africans for over 450 years.²⁴ The African slave trade helped build America into one of the most powerful countries in the world, but also created a patriarchal society that reified racial discrimination by the creation of racial identities. These racial identities were used by the rich, White elites to create artificial divisions amongst the masses to pit them against each other, and not their rulers. The Populist leader from Georgia, Tom Watson, in calling for racial unity, said:

You are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone of the arch of financial despotism which enslaves you both. You are deceived and blinded that you may not see how this race antagonism perpetuates a monetary system which beggars both.²⁵

The rich, white men that had obtained economic and political power throughout the colonies utilized the opportunity the Constitutional Convention provided to ensure their power was maintained with the formation of the new country. Writing about the findings of fellow historian Charles A. Beard, Howard Zinn writes:

Beard applied this general idea [that the rich must either control the government directly, or control the laws by which the government operates] to the Constitution, by studying the economic backgrounds and political ideas of the fifty-five men who gathered in Philadelphia in 1787 to draw up the Constitution. He found that a majority of them were lawyers by profession, that most of them were men of wealth, in land, slaves, manufacturing, or shipping, that half of them had money loaned out at interest, and that 40 of the 55 held government bonds, according to the records of the Treasury Department.

Thus Beard found that most of the makers of the Constitution had some direct economic interest in establishing a strong federal government: the manufacturing needed protective tariffs; the moneylenders wanted to stop the use of paper money to pay off debts, the land speculators wanted protection as they invaded Indian lands; slaveowners needed federal security against slave revolts and runaways; bondholders wanted a government able to raise money by nationwide taxation, to pay off those bonds.

Four groups, Beard noted, were not represented in the Constitutional Convention: slaves, indentured servants, women, men without property.²⁶

Summarizing the constitution then, Zinn writes:

The Constitution, then, illustrates the complexity of the American system: that it serves the interests of a wealthy elite, but also does enough for small property owners, for middle-income mechanics and farmers, to build a broad base of support. The slightly prosperous people who make up this base of support are buffers against the blacks, the Indians, the very poor whites. They enable the elite to keep control with a minimum of coercion, a maximum of law–all made palatable by the fanfare of patriotism and unity.²⁷

Those with power and influence, who had benefited from the use of slaves as a means of achieving economic and political power, helped ingrain slavery into their respective legal systems and cultures. Thus, representatives, especially from Southern states, had a strong interest in preserving slavery, and would not have agreed to join the union without a constitutional protection for it. This protection is exhibited by the original sections of the Constitution located at: Article 1, Section 2, Clause 3 (recognizing the “three-fifths compromise”); Article 1, Section 9, Clause 1 (permitting the continuance of the slave trade until 1808); and Article 4, Section 2, Clause 3 (protection for the Fugitive Slave Act).

While legislation to abolish the slave trade became law in 1808, some state governments enacted Black Codes, or laws to regulate the institution of slavery and to place further restrictions on the liberty of Blacks. The Supreme Court did nothing to abolish slavery, or the racist laws, in fact, it thwarted an attempt by some Northern states to limit slavery, through the Missouri Compromise, by nationalizing the practice with its decision in Dred Scott v. Sanford.²⁸ The issue of slavery ultimately contributed to the outbreak of the Civil War, and the eventual passage of the 13th, 14th, and 15th Amendments in 1865, 1868, and 1870, respectively (prohibiting slavery except as punishment for committing a crime, guaranteeing equal protection for all citizens, and prohibiting the denial of the right to vote based on race, respectively). However, the intent in maintaining a racially divided society persisted, as state governments implemented “Jim Crow” laws that segregated Blacks to a separate, and second-class citizenship. The Supreme Court again did nothing to repeal these laws until its decision in Brown v. Board of Education of Topeka over 80 years later in 1954.²⁹ The Civil Rights Movement followed in the 1960s and 1970s and helped remove many of the overt forms of racial discrimination the legal system and federal government had maintained, but regardless of these changes, legally sanctioned racial discrimination has endured. Now, it operates in covert and institutionalized ways that can be shown through the impact of governmental policy. The government’s “War on Drugs” has become the most recent, post-Civil Rights Movement policy to continue the racial discrimination and exploitation of minorities in America. While the term “War on Drugs” was initially used by President Richard Nixon, it was under the Presidency of Ronald Reagan when it became heavily enforced. The purported purpose of the “war” was to reduce the illegal drug trade, by implementing policies that discouraged the production, distribution, and consumption of illegal drugs. This included imposing restrictive penalties on an individual’s liberties for committing drug-related crimes (i.e., losing the right to vote, denial of public benefits), and harsher sentencing guidelines (i.e., “three strikes laws,” mandatory minimums).

Although the appearance of the effort appears racially neutral, its enforcement has had a clear racial bias. Terming the initiative the “New Jim Crow,” Michelle Alexander explains that, “[a]s of 2004, more African American men were disenfranchised (due to felon disenfranchisement laws) than in 1870, the year the Fifteenth Amendment was ratified …”³⁰ Illustrating the racial bias of this, Alexander continues:

This war has been waged almost exclusively in poor communities of color, even though studies consistently show that people of all colors use and sell illegal drugs at remarkably similar rates. In fact, some studies indicate that white youth are significantly more likely to engage in illegal drug dealing than black youth. Any notion that drug use among African Americans is more severe or dangerous is belied by the data. White youth, for example, have about three times the number of drug-related visits to the emergency room as their African American counterparts.³¹

Another indicator of the racial bias within the initiative can be shown through the difference in sentencing guidelines. In 1986, the U.S. Congress passed laws that created a 100:1 sentencing disparity for the possession or trafficking of crack, in comparison to the penalties for trafficking powder cocaine, which exhibits discrimination since Blacks are more likely to use crack than powder cocaine, a substance that is predominantly used by Whites.³² Compounding this further are the revelations journalist Gary Webb uncovered on how the Nicaraguan rebel group, the Contras, who were known for drug trafficking, were assisted by the U.S. government in distributing crack cocaine in Los Angeles, California to fund weapons purchases.³³ Thus, the undisguised racist laws and policies that targeted Blacks after the formation of the Constitution have continued, just in a less overt fashion.

The history of the plight of other minorities under oppressive laws and governmental policies should not go unmentioned. Latinos have been targeted through anti-immigrant laws, termed “Juan Crow,” that have had similar, but different effects on Latinos as Jim Crow did on Blacks.³⁴ Native Americans are also disproportionately represented in the criminal justice system since they are incarcerated at a rate 38% higher than the national per capita rate.³⁵ Muslims, especially after the September 11th events, have been subjected to racial profiling and surveillance by local and federal authorities, similar to how the Japanese, and Asians generally, were persecuted before and during World War II. Furthermore, the government’s practice of discriminating against groups based on racial identities is exemplified by its use of data obtained by the U.S. Census and the policies it has created.³⁶

Encapsulating the history of America’s legal system with the impact it has had on society, the conclusion can be drawn that it has successfully achieved the objectives its creators intended: a patriarchal, plutocracy ruled by Whites. The gap in equality on wealth, health, education, and employment between Blacks and Whites has continued to expand, further demonstrating the bias inherent in the construction of American society.³⁷ Thus, a new approach to how we live and interact with each other is desperately needed. One where our interconnectedness is valued, and where society nurtures everyone’s existence. This requires a culture that focuses on anti-oppressive structures, and has the goal of collectively liberating all people. Luckily, such a vision exists, and it is called anarchism.

Introduction to anarchism

The word “anarchism,” derived from the Greek root “anarchos,” means “without authority,” and according to the Encyclopedia Brittanica, its central ideals are freedom, equality, and mutual aid.³⁸ Despite this, in modern popular society, anarchism is surrounded by stigma and taboo, and invokes images of social chaos, in which terrorism is the prevailing means of establishing law and order, making anarchism seem both impractical and undesirable. However, through the fog of misperception and obscurity, lies a sociopolitical doctrine that challenges some of our deeply held assumptions on what the relationship between the individual and society can be, and calls us to work towards creating a truly free and cooperative society.

Behind some of the constructions of anarchism as a violent ideology are events that transpired between the years of 1890 and 1901. During this time period, individuals that identified as anarchists killed several ruling figures, including U.S. President William McKinley, King Umberto I of Italy, and Sadi Carnot, the President of France.³⁹ These are certainly extreme acts, but it is unfair, and too simple to ascribe these actions to all anarchists without an investigation into the circumstances surrounding each event, or consideration for the diversity of thought and tactics within anarchism itself. Such an investigation is beyond the scope of this paper, but suffice it to say, the use of violence, as a means to justify the ends anarchism seeks, is not a universally accepted tactic.

Another argument used to discredit anarchism is its perceived impracticality and lack of application outside of “non-primitive” societies. Generally, “primitive” societies are distinguished from modern societies because of an absence of an institutionalized government-like authority. Due to this distinction, “primitive” societies are considered irrelevant to discussions surrounding present-day social issues.

Anarchist anthropologist, David Graeber, provides an alternative lens to view this dichotomy through his book, Fragments of An Anarchist Anthropology.⁴⁰ Graeber writes that the popular American understanding of how human society has developed is that it has followed a linear path, beginning primitive and becoming more advanced and complex over time. Graeber explains that the anthropological record does not support this conclusion, using three egalitarian cultures, the Piaroa, Tiv, and Malagasy, as examples.⁴¹ Graeber writes:

… we [anthropologists] have been trying for decades now to convince the public that there’s no such thing as a ‘primitive,’ that ‘simple societies’ are not really all that simple, that no one ever existed in timeless isolation, that it makes no sense to speak of some social systems as more or less evolved.⁴²

Author Walter Cruttenden also takes time to dispel this myth, writing:

The leap was made: If Darwin had evidence that physical organisms adapt to fit their environment (evolve), then society, even over short periods, must evolve in the same linear fashion. In other words, if evolution existed in physical development, it must also play a role in societal and cultural development within humanity. This was very appealing to the intellectuals of post-Renaissance Europe as it justified a superior attitude toward less complex societies.⁴³

Everywhere in the world, it seems, archaeological digs are reshaping our view of the distant past. Not only are these findings revealing that civilizations were older than once thought, but they are showing that man was smarter and more progressive.⁴⁴

Based on this, Graber asks that we engage in a “thought experiment”:

What if, as a recent title put it, ‘we have never been modern’? What if there never was any fundamental break, and therefore, we are not living in a fundamentally different moral, social, or political universe than the Piaroa or Tiv or rural Malagasy? […]

Let us imagine, then, that the West, however defined, was nothing special, and further, that there has been no one fundamental break in human history. No one can deny there have been massive quantitative changes: the amount of energy consumed, the speed at which humans can travel, the number of books produced and read, all these numbers have been rising exponentially … The West might have introduced some new possibilities, but it hasn’t canceled any of the old ones out.⁴⁵

Without a basis for disregarding the social organization of “primitive” societies, anarchism remains a relevant sociopolitical doctrine.

While anarchism’s critics may concede that it is conceivable, they may still argue it is not the best way of structuring society. This position is exemplified by the thoughts of French Revolution thinker, Jacques-Pierre Brissot. Brissot, in denouncing his political rivals, the Enragés, accused them of advocating anarchy, warning that without the rule of law and government, there could be no way of delivering justice within society.⁴⁶ This sentiment is exemplified modernly in Paul Butler’s bold essay, “Racially Based Jury Nullification: Black Power In The Criminal Justice System.”⁴⁷ In Butler’s essay, he calls for Blacks to exercise jury nullification in particular circumstances as a way of protesting the unfair practices of the criminal justice system. Although Butler calls for the undermining of the legal system, he ensures that readers do not confuse his ideas as “encouraging anarchy” by explicitly stating so (“I am not encouraging anarchy.”⁴⁸ ). A logical assumption of Butler’s reasoning is that anarchy would be more problematic than reform.

Anarchism’s absence from mainstream America’s discussions should not reflect poorly on the ideals it promotes. In the opinion of anarchist author, John Zerzan, anarchism is about, “eradicating all forms of domination. This includes not only such obvious forms as the nation-state, … and the corporation, … but also such internalized forms as patriarchy, racism, and homophobia.”⁴⁹ “Domination” occurs in relationships where there is an unequal distribution of power, allowing the dominator(s) to exert their will over others. Being subject to domination causes mental and physical oppression, both of which obstruct human growth. For this reason, hierarchy is viewed negatively by anarchists, and instead, horizontal structures, dependent upon collaboration are encouraged. According to Anarchist writer, David Wieck, anarchism represents:

… a kind of intransigent effort to conceive of and to seek means to realize a human liberation from every power structure, every form of domination and hierarchy. Correlative with this negation is the positive faith that through the breakdown of mutually supportive institutions of power, possibilities can arise for noncoercive social cooperation, social unity, specifically a social unity in which individuality is fully realizable and in which freedom is defined not by rights and liberties but by the functioning of society as a network of voluntary cooperation. [...]

We are premising a society in which people have stopped living in fear of one another, in which gross violence, hatred, and contempt for life have become uncommon, in which alienation of person from person seldom reaches the malignant extremes to which we are accustomed.⁵⁰

Thus, anarchism does not advocate violence or mayhem, but rather calls for the liberation of everyone by removing oppressive social structures and practices from within our communities.

The vision anarchism has for society directly challenges a number of the core assumptions and principles held by mainstream America. For one, anarchists believe the current legal system and the authorization it provides for governmental and state power is both harmful and unnecessary.

In theory, the government is supposed to be of, for, and by the people, but the reality of its function has only ensured the existence of a ruling class, whose power and interests are perpetually preserved by the system of governance. David Graeber describes the state as having a dual character, where it is viewed as an institutionalized form of extortion by communities that seek to retain some degree of autonomy, while also appearing as a “utopian project in the written record.”⁵¹ Despite its idealistic aura, Peter Kropotkin writes that, “… Anarchists have often enough pointed out in their perpetual criticism of the various forms of government, that the mission of all governments, monarchical, constitutional, or republican, is to protect and maintain by force the privileges of the classes in possession …”⁵² Essentially, the power a community naturally has to rule itself, is given to a higher authority, the state, to govern on the community’s behalf. This opens the community to the abuses of power that result from hierarchical relationships. Additionally, the community’s reliance on the state to govern its affairs diminishes the community’s own power, making it, and its members, subservient to the state. This reliance on the state and the legal system creates an indirect way of resolving conflict. Rather than individuals settling disputes amongst themselves, they rely on impersonal laws to find a solution. To this point, Kropotkin writes:

[Quoting French jurist Dalloy] “… legislation is expected to do everything, and each fresh law being a fresh miscalculation, men are continually led to demand from it what can proceed only from themselves, from their own education and their own morality.” In existing States a fresh law is looked upon as a remedy for evil. Instead of themselves [the populace] altering what is bad, people begin by demanding a law to alter it.⁵³

Allowing officials of the state to fill positions of power and determine policy for the community is problematic for the following reason:

The notion of “policy” presumes a state or governing apparatus which imposes its will on others. “Policy” is the negation of politics; policy is by definition something concocted by some form of elite, which presumes it knows better than others how their affairs are to be conducted. By participating in policy debates the very best one can achieve is to limit the damage, since the very premise is inimical to the idea of people managing their own affairs.⁵⁴

As a result, communities that concede their power to the state, reduce their independence and freedom to determine the type of society they want to live in.

The relinquishing of community power to a state government is unnecessary because there is no reason to believe the state can perform better than the community could. Anarchists believe we are capable of practicing a natural form of justice amongst ourselves, based on our conscience and innate ability to reason with one another, without trusting the process to a hierarchical ruling class of professionals. Kropotkin explains the manipulative justification for law by saying:

Its origin is the desire of the ruling class to give permanence to customs imposed by themselves for their own advantage. Its character is the skilful commingling of customs useful to society, customs which have no need of law to insure respect, with other customs useful only to rulers, injurious to the mass of the people, and maintained only by the fear of punishment.⁵⁵

The anarchist belief equates “law” with ethics, and reasons that since we learn ethics from our families, friends, and other members of our community, our current governmental legal system is not required.

The permanence of a state authority comes under further questioning when its actual existence is probed. Graeber writes:

In fact, the world is under no obligation to live up to our expectations, and insofar as “reality” refers to anything, it refers to precisely that which can never be entirely encompassed by our imaginative constructions. Totalities, in particular, are always creatures of the imagination. Nations, societies, ideologies, closed systems… none of these really exist. [...]

This is not an appeal for a flat-out rejection of such imaginary totalities … It is an appeal to always bear in mind that they are just that: tools of thought.⁵⁶

Thus, part of the state’s existence and legitimacy is due to the mental recognition we assign to it. If everyone were to shift their thinking to a worldview in which the state was undesired, and instead, looked to live without its authority, the state’s power and existence would be critically undermined.

The primary reason we acknowledge the authority of the state is its ability to use force as a means of enforcing compliance. This means anyone who breaks the law can have their liberty taken from them, or be killed by state officials. Sociologist Max Weber, describes the state as, “ a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”⁵⁷ On the issue of force and violence, Graeber writes:

… violence, particularly structural violence, where all the power is on one side, creates ignorance. If you have the power to hit people over the head whenever you want, you don’t have to trouble yourself too much figuring out what they think is going on, and therefore, generally speaking, you don’t. Hence the sure-fire way to simplify social arrangements, to ignore the incredibly complex play of perspectives, passions, insights, desires, and mutual understandings that human life is really made of, is to make a rule and threaten to attack anyone who breaks it. This is why violence has always been the favored recourse of the stupid: it is the one form of stupidity to which it is almost impossible to come up with an intelligent response. It is also of course the basis of the state.⁵⁸

Consequently, the manner in which we allow the state to enforce compliance to the law is comparable to the rhetoric the American government uses to demonize “terrorist” groups and the countries labeled as their supporters. If terrorism is something we collectively admonish, our next step is to be honest in our introspection, and overcome the glaring contradiction that surrounds us.

Despite the state’s monopoly on the use of legitimate force, it still only exists because we acknowledge it to. To live in a truly cooperative and free society, we must be willing to let go of our reliance on the external state and legal system, and begin to engage each other on a local basis, and take full responsibility for the structure of our communities and neighborhoods.

A new way forward — a restorative approach to justice

The current legal system’s fundamental purpose is to resolve conflict. However, the power to determine resolutions is given to individuals that do not have an interest in the matter, and prevent the individuals involved to determine their own form of justice. Additionally, obedience to this system is enforced under duress. Rather than using force to achieve compliance, the anarchist approach to resolving conflict is voluntary, and believes justice can only be determined by the involved parties through dialogue. A justice system based on these principles exists, and is called restorative justice.

Restorative justice is a form of conflict resolution, used by different indigenous groups throughout the world, to settle disputes between individuals. According to a restorative justice co-director of facilitation, Matthew Johnson, “[r]eliance on the state to achieve justice or security goes against the idea that people are fully equipped to deal with their own conflicts — an idea that is at the core of restorative justice principles.”⁵⁹ In contrast to the current criminal justice system, where the state is viewed as the primary victim in criminal acts, and victims, offenders, and the community are given passive roles, restorative justice views crime as being directed against individual people.⁶⁰) This means conflicts and disputes are settled entirely by members of the community. The framework restorative justice uses, allows it to be applied in any circumstance in which a conflict is deemed to exist. At its core, it is a form of community justice that recognizes the interconnectedness of communal living, and that harm and conflicts are symptoms of communal inadequacies. Therefore, if everyone’s needs are being met, then consequently the causes for conflict are prevented.

Howard Zehr, a leading advocate and visionary for restorative justice, says that it has three primary pillars: harms and needs, obligations, and engagement.⁶¹ In regards to harm, Zehr writes, “[w]hile our first concern must be the harm experienced by victims, the focus on harm implies that we also need to be concerned about the harm experienced by offenders and communities.”⁶² The restorative approach tries to uncover the causes of conflicts in a manner that respects the perspectives of the people involved. Behind this is the belief that conflicts are created by misunderstandings and needs not being met for individuals. This method prevents individuals that have caused harm from being vilified, which encourages others to participate, and also reveals any inadequacies within the individual’s community.

The second pillar is that restorative justice “emphasizes offender accountability and responsibility.”⁶³ This means, rather than sending offenders to jail, they confront the people that have been harmed by their actions, and take responsibility for rectifying the situation. Offenders are permitted to tell their side of the story, but must also listen to how and why their actions led to the harm. Then together, the individuals work towards an agreeable solution. All this fits within the third pillar of engagement, which suggests that the primary parties affected by crime be given significant roles in the justice process.⁶⁴ An example of how the process works is as follows:

We [an organization that coordinates restorative justice conferences] would get a referral, call each principal actor in the conflict, interview them carefully and empathetically…making sure they are aware of the process as well as their own feelings…and get their consent to participate in the process. We would then repeat the process with everyone else involved and schedule a time that worked for everyone and an appropriate, neutral location. If it were a Victim-Offender Dialogue, it would likely take place at the correctional institution. The preparation process, where a trained facilitator would talk to each person individually, is generally the most important part and will determine the success of the conference. At the end of the conference, dialogue, etc., the facilitator(s) would help the participants generate a consensus agreement, that might include restitution, an apology, community service, etc., and follow up with participants after an established amount of time to ensure that they were satisfied with the agreement and that it was being followed as agreed.⁶⁵

Thus, the restorative justice process function of compassionately helping individuals learn from their mistakes.

Restorative justice practices are gaining traction and being applied throughout the country in a variety of contexts, but its success and continued use is dependent upon a continuing shift in societal values, and the strengthening of communal ties.⁶⁶ In some instances, forms of restorative justice are being used in conjunction with the criminal justice system for misdemeanor crimes. Defendants are given the choice of pleading guilty and going through a process in which they admit guilt, and discuss what caused them to commit the crime, and are then required to perform community service. While this is a step in the right direction, the process still operates under the power of the state. Additionally, it creates a problematic incentive for defendants to plead guilty to crimes just to escape accountability. Accountability is important in ensuring justice through the restorative method, however, without the force of the state to ensure this, the question becomes, how can society hold people accountable for their actions? Matthew Johnson believes:

… that accountability comes naturally with community and interdependent relationships. We tend to not view ourselves as connected in Western culture; we see ourselves primarily as individuals. In this context, accountability is not as important as escaping blame or harm. However, if I value my relationship with you more than my own willingness to avoid pain/consequences, I will tell you that I broke your favorite possession, etc., because I would want the same done for me, and we are interconnected. Also, accountability comes much easier when there is no expectation of punishment. If I knew you weren’t going to sue me, hit me, or shun me for admitting my wrongdoing, I would have much more of an incentive to tell the truth and be accountable. The current criminal justice system, along with the capitalist economic system, assumes that we act within our own self-interests, and this is just the way of things. Therefore, we incentive behavior that maximizes self-interest. Yet we turn around and criticize people for being selfish, etc. The principles of restorative justice go against this paradigm. Its practitioners have a much less cynical view of humanity, but nonetheless it’s quite possible that RJ (restorative justice) won’t reach its full potential without a radical re-evaluation of societal values.⁶⁵

Thus, in order for restorative justice to operate in the anarchist fashion it is intended to, and be successful, there needs to be an evolution in the way we live our lives, and the way we view one another.

Conclusion

In conclusion, the racist, classist, hierarchical interests represented in the formation of the Constitution have created a legal system, and subsequently, a criminal justice system, that has consistently failed to administer true justice. Thus, a new approach must be taken, which will require us to stop relying on the current criminal justice system, and its oppressive laws to solve our interpersonal issues. The criminal justice system will continue to work the way it has, as long as we continue to consent and participate in it. If we collectively take a stand and withdraw our consent from the system, and instead redirect how we deal with conflict to a restorative approach, the criminal justice system will become irrelevant. In explaining “revolutionary exodus,” David Graeber writes:

The theory of exodus proposes that the most effective way of opposing capitalism and the liberal state is not through direct confrontation but by means of what Paolo Virno has called “engaged withdrawal,” mass defection by those wishing to create new forms of community. One need only glance at the historical record to confirm that most successful forms of popular resistance have taken precisely this form. They have not involved challenging power head on (this usually leads to being slaughtered, or if not, turning into some—often even uglier—variant of the very thing one first challenged) but from one or another strategy of slipping away from its grasp, from flight, desertion, the founding of new communities.⁶⁷

Critical for creating this new society is a belief that it is possible and that we have the power to do it.

It is time to reaffirm what is already ours and reclaim our individual sovereignty. It is time for our self ownership to be reaffirmed and lived out in life. It is a metaphysical fact that we own our bodies and minds. All other ownerships can be challenged and are transitory at best, but self ownership is undeniable and permanent as long as we are living beings. Therefore it is ultimately, indeed must be our decision as to how we will conduct our lives the only law that we must accept is to do no harm to others and to recognize and respect the personal sovereignty of the other as they must ours. Recognition and respect of every person’s individual sovereignty is the only way in which systems of mutual cooperation can be successfully developed and maintained. And indeed is the only law required for peaceful coexistence with the greater society. But it is not a law of compulsion like most laws, but is rather the natural state of things such as the laws of physics.⁶⁸

1. President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 7, (1967).
2. Michelle Alexander, The New Jim Crow, 86, (2010).
3. Hurd v. People, 25 Mich. 405 (Mich. 1872).
4. Federal Bureau of Prisons, (last visited Apr. 26, 2012).
5. Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U.L. Rev. 1449 (2005).
6. Natapoff, supra note 5, at 1451.
7. Model Rules of Prof’l Conduct R. 3.8(a) (2008); Id. at Preamble, Scope, Terminology (2008).
8. William H. Simon, The Ethics of Criminal Defense, 91 Mich. L. Rev. 1703, 1704-5 (1993).
9. Ric Simmons, Election of Local Prosecutors, Ohio State University, Moritz School of Law, (last visited Apr. 27, 2012).
10. John Paul Stevens, Assoc. Justice, U.S. Supreme Court, Opening Assembly Address, American Bar Association Annual Meeting, Orlando, Florida (Aug. 3, 1996), in 12 St. John’s J. Legal Comment. 21, 30-31 (1996) (discussing need to improve quality of judges and espousing belief that judges should not be elected).
11. Commission On Safety and Abuse in America’s Prisons, Confronting Confinement, 106, (2006).
12. Cody Mason, Too Good To Be True: Private Prisons In America, 1, (2012).
13. Justice Policy Institute, Gaming The System: How The Political Strategies of Private Prisons Promote Ineffective Incarceration Policies, 12 (2011).
14. Id. at 2.
15. International Centre For Prison Studies, Entire world – Prison Population Rates per 100,000 of the National Population, (last visited Apr. 27, 2012).
16. Adam Liptak, U.S. Prison Population Dwarfs That of Other Nations, (last visited Apr. 27, 2012).
17. Bureau of Justice Statistics, Prisoners In 2010, (last visted Apr. 27, 2012); Bureau of Justice Statistics, Correctional Populations In The United States, 2010, (last visited Apr. 27, 2012).
18. Bureau of Justice Statistics, supra note 17 (first cite), at Appendix, Table 12.
19. Karen R. Humes, Nicholas A. Jones, Roberto R. Ramirez, Overview of Race and Hispanic Origin: 2010, Table I (2011).
20. Bureau of Justice Statistics, supra note 17 (second cite), at Appendix Table 3.
21. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 690-1 (1995).
22. Equal Justice Initiative, Racial Bias, (last visited Apr. 27, 2012).
23. Amnesty International, Death Penalty and Race, (last visited Apr. 27, 2012).
24. British Broadcasting Corporation, Quick guide: The Slave Trade, (last visited Apr. 27, 2012).
25. Howard Zinn, A People’s History of the United States: 1492-Present, 291 (2003).
26. Id. at 90-1.
27. Zinn, supra note 25, at 99.
28. Scott v. Sandford, 60 U.S. 393 (U.S. 1857).
29. Brown v. Bd. of Educ., 347 U.S. 483 (U.S. 1954).
30. Michelle Alexander, The Age of Obama As A Racial Nightmare, (last visited Apr. 27, 2012).
31. Alexander, supra note 30.
32. Jim Abrams, Congress Passes Bill To Reduce Disparity In Crack, Powder Cocaine Sentencing, (last visited Apr. 27, 2012).
33. See Gary Webb, Dark Alliance: The CIA, the Contras, and the Crack Cocaine Explosion, Seven Stories Press; 2nd edition (1999).
34. Karla Mari McKanders, Sustaining Tiered Personhood: Jim Crow and Anti-Immigrant Laws, 26, Harv. J. on Racial & Ethnic Just., 163 (2010).
35. U.S. Commission On Civil Rights, A Quiet Crisis, Federal Funding And Unmet Needs In Indian Country, 68 (2003).
36. See Therese Beaudreault, The Race Categories On The U.S. Census: Representations of False Consciousness, (last visited May 6, 2012).
37. See Ajamu Dillahunt et al., United for a Fair Economy, State of the Dream 2010 DRAINED Joblessness and Foreclosed in Communities of Color; The Schott State Report on Black Males & Education. (last visited Apr. 27, 2012).
38. Encyclopedia Brittanica, Anarchism, (last visited Apr. 27, 2012).
39. Brittanica, supra note-38.
40. David Graeber, Fragments of An Anarchist Anthropology, (2004).
41. Graeber, supra note 40, at 65.
42. Id. at 41.
43. Walter Cruttenden, Lost Star of Myth And Time, 9 (2006).
44. Id. at 295.
45. Graeber, supra note 40, at 46-51.
46. Brittanica, supra note 38.
47. Butler, supra note 21, at 677.
48. Butler, supra note 21, at 20
49. Everythingology, Enemy of The State: An Interview With John Zerzan & Derrick Jensen, (last visited Apr. 27, 2012).
50. David Wieck, Anarchist Justice, (last visited Apr. 27, 2012).
51. Graeber, supra note 40 at 65.
52. Peter Kropotkin, Law And Authority, (last visited Apr. 27, 2012).
53. Id.
54. Graeber, supra note 40, at 9.
55. Kropotkin, supra note 52.
56. Graeber, supra note 40, at 43-5.
57. Max Weber, Politics As A Vocation, (last visited Apr. 27, 2012).
58. Graeber, supra note 40, at 72-3.
59. Email interview with Matthew Johnson, Co-Director of Facilitation, Conflict Resolution Center of Montgomery County (Apr. 26, 2012).
60. Mark S. Umbreit and Betty Vos and Robert B. Coates and Elizabeth Lightfoot, Restorative Justice In the twenty-first century: A social movement full of opportunities and pitfalls, 89 Marq. L. Rev. 251, 255 (2005). (This article provides a comprehensive breakdown of the variety of restorative justice models and their impact.
61. Howard Zehr, Little Book of Restorative Justice, 22 (2002).
62. Id. at 23.
63. Zehr, supra note 61, at 23.
64. Zehr, supra note 61, at 24.
65. Johnson, supra note 59.
66. Umbreit, supra note 60, at 261.
67. Graeber, supra note 40, at 60-1.
68. Consent Withdrawn, We Must Marginalize The State And Capitalism, (last visited Apr. 27, 2012).

Amnesty International, in its damning report of the Ethiopian government, Ethiopia: Dismantling Dissent (DDE),states that from March to November 2011 “at least 108 opposition party members and six journalists have been arrested for alleged involvement with various proscribed terrorist groups.” By November they were all charged with crimes under the internationally criticised Anti Terrorist Proclamation. In addition, Amnesty continues, “six journalists, two opposition party members and one human rights defender, all living in exile, were charged in absentia.”

The ‘T’ word, as former Secretary General of the UN Kofi Annan called terrorism, is the umbrella term used by the Ethiopian government (amongst others) to justify the unjust, the dishonest and the criminal. If there is a terrorist organisation flourishing in Ethiopia, committing crimes against humanity and violating the human rights of the people, it is State terrorism delivered by the EPRDF government, under the leadership of Prime Minister Meles Zenawi, as this UN definition of terrorism makes clear:

Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable.

Fear of the government, fear of reprisal, of violence and [false] imprisonment casts a deep shadow across the people of Ethiopia, whose human rights are being ignored by the Meles regime that seized power twenty years ago and has brutalised and systematically restricted the people’s freedom and human rights ever since.

Lawless Lawmakers

In 2009 the Ethiopian government passed legislation on the highly controversial Anti Terrorism Proclamation. Human Rights Watch (HRW) that year looked closely at what was then the proposed law and amongst other recommendations, stated:

If implemented this law could provide the Ethiopian government with a potent instrument to crack down on political dissent, including peaceful political demonstrations and public criticisms of government policy and … it would permit long-term imprisonment and even the death penalty for “crimes” that bear no resemblance, under any credible definition, to terrorism. It would in certain cases deprive defendants of the right to be presumed innocent, and of protections against use of evidence obtained through torture.

Needless to say, the law was passed almost entirely as drafted, duly implemented and has since been used solely to silence dissent. Amnesty International, in its report, found that:

The prolonged series of arrests and prosecutions indicates a systematic use of the law and the pretext of counter-terrorism by the Ethiopian government to silence people who criticise or question their actions and policies, especially opposition politicians and the independent media.

It is the utilisation and enforcement of this law that is enabling the Ethiopian government to quash opposition and free speech within the country and intimidate those voices for fairness and justice abroad. The legislation allows the government to ban free association and to arrest and imprison anyone who has the courage to speak out against the government and their many human rights violations. The police, who were already commonly acting outside of the law, with little or no knowledge of human rights, were given new powers. HRW, in its analysis, reported:

The draft Proclamation grants the police the power to make arrests without a warrant, so long as the officer reasonably suspects that the person is committing or has committed a terrorist act. The Ethiopian constitution requires that a person taken into custody must be brought before a court within 48 hours and informed of the reasons for their arrest — a protection that is already systematically violated.

This constitutional requirement is dutifully ignored. Arrested under the Anti Terrorist Proclamation, individuals are held in confinement for weeks, sometimes months, without charge and denied legal support. Even before this draconian legislation was enforced, according to HRW,  “Ethiopian police routinely detain people without charge for months, and sometimes ignore judicial orders for release.”

Five From Many

In January five more people were convicted in the Ethiopian Federal High Court of conspiracy to commit terrorist acts, and money laundering. Evidence against the three journalists, an opposition leader, and a woman, Hirut Kifle Woldeyesus, was made up primarily of online criticism of the government and plans to stage peaceful political protest, none of which constitute acts of terrorism. This is common as Amnesty found in the 114 cases they investigated in their detailed report:

Much of the evidence against those charged involves items that do not appear to amount to terrorism or criminal wrongdoing. Rather many items of evidence cited appear to be illustrations of individuals exercising their right to freedom of expression, acting peacefully and legitimately.

Two of the journalists tried in January were sentenced to 14 years imprisonment while Elias Kifle (tried in absentia), editor of the web-based journal Ethiopian Review, received his second life sentence [emphasis mine]. These cases are simply the most recent in a long line of miscarriages of justice, where the government has exercised an abuse of power and in the name of justice imprisoned the innocent. A further 24 journalists and opposition party members are awaiting trial, many of whom could face the death penalty, for trumped up charges which amount to nothing more than journalists exercising their constitutional and moral right to freedom of speech.

The UN Special Rapporteur on human rights defenders, Margaret Sekaggya, stated in a meeting of UN human rights investigators in February:

Journalists, bloggers and others advocating for increased respect for human rights should not be subject to pressure for the mere fact that their views are not in alignment with those of the Government.

Journalists must be free to speak out against the government, to criticise policies of persecution, to highlight the suffering of the people and to draw attention to the multiple human rights abuses taking place within Ethiopia. UN Special Rapporteur on freedom of expression, Frank La Rue, declared:

Journalists play a crucial role in promoting accountability of public officials by investigating and informing the public about human rights violations, they should not face criminal proceedings for carrying out their legitimate work, let alone be severely punished.

However,  all those speaking out against the EPRDF’s criminality and repression are subject not simply to “pressure”, or “criminal proceedings”, but violent arrest, torture and false imprisonment or, indeed, death.

Free the Innocent

These five men and women, who were mistreated in custody, falsely imprisoned and like others, including the celebrated writer Eskinder Nega (imprisoned for life in September for writing an on-line blog), denied their liberty, must be released immediately and an independent enquiry instigated to investigate their cases, their treatment whilst in jail and their hollow convictions. During their three-month imprisonment at the Maikelawi detention center before the trial and in violation of Ethiopian and international law, the defendants were denied access to legal counsel and family members, and claim they were beaten and tortured. This is the experience of a great many whilst held in Maikelawi as Amnesty reveals in its report:

Many of the [114] detainees were forced to sign confessions and to acknowledge ownership or association by signing items of seemingly incriminating evidence.

The Ethiopian courts have not investigated any of these claims.  They are, it seems, nothing more than servants of the Government, and are as HRW states “complicit in this political witch hunt.”

This collusion of the courts contravenes the Ethiopian constitution that states in Article 78/1: “An independent judiciary is established by this Constitution.” Article 79/1: “Judicial Powers, both at Federal and State levels, are vested in the courts.”

Furthermore, 3: “Judges shall exercise their functions in full independence and shall be directed solely by the law.” The UN Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, “deplored the reported failure to ensure the defendants’ right to a fair trial,” reports the UN News Centre.

Amnesty International, in its report, calls “on the representatives of the international community in Addis Ababa to take up the role of monitoring trials.” This would be an important initial act in placing the EPRDF under international scrutiny and accountability. It is time the international community, acting through the UN, undertook its responsibility and role as advocate for justice, self-determination, “the suppression of acts of aggression” (Article 1) and freedom for the people of the world, in accordance with its Charter.

A Blind Eye to Torture

In addition to the suppression of free speech, the use of the death penalty and withdrawing the legal right of presumption of innocence, torture is allowed under the Anti Terrorism Proclamation and information gathered whilst under such duress is admissible in court. HRW reports that::

The draft Proclamation deems confessions admissible without a restriction on the use of statements made under torture.

This is illegal under international law, The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not allow the use of any statements made in a court of law, that were elicited under torture. The use of such information is also prohibited under the Ethiopian Constitution. Article 19 states:

Persons arrested shall not be compelled to make confessions or admissions which could be used in evidence against them. Any evidence obtained under coercion shall not be admissible.

The much-trumpeted constitution  means little or nothing to the people and even less to the EPRDF who ignore its charter.

Known Unknowables

It is an acknowledged fact within the corridors of the UN and Ethiopia’s donor countries that human rights abuses are occurring daily within the country under Prime Minister Meles and his ministerial menagerie. How do we as a world community, responsible and alert to the needs of our brothers and sisters, respond to such men, to such injustice and tyranny? Fight fire with fire many would advocate and in the face of such cruelty many of us would perhaps gladly fuel a furnace.  However, as Mahatma Ghandi said, “I cannot teach you violence, as I do not myself believe in it. I can teach you not to bow your heads before anyone even at the cost of your life.”

To be silent in the sight of injustice and persecution is to allow tyrants like Meles to maintain their stranglehold over the innocent. It is time intense political pressure from those providing and delivering the much-needed financial and developmental aid, was applied to put an end to the current regime’s human rights violations and abuse of the people, including freezing of personal assets and targeted sanctions.

The British government gives £315 million a year to Ethiopia, a spokesperson from The Department for International Development (DFID) told the Guardian (3/02/2012):

The prime minister, the foreign secretary and the secretary of state for international development have all raised concerns with Prime Minister Meles over the recent arrests of opposition leaders and journalists.

“Concern” is all well and good, but all too easy for the arrogant to shrug off, outrage and horror a more apt response from Westminster and more in keeping with the offences being committed. Criticism alone, however, will not bring change within the abysmal regime and justice to the long-suffering people.

Repeal and Release

Prime Minister Meles Zenawi presides over a dictatorship that restricts all freedom of expression, freedom of association and freedom of the media in Ethiopia. Peaceful dissent is met with violence and false imprisonment. Intimidation and fear are the key tools in such repression.  This must end, and we, the international community, must ensure it is so.

The Anti-Terrorist Proclamation is an unjust piece of legislation designed and implemented by a corrupt and violent regime who is in breach of international law and their own constitution. It must be repealed immediately, the many innocent good men and women falsely imprisoned released and those supporting Ethiopia through development aid should insist on the implementation of these legitimate and morally right demands. Sit not in silent appeasement, but raise your bowed heads and act.

That video was the first time most Americans had heard about Wikileaks. Not long after, the name of Bradley Manning also entered the US consciousness. He would be accused of releasing that video and thousands of other documents relating to the US wars on Iraq and Afghanistan, along with thousands of diplomatic cables describing in oftentimes explicit detail the crimes and morally questionable actions and words of Washington officials. Soon, Mr. Manning would be charged with treason and aiding the enemy (among other charges) for his actions. He is currently on trial in a US military court located at Fort Meade, MD and faces life imprisonment. It is my belief that only an immense and broad popular movement could possibly change that fate.

Bradley Manning’s decision and the subsequent reaction is the subject of a newly published book by civil rights attorney and commentator Chase Madar. This book, titled The Passion of Bradley Manning: The Story of the Suspect Behind the Largest Security Breach in U.S. History, presents Manning’s decision in the context it was meant to be understood: as a political act by a man who saw his duty to humanity to be greater than his orders to protect the Pentagon and politicians that sent him and thousands of other GIs to war.

Madar attacks the very system of secrecy Manning is charged with violating. He details the overzealous use of secret and top secret classifications by government officials, calling it a “tragic, bloated farce.” He questions the use of the Espionage Act to charge Manning and other men whose actions are not about aiding the enemy, but about exposing the misdeeds of the US government. In discussing the frequent use of strategic leaks by government officials to get a piece of legislation approved, Madar surmises that Manning’s biggest mistake is that, unlike those government officials, he didn’t break the law properly.

What did the documents Manning sent to Wikileaks contain? While it is impossible to even begin to summarize the millions of words in those documents in the brief space of Madar’s text, he does list the basics of some of the content. The documents showed a brutal pacification campaign in Afghanistan where civilian deaths were all too common and sometimes intentional. They acknowledged massive civilian casualties from US fire in Iraq and detailed Washington’s retail diplomacy with the Vatican hoping to convince the Holy See to call the US wars just. In other areas, the diplomatic cables exposed the role of the US Embassy in Haiti in fighting attempts to raise the minimum wage there to 61 cents an hour and US complicity in covering up Israeli atrocities in Gaza.

Yet, despite the revelations they contained, the US government has been unable to prove that the leaks harmed any individual. Unfortunately, neither have they changed the essence of US policy. After acknowledging this, Madar writes about two leaks that probably did matter. One was a 1968 leak by Daniel Ellsberg to presidential candidate Robert F. Kennedy that detailed the Johnson administration’s plans to expand the US war to Laos and Cambodia. The leak and Kennedy’s revealing it probably prevented that expansion under LBJ. Of course, Nixon wasted little time in doing exactly what Johnson didn’t do. Another more recent example occurred in 2003 when the national intelligence assessment of Iran’s nuclear weapons capability was leaked. This document stated clearly that Iran had no nuclear weapons and was not building any at the time. That leak probably prevented the US from attacking Iran.

Like it or not, since his arrest Manning’s treatment has been shameful. His imprisonment, which includes solitary confinement and forced nakedness is nothing short of torture. Indeed it has been condemned as such by the German Bundestag and several other individuals in European governments and even some high ranking US officials. Madar’s discussion of Manning’s treatment is revealing and likely to garner a number of denials by liberals and neocons in the halls of power. This is especially true when he argues against the view promulgated by US liberals that the treatment is an aberration. The fact is, writes Madar, the abuses experienced by Manning and by prisoners in US-run prisons in Guantanamo Bay, Iraq, and Afghanistan are also commonplace in US prisons. Furthermore, torture is a common occurrence in US jails at all levels of the penal system.

In the early 1970s Kris Kristofferson recorded a song whose chorus includes the lines “The law is for protection of the people/Rules are rules as any fool can see….” The song proceeds to show the use of this maxim by the powers that be to lock up those that disrupt their rule. The sarcasm of the lyrics continues, pointing out how laws are not only applied unequally, but are often written only to protect the wealthy and powerful. If Kris Kristofferson were to add a verse to his tune in 2012, it could be about Bradley Manning. When pressed to explain the charges arrayed against Manning, the reason given most often is that he broke the rules regarding classified information and that is reason enough. As Madar points out over and over in his book, these rules are broken quite often by government officials in the pursuit of certain policies and those violations are rarely challenged. Furthermore, and considerably more appalling, is the reality that the atrocities and diplomatic maneuverings revealed in the documents Manning released are not illegal. Why? Simply put, because the laws are written by the warmakers and profiteers. So, those that reveal the machinations of the powerful are more likely to go to prison than those that kill, torture, bribe and steal in the name of empire.

Simultaneously an indictment of a government obsessed with secrecy and a nation addicted to war, The Passion of Bradley Manning is also a concise and clear explanation of who Bradley Manning is. It explains why he risked his life and future by committing the overtly political act of exposing his government’s crimes and lies. Perhaps most importantly, it is a call to us to act not only in defense of Manning, but in defense of our futures.

Justice as fairness is intended as a political conception of justice. While a political conception of justice is, of course, a moral conception, it is a moral conception worked out for a specific kind of subject, namely, for political,
social, and economic institutions.

– John Rawls (1921-2002)

PART 1. Pictorial Argument

There were many massacres of Indian peoples before the advent of photography. There is also a famous set of photographs regarding the event of December 29, 1890, known to Indians as the Massacre at Wounded Knee and to the United States government as the Battle of Wounded Knee. Some of these in conjunction with the moccasin telegraph taught a lesson not to be forgotten to the still-surviving illiterate tribes if North America: the end of times was upon them and the unity with which they identify. Some of the photographs are reproduced below. Please try to see them as they would have been seen and still are perceived by the Indian peoples, perhaps even before considering the text that accompanies them at Wikipedia, Wounded Knee Massacre.

PART 2. Written Argument

(1). The Declaration of Independence settled that one People has no right to possess another’s homeland or to dictate how the other shall govern itself, and the Constitution of the United States of America gave certain Peoples direct access to the Supreme Court of the United States to enforce that STRUCTURALLY-CRITICAL fundamental principle.

(2). Specifically, the Commerce Clause enacts Congress can regulate trade with “foreign Nations and Indian Tribes”, those being the two explicitly-identified categories of other sovereign Peoples organized as States for constitutional law purposes. The Defence Clause stipulates that their lands can not be invaded unless they invade the United States first. The Treaty Clause adopts the long established convention of public international law that ambassadors or other public ministers of sovereign states may, however, contract for rights of consensual entry into each other’s territory.

(3). The Supreme Court of the United States confirmed the continuity of the previously established international and constitutional law “doctrine of discovery.” It holds that indigenous Tribes are sovereign “States” for the purpose of the legal remedy of direct access to the Supreme Court, the same as foreign Nation type States; although, being “indigenous”, they are not “foreign”. Cherokee Nation v. State of Georgia (1831).¹

(4). As a matter of procedural law the direct application to the Supreme Court to declare void a breach by the United States of the principle of non-interference with the possession and government of the sovereign territories of other Peoples, i.e., foreign Nations and indigenous Tribes, can only be made in the name of an ambassador or other public minister.

(5). After both had retired and renewed their old friendship the second president of the United States John Adams in a letter to the third, Thomas Jefferson, said: “Your [aristocrats] are the most difficult Animals to manage, of anything in the whole Theory and practice of Government. They will not suffer themselves to be governed. They not only exert all their own Subtilty Industry and courage, but they employ the Commonalty, to knock to pieces every Plan and Model that the most honest Architects in Legislation can invent to keep them within bounds.”

(6). The crucial fact of world history, indeed the fact upon which the continuity of life of earth let alone the freedom of Peoples depends, is that subsequent to 1871 the Supreme Court of the United States chose to side with the “aristocrats” and against the principle, from all appears by instructing each generation’s Clerk of the Court not to file applications submitted by Indian Tribes pursuant to the constitution’s original jurisdiction clause. We say “from all that appears” only because it seems inconceivable that an administrator such as the Clerk, whose jurisdiction under Rule 1 of the Supreme Court Rules is limited to matters of form not jurisdictional and jurisprudential substance, would usurp the power to amend the constitution by willful blindness without at least talking it over with the head administrative judge, i.e., the Chief Justice of the United States, and that he, in turn, would discus it with his colleagues on the bench. No legal or political issue is or can ever be of greater moment and weight.

(7). In consequence of that fact, it has come about that the “aristocrats,” i.e., the super-rich or best-born, purchase or influence the enactment of the Federal Imperial Statutes that frustrate the anti-imperial legislative intent of the Constitution of the United States; the intent to create a society of laws serving, as the Preamble proclaimed, “Justice” “Tranquility” “defence” “Welfare” and “Liberty”.

(8). On behalf of imperialism and against constitutionalism the Supreme Court obstructs and ignores the constitution’s legislative intent by putting “Liberty” at the head of the list of values, taking it to signify an ungovernable license to the rich to plunder foreign Nations and Indian tribes and tyrannize “We the People” with indefinite detention, based on nothing more than the suspicion of the President in his capacity as the Commander-in-Chief of the Armed Forces, which arbitrary power is the definitive hallmark of all empires, and therefore refutes everything that the Declaration of Independence and the American Revolution were proclaimed and waged to preclude.

(9). In the result the five constitutional values have been corrupted to serve “absolute despotism” (i.e., the type of government rejected by the Declaration of Independence) over everyone and everything on earth, based upon Injustice instead of Justice, Turmoil instead of Tranquility, Aggression instead of Defence, Exploitation instead of Welfare, and Domination instead of Liberty.

(10). Adams’ and Jefferson’s great plan as recorded by the Declaration of Independence and the Constitution—to end the lawlessness and cruelty of the previously established era of empires—was frustrated in all respects; specifically, by the US Supreme Court’s treasonable willful blindness to constitutional questions that challenge any of the three manifestly unconstitutional Federal Imperial Statutes: first, the Appropriations Act of 1871 against the Indian Tribes; secondly the War Powers Act of 1973 against any foreign Nations who may object to the absolute despotism of empire; and thirdly the National Defense Authorization Act of 2011 against “We the People” of the United States.

(11). The only pacific solution is the reestablishment of the rule of law by means of a Marbury v. Madison judicial review, by the US Supreme Court, of the non-compliance of the Federal Imperial Statutes with the Constitution’s Amendment, Commerce, Defence, Original Jurisdiction and Treaty Clauses and the Bill of Rights. This can be achieved only by overcoming the treasonable obstruction and ignoring by the Clerk of the Case of the Mahican and Mi’kmaq Tribal Ambassadors.

(12). These times not only try men’s souls but the soul of the United States of America and of each of the constitutional democracies she leads. Two hundred twenty three years ago the United States was brought into existence to end the inherent and self evident evil of imperialism. To fulfill the country’s mission specifically in the terms laid out by its Constitution and the most fundamental of the original interpretive precedents Marbury v. Madison (1803) and Cherokee Nation v. State of Georgia (1831), one absolutely must not start all over with a fresh revolution as if the ancestors’ blood sacrifice was in vain.

(13). Instead, we must adopt the forty years of painstaking legal research and preparation of the presently-obstructed classic constitutional case against imperialism of the Mahican and Mi’kmaq Tribes, and now carry it forward, into so very many courts that the judicial stone wall unjustly and unfairly blocking the critical question of the Federal Imperial Statutes’ breach of the Constitution’s anti-imperialism is undermined and collapses, without more bloodshed.

(14). Only that is capable of achieving salvation in time and in peace by means of constitutional triumph; as opposed to the triumph of violence leading inexorably to the global suicide guaranteed by continuing the imperial cycle in the nuclear age.

Therefore, please read and implement the remedy identified by the following PDF file article: LEGALLY OCCUPY THE COURTS! Judicial Review. Judicial Notice. Judicial Empire. Three concepts for citizens to establish justice, without imperialism, and by means of the rule of law.

1. See, “Justice-as-Truth Legal Proof,” infra, Document 8, pages 2 and 3, paragraph 4 DETERMINATIVE PRECEDENT.

The book looks at Manning’s life story, his alleged action (leaking voluminous materials to Wikileaks), the value of the material he made available to us, the status of whistleblowers in our country, the torture inflicted on Manning during his imprisonment, the similar treatment routinely inflicted on hundreds of thousands of U.S. prisoners without the same scandal resulting, and the value of running a society in accordance with written laws.

The table of contents sounds predictable, but the most valuable parts of Madar’s book are the tangents, the riffs, the expansions on questions such as whether knowing the truth does or does not tend to set us free. Does learning what our government is up to help to improve our government’s behavior? Has the rule of law become an empty phrase or worse? Who is standing up for Bradley Manning, and who should be?

Madar does not pretend indifference to the fact that Manning took great risk and has greatly suffered for blowing the whistle on countless criminal and immoral actions. The first sentence of the book is “Bradley Manning deserves the Presidential Medal of Freedom,” as of course he does — unless that medal is now too tarnished by its actual recipients including George Tenet and L. Paul Bremer. Madar remarks:

Thanks to Manning’s alleged disclosures, we have a sense of what transpired in Iraq and Afghanistan. We have an image of how Washington operates in the world. Thanks to those revelations we now know just how our government leaned on the Vatican to quell opposition to the Iraq War. We now know how Washington pressured the German government to block the prosecution of CIA agents who kidnapped an innocent man, Khaled El-Masri, while he was on vacation. We know how our State Department lobbied hard to prevent a minimum wage increase in Haiti, the hemisphere’s poorest nation.

Of course, such examples could be extended for many pages. Manning’s is indeed the largest revelation of our government’s behavior we have had. His is the Louisiana Purchase of whistleblowing. And, of course, if you are going to have a government of, by, and for the people, then the people have to find out what that government is doing — and stop believing they are better off and more patriotic not knowing.

Madar does not hesitate to point out the situation we are in at the moment in presidential and partisan terms:

President Obama came into office promising a ‘sunshine’ policy for his administration while singing praises of whistleblowers. Instead, he has launched the fiercest campaign against whistleblowers the republic has ever seen, and dragged our foreign policy deeper into the shadows…

… As soon as he stepped into the Oval Office, the new President pledged never to launch any probe, much less prosecution, to hold these figures responsible. ‘Look forward, not backward’ is the slogan: any rules that threaten the high and mighty can be shrugged off. Obama loyalists such as Nation magazine columnist Melissa Harris-Perry begged Americans to reconcile with Dick Cheney, as if the power to forgive belonged to Americans, and not to Iraqi victims — a perversion of Christian doctrine that allows the perpetrators to tearfully forgive themselves.

(Just ask Sibel Edmonds how whistleblowers are being treated today. Her new book Classified Woman about her days at the FBI has been submitted to the FBI for censorship, the FBI has been unable to find a single word to black out, and yet the FBI is refusing to permit publication of the entire book.)

Manning’s contribution has been global. His revelations have benefitted the people of numerous nations with which the State Department communicated in the cables that Manning is said to have leaked. The Arab Spring was not caused by Bradley Manning, but the information he made public has played a major role.

Madar does an excellent job of relating what he has been able to learn about Manning’s childhood. Here was a young man with principles and independence, who partially believed the hype about wars being good for the world, who was horribly abused by the U.S. military, but whose motivation — even if I suspect as well some retaliation against his abusers — was primarily almost certainly benefitting the public at large, both at home and abroad. Manning says so quite clearly and repeatedly in as-yet-unverified chat logs. It was when the military forced him to take part in punishing Iraqi whistleblowers that Manning had a major change of perspective. “I was actively involved in something that I was completely against,” he posted in a chat.

Manning is not only the whistleblower who has told us the most, and the whistleblower who may suffer the most for his heroism, but also the whistleblower who revealed crimes and abuses that were also known by or knowable by the greatest number of other people — all of whom chose to remain silent. Some three million Americans have a security clearance. Most of what Manning released was “confidential,” six percent was “secret,” and none of it was “top secret.” In the world of whistleblowers, normal is abnormal. The common sense duty to “say something” is you see something makes you a freak. And never more so than in the heroism and vilification of young Bradley Manning.

One comment in Madar’s excellent book strikes me as out of place, as perhaps inserted by an editor:

“Few are the American intellectuals who unequivocally defend the leaks: Michael Moore, Jesse Ventura, and CodePink’s core of leftwing peace activists — and that’s about it.”

Are those all intellectuals? And is that the full list of people who have defended the leaks? Much later in the book, Glenn Greenwald — who really deserves great credit for advancing this issue — gets a mention. So does Coleen Rowley, with whom I recall protesting Manning’s treatment at Quantico, along with hundreds of others. Then Daniel Ellsberg, Roseanne Barr, Jack Shafer, and Dennis Kucinich get a nod. Ray McGovern receives a lengthy and well deserved discussion. We also learn that Manning receives hundreds of letters of support every week from all over the world (some of them are from this country). We find out that “Free Bradley” signs dot this country’s Occupy encampments. And after the book is over, in the “Further Reading” section at the back, we discover that there is a Bradley Manning Support Network, Kevin Gosztola’s blog at FireDogLake, Marcy Wheeler, Jane Hamsher, and others who indeed have supported what Manning has been accused of doing. Not what it should be, of course, but not so terribly few of us after all.

I wonder also about Madar’s take on whether knowing the truth is helpful in politics. Ultimately, of course, Madar is in favor of public knowledge of government’s behavior. But I think he undervalues it a bit at times. “When does war end?” he quotes Alexander Cockburn asking himself. “One side is annihilated, the money runs out, the troops mutiny, the government falls, or fears it will. With the U.S. war in Afghanistan none of these conditions has been met.” Nor with the U.S. war on Iraq, which has virtually ended nonetheless.

I also would modify slightly Madar’s take on the rule of law. As Madar sees it, many of the outrages that Manning revealed, even the killings in the “Collateral Murder” video, even the handing over of prisoners to the Iraqi government to torture, were immoral but legal, because the laws of war allow them. Madar is dealing with jus in bello, laws on the conduct of war, not jus ad bellum, laws on what makes a war or an occupation just to begin with. In fact there is no just war. There is no legal war. Every single war has been illegal since the Kellogg Briand Pact of 1928. The U.N. Charter seeks to legalize wars that are either labeled “defensive” or authorized by the United Nations. The U.S. wars on Iraq and Afghanistan are neither defensive nor authorized by the United Nations. The U.S. Constitution forbids wars not declared by Congress. Congress has not declared a war since 1941.

Certainly the law is often unjust and must be nonviolently resisted. But when we have good legal arguments on our side, we shouldn’t always be so reluctant to use them. If torture can be “legalized” by the vacuous ramblings of John Yoo, if bribery can be “legalized” through the human rights of corporations established by a court reporter’s marginalia, why shouldn’t we legalize peace by reviving awareness of actual laws actually on the books?

As with most books I review, so must I comment on this one that I wish people would stop lowballing the death count in Iraq by almost an order of magnitude.

I must also strongly encourage you to buy a copy of this book for everyone you know.

Watch for an upcoming edition of Talk Nation Radio with Chase Madar.

Write to Bradley to encourage him at:
Bradley Manning
#89289
JRCF
830 Sabalu Road
Fort Leavenworth KS 66027-2315.

Self-purification through suffering is easier, I tell you: easier — than that destiny which you are paving for many of them by wholesale acquittals in court. You are merely planting cynicism in their souls.

–Fyodor Dostoyevsky

The United States Congress is outraged. Russia, it seems, may have wrongly imprisoned, tortured, and murdered a whistleblower. In the land of the free, our good representatives are outraged, I tell you. And not just I. NPR will tell you. This calls for action. There’s a bill in the Senate and a bill in the House. The Sergei Magnitsky Rule of Law Accountability Act.

Who wouldn’t support the rule of law and accountability?

Well, let me think.

Oh, I know. The United States Congress.

Bush and Cheney are selling books confessing to the crime of war and all that comes with it, including lawless imprisonment and torture. They have openly confessed in their books and on television, repeatedly, to a form of torture that the current Attorney General of the United States admits is torture. Bush’s torture program tortured numerous people to death. And what has Congress wrought?

No impeachments.

No enforcement of subpoenas.

No defunding of operations.

No criminalizing of secrecy.

No protection of whistleblowers.

No mandating of diplomacy, reparations, foreign aid, or commitments to international standards.

In other words, we have no Congress with the right to talk about the Rule of Law or Accountability without being mocked.

But keep hope alive.

Change is on the way.

Look!

Up in the sky!

It’s Captain Peace Prize!

Obama launches wars without bothering to lie to Congress or the United Nations, has formalized the powers of lawless imprisonment, rendition, and murder, and places the protection of Bush and Cheney above almost anything else — certainly above the rule of law or accountability.

Obama has badgered Spain, Italy, Germany, and the U.K. to leave the Bush gang in peace, publicly instructed the U.S. Department of Justice not to prosecute, and expanded claims of “State Secrets” beyond anything previously imagined in order to shut down legal accountability. Italy has convicted CIA agents in absentia, and Obama has not shipped them over to do their time. Poland is prosecuting its bit players in U.S. crimes. Former top British official Jack Straw is being hauled into court for his tangential role. But Obama has chosen a path to success in Washington, or thinks he has, and that path is immunity for anyone with power.

The trouble is that Obama now wants to apply that same standard to Russia, and Congress won’t stand for it. Obama is opposed to the Hold Russia Accountable Act because he prefers to kiss up to the government of Russia. It’s a policy that has worked beautifully for him at home. Why not apply it abroad?

Of course, the United States has no moral standing to speak against imprisonment, torture, or murder. The United States imprisons more of its people than any other country, keeps hundreds of thousands of them in supermaxes or long-term isolation, tolerates prison rape and violence, openly treats torture as a policy option, facilitates torture in what may be the two countries torturing the greatest number of people today: Iraq and Afghanistan, and kills with capital punishment, special forces, and drones.

The United States has no moral standing to speak against the punishment of whistleblowers, Obama having prosecuted seven of them under the Espionage Act of 1917, fittingly enough for the offense of having made U.S. war-making look bad by revealing facts about it.

But the answer cannot be to support Russian crimes just because there are U.S. crimes. Congress, revolting as it is to say, is right: the Russian government should be held to a decent rule of law. And it should be held to it through the language that speaks louder than words: action. U.S. immunity for torturers is one of the greatest factors in the current spread of acceptability for torture around the world.

Congress should impeach Bush and Obama, enforce its subpoenas, ship convicted CIA criminals to Italy, strengthen the War Powers Act, criminalize war profiteering, ban private mercenaries, ban unconstitutional detentions, ban secret budgets and laws and agencies, ban rendition, and ratify and enforce the Optional Protocol to the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment. Congress should also cease encircling Russia with missiles, and end its wars in Afghanistan, Pakistan, etc.

Or, short of moving in a useful direction, sad to say, the best thing the United States Congress could do for the rule of law in Russia at the moment would be to shut the hell up.

Truth is the summit of being: justice is the application of it to affairs…and whatever instances can be quoted of unpunished theft, or of a lie which somebody has credited, justice must prevail, and it is the privilege of truth to make itself believed.

– Ralph Waldo Emerson (1803-1882)

1. The Constitution precludes imperialism as against “foreign Nations and Indian tribes.”

2. Cherokee Nation v. State of Georgia, 30 US 1, 20 (1831), settled their legal remedy for encroachment by the United States upon their territorial sovereignty is under the constitution’s original jurisdiction clause that exists for the purpose of adjudicating territorial jurisdiction disputes between the United States and other sovereign States exclusively in the US Supreme Court.

3. Although that Court refused to consider the Cherokees’ complaint on its merits (incidentally resulting in the genocidal “Trail of Tears”) the Court’s ground for its refusal was a critical error of legal draftsmanship on the part of the nation’s lawyer. He identified his client as a “foreign Nation” styled the Cherokee Nation instead of styling it an “Indian tribe.” The Court held that although an Indian tribe equally is a sovereign “State” it is not “foreign.”

4. Subsequently Congress enacted the Appropriations Act of 1871, 25 United States Code §71¶1 and 28 United States Code §1251¶(b)(1), ostensibly restricting the original jurisdiction clause remedy to “foreign states” thus excluding Indian tribes.

5. The ostensible repeal is ineffective since it does not comply with the constitution’s amendment clause and such compliance is the mandatory precondition to constitutional change. United States v. Lara, 541 US 193, 214, 227 (2004) (Justice Thomas).

6. The Clerk of the Supreme Court nevertheless enforces the repeal as if it were the law by arbitrarily refusing to file tribal complaints challenging its constitutionality.

7. The War Powers Act of 1973, 50 United States Code §1541, puts foreign Nations in the same position as Indian tribes by unconstitutionally repealing their territorial sovereignty too, so long as the President feels any given foreign Nation threatens the foreign policy or economy of the United States.

8. These events have terminated “constitutional“ democracy which depends for its existence upon judicial review of the constitutionality of federal statutes. Marbury v. Madison, 5 US 137 (1803).

9. The consequence is the existing unconstitutional American Empire and, in its train, the wars and genocides that characterize all empires. It reverses the constitution’s express and explicit intent “to establish” “Justice” “Tranquility” “defence” “Welfare” and “Liberty” in peace based upon the respect for the territorial sovereignty of foreign Nations and Indian Tribes under the commerce, defence and treaty clauses and their constitutive precedents.

10. Under the commerce clause the US government constitutionally has delegated jurisdiction to regulate trade “with” the others but NOT to enter their territories, except with treaty consent, or in self defence in order to repel an invasion of the United States by them or any of them.

11. The precedents on the inviolability of the foreign nations and Indian tribes territorial sovereignty are legion, consistent and unequivocal from the 1790s to 1872.

12. Then the court record goes blank until the 2004 Lara Case when Justice Thomas alone addressed the treaty clause of the set.

13. Neither he nor any other has addressed the commerce, defence and treaty clauses and their precedents as a harmoniously settled anti-imperial set since 1872.

14. The reason is simple: the Supreme Court Clerk refuses to adjudicate complaints based upon the conflict between the anti-imperialist policy of the Constitution of the United States of America, on the one hand, and the federal imperial statutes, on the other: and so the original jurisdiction clause is in abeyance because the Court does not want to have to grant to Indian tribes their constitutional remedy for the Court’s and others’ willful blindness to their constitutional right of territorial sovereignty.

15. Nor will any other domestic court. The Supreme Court invariably denies permission to appeal against lower court willful blindness to existence of the constitutional question.

16. It is possible that since 1871 the Supreme Court Clerk’s have all been engaged in this imperialism-by-chicanery but it is more likely that in each generation every time a complaint has arrived in the mail the Clerk has checked with the Chief Justice the United States and been instructed to maintain the stone wall against constitutional democracy under the rule of law so as to enable the extra-constitutional imperial era.

17. Whichever does not matter for present purposes since the critical emergency objective now is not to punish either the present Clerk or Chief Justice of the Court for knowingly causing the wars and genocides attributable to the unconstitutional imperialism, but to prevent those crimes against the constitution and humanity for the future.

18. The only way speedily to achieve this objective is to get the Mahican and Mi’kmaq Tribes’ case-under-obstruction before the Supreme Court and to trust that, in the light of day, the Justices will want to be seen to do their clear and plain duty as defined by the supreme law, judicial oath and original jurisdiction clauses.

19. Their alternative is to be seen not doing it; specifically, by “adhering to their [the United States's] Enemies, giving them Aid and Comfort” contrary to the treason clause of the Constitution.

20. Certainly those Americans who for their own power, prestige and profit persist in playing “The Great Game” of imperialism are “Enemies” in the treasonable constitutional sense.

21. Their success to date has terminated the existence of the United States as a constitutional democracy under the rule of law. That is the only right to exist that the country claims. Or can claim, pending a duly processed constitutional amendment.

Minister Kenney said in the prepared Press Release that “Canadians take great pride in the generosity and compassion of our immigration and refugee programs. But they have no tolerance for those who abuse our generosity and seek to take unfair advantage of our country.”

The new bill, is titled “Protecting Canada’s Immigration System Act” and proposes extensive changes to Canada’s refugee protection process that build on the changes to the asylum system passed in June 2010 as part of the Conservative government’s Balanced Refugee Reform Act.

The Coalition for Justice for Refugees and Immigrants, composed of nearly 60 national organizations across Canada, including Amnesty International (AI), the Canadian Council for Refugees (CCR) and the Canadian Association of Refugee Lawyers (CARL), and the Canadian Civil Liberties Association (CCLA), however, have attacked the proposed changes. They state the changes are “Unconstitutional” and undermine “Canada’s Humanitarian Traditions” and violate “Canada’s International Obligations.”

The Coalition, in a Press Conference held in Ottawa on March 26, 2012 said, “Bill C-31 is Bad Policy and Creates a Manifestly Unfair System That Will Fail to Protect Refugees in Canada.”

Peter Showler, a former Chair of the Immigration and Refugee Board and Director of the Refugee Forum at the University of Ottawa, characterized Bill C-31 as “a bill that fundamentally changes Canada’s immigration and refugee system and it is a bill that violates the Canadian Charter of Rights, international law and, frankly, common sense as well.”

On the behalf of the Coalition Showler stated, “this is not simply a matter of standing on the sidelines and criticizing the current bill, that we actually do believe that it is necessary to reform Canada’s refugee system but it’s important to do it in a way that has features that are fast, fair and effective. None of these features are contained in Bill C-31.”

Criticisms leveled at Bill C-31 by Nathalie Des Rosiers, of the Canadian Civil Liberties Association and also the former Dean of the University of Ottawa Law School Civil Section, include the fact that the “bill gives the power to a minister to designate a group and incarcerate them for 12 months without judicial review. On its face, this violates the Charter. It also violates the Convention on the Rights of Refugees, and it will be challenged. The ability to challenge detention in front of a court is at the heart of a judicial process and the rule of law. It is the right to habeas corpus. To have denied this to anyone on Canadian soil is a mistake. It’s an infringement of the rights and it is wrong.”

Des Rosiers also noted, “The Auditor General has come to the conclusion that this will cost at least $70,000 per person that will be incarcerated and that doesn’t cost – that doesn’t take into account the social cost and the cost to the proper integration of immigrants that will be incarcerated for 12 months.”

“The Minister has said well, that he will release them at his good pleasure if and when their circumstances warrant it or if people have their refugee status determined and refugee status accorded, but this is wrong. In a democracy, we cannot leave an unfettered discretion powers in a government to incarcerate people. We shouldn’t do it and we shouldn’t do it for people that come to Canada,” said Des Rosiers.

Heather Neufeld, a member of the executive of the Canadian Council for Refugees and a practicing immigration and refugee lawyer in Ottawa, offered the following critical comments on the provisions for family re-unification in the proposed Bill.

“Currently, individuals who are granted refugee status in Canada can immediately apply for permanent residence for themselves as well as for their dependants abroad. Now, under Bill C-31, individuals who are detained and who are granted refugee status are required to wait five years before they even become eligible to apply for permanent residence. The consequences of this restriction concerning family separation and family reunification are unthinkable,” Neufeld said.

The result of the proposed changes, according to Neufeld, are prolonged family separation that may mean: “Spousal relationships may break down. Children may arrive to parents they no longer even know and some children become too old to even bring to Canada.”

“So forcing anyone granted refugee status to wait five years before they even become eligible to being the process of family reunification is not only unconscionable, it is likewise cruel” said Neufeld.

Alex Neve, who is the Director General of Amnesty International Canada and a lawyer and a recognized expert on international human rights, also criticized Bill C-31. He said, “Among the many troubling provisions in Bill C-31 is the power given to the Minister of Immigration to designate a list of countries of origin that are supposedly safe. Refugee claimants who are nationals from these so-called safe countries will be treated very differently from all other refugee claimants and they will face discrimination and unequal justice in a number of very worrying ways.”

Neve stated, “First, their claims will be fast-tracked for processing, sending a clear signal to decision-makers that their cases are assumed to be doubtful and dubious.” Second, if turned down, claimants from designated safe countries of origin will have no access to an appeal before the Immigration and Refugee Board’s new Refugee Appeal Division — a crucial safeguard for people whose lives and liberty may be on the line.”

Neve continued, “And finally, even the last resort option of turning to the Federal Court for a review of a negative decision on technical grounds is rendered nearly meaningless as claimants from safe countries will almost always be deported before the court decides before – before the court decides whether or not they will even be granted a hearing.”

The representative for Amnesty International also further attacked the Bill for, “Introducing the safe countries of origin concept into the Canadian refugee system is unfair and problematic for so many reasons. First, there is simply no reliable, objective way to distinguish safe and unsafe countries when it comes to human rights protection. Where does the line get drawn? Human rights violations, unfortunately, occur in virtually all countries around the world — countries considered to be democratic, countries which have close economic, tourist and other ties with Canada, countries that may be safe for most people but countries which nonetheless may also be dangerous and discriminatory for many others.”

Neve added, “This is certainly the case with many countries commonly thought to be at the top of Minister Kenney’s safe list such as Mexico where a deepening human rights crisis has been the subject of a growing number of alarming reports from Amnesty International and others. Or the Czech Republic and Hungary where countless human rights experts have documented deep and longstanding violence and discrimination against Roma people.” Minister Kenney has frequently characterized Roma refugees as “bogus.”

The Federal Court of Canada, not known to be a bastion of judicial activism, has recently over turned two negative decisions involving Roma refugee claims. In one decision the Federal Court stated that, “there has been a severe upswing of extremism directed against Roma and further that there is extensive evidence of the government’s shortcomings in actually preventing violence against Roma.” In the second Decision, the Federal Court ruled that, “the evidence is overwhelming that Hungary is unable presently to provide adequate protection to its Roma citizens.”

Neve commented that, “Against that reality, it is particularly problematic that the decision to designate safe countries will rest entirely in the hands of the Minister, making it open to all manner of inappropriate political considerations. Tellingly, an earlier proposal to set up an expert committee to advise the Minister on this list has been scrapped.”

Neve further stated, “This approach also undermines one of the most fundamental principles of refugee protection, namely that refugee claimants should have their cases assessed individually, not on the basis of sweeping generalizations such as the countries from which they come from.”

The Representative from Amnesty International continued, “And finally, at its very core, it is discrimination — discrimination in something so essential as access to justice and the quality of that justice, justice meant to ensure that people will be kept safe from serious human rights violations. No justice for you because of where you come from.”

“The concept of safe countries of origin is a wrong-handed fiction. It contravenes the fundamental principle that refugee claims should be assessed individually. And it constitutes indefensible discrimination. It does not belong in Canada’s refugee system and should be abandoned” said Neve.

Mr. Lorne Waldman, President of the Canadian Association of Refugee Lawyers and widely recognized as one of Canada’s leading experts on immigration and refugee law, also addressed what he described as “one of the most alarming features of the new legislation which is the time frames.” Waldman stated, “I want to make it clear: as a refugee lawyer who sees the harm that delays in the process have brought upon my clients, I support an expeditious process. I support a process that gives refugees a reasonable period of time to present the case and results in quick, fair decision-making.”

“But the new refugee procedure,” Waldman stated, “has created time frames that are so completely unrealistic as to make a facade of due process in the refugee determination system. Refugees will have 15 days from the date they make a claim — the date of their arrival — to file a form which sets out the basis for their case. And, as we all know, these forms then form the foundation for their entire claim. And if they make omissions, these omissions will be held against them. It will be impossible for refugees to obtain legal advice and to get counsel to prepare the forms in most cases given the very short time frames.”

The President of the Canadian Association of Refugee Lawyers continued, “If a refugee is on the designated country of origins list, he will then have to have a hearing within 30 days. As we know, refugees are required and expected to bring corroborating evidence. Given the time frames — be it 30 days for the expedited cases or 60 days for the unexpedited cases — it will be virtually impossible for refugees to get legal representation and for them to be able to get corroborating evidence. The time frames are so absurd and so unrealistic as to make the system completely devoid of any fairness.”

According to Waldman, “The appeal process is laughable. For years, refugee advocates have called for an appeal system and indeed when the refugee system was amended two years ago with the consensus of all the political parties, we rejoiced that the Conservative government was going to introduce an appeal. But the time frames that are now included in this new appeal process as so ridiculous as to make the appeal process a joke. Fifteen days to file a perfected appeal is virtually impossible. No one can file an appeal, obtain counsel, obtain the transcript and be able to realistically comply with those time periods.”

Continuing his critique, Waldman said, “The appeal is also made absurd by the fact that so many different groups are now being excluded from the right to have an appeal. You don’t get an appeal if you’re on one of the designated country lists. You don’t get an appeal if you’re designated as an irregular arrival. You don’t get appeal if they find your case has no credible basis. There are … six [grounds] for denying persons access to the appeal process. So in the end it’s doubtful that there will be very many people left who will be able to obtain access to an appeal and so one wonders why the government is going to the expense of creating an appeal process that will be used by and available to so many.”

Another serious criticism raised by Waldman is “the impact of this bill on permanent resident status for persons who’ve already been accepted as refugees. Under the new legislation, the Minister will be able to apply for cessation. What this means is the Minister will be able to apply for an order that a person is no longer a refugee because the conditions in their country have changed. This provision exists in the current legislation. But the significant change is under the new law if the Minister applies and if the Minister is successful in obtaining an order of cessation, that will immediately strip the person of their permanent resident status.”

Waldman gave the following example: “A refugee comes from Kosovo, a genuine refugee, accepted and brought to Canada by the Government of Canada as a refugee from Kosovo. Now we know that the situation in Kosovo has changed. Under the current legislation, the Minister can apply for an order saying that they’re no longer a refugee, but it doesn’t have any effect on their permanent resident status. Under the new legislation, the Minister applies for such an order and if the order is granted by the Board — which it will be because there’s no longer a dangerous situation in Kosovo — then that person immediately loses their permanent resident status, is inadmissible to Canada, and is subject to immediate deportation.”

“There are tens of thousands of people in Canada who came to Canada as refugees, and genuine refugees, have not done anything wrong and their status is now at risk because of this change in the legislation” said Waldman.

The Conservative Government has a majority in Parliament and can readily pass the legislation. Opponents of the Bill C-31 are calling for substantial revisions. In the end these issues may be determined in the Courts.

It does not follow that the United Progressive Alliance (UPA) government at the centre is responsible for all human rights violations in India. Anyone listening to members of the Anna Hazare movement could be forgiven for concluding that politicians and the state are responsible for everything that is wrong in India, and civil society can do no wrong. But all‘civil society’ really means is capitalist society, with its multiple divisions and contradictions between capitalists and workers, majority and minorities, upper and lower castes and so on, as well as competition within each category. Its ‘other’ is political society or the state, which is supposed to rise above the struggle of ‘each against all’ and manage it so that civil society doesn’t tear itself apart. In a democracy, in theory, it is also supposed to protect the interests of weaker and more vulnerable sections of the population from depredations by the powerful.

There are a few instances where this actually happens. But in general, the reality is much more complicated. Often, individuals carry their greed and prejudices with them from civil society into the state. Or they abuse the power that is vested in them as officials of the state. There are times when one arm of the state is in conflict with another, as when a court directs the state government of Gujarat to compensate those who lost their property in the pogroms of 2002 and the state government objects. In a democracy, it is even possible that right-wing groups within civil society, in collusion with fascist political forces, seek to overthrow a democratic state. If the theoretical picture of a good state and conflict-ridden civil society is inaccurate, so is the opposite picture of an evil state and virtuous civil society.

Having said that, however, it is undoubtedly true that the more wealthy and powerful sections of society have a greater chance of manipulating, infiltrating, or dominating the state, and this means that the poor and powerless have to resort to protests, legal challenges and mass movements to get their voices heard. Without such activism, democracy would very soon deteriorate into oligarchy or majoritarianism. It is thanks to the plethora of such protests in India that democracy has been kept alive.

Fascist movements and the state