Truthout Stories http://truth-out.org Mon, 22 Dec 2014 10:37:39 -0500 en-gb Citizens Take Monitoring Into Own Hands as Eagle Ford Shale Boom Continues Undaunted http://truth-out.org/news/item/28140-citizens-take-monitoring-into-own-hands-as-eagle-ford-shale-boom-continues-undaunted http://truth-out.org/news/item/28140-citizens-take-monitoring-into-own-hands-as-eagle-ford-shale-boom-continues-undaunted

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Hugh Fitzsimons lll, a buffalo rancher on the outskirts of Carrizo Springs, Texas, cautiously watches the fracking industry’s accelerating expansion. His 13,000-acre ranch is atop the southwestern part of the oil-rich Eagle Ford Shale, which stretches from Leon County in northeast Texas to Laredo, along the Mexican border.

During the last two years Fitzsimons has watched the fracking boom transform a rural locale into an industry hub. Desolate dirt roads are now packed with truck traffic, and commercial development to service the growing industry has sprung up along state highways, creating air and noise pollution.

Hugh A. Fitzsimons lll on a dirt road near his ranch in the Eagle Ford Shale.Hugh A. Fitzsimons lll on a dirt road near his ranch in the Eagle Ford Shale. (©2014 Julie Dermansky for Oceans 8 Films)

Though Fitzsimons stands to profit from oil extraction, he has not turned a blind eye to the industry’s damaging effects on the environment. He wants to make sure the expanding industry acts responsibly and is doing his part to ensure that happens, a tall order since a state-sponsored report estimates the number of wells could grow from 8,000 to 32,000 by 2018 and industry polices itself for the most part.

Hugh A. Fitzsimons lll's buffalo next to a pumpjack on his ranch.Hugh A. Fitzsimons lll's buffalo next to a pumpjack on his ranch. (©2014 Julie Dermansky for Oceans 8 Films)

The two Texas regulatory agencies that handle concerns and complaints about the fracking industry are the Texas Railroad Commission and the Texas Commission on Environmental Quality (TCEQ). According to a report on the Eagle Ford Shale's air quality  by the center for Public Integrity, Inside Climate News and the Weather Channel, “Texas regulatory agencies reveal a system that does more to protect the industry than the public”.

One of the key findings in the report: “Texas’ air monitoring system is so flawed that the state knows almost nothing about the extent of the pollution in the Eagle Ford. Only five permanent air monitors are installed in the 20,000-square-mile region, and all are at the fringes of the shale play, far from the heavy drilling areas where emissions are highest.“ 

Furthermore, despite hundreds of complaints about polluted air in the last two fiscal years, the TCEQ has levied only 35 fines, according to the New York Times

And the Texas Railroad Commission has not been satisfied with scientists’ proof that the fracking industry has contaminated water in the state, despite mounting evidence.

Flare from a fracking industry site in Karnes County, Texas. Flare from a fracking industry site in Karnes County, Texas. (©2014 Julie Dermansky for Oceans 8 Films)

Fitzsimons served on the Wintergreen Water Conservation District for Dimmit County. He wants to get the fracking industry to utilize brackish water for frack jobs that each require millions of gallons of water, instead of permitting water from the aquifer or the Rio Grande River to be used.

The Rio Grande River is one of the most endangered rivers in the world,” he told DeSmogBlog, adding that the amount of water being drawn form the aquifer jeopardizes the region’s drinking water already threatened by drought. 

Recently his ranch foreman learned to operate a FLIR camera, a tool used by regulators that documents fumes not visible to the naked eye. With eight wells being drilled on his ranch in the coming months, he will supplement any monitoring the state can offer.

Frack job in Karnes County, Texas.Frack job in Karnes County, Texas. (©2014 Julie Dermansky for Oceans 8 Films)

It is a good idea, considering the experiences of residents of Karnes County, at the epicenter of the Eagle Ford Shale’s fracking boom. Some who have made air quality complaints to the TQEQ told DeSmogBlog it takes days before a regulator shows up and by then, the problem often has subsided. Emissions are also at their worst at night, but regulators normally only monitor the air during the day. 

Lynn D. Buehring, one of those residents, has called the TCEQ 125 time this year alone. There have been more then 50 wells drilled within 2.5 miles of her home. This summer, there was a drilling rig a couple of hundred feet behind her house and two flares burning at other sites visible from her front porch. 

Lynn D. Buehring often wears a respirator outside of her home in Karnes County.Lynn D. Buehring often wears a respirator outside of her home in Karnes County. (©2014 Julie Dermansky for Oceans 8 Films)

Flare at a fracking industry site near Lynn Buehring’s home in Karnes County.Flare at a fracking industry site near Lynn Buehring's home in Karnes County. (©2014 Julie Dermansky for Oceans 8 Films)

Buehring filed a lawsuit against Marathon Oil Corp, claiming the company’s operations have diminished her quality of life and negatively impacted her health. She developed breathing problems shortly after the fracking began and suffers from ailments often associated with exposure to toxic air including nose bleeds, heads aches and dizziness. The air is so bad some days, she doesn’t go outside at all. 

Buehring’s case is on hold, pending the outcome of a case filed by the Cerny family, Karnes County residents represented by Buehring’s lawyer Thomas Ramirez lll. A state district judge threw out the Cerny’s case in August. The judgment is now being appealed the Texas Court of Appeals.

Ramirez vehemently disagrees with the judge’s decision not to hear these cases. Besides believing the law is on his side, “People’s lives are in the balance,” he told DeSmogBlog. “It could take anywhere from nine months to two years before the Cerny’s case is considered.”  

One positive thing about the delay is mounting scientific evidence that backs the clients' claims.

Fighting against oil companies in Texas makes you an automatic underdog. The risk of experiencing a backlash if you speak up against fracking is daunting since most have family members who work in the industry. In Denton, Texas, those who fought and won a ban against fracking were met with McCarthy-era tactics; two Texas commissioners insinuated that those supporting the ban were funded by Russia.

Some choose to leave instead of fight. The Grassland Oasis Farm near Floresville, formerly run by Fred and Amber Lyssy, closed in November.  Six of their dogs died after fracking sites started operating next to the farm. Their concerns about the health of the livestock and family weighed on them. They considered fighting the industry, but chose to leave. Fred Lyssy will now be managing a farm in Virginia.  

Fred and Amber Lyssy with their children at the Grassland Oasis, now closed.Fred and Amber Lyssy with their children at the Grassland Oasis, now closed. (©2014 Julie Dermansky for Oceans 8 Films)

Grassfed livestock at the Grassland Oasis in June, now closed.Grassfed livestock at the Grassland Oasis in June, now closed. (©2014 Julie Dermansky for Oceans 8 Films)

Just how long will the boom last and what will be left in its wake?  

Fitzsimons questions the size of the supply of oil after he noticed pumpjacks being utilized in a shorter period of time after a frack job was completed than before.

This is a sign the newer wells might not be as productive as the earlier wells,” he says. Pumpjacks are used to help keep the oil flowing after a frack job, when the flow slows down. 

His observations match a prediction made by J. David Hughes, a geoscientist with Post Carbon Institute in his 2012 report for the institute. He wrote that the fracking industry would create a  “drilling treadmill.” Operators will need to drill more wells to keep production levels at the status quo because the  “sweet spots” were drilled first, maximizing production, leaving areas with less rich oil and gas bounties to be found and drilled.   

“Drilling Deeper,” a follow-up report Hughes coauthored for the Post Carbon Institute this year, predicts that Eagle Ford Shale's production will peak some time this decade and then drop to a fraction of today’s totals by 2040, far below the U.S. Energy Information Administration projections.  

Fracking industry site in Karnes County, the epicenter of the Eagle Ford Shale.Fracking industry site in Karnes County, the epicenter of the Eagle Ford Shale. (©2014 Julie Dermansky for Oceans 8 Films)

Falling gas prices have threatened to curtail the fracking boom sooner than expected. Operators in the Bakken Shale Region and the Permian Basin are in the red, according to a Business Insider report.

Though Eagle Ford Shale operators are still turning a profit, industry workers in Karnes County are beginning to worry about their jobs. Buehring's husband told her that potential layoffs are the conversation of the day at truck-stop cafes where he and other locals congregate with industry workers. 

Even if the boom comes to an end earlier than predicted, Fitzsimons worries the water will run out before the party is over.

The regulatory agencies have not kept up with technology. They need to revamp what they are doing,” Fitzsimons says. “We have 1930 rules regulating 21st century oil fields.”

“In Texas the oil and gas industry is king,” Ramirez says, but he is not one to walk away from what he sees as a righteous fight. As the boom continues, he thinks the tide will turn as more people experience health problems associated with the cumulative effects of breathing toxic emissions produced by the fracking industry. Although he, like Fitzsimons, hopes industry will correct its ways and operate more responsibly, he isn't holding his breath while he battles on.

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News Mon, 22 Dec 2014 10:23:43 -0500
Cromnibus Pension Provisions Gut 40 Years of Policy, Allow Existing Pensions to Be Slashed http://truth-out.org/news/item/28139-cromnibus-pension-provisions-gut-forty-years-of-policy-allow-existing-pensions-to-be-slashed http://truth-out.org/news/item/28139-cromnibus-pension-provisions-gut-forty-years-of-policy-allow-existing-pensions-to-be-slashed

The US Capitol Building.The US Capitol Building. (Photo: Patrick McKay / flickr)

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Oddly, or not, “progressive” and Democratic loyalist commentary on the Cromnibus bill has — with occasional honorable exceptions  focused almost exclusively on Elizabeth Warren’s fight against a derivatives provision that might benefit big banks, as we saw yesterday, and has been silent about a provision that could do far worse and far more immediate harm to working people who made their retirement plans based on the belief that their pension rights were secure and backed by legislation, and the idea that a contract was a contract. Oldthink, I know!

So in this post I want to rectify that mysterious silence, and take a look at the truly nauseating Kline-Miller amendment, passed by the House, and part of the Senate bill forwarded to Obama for his signature. David Dayen summarizes:

Under the bill, trustees would be enabled to cut pension benefits to current retirees, reversing a 40-year bond with workers who earned their retirement packages.

Michael Hilzick:

Under ERISA, the 1974 law governing pensions in the private sector, benefits already earned by a worker can’t be cut.

Now they can. That’s right. Even if you’re retired and vested in a private pension plan, your benefits could be cut. Congress retraded the deal (if I have the finance jargon right). That’s nauseating even for today’s official Washington. And the bill was passed in a thoroughly bipartisan fashion: Kline is a Minnesota Republican, and Miller is a “liberal” California Democrat. [Reach me that bucket, wouldja?]

Who Does Kline-Miller Affect?

I said your pension could be cut, so here’s how Kline-Miller works and who it applies to. (I don’t have a pension and I’m not a union guy, so bear with and correct me.) Politico:

The House Rules Committee added the Kline-Miller amendment to the $1.1 trillion omnibus spending bill last night. The measure would give multiemployer pension trustees the option to cut vested benefits in order to save plans headed toward insolvency and would increase insurance premiums to the financially troubled Pension Benefit Guaranty Corporation (PBGC).

It works like this: Trustees submit an application of proposed benefit suspensions to the Treasury Department. The Treasury Department consults with the Pension Benefit Guaranty Corporation and the Labor Department before approving the application. Following Treasury approval, participants vote on the proposed cuts. If more than 50 percent of participants disapprove, trustees can’t make the cuts. There’s a loophole, however: If the Treasury, the Labor Department and the PBGC determine that the plan would cost the PBGC more than $1 billion [That’s not even real money these days!] upon becoming insolvent, trustees can still implement the cuts.

How many workers will be affected? Michael Hilzick again:

[M]ultiemployer pension plans are generally negotiated by a union to cover employees of all companies in a given industry. About 1,400 such plans cover about 10 million workers, according to the Pension Rights Center. About 150 to 200 of the plans, covering 1.5 million workers, are seriously underfunded and could run out of money sometime during the next 20 years.

Wait, you say. 1.5 million workers isn’t very many, and besides, I have a single employer pension, and so I’m safe from the chopping block. Not so fast! What matters is that a precedent has been set. The Wall Street Journal is practically rubbing its hands:

[The] measure included in Congress’s mammoth spending bill permits benefit cuts for retirees in one type of pension plan, a big shift that lawmakers and others believe could set a precedent for other troubled retirement programs.

Lawmakers and experts, while divided over the merits of the change, largely agreed that it could well be the first of many.

Alicia Munnell, director of Boston College’s Center for Retirement Research says the change:

“is letting the genie out of the bottle. Once it becomes legal to cut accrued benefits, then it’s a different world. It’s really precedent-making change. [While not opposed to giving trustees flexibility, she said] “It needs to be applied very, very judiciously.”

What could go wrong? The bottom line here is that the legalities and the contractual relations and whatever moral commitments were made don’t really matter. What does matter is that whenever there’s a big pot of money lying around that theoreticallly should go to working people — say, retirement funds, but it could be anything — Congress can retrade whatever deal put the money into the pot, and years after the fact, too. Oh, and workers lose the right to challenge the cuts in court. Nice!

Why Is Kline-Miller Wrong?

First, Kline-Miller gives workers no time to adjust. Reuters:

The big problem here is that the plan fails to put retirees at the head of the line for protection. When changes of this type must be made, they should be phased in over a long period of time, giving workers time to adjust their plans before retirement. For example, the Social Security benefit cuts enacted in 1983 were phased in over 20 years and didn’t start kicking in until 1990.

Second, giving workers no time to adjust is all the more egregious, because Kline-Miller was rushed through, even though there was no crisis. Pension Rights:

According to PBGC projections, approximately 150 to 200 plans, covering 1.5 million workers and retirees, could run out of money within the next 20 years.

A problem that affects comparatively few workers that’s twenty years off, and for this we have to set a precedent that up-ends the entire system?  This is worse than the Grand Bargain!  Michael Hilzick:

What’s most irksome about the Congressional maneuvering is the ginned-up atmosphere of urgency around it. For even seriously impaired pension plans, the day of reckoning may be 10 or 20 years off; a lot can happen in that time frame to improve their condition or for other solutions to bubble to the surface.

As Rahm Emmanuel didn’t say, never let a non-crisis go to waste!

Third, Kline-Miller pits workers against each other, and in two ways. Reuters:

The legislation does prohibit benefit cuts for vested retirees over 80, and limited protections for retirees over 75 – but that leaves plenty of younger retirees vulnerable to cuts. And although workers and retirees would get to vote on the changes, pension advocates worry that the interests of workers would overwhelm those of retirees. (Active workers rightly worry about the future of their plans, and many already are sacrificing through higher contributions and benefit cuts.)

First, it’s wrong to have two-tier social insurance. There’s no reason citizens should get a worse deal because they’re younger (and any meaningful Social Security reform would make benefits age neutral. None of this “I’ve got mine” crapola). Second and worse, you can just see different groups of workers fighting over benefits like crabs in a bucket — 50% plus one taking the bigger slice of the shrinking pie. I bet the bosses will love that! This from California “liberal” Miller is one of the more cynical framings I’ve seen:

“We should give (workers) the opportunity and responsibility of trying to save their own pensions”

Yes, by fighting each other!

Fourth, Kline-Miller is a union-busting measure (and as we’ll see in a minute, that’s going to exacebate problems with other pensions). In These Times:s

Jim Carothers, 69, a retired car-hauler from Redford, Mich. who currently gets benefits from the Central States Fund, is more blunt about the stakes.

“I think it would mean the complete death of the labor movement of this country. I don’t know how you would organize people and promise them anything if we get a contract,” Carothers says. “The question becomes, well, why would I join the union then if you can’t deliver what you’re promising? And that for the labor movement strikes me as an incredibly dangerous proposition.”

Exactly. What’s the point of a union contract if Congress can unilaterally retrade the deal after the fact? I thought contracts were supposed to be sacred. Or doesn’t that apply when workers are involved?

What Were the Alternatives to Kline-Miller?

First, there are options available, even accepting that legislation needed to be passed this sesson. Reuters:

[Randy DeFrehn of the National Coordinating Committee for Multiemployer Plans], AARP and other advocates reject the idea that solvency problems 10 to 15 years away require such severe measures. They have pushed alternative approaches to the problem; one that is included in the deal, DeFrehn says, is an increase in PBGC premiums paid by sponsors, from $13 to $26 per year. Advocates also have called for other new revenue sources, such as low-interest loans to PRGC by the once-bailed-out big banks and investment firms.

So why not have the sponsors pay the full freight? The workers already did! (Though I have to say that getting a loan strikes me as… .Well, let’s call it weak tea. Or weak TINA.)

Second and more radically, unions could and should have been strengthened. Read between the lines of this bland Wall Street Journal article:

Multiemployer plans are administered by unions and are funded by multiple employers in a given industry, typically in fields such as trucking, retail and construction. There are about 1,400 plans in all, covering roughly 10 million people. Because of declining ratios of active workers to retirees, and loose funding standards, some of the larger [Multiemployer plans], such as the Teamsters’ Central States fund, are in dire financial condition.

Yeah, those “declining ratios” just happened naturally, right? Leaving aside the issues of financial mismanagement by trustees and the Great Financial crash, the problem is an actuarial one, right? In These Times:

The national trend of de-unionization coupled with job losses from the recession have meant that fewer and fewer workers are paying into funds as more and more retirees are starting to receive benefits.

So, if the ratio between active workers and retirees has gone out of whack, why not strengthen unions so that there are more “active workers” signed up? Especially since the problem is 10 or 15 years away? Is there some reason a “liberal” California Democrat wouldn’t consider that? (Note above we show why Kline-Miller makes union membership less attractive, so it’s sending union pension actuarial conditions in exactly the wrong direction.)

Third, the think tank behind Kline-Miller is the National Coordinating Committee for Multiemployer Plans. Here’s their report. It’s titled:

“Solutions not Bailouts”

But what would be so very wrong with — work with me, here — just bailing the pension plans out? I can’t see why bailing out workers isn’t a solution. It certainly was for the banksters! International Business Times:

While Congress responded to the 2008 financial crisis by rescuing the banking industry with an $700 billion bailout [and that’s only TARP!], there’s no rescue on the way for retirees. Lawmakers are offering no bailout to close multiemployer plans’ aggregate $42 billion deficit.

$42 billion? Spread out over decades? That’s chicken feed! What’s wrong with these people?

Conclusion

TINA rears its ugly head. The Times:

Now, with retired coal miners in danger of losing meager pensions, the political system seems unwilling to even consider a taxpayer-supported solution.

The union leaders agree. In These Times:

Thomas Nyhan of the Central State Fund, too, says he’s been backed into a corner by political realities, and supports the NCCMP proposal out of his fiduciary duty to keep the plan solvent.

What’s baffling to me is why Nyhan — along with so many other Obama supporters and Democratic loyalists — don’t try to change “political realities.” Like Elizabeth Warren:

Washington already works really well for the billionaires and big corporations and the lawyers and lobbyists. But what about the families who lost their homes or their jobs or their retirement savings the last time Citi bet big on derivatives and lost? What about the families who are living paycheck to paycheck and saw their tax dollars go to bail Citi out just six years ago? We were sent here to fight for those families, and it’s time – it’s past time – for Washington to start working for them.

Indeed. But:

warren-pension

(To be fair, Google search has been crapified, and I’d be happy to be wrong on this.)

Come on, Democrats. Aren’t retirees with pensions “middle class families”? Or don’t they count? Can’t we stop playing small ball? There Is No Alternative — until there is!

NOTES

[1] It seems clear to me that the entire policy of gutting social insurance for retirement is deflationary. From a financial advice column:

[A CreditCards.com survey] found that a significant percentage of people don’t see an escape from debt. They believe they will die with it. The irony wasn’t lost on me that the survey was taken earlier this month as people piled on debt while holiday shopping.

So how do the two issues — the debt-until-I-die survey and pension battle — tie together?

We are increasingly on our own. Our retirement income is largely going to depend on how much we’ve managed to save and invest for ourselves.

Even those fortunate enough to still have traditional pensions should be making backup plans. You may very well not be able to rely on a once-ironclad agreement of a set and steady stream of income that would come faithfully until you die.

Your backup plan is to expect change. This means staying out of debt and getting rid of the debt you do have as soon as you can, including your mortgage.

So I’m not seeing gutting America’s pension system as a way to boost aggregate demand, that’s for sure. As Illargi says:

Deflation is not about lower prices, it’s about lower spending.

And paying down debt isn’t spending. It’s saving.

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News Mon, 22 Dec 2014 10:10:00 -0500
The War to Start All Wars: The 25th Anniversary of the Forgotten Invasion of Panama http://truth-out.org/opinion/item/28138-the-war-to-start-all-wars-the-25th-anniversary-of-the-forgotten-invasion-of-panama http://truth-out.org/opinion/item/28138-the-war-to-start-all-wars-the-25th-anniversary-of-the-forgotten-invasion-of-panama

As we end another year of endless war in Washington, it might be the perfect time to reflect on the War That Started All Wars - or at least the war that started all of Washington’s post-Cold War wars: the invasion of Panama. Twenty-five years ago this month, early on the morning of December 20, 1989, President George H.W. Bush launched Operation Just Cause, sending tens of thousands into Panama.

A U.S. Army M113 armored personnel carrier guards a street near the destroyed Panamanian Defense Force headquarters building during the second day of Operation Just Cause.A U.S. Army M113 armored personnel carrier guards a street near the destroyed Panamanian Defense Force headquarters building during the second day of Operation Just Cause. (Photo: PH1(SW) J. Elliott / DoD)

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As we end another year of endless war in Washington, it might be the perfect time to reflect on the War That Started All Wars -- or at least the war that started all of Washington’s post-Cold War wars: the invasion of Panama.

Twenty-five years ago this month, early on the morning of December 20, 1989, President George H.W. Bush launched Operation Just Cause, sending tens of thousands of troops and hundreds of aircraft into Panama to execute a warrant of arrest against its leader, Manuel Noriega, on charges of drug trafficking. Those troops quickly secured all important strategic installations, including the main airport in Panama City, various military bases, and ports. Noriega went into hiding before surrendering on January 3rd and was then officially extradited to the United States to stand trial. Soon after, most of the U.S. invaders withdrew from the country.

In and out. Fast and simple. An entrance plan and an exit strategy all wrapped in one. And it worked, making Operation Just Cause one of the most successful military actions in U.S. history. At least in tactical terms.

There were casualties. More than 20 U.S. soldiers were killed and 300-500 Panamanian combatants died as well.  Disagreement exists over how many civilians perished. Washington claimed that few died.  In the “low hundreds,” the Pentagon’s Southern Command said.  But others charged that U.S. officials didn’t bother to count the dead in El Chorrillo, a poor Panama City barrio that U.S. planes indiscriminately bombed because it was thought to be a bastion of support for Noriega. Grassroots human-rights organizations claimed thousands of civilians were killed and tens of thousands displaced.

As Human Rights Watch wrote, even conservative estimates of civilian fatalities suggested “that the rule of proportionality and the duty to minimize harm to civilians… were not faithfully observed by the invading U.S. forces.” That may have been putting it mildly when it came to the indiscriminant bombing of a civilian population, but the point at least was made. Civilians were given no notice. The Cobra and Apache helicopters that came over the ridge didn’t bother to announce their pending arrival by blasting Wagner’s "Ride of the Valkyries" (as in Apocalypse Now). The University of Panama’s seismograph marked 442 major explosions in the first 12 hours of the invasion, about one major bomb blast every two minutes. Fires engulfed the mostly wooden homes, destroying about 4,000 residences. Some residents began to call El Chorrillo “Guernica” or “little Hiroshima.” Shortly after hostilities ended, bulldozers excavated mass graves and shoveled in the bodies. “Buried like dogs,” said the mother of one of the civilian dead.

Sandwiched between the fall of the Berlin Wall on November 9, 1989, and the commencement of the first Gulf War on January 17, 1991, Operation Just Cause might seem a curio from a nearly forgotten era, its anniversary hardly worth a mention. So many earth-shattering events have happened since. But the invasion of Panama should be remembered in a big way.  After all, it helps explain many of those events. In fact, you can’t begin to fully grasp the slippery slope of American militarism in the post-9/11 era -- how unilateral, preemptory “regime change” became an acceptable foreign policy option, how “democracy promotion” became a staple of defense strategy, and how war became a branded public spectacle -- without understanding Panama.

Our Man in Panama

Operation Just Cause was carried out unilaterally, sanctioned neither by the United Nations nor the Organization of American States (OAS).  In addition, the invasion was the first post-Cold War military operation justified in the name of democracy -- “militant democracy,” as George Will approvingly called what the Pentagon would unilaterally install in Panama.

The campaign to capture Noriega, however, didn’t start with such grand ambitions. For years, as Saddam Hussein had been Washington’s man in Iraq, so Noriega was a CIA asset and Washington ally in Panama.  He was a key player in the shadowy network of anti-communists, tyrants, and drug runners that made up what would become Iran-Contra. That, in case you’ve forgotten, was a conspiracy involving President Ronald Reagan’s National Security Council to sell high-tech missiles to the Ayatollahs in Iran and then divert their payments to support anti-communist rebels in Nicaragua in order to destabilize the Sandinista government there. Noriega’s usefulness to Washington came to an end in 1986, after journalist Seymour Hersh published an investigation in the New York Times linking him to drug trafficking. It turned out that the Panamanian autocrat had been working both sides. He was “our man,” but apparently was also passing on intelligence about us to Cuba.

Still, when George H.W. Bush was inaugurated president in January 1989, Panama was not high on his foreign policy agenda. Referring to the process by which Noriega, in less than a year, would become America’s most wanted autocrat, Bush’s National Security Advisor Brent Scowcroft said: “I can’t really describe the course of events that led us this way... Noriega, was he running drugs and stuff? Sure, but so were a lot of other people. Was he thumbing his nose at the United States? Yeah, yeah.”

The Keystone Kops...

Domestic politics provided the tipping point to military action. For most of 1989, Bush administration officials had been half-heartedly calling for a coup against Noriega. Still, they were caught completely caught off guard when, in October, just such a coup started unfolding. The White House was, at that moment, remarkably in the dark. It had no clear intel about what was actually happening. ''All of us agreed at that point that we simply had very little to go on,'' Secretary of Defense Dick Cheney later reported. “There was a lot of confusion at the time because there was a lot of confusion in Panama.''

“We were sort of the Keystone Kops,” was the way Scowcroft remembered it, not knowing what to do or whom to support. When Noriega regained the upper hand, Bush came under intense criticism in Congress and the media. This, in turn, spurred him to act. Scowcroft recalls the momentum that led to the invasion: “Maybe we were looking for an opportunity to show that we were not as messed up as the Congress kept saying we were, or as timid as a number of people said.” The administration had to find a way to respond, as Scowcroft put it, to the “whole wimp factor.”

Momentum built for action, and so did the pressure to find a suitable justification for action after the fact. Shortly after the failed coup, Cheney claimed on PBS’s Newshour that the only objectives the U.S. had in Panama were to “safeguard American lives” and “protect American interests” by defending that crucial passageway from the Atlantic to the Pacific Oceans, the Panama Canal. “We are not there,” he emphasized, “to remake the Panamanian government.” He also noted that the White House had no plans to act unilaterally against the wishes of the Organization of American States to extract Noriega from the country. The “hue and cry and the outrage that we would hear from one end of the hemisphere to the other,” he said, “…raises serious doubts about the course of that action.”

That was mid-October. What a difference two months would make. By December 20th, the campaign against Noriega had gone from accidental -- Keystone Kops bumbling in the dark -- to transformative: the Bush administration would end up remaking the Panamanian government and, in the process, international law.

...Start a Wild Fire

Cheney wasn’t wrong about the “hue and cry.” Everysingle country other than the United States in the Organization of American States voted against the invasion of Panama, but by then it couldn’t have mattered less. Bush acted anyway.

What changed everything was the fall of the Berlin Wall just over a month before the invasion. Paradoxically, as the Soviet Union’s influence in itsbackyard (eastern Europe) unraveled, it left Washington with more room to maneuver in its backyard (Latin America). The collapse of Soviet-style Communism also gave the White House an opportunity to go on the ideological and moral offense. And at that moment, the invasion of Panama happened to stand at the head of the line.

As with most military actions, the invaders had a number of justifications to offer, but at that moment the goal of installing a “democratic” regime in power suddenly flipped to the top of the list. In adopting that rationale for making war, Washington was in effect radically revising the terms of international diplomacy. At the heart of its argument was the idea that democracy (as defined by the Bush administration) trumped the principle of national sovereignty.

Latin American nations immediately recognized the threat. After all, according to historian John Coatsworth, the U.S. overthrew 41 governments in Latin America between 1898 and 1994, and many of those regime changes were ostensibly carried out, as Woodrow Wilson once put it in reference to Mexico, to teach Latin Americans “to elect good men.” Their resistance only gave Bush’s ambassador to the OAS, Luigi Einaudi, a chance to up the ethical ante. He quickly and explicitly tied the assault on Panama to the wave of democracy movements then sweeping Eastern Europe. “Today we are... living in historic times,” he lectured his fellow OAS delegates, two days after the invasion, “a time when a great principle is spreading across the world like wildfire. That principle, as we all know, is the revolutionary idea that people, not governments, are sovereign.”

Einaudi’s remarks hit on all the points that would become so familiar early in the next century in George W. Bush’s “Freedom Agenda”: the idea that democracy, as defined by Washington, was a universal value; that “history” represented a movement toward the fulfillment of that value; and that any nation or person who stood in the path of such fulfillment would be swept away.

With the fall of the Berlin Wall, Einaudi said, democracy had acquired the “force of historical necessity.” It went without saying that the United States, within a year the official victor in the Cold War and the “sole superpower” left on Planet Earth, would be the executor of that necessity.  Bush’s ambassador reminded his fellow delegates that the “great democratic tide which is now sweeping the globe” had actually started in Latin America, with human rights movements working to end abuses by military juntas and dictators.  The fact that Latin American’s freedom fighters had largely been fighting against U.S.-backed anti-communist rightwing death-squad states was lost on the ambassador.

In the case of Panama, “democracy” quickly worked its way up the shortlist of casus belli.

In his December 20th address to the nation announcing the invasion, President Bush gave “democracy” as his second reason for going to war, just behind safeguarding American lives but ahead of combatting drug trafficking or protecting the Panama Canal. By the next day, at a press conference, democracy had leapt to the top of the list and so the president began his opening remarks this way: “Our efforts to support the democratic processes in Panama and to ensure continued safety of American citizens is now moving into its second day.”

George Will, the conservative pundit, was quick to realize the significance of this new post-Cold War rationale for military action. In a syndicated column headlined, “Drugs and Canal Are Secondary: Restoring Democracy Was Reason Enough to Act,” he praised the invasion for “stressing… the restoration of democracy,” adding that, by doing so, “the president put himself squarely in a tradition with a distinguished pedigree. It holds that America’s fundamental national interest is to be America, and the nation’s identity (its sense of its self, its peculiar purposefulness) is inseparable from a commitment to the spread -- not the aggressive universalization, but the civilized advancement -- of the proposition to which we, unique among nations, are, as the greatest American said, dedicated.”

That was fast. From Keystone Kops to Thomas Paine in just two months, as the White House seized the moment to radically revise the terms by which the U.S. engaged the world. In so doing, it overthrew not just Manuel Noriega but what, for half a century, had been the bedrock foundation of the liberal multilateral order: the ideal of national sovereignty.

Darkness Unto Light

The way the invasion was reported represented a qualitative leap in scale, intensity, and visibility when compared to past military actions. Think of the illegal bombing of Cambodia ordered by Richard Nixon and his National Security Advisor Henry Kissinger in 1969 and conducted for more than five years in complete secrecy, or of the time lag between actual fighting in South Vietnam and the moment, often a day later, when it was reported.

In contrast, the war in Panama was covered with a you-are-there immediacy, a remarkable burst of shock-and-awe journalism (before the phrase “shock and awe” was even invented) meant to capture and keep the public’s attention. Operation Just Cause was “one of the shortest armed conflicts in American military history,” writes Brigadier General John Brown, a historian at the United States Army Center of Military History. It was also “extraordinarily complex, involving the deployment of thousands of personnel and equipment from distant military installations and striking almost two-dozen objectives within a 24-hour period of time… Just Cause represented a bold new era in American military force projection: speed, mass, and precision, coupled with immediate public visibility.”

Well, a certain kind of visibility at least. The devastation of El Chorrillo was, of course, ignored by the U.S. media.

In this sense, the invasion of Panama was the forgotten warm-up for the first Gulf War, which took place a little over a year later.  That assault was specifically designed for all the world to see. “Smart bombs” lit up the sky over Baghdad as the TV cameras rolled. Featured were new night-vision equipment, real-time satellite communications, and cable TV (as well as former U.S. commanders ready to narrate the war in the style of football announcers, right down to instant replays). All of this allowed for public consumption of a techno-display of apparent omnipotence that, at least for a short time, helped consolidate mass approval and was meant as both a lesson and a warning for the rest of the world. “By God,” Bush said in triumph, “we’ve kicked the Vietnam syndrome once and for all.”

It was a heady form of triumphalism that would teach those in Washington exactly the wrong lessons about war and the world.

Justice Is Our Brand

In the mythology of American militarism that has taken hold since George W. Bush’s disastrous wars in Afghanistan and Iraq, his father, George H.W. Bush, is often held up as a paragon of prudence -- especially when compared to the later reckless lunacy of Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and Deputy Secretary of Defense Paul Wolfowitz. After all, their agenda held that it was the messianic duty of the United States to rid the world not just of “evil-doers” but “evil” itself.  In contrast, Bush Senior, we are told, recognized the limits of American power.  He was a realist and his circumscribed Gulf War was a “war of necessity” where his son’s 2003 invasion of Iraq was a catastrophic “war of choice.” But it was H.W. who first rolled out a “freedom agenda” to legitimize the illegal invasion of Panama.

Likewise, the moderation of George W. Bush’s Secretary of Defense, Colin Powell, has often been contrasted favorably with the rashness of the neocons in the post-9/11 years. As the chairman of the Joint Chiefs of Staff in 1989, however, Powell was hot for getting Noriega. In discussions leading up to the invasion, he advocated forcefully for military action, believing it offered an opportunity to try out what would later become known as “the Powell Doctrine.” Meant to ensure that there would never again be another Vietnam or any kind of American military defeat, that doctrine was to rely on a set of test questions for any potential operation involving ground troops that would limit military operations to defined objectives. Among them were: Is the action in response to a direct threat to national security? Do we have a clear goal? Is there an exit strategy?

It was Powell who first let the new style of American war go to his head and pushed for a more exalted name to brand the war with, one that undermined the very idea of those “limits” he was theoretically trying to establish. Following Pentagon practice, the operational plan to capture Noriega was to go by the meaningless name of “Blue Spoon.” That, Powell wrote in My American Journey, was “hardly a rousing call to arms… [So] we kicked around a number of ideas and finally settled on... Just Cause. Along with the inspirational ring, I liked something else about it. Even our severest critics would have to utter ‘Just Cause’ while denouncing us.”

Since the pursuit of justice is infinite, it’s hard to see what your exit strategy is once you claim it as your “cause.” Remember, George W. Bush’s original name for his Global War on Terror was to be the less-than-modest Operation Infinite Justice

Powell says he hesitated on the eve of the invasion, wondering if it really was the best course of action, but let out a “whoop and a holler” when he learned that Noriega had been found. A new Panamanian president had already been sworn in at Fort Clayton, a U.S. military base in the Canal Zone, hours beforethe invasion began.

Here’s the lesson Powell took from Panama: the invasion, he wrote, confirmed all his “convictions over the preceding twenty years, since the days of doubt over Vietnam. Have a clear political objective and stick to it. Use all the force necessary, and do not apologize for going in big if that is what it takes... As I write these words, almost six years after Just Cause, Mr. Noriega, convicted on the drug charges contained in the indictments, sits in an American prison cell. Panama has a new security force, and the country is still a democracy.”

That assessment was made in 1995. From a later vantage point, history’s judgment is not so sanguine. As George H.W. Bush’s ambassador to the United Nations, Thomas Pickering said about Operation Just Cause: “Having used force in Panama... there was a propensity in Washington to think that force could provide a result more rapidly, more effectively, more surgically than diplomacy.” The easy capture of Noriega meant "the notion that the international community had to be engaged... was ignored."

"Iraq in 2003 was all of that shortsightedness in spades,” Pickering said. “We were going to do it all ourselves." And we did.

The road to Baghdad, in other words, ran through Panama City.  It was George H.W. Bush’s invasion of that small, poor country 25 years ago that inaugurated the age of preemptive unilateralism, using “democracy” and “freedom” as both justifications for war and a branding opportunity. Later, after 9/11, when George W. insisted that the ideal of national sovereignty was a thing of the past, when he said nothing -- certainly not the opinion of the international community -- could stand in the way of the “great mission” of the United States to “extend the benefits of freedom across the globe,” all he was doing was throwing more fuel on the “wildfire” sparked by his father.  A wildfire some in Panama likened to a “little Hiroshima.”

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Opinion Mon, 22 Dec 2014 09:59:13 -0500
The Trade Agreement Pinatas http://truth-out.org/opinion/item/28137-the-trade-agreement-pinatas http://truth-out.org/opinion/item/28137-the-trade-agreement-pinatas

In recent weeks many labor, environmental, and consumer groups have stepped up their criticisms of the Obama administration’s plans for pushing fast-track trade negotiating authority. The purpose of fast-track is to allow the administration to negotiate to complete the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Pact and then hand both deals to Congress on a take it or leave it basis. Under the fast-track rules there would be no opportunity for amendments or delays.

Uncle Sam pinata(Image: Uncle Sam pinata via Shutterstock)Show your support for independent news and help Truthout survive. Click here to fund more stories like this one!

In recent weeks many labor, environmental, and consumer groups have stepped up their criticisms of the Obama administration’s plans for pushing fast-track trade negotiating authority. The purpose of fast-track is to allow the administration to negotiate to complete the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Pact (TTIP) and then hand both deals to Congress on a take it or leave it basis.

Under the fast-track rules there would be no opportunity for amendments or delays. The deal must be voted up or down in a narrow time-frame. The idea is that with the bulk of the business community promising large campaign contributions to supporters and threatening to punish opponents, most members of Congress would find it difficult to vote no.

Furthermore, the elite media can be counted on to do its part. It will use both the news and opinion sections to denounce opponents of whatever deal is produced as Neanderthal protectionists. As Thomas Friedman once famously said in reference to his support of CAFTA, “I didn’t even know what was in it. I just knew two words: free trade.” Others in the media may be too sophisticated to express themselves so bluntly, but undoubtedly most share Friedman’s view. Under such circumstances, there will be few politicians prepared to stand up for principle or their constituents and vote against the pacts regardless of what it is in them.

Since many traditional Democratic constituencies strongly oppose these deals it is reasonable to ask why the Obama administration is so intent on pushing them. The answer is simple: money.

There is a well-known argument for free trade familiar to anyone who sat through an intro econ class. Free trade allows countries to specialize in the goods and services in which they are best at producing. They can then trade for other items. This makes the world richer.

While not everyone gains in the textbook story, the winners are supposed to gain enough that they compensate the losers and still be better off themselves. This could then mean that everyone is better off.

The real world trade story is considerably more complicated, in part because the winners never actually compensate the losers, but that is really aside the point here. In TPP and TTIP we are not talking about the textbook trade story. The actual trade barriers between the United States and the countries in these deals, with few exceptions, are already quite low. This means that there is little to be gained by lowering them still further.

TPP and TTIP are about getting special deals for businesses that they would have difficulty getting through the normal political process. For example, oil and gas companies that think they should be able to drill everywhere may be able to get rules that prevent national or state governments from restricting their activities. This could mean, for example, that New York State would have to compensate potential frackers for the ban that Governor Cuomo imposed last week.

Similarly, the financial industry will be looking to roll back the sort of regulations put in place through Dodd-Frank and similar legislation in other countries. Again, if governments want to ensure that their financial system is safe, they may have to pay the banks for the privilege.

The pharmaceutical industry and entertainment industries will get longer and stronger patent and copyright protection. And the food and pesticide industries will be able to able to limit the ability of governments to impose safety and environmental regulations.

Best of all, these trade deals will set up a new legal structure that goes outside existing system in the United States and elsewhere. All the businesses that didn’t think German or British courts could be trusted to give them a fair deal can turn to the investor-state dispute settlement tribunals established as part of these trade pacts. These tribunals will effectively make their own law. The trade deals allow no appeal back to U.S. courts or the courts of any other country that is included.

In short, these trade deals are a real bonanza for business. And it is a bonanza that the Obama administration is betting that they will be happy to pay for big time when it comes to the 2016 elections.

It takes lots of money to run a campaign. If the Democrats can show business that it can come through for it pushing massive trade deals like TPP and TTIP, then they expect that the businesses that benefit will reward them at campaign contribution time.

That’s the basic story behind these trade deals which would otherwise look like both bad politics and bad policy for the Democrats. President Obama and other party leaders are prepared to ignore whatever harm the deals will do to the country and the world, with the hope that they amply rewarded in campaign contributions.

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Opinion Mon, 22 Dec 2014 09:33:06 -0500
Reasonable Wrongness http://truth-out.org/news/item/28136-reasonable-wrongness http://truth-out.org/news/item/28136-reasonable-wrongness

Somewhat like an alarm going off in the smouldering remains of a fire, the Supreme Court’s decision in Heien v. North Carolina, upholding a search incident to a broken tail-light, has set off a flurry of public criticism.

Notwithstanding vociferous exasperation from some quarters in the media, the Court’s  ruling had nothing to do with Justice Scalia’s subservience to corporate interests.  It was rather the putrid fruit of a poisonous jurisprudence.

North Carolina law requires a vehicle to have “a stop lamp” (nowadays called a tail-light).  Heien’s vehicle had two, one of which was not working.  The essence of the Court’s decision was that even though Mr. Heien had done nothing wrong his stop, detention and search were nevertheless lawful.  

It always helps to begin at the beginning of things which, in the law’s case, is English.

The American distaste for prepositional clauses leads them to think that in order to arrest someone there has to be “probable cause”.  Not so; and non-use of prepositional clauses turns hard thinking into mush.  In order for a search or seizure to take place there must be probable cause to believe that a crime has been or is being committed.

Once it is understood what probable cause really is, the wretched absurdity of the Court’s decision unfolds as if unto a bowl.  

How is it possible for there to be probable cause to believe a crime was committed when what was observed was not a crime at all?   It isn’t.  To say otherwise, is goobledygook, with emphasis on the “gook.”

How did the Supreme Court get itself to swallow this gook?  It did so by driving a truck the wrong way through the tunnel of the word “believe”.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For at least a century and a half after it was written, the Fourth Amendment was understood to require a warrant and probable cause before an arrest or search could be undertaken.  In other words, the word “reasonable” was understood to be contextually defined and limited by the ensuing clauses.  “Reasonable” meant having a warrant and probable cause.  

In 1925, in Carrol v. United States (1925)  US, 267 US 132 the Supreme Court held that it wasn’t always necessary to have a warrant so long as there had been  probable cause for the search. 

It will be noted that this abbreviated way of speaking -- which substitutes the phrase “for the search” for “to believe a crime has been committed, thereby warranting a search” --  runs the risk of altering the constitutional context unless one remembers precisely that which has been skipped over. 

That said, the Carrol decision did not alter the long understood rule that “reasonable” meant having probable cause to believe a crime was committed.

Then came Rehnquist.  This man, joined by other early proponents of the national security police state, had a deep and abiding antipathy toward the Fourth, Sixth and Eighth amendments. Under Rehnquist’s guidance the word "reasonable" became decoupled from the rest of the Fourth Amendment.

This decoupling contravened all canons of statutory or constitutional construction.   If the warrant and probable cause clauses had nothing to do with the constitutional requirements for a search why bother stating them at all? It would suffice to simply have written: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [.]"

However, it is axiomatic that all words in a statute or provision must be given effect.  If a court can ignore part of a sentence or paragraph why bother with written statutes and laws at all?

The Supreme Court’s decoupling of the word “reasonable” from the rest of the amendment simply erased one half of the constitutional guarantee.  The Fourth Amendment was there but it was there for show and for optional use.  It established no constitutional standard.

The situation was even worse because along with this decoupling the Court lowered the standard of proof from “probable cause” to “reasonable suspicion.”  (See Terry v. Ohio (1968) 392 US 1)  That is another story not germane to the present issue; for, in the context of the Heien case, the question still remains “reasonable suspicion” of what?

Anglo-American jurists think that “reasonableness” is some sort of sacred totem that solves all problems.  Actually it is simply a malleable weasle word.   “Reasonable” simply means: does it sound, sit and feel more or less sensible, common sensical, practical, maybe even a tad logical.   

The sheer gooeyness of the word “reasonable” has troubled the Court which is why (since the advent of Rehnquist) it cobbled up the term objective reasonableness.

The notion is that whatever “reasonableness” might be exactly it is to be measured “objectively”  by known, observable existing hard facts of some sort, which other people can see and assess for themselves.  In other words, we are not wandering into the nether world of the Erlkonig (a fantasy goblin said to inhabit German forests).

Of course, the phrase “objective reasonableness” is itself a pleanosm — a redundancy which corrodes if it does not actually destroy the word modified.  What is non-objective or "subjective reasonableness”?  Insanity?  

"But of all these books there were none he liked so well as those of the famous Feliciano de Silva's compositions.  Their lucidity of style and complicated conceits were as pearls in his sight, particularly when in his reading he came upon courtships and cartels, where he often found passages like "the reason of the unreason with which my reason is afflicted so weakens my reason that with reason I murmur at your beauty;"  ... (Don Quixote de La Mancha  Ch. 1. )

Should we really have to worry about the interior “reasons” of a lunatic?  And is the constitutional standard for a search of seizure simply that it not be outright insane?

Indeed yes, because what the Supreme Court has now held is that the subjective but erroneous beliefs of the arresting officer are constitutionally reasonable.   In other words, it has twisted probable cause into a subjective belief without objective correlative.

It must be remembered that the single broken tail-light was not “objectively”  a crime in North Carolina,  whether the officer thought so or not. 

The Court’s decision does not destroy the Fourth Amendment — that has already been done — it simply opens the way for complete total police arbitrariness without recourse to law.

The second wretchedness of the Heien decision is actually the poisoned fruit of liberal jurisprudence

For years it was understood that an unconstitutional act was ultra vires.  That is fancy Latin for “beyond the pale” or “in the outer darkness.”

Let me explain.  The Constitution defines a reality in which we wish to exist.  It is an ideal, but it is an ideal which we — by our daily actions — bringing into actual being by our observance of it.  The US Constitution is fundamentally an ontological document. 

Thus, an act that was unconstitutional was deemed “outside” the pale and, being so, simply did not exist in contemplation of law — that is, in the ideality of the Constitution and its bounden actualization by us.  It followed that if an act was unconstitutional it could not, by that same contemplation, being given any force and effect.  It was a nullity.

The Exculsionary Rule  — disallowing the use at trial of illegally garnered evidence — followed ineluctably.  If a search or seizure contravened the Fourth Amendment its fruits could not be given any effect because to do so would be to accept what was not acceptable. 

Police and prosecutorial mavens on the Court chafed under the logic of the Exclusionary Rule against which they mounted many successive attacks.

To shore up the rule, in Mapp v Ohio (1961)  367 US 643,  the liberals on the Court conjured up a totally ridiculous sociological function to justify the exclusion.  It existed, they said, as a “deterrent” to police misconduct. Excluding illegally seized evidence would help “teach” the police how to behave.

This functionalist rationale was total garbage. It was part of “modern” sociological jurisprudence which rang sweetly in “liberal” ears.   But there was no showing that the police (anymore than criminals) think about the law beforehand.  Nor was there any evidence that an officer lost sleep at night over a lost search. 

Conservatives were quick to parlay this nonsense to their own advantage.  Well then, they said,  if a police officer honestly believed in his mistake there really is no bad behavior to deter.  There is no point in punishing a person who is trying hard to be good.  (Leon v. United States (1984) 468 US 897)

In casting about for pragmatic and sociological-sounding justifications, the liberals had stupidly shifted the focus from whether there were grounds to believe that a person had violated the law to whether the police were trying to break or consciously evade the law.  

Good faith ought to be irrelevant. An act is either constitutional or it is not.  Who cares about good intentions?  It’s the road to hell that matters.

In the decade after Leon, the Court somewhat backed away from the good faith rule, but today they finally took the jump.   Through  a double gibberish Sundae of bad grammar and sociological nonsense and twisted thinking they have mulched the Fourth Amendment into a guarantee against insane and malicious searches and seizures.  While that might sound not so bad, it is in fact terrible because “insane and malicious” is so far in the outer orbit of Pluto that it leaves an immense circuit of allowable arbitrary behavior.

It is even incorrect to say that today’s ruling by the Court renders the Fourth Amendment discretionary.  Here is a standard definition of allowable judicial discretion:

"The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." (In re Cortez (1971) 6 Cal.3d 78, 85-86 >)

Thus, the rule follows that a judge who is actually mistaken as to what the law is cannot and does not properly exercise any discretion which can be upheld. 

Although this definition of discretion makes wide berth for "judgements within the bounds of reason" those judgements must be informed by true facts and correct legal principles.  If not so informed the definition simply collapses into a meaningless heap.  

It is that heap which the Supreme Court triumphs today under the newly minted doctrine of reasonable wrongness.

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News Mon, 22 Dec 2014 09:05:41 -0500
Four Ways 2014 Was a Pivotal Year for the Internet http://truth-out.org/opinion/item/28135-four-ways-2014-was-a-pivotal-year-for-the-internet http://truth-out.org/opinion/item/28135-four-ways-2014-was-a-pivotal-year-for-the-internet

The death of the internet is at hand.

Sound familiar? That’s what Internet pioneer Robert Metcalfe predicted in 1995 when he wrote that spiraling demands on the fledgling network would cause the Internet to “catastrophically collapse” by 1996.

Metcalfe, of course, was dead wrong: The internet is still chugging along, with a predicted 3 billion users by year’s end.

Still, the internet’s fate feels distinctly uncertain as 2014 draws to a close. At stake is whether the internet remains a democratic, user-powered network — or falls under the control of a few powerful entities.

Here are the four internet issues that played leading roles this year:

1. Net Neutrality

Net neutrality is hard-wired into the internet as we know it. In a neutral network, users control their experience without their Internet service providers interfering, filtering, or censoring. This revolutionary principle is under attack from the phone and cable companies that control access in the United States.

In a court decision last January, Verizon successfully challenged the Federal Communications Commission’s ability to protect net neutrality, setting in motion a year-long effort to restore the agency’s authority. More than 4 million Americans, including President Barack Obama, have contacted the FCC, with the overwhelming majority demanding real net neutrality protections.

Watch for a decision on the matter as early as January 2015. Momentum is now swinging in favor of keeping the internet open — thanks in large part to the forceful public response.

2. Consolidation

The internet is designed to function as a decentralized network — meaning that control over information doesn’t fall into the hands of a few gatekeepers, but instead rests with everyone who goes online.

This has enabled diverse voices to flourish. It’s amplified the concerns of protesters from Ferguson to Hong Kong, given underrepresented communities a platform, and allowed startup businesses to reach millions of new customers.

What’s missing is choice among internet-access providers: Too many communities can choose from only one or two. We need policies that will foster competition, which in turn would lower costs, improve services, and ensure that no single company gains too much control over content.

This year, Comcast and AT&T are attempting to consolidate their control over all-things-Internet. Comcast, the largest U.S. cable company, wants to gobble up the second largest, Time Warner Cable. If regulators approve the Comcast merger, the company would become the only traditional cable provider available to nearly two-thirds of Americans.

Meanwhile, AT&T wants to take over DIRECTV.

It’s up to the FCC and the Justice Department to block these mergers, which would create colossal, monopoly-minded behemoths. The government’s blessing of these deals would teleport us back to a time when just a few media moguls controlled most public discourse.

3. Online Privacy

In 2013, former NSA contractor Edward Snowden exposed mass spying programs that violate our civil liberties. This wholesale invasion of privacy has chilled free expression online.

There were signs of hope that 2014 would bring new legislation to rein in these government snooping powers. The USA Freedom Act, while imperfect, would have curtailed the NSA’s bulk collection of our phone records and required more oversight and transparency of its surveillance programs.

The Senate, however, voted not to consider the bill in November, leaving everyone at the mercy of an agency with a voracious appetite for data.

4. Community Networks

With big internet providers like Comcast gaining notoriety for dismal customer service, municipal broadband networks have gained traction everywhere from New York City to Monmouth, Oregon.

It’s easy to see why: The big providers often refuse to build networks in low-income or rural communities where potential customers can’t afford to pay their sky-high rates.

The rise of homegrown internet infrastructure has prompted industry lobbyists to introduce state-level legislation to smother such efforts. There are at least 20 such statutes on the books. But in June, the FCC stepped in with a plan to preempt these state laws, giving communities the support they need to affordably connect more people.

If you value free speech, keep an eye on these four issues as 2015 gets underway. To ensure an internet that’s open, fast, secure, and affordable, contact the FCC, call your members of Congress, and support efforts to build a network that works for everyone.

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Opinion Sun, 21 Dec 2014 12:25:11 -0500
Why USAID Could Never Spark a Hip Hop Revolution in Cuba http://truth-out.org/news/item/28134-why-usaid-could-never-spark-a-hip-hop-revolution-in-cuba http://truth-out.org/news/item/28134-why-usaid-could-never-spark-a-hip-hop-revolution-in-cuba

Any attempt to engineer a US-affiliated movement from above is destined to be revealed for the farce that it is.

Between 2006 and 2007, I received numerous visits from two State Department officials at my home in Harlem, New York. I had just written a book on Cuban cultural production, with a large section on rap. I was never home when they came, so they left messages with my neighbors, telling them I should urgently contact them. When they finally found me at home one day, I agreed to meet with them at a nearby Starbucks. During the meeting, they wanted to know about my research on Cuban rap. One of the agents, a male, said that he enjoyed Cuban rap, he listened to it frequently and wanted to know what my favorite groups were. The other, a woman, pressed me for more details about my work in Cuba. I didn’t give out any information. I told them that anything I could say on the topic was already written in my book. After this meeting, the harassment continued. I finally sought out a human rights lawyer, Michael Smith. He informed me that it is never advisable to meet with an agent of the government alone, and that if an agent should try to make contact, one should have a lawyer write to the agent on one’s behalf. Smith then sent them a letter saying that I did not wish to speak to them anymore, and that if they had any questions, they could contact him directly. We didn’t hear from them again.

So last week, when the AP news story broke about USAID infiltrating Cuban rap groups between 2009 and 2010, I was not surprised. Infiltration is something that Cuban rappers have been wary of for some time. Navigating the legions of foreign journalists, producers, researchers, and artists has always been a challenge for Cuban rappers, especially during the heyday of the movement in the early 2000s, and there was sometimes a suspicion of people who didn’t enter the scene through someone known to the community. But in the latter half of the 2000s, when many rappers were emigrating and foreign contacts and state support were drying up, Cuban rappers were more vulnerable to the likes of outside actors like USAID, who sought to infiltrate the movement and manipulate it to its own ends.

But the USAID mission to “spark” a “pro-democracy” movement of Cuban rappers was bound to fail for many reasons. Cubans already had a movement. Over the last several decades, Cuban hip hoppers have built a multi-faceted movement that raises issues of racism within Cuban society, provides a channel of expression for Afro-Cuban youth, makes connections with activists and celebrated artists around the globe, and has had a long-lasting impact on Cuban cultural production. It was an organic movement built from the ground up, from the streets and the housing projects. Cuban rap is hope, and anger, and poetry, and no U.S. agency could create that.

The Cuban hip hop movement was not trying to overthrow the Castro government. Artists found ways to work within the system, while making their criticisms in veiled ways, or even openly at times. The “Hip Hop Revolución” that they talk about is one that is in dialogue with the historic Cuban revolution, and youth have been putting pressure on their leaders to live up to the promises of that revolution. Even the younger, more confrontational artists like Los Aldeanos, one of the groups that USAID tried to infiltrate, didn’t see themselves as trying to topple the government. That was never part of their agenda.

Pro-democracy means something completely different to Cuban rappers than it does to USAID. For Cuban rappers, democracy has been about a more full sense of participation and recognition within their society. It has been about being able to influence policy and express their ideas about racism, inequality, and the contradictions that free market policies have brought to an increasingly dysfunctional bureaucratic socialism. It has been about trying to rethink what revolution might mean for the next generation and how they could see that in practice. For USAID, democracy promotion means overthrowing the Cuban government and ushering in a free market regime friendly to the United States. Those two goals have never been and could never be compatible.

The documents secured by the AP reveal a frightening level of manipulation of Cuban rappers by USAID. Like with ZunZuneo, the failed Cuban twitter project also engineered by USAID, the actions of this agency put Cubans at risk of state repression and threatened a closure of the critical spaces that rappers had already built and defended. USAID realizes the power of culture to provide a powerful political voice for young people. What it doesn’t realize is that in a society shaped by successive generations of revolutionary projects, any attempt to engineer a U.S.-affiliated movement from above is destined to be revealed for the farce that it is.

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News Sun, 21 Dec 2014 11:57:04 -0500
Truthout Interviews Michael Meurer on Torture Photos and Uruguay Thwarting Supply-Side Austerity Policies http://truth-out.org/news/item/28133-truthout-interviews-michael-meurer-on-torture-photos-and-uruguay-thwarting-supply-side-austerity-policies http://truth-out.org/news/item/28133-truthout-interviews-michael-meurer-on-torture-photos-and-uruguay-thwarting-supply-side-austerity-policies

Will Truthout’s mission continue in 2015 and beyond? That depends on you. Make a tax-deductible donation now to sustain our work!

Torture(Image: electron; Edited: JR/TO)Truthout contributor Michael Meurer talks about the release of 2,000 photographs of the US torture of prisoners and the ways in which Uruguay has drawn neoliberal wrath for thwarting supply-side economics and corporate governance.

With the release of the US Senate Select Committee report on the CIA's detention and interrogation program, Truthout contributor Michael Meurer puts the spotlight on the still unreleased photographs evidencing torture of prisoners in Iraq and Afghanistan. Meurer, in his Truthout piece and in this interview, insists that the time is now to release these photos with the goal of getting as complete a picture of what the US government was thinking and doing during this period so we don't repeat these policies in the future.

In the second half of the interview, the discussion focuses on the country of Uruguay to highlight the ways in which the government is coming under economic attack by neoliberal (or supply-side) international bankers for deviating from austerity programs. Uruguay has also become a lightning rod for the global financial elite because the country is challenging the legitimacy of international trade tribunals that lie at the heart of the proposed TTIP (Transatlantic Trade and Investment Partnership) and TPP (Trans-Pacific Partnership) trade agreements. Meurer's Uruguay article also highlights the country's aggressive anti-smoking campaign and how Uruguay has to defend itself in a lawsuit brought by Philip Morris for the images and labels that are on packs of cigarettes. This lawsuit is not being heard in Uruguay's domestic court system. Rather, the country has to defend itself in Washington DC at an international trade tribunal funded by the World Bank – a legal change that augurs ill for state sovereignty in the future. In the 1990s, George H.W. Bush had a slogan for this kind of supply-side corporate governance. He called it "a new world order" and what's happening in Uruguay exemplifies the shape and form of that order and the disintegration of the social safety net in many countries affected by policies designed to protect global financial and corporate interests - not the human citizens of any state.

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News Sun, 21 Dec 2014 11:48:13 -0500
The Unspeakable in Afghanistan http://truth-out.org/opinion/item/28132-the-unspeakable-in-afghanistan http://truth-out.org/opinion/item/28132-the-unspeakable-in-afghanistan

Marines exit a CH-53E Super Stallion as they are inserted into a training area in Helmand province, Afghanistan, April 2, 2014.Marines exit a CH-53E Super Stallion as they are inserted into a training area in Helmand province, Afghanistan, April 2, 2014. (Photo: Sgt. Frances Johnson / US Marine Corps)

2014 marks the deadliest year in Afghanistan for civilians, fighters, and foreigners. The situation has reached a new low as the myth of the Afghan state continues. Thirteen years into America’s longest war, the international community argues that Afghanistan is growing stronger, despite nearly all indicators suggesting otherwise. Most recently, the central government failed (again) to conduct fair and organized elections or demonstrate their sovereignty. Instead, John Kerry flew into the country and arranged new national leadership. The cameras rolled and a unity government was declared.  Foreign leaders meeting in London decided on new aid packages and financing for the nascent ‘unity government.’ Within days, the United Nations helped broker a deal to keep foreign forces in the country, while simultaneously President Obama declared the war was ending—even as he increased the number of troops on the ground. In Afghanistan, President Ghani dissolved the cabinet and many people are speculating the 2015 parliamentary elections will be postponed.

The Taliban and other insurgent groups continue to gain traction and have pulled increasing parts of the country under their control. Throughout the provinces, and even in some of the major cities, the Taliban have begun collecting taxes and are working to secure key roadways. Kabul—a city that has been called the most fortified city on earth—has been on edge due to multiple suicide bombings. The attacks on various targets, ranging from high schools to houses for foreign workers, the military, and even the office of Kabul’s police chief have clearly communicated the ability of anti-government forces to strike at will. In response to the growing crisis, the Emergency Hospital in Kabul has been forced to stop treating non-trauma patients in order continue to treat the growing number of people harmed by guns, bombs, suicide explosions, and mines.

After four years of traveling to Afghanistan to conduct interviews, I have heard ordinary Afghans whisper about Afghanistan as a failing state, even as the media has touted growth, development, and democracy. Using dark humor to comment on current conditions Afghans joke that everything is working as it should; they acknowledge an unspeakable reality. They point out that more than 101,000 foreign forces trained to fight and use violence who have used their training well—by using violence; that arms merchants have ensured that all parties can continue fighting for years to come by supplying weapons to all sides; that foreign funders backing resistance groups and mercenaries can complete their missions—resulting in both increased violence and an absence of accountability; that the international NGO community implements programs and has profited from over $100 billion in aid; and that the majority of those investments ended up deposited  in foreign bank accounts, primarily benefiting  foreigners and a few elite Afghans. Further, many of the supposedly “impartial” international bodies, as well as some of the major NGOs, have aligned themselves with various fighting forces. Thus even basic humanitarian aid has become militarized and politicized. For the ordinary Afghan the reality is clear. Thirteen years of investing in militarization and liberalization has left the country in the hands of foreign powers, ineffective NGOs, and infighting between many of the same warlords and Taliban. The result is the current unstable, deteriorating situation rather than a sovereign state.

Yet, during my trips to Afghanistan, I have also heard another unspeakable whispered, in contrast to the narrative told by mainstream media. That is, that there is another possibility, that the old way has not worked, and it is time for change; that nonviolence may  resolve some of the challenges facing the country. In Kabul, the Border Free Center—a community center in which young people can explore their role in improving society,–is exploring the use of nonviolence to engage in serious attempts at peacemaking, peacekeeping, and peacebuilding. These young adults are engaging in demonstration projects to show how different ethnic groups can work and live together. They are creating alternative economies that do not rely on violence in order to provide livelihoods for all Afghans, especially vulnerable widows and children. They are educating street children and developing plans to decrease weapons in the country. They are working to preserve the environment and to create model organic farms to show how to heal the land. Their work is demonstrating the unspeakable in Afghanistan—that when people engage in the work of peace, real progress can be achieved.

Perhaps if the last 13 years had been less focused on foreign political motives and military aid and more focused on initiatives like the Border Free Center, the situation in Afghanistan might be different. If energies were focused on peacemaking, peacekeeping, and peacebuilding, perhaps people could acknowledge the reality of the situation and create a true transformation of the Afghan state.

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Opinion Sun, 21 Dec 2014 11:42:04 -0500
Take the Chains Off: The Struggle for Racial Justice Continues http://truth-out.org/opinion/item/28131-take-the-chains-off-the-struggle-for-racial-justice-continues http://truth-out.org/opinion/item/28131-take-the-chains-off-the-struggle-for-racial-justice-continues

Protesters in Seattle, December 6.Protesters in Seattle, December 6. (Photo: scottlum)

We jumped in front of traffic. Car headlights blinded us; we held up our hands and yelled, “I can’t breathe.” These were the last words of Eric Garner, a 43-year-old Black man who was strangled to death by NYPD officer Daniel Pantaleo on Staten Island. Running between cars, we slapped high-fives with drivers and held signs above our heads.

On December 3, thousands flooded the New York streets after news broke that Pantaleo had not been indicted after murdering Garner. It was the second time in 10 days that a grand jury refused to charge a white cop who killed an unarmed Black man. On November 24 officer Darren Wilson was cleared in the shooting of Michael Brown in Ferguson, Missouri. The two non-indictments, back to back, ignited our sadness into rage; again we saw deadly abuses of power go unpunished.

Even as I write this, somewhere in America a Black man or woman is being beaten or killed by the police. Most die invisibly. For a few, a rough video of their assault or death will surface and their faces will be framed in protest signs. Each new murder swells the movement that compels us to stage mass die-ins in transit hubs and malls, torch stores and block highways. The people are rising against the state, demanding justice it cannot give and the state cannot crush the protests without risking more rebellion.

A great collision is coming, driven by a question that has been asked repeatedly for nearly four centuries. It was asked by 19 Africans, enslaved in the English colony of Jamestown in 1619, and is being asked again by the protesters across the nation. Can Black life be valued in America?

Why Ferguson Matters

“Let me see your driver’s license,” the cop told me. I handed it over; he swiped it and then handcuffed me. In 2011, a warrant was issued for my arrest because I did not pay a fine for drinking beer in a park. 

I spent the night in jail. More men came in, sullen and hard-faced, arrested like me for an outstanding warrant on a minor violation. Staring at the walls, we cursed the police. I knew the mounting anger in that cell was present around the country.  

In the United States there are nearly 1 million law enforcement officers stacked like a giant pyramid of power at the federal, state, county and city levels who are charged with keeping order in a nation of 316 million citizens. They glide through neighborhoods in patrol cars. They stand on street corners in pairs, badges flashing. They watch us.

But the crime they see is a warped vision of the crime that exists. In the eyes of U.S. police, criminality is visible if contrasted against brown skin. While patrolling highways and streets, they miss vast amounts of ongoing crime committed by whites and especially, wealthy whites. Let the suspect be Black and they will be stopped and frisked, their car inspected, their papers run through the system. The NAACP Criminal Justice Fact Sheet states that white people use illegal drugs five times more often than Black people even though Blacks are jailed at 10 times the rate.

The police crisscross Black, Latino, poor and immigrant neighborhoods and come down hardest on those that are most vulnerable. In Gotham alone, during the 12 years of Mayor Michael Bloomberg’s tenure, the New York Civil Liberties Union reported that the New York Police Department (NYPD) conducted nearly 5 million stops and frisks. A quarter of them involved young Black men, who comprise less than 2 percent of the city’s population. 

The goal remains the same under liberal Mayor Bill de Blasio as it was under Bloomberg. It was best summed up by Bloomberg’s top cop Ray Kelly, who said to state Senator Eric Adams that he wanted to “instill fear in them [Black youth] that every time that they left their homes they could be targeted by police.”

The police don’t just want to watch us; they want us to know it and to internalize it and watch ourselves, afraid that the smallest misdemeanor can begin an unstoppable descent toward prison. After I was arrested, my time came for court. The officers took me out of the cell and drove me to the judge. As we talked, I asked them about this mass arrest policy.

“We call it the snowball effect,” one of them said. “You know, it just begins small like a ticket and then another citation, some jail time and next thing you know…boom!” I slumped back in the seat, dizzy with anger and blurted, “If you have a name for how bad it is why don’t you stop it!”

“Policy,” he said and looked away. “Policy.”

And every time a cop stops and frisks us, harasses us for sleeping on the train, writes a ticket, embarrasses us in public — it traumatizes the body, fills it with combustible pain. It’s hard to understand if you don’t experience it. Remember Eric Garner telling the police officers, “Please just leave me alone”? Did you know he brought a civil suit against the NYPD for doing a cavity search for drugs in 2007, right in broad daylight as people walked by? Nothing was found. He wrote of the “injuries to his manhood” caused by the officer searching his rectum and genitals for “his own personal pleasure.”

Ferguson matters because every city in America has a Ferguson inside it. A people enraged at the handprints left by police on their bodies, losing money to tickets, losing jobs to jail time, burying the dead and then being blamed for it. The flames in that small town can spread across the nation. Malcolm X once joked that during slavery, when the master’s house caught fire, field slaves prayed for wind. Many of us are praying now.

The Feedback Loop of Violence

“Black on black crime is the reason for the heavy police presence in the black community,” former New York Mayor Rudy Giuliani said on Meet the Press in November. “White police officers wouldn’t be there if you weren’t killing each other.”

Conservatives say the high Black crime rate is the real danger, not rogue white cops. The danger is gangsta rap or single mothers or dumb hood drama. Biological racism in which one race is better than others has been replaced with cultural racism in which one culture is better than another. Conservatives believe in hierarchy, an order that keeps everyone in their proper place. Black culture is the low point in that hierarchy; it is a cauldron of icky morals, drowning everyone in it or close by.

Jason Riley, a Black writer at the Wall Street Journal who wrote Please Stop Helping Us, followed this tradition in his article “The Other Ferguson Tragedy.” He wrote, “Homicide is the leading cause of death among young black men, who are 10 times more likely than their white counterparts to be murdered. And while you’d never know it watching MSNBC, the police are not to blame.”

The Black homicide rate is part of a feedback loop of oppression. It’s the effect of multiple forces, but is framed by conservatives as a cause. The first of these forces is poverty. The Bureau of Labor Statistics’ August jobs report said the Black unemployment rate is at 11 percent, compared to the 5.3 percent rate for whites. During the four decades the bureau has kept records on it, Black unemployment has always been higher, a sign that we’re dealing with intergenerational poverty. Nearly 30 percent of Black people are poor. If you do the math, it’s nearly 13 million people out of 42 million.

The image of urban ghettos that resemble warzones is a staple in the public imagination. What the protests in Ferguson show is that segregation followed people of color into the suburbs. Brown University sociologist John Logan described in a recent report, “Separate and Unequal in Suburbia,” the movement of people of color from cities into the older inner rings of suburbs, and the poverty many of them live with. It is often reflected in failing schools that are underfunded, understaffed and have low graduation rates.

And then there’s geography. Much of urban crime is public. Poor families are packed into small apartments and that density “squeezes” crime out into public space. Beefs start in the street. Drug dealing and addiction are in the street. The fight for turf is in the street. All of which makes it visible and easier to police. 

Much of suburban crime, on the other hand, is private. Drug use, sexual assault and violence happen inside homes, where the police don’t often go. Waves of crime roll through the suburbs but go unreported, giving white America a false veneer of safety and innocence. That veneer is being blown apart by the hashtag #crimingwhilewhite, where whites describe their crimes and the soft treatment they’ve received from police.

Suburban neighborhoods of color, however, don’t get this “benign neglect.” As the crisis in Ferguson blew up, the New York Times editorialized, “The police in St. Louis County’s many municipalities systematically target poor and minority citizens for street and traffic stops — partly to generate fines — which has the effect of both bankrupting and criminalizing whole communities.”

Police are overpolicing poor neighborhoods of color. Decades ago, Black and Latino neighborhoods were neglected, something rapper Flavor Flav of Public Enemy made fun of in his song “911 is a Joke”: “Now I dialed 911 a long time ago. Don’t you see how late they’re reactin’. They only come and they come when they wanna.”

The switch to overpolicing accompanied the rise of the “broken windows” theory, which compels law enforcement to target low-level crimes. As the logic goes, going after low-level offenders will prevent larger crimes. Nice in theory, but in practice it creates the “snowball” effect. Danette Chavis of National Action Against Police Brutality said, “Blacks and Hispanics are arrested on the accusation of a crime. They keep them in jail and tell them…if you plead the lesser charge we’ll let you go. But that’s the trick…once you cop a plea you just got got by the city. Now you got a record, you deemed as a criminal which will serve as your death warrant.”

And then there is the conservative cult of the individual. When liberals point at the structural oppression in society, it’s ballyhooed as an evasion of personal responsibility. But crime, particularly robbery and gang-related homicide, is a form of agency. It’s just a reactionary one. It doesn’t reflect the leftist goal of making society more equal. It reflects the conservative vision of an isolated self, driven by personal gain.

The Strain Theory in sociology posits that if an individual believes in the goals of society but doesn’t have the means to attain them, crime can be the result. A very clear parallel exists between Horatio Alger’s rags-to-riches novel, Ragged Dick, and Jay-Z’s rap career — except in Jigga’s case he got “his” by selling drugs as a youth and then rapping about it as an adult. A dimension of Black crime exists that is not a threat against capitalism but a celebration of it.

And finally there is our gun culture. We’ve drooled over guns ever since European settlers expanded westward in North America and massacred the indigenous peoples they found in their way. The gun was and remains a symbol of freedom, so it circulates with little regulation and flows into poor neighborhoods. Some 300 million guns exist in America. It’s not a “Black” problem, but the problems Black people face, like poverty, depression and rage, become more dangerous when a gun is used to solve them. 

Yet these effects of structural racism and economic inequality get turned around and recycled as a cause. After his NBC interview, Giuliani doubled down and said, “If there were a lot of murders in a community, we put a lot of police officers there. If I had put all my police officers on Park Avenue and none in Harlem, thousands and thousands more blacks would have been killed.”

We needed jobs, not cops. We needed affordable housing, not cops. We needed gun laws. We needed drug rehabilitation centers and childcare. We still do.

License to Kill

That police have a license to kill is a social fact. Compare two cases. In November 2012, 47-year-old Michael Dunn, who was not a cop, got into a yelling match over loud music with four Black teens in a car. He pulled out a gun and shot at them, killing 17-year-old Jordan Davis. He said it seemed Davis was pulling out a gun. But no weapon was found. Dunn was convicted of first-degree murder. 

This December Phoenix police officer Mark Rine shot and killed 34-year-old Rumain Brisbon after mistaking a bottle of pills in his pocket for a gun. He was Black, and no gun was found on him either. Considering how hard it’s proven to be to indict a cop, Rine probably won’t be held accountable. 

The reason is that officers represent the state, which has a monopoly on legitimate violence. And that legitimacy is derived from it being the only supposedly neutral and universal social body that in an electoral democracy represents everyone equally. It comes from the consent of the governed. 

Yet in practice the state plays an inherently conservative role. It maintains law and order in an unequal society, so the contradictions roil it from inside. It must suppress the very people who are the source of its legitimacy. And it does this by shielding its own agents from public accountability while demonizing its victims. The formula is the same for the cops who shoot unarmed civilians, the CIA agents who torture detainees and the drone pilots who kill innocent people while targeting terrorists. Up and down the chain of command, an aura of untouchability obscures abuses of power.

The Senate Intelligence Committee’s report on the CIA’s use of torture exposed instances of detainees being beaten, force-fed though their anuses, chained to walls in stress positions and denied sleep for days. It also revealed that President Bush was told about the “full nature” of the torture in April 2006. Yet he said on camera in October 2007, “This government does not torture people.”

You know he won’t be indicted. The president embodies the same unaccountable violence as the cop in the street. And today, even as President Obama directs muted calls for calm toward Black people dealing with police violence, he inflicts it on people of color overseas. Obama is the Darren Wilson of the world.

Crime and Innocence 

“Killer cops must go to jail,” yelled Franclot Graham, the father of Ramarley Graham, a Black teen who in 2012 was chased by the NYPD into his grandmother’s home without a warrant and shot dead. No gun was found, just a small bag of weed. On Saturday, December 13, tens of thousands of New Yorkers came out for the Millions March against police brutality in Manhattan. “Go to jail,” Graham said, referring to the police officer who killed his son. “Go to jail!” The crowd repeated. 

The call for justice is building in Black America and beyond. Players for the St. Louis Rams came onto the football field with their hands up in honor of Michael Brown. LeBron James wore a shirt on court that read, “I Can’t Breathe.” The burgeoning movement, led by young Black activists, is challenging the narrative of crime and innocence in America. It’s flipping the script, using the social consensus about the preciousness of life to challenge the hypocrisy of the state. 

Occupy Wall Street exposed the guilt of elites as they waged class war on the poor. Feminists have targeted colleges and the military, exposing male supremacy and the epidemic of rape hidden from view in these institutions. Fast-food workers are calling out the economic violence they endure as their bosses make astronomical profits. Everywhere people are laying claim to universal values and marshalling them against the institutions that have exploited those values as an alibi for their power.

It begins not with ideas but experience. If you’re wondering why this new movement is happening, let me ask you to look at your hands. For a moment, please think of the person you love most in this life. Imagine holding them. Take a slow breath; exhale everything but them from your mind. Maybe you see a lover, a sibling or a parent. Can you almost feel the warmth of their skin?

Keep looking at your hands, holding the person you love. Now imagine them killed. And the murderer walking away. Do you feel helpless? Do you feel sadness weighing in your body?

The heaviness in your palms is what we lift to the sky. Cops who kill unarmed Black men go free, one after the other. It’s why we march through the streets yelling, “Hands up, don’t shoot.” It’s why we shout the names of our dead. We show our hands because we’re scared of being killed by officers who have been given license to kill Black people and go unpunished. 

I’m asking you to take this weight from us. I’m asking you to hold your hands up too.

 

The newspaper Naomi Klein calls "utterly unique," full of insightful dispatches from around the world, The Indypendent offers a fresh take on today's events.

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Opinion Sun, 21 Dec 2014 11:08:03 -0500