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Terrorism Law, the New McCarthyism February 23, 2010

Posted by rogerhollander in Civil Liberties, Criminal Justice, War on Terror.
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Monday 22 February 2010

by: Stephen Rohde  |  The LA Daily Journal

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(Image: Jared Rodriguez / t r u t h o u t; Adapted: Joe Gratz, GrungeTextures)

Tomorrow, the US Supreme Court will hear oral argument in the first encounter with the free speech and association rights of American citizens in the context of terrorism since the 9/11 attacks, and in the first test of the constitutionality of a provision of the USA Patriot Act.

The “Material Support” law takes a sweeping approach to its ban on aid to terrorist groups, prohibiting the provision of cash, weapons and the like, as well as four more ambiguous categories – “training,” “personnel,” “expert advice or assistance” and “service.” Opponents of the law say that when it comes to providing lawful legal advice or training in nonviolence, the law is nothing more than “guilt by association,” reminiscent of the witch hunts of McCarthyism.

These are no paranoid fears. “Congress wants these organizations to be radioactive,” Douglas N. Letter, a Justice Department lawyer, said in a 2007 appeals court argument in the case, referring to the dozens of groups that have been designated as foreign terrorist organizations by the State Department. Letter admitted that it would be a crime for a lawyer to file a friend-of-the-court brief on behalf of a designated organization or “to be assisting terrorist organizations in making presentations to the U.N., to television, [or] to a newspaper.”

The Humanitarian Law Project, a nonprofit group that has a long history of mediating international conflicts and promoting human rights, brought the case in 1998. Two years earlier, passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) had made it a crime to provide “material support” to groups the State Department had designated as “foreign terrorist organizations.” The definition of material support included “training” and “personnel.” Later versions of the law, including amendments in the USA Patriot Act, added “expert advice or assistance” and “service.”

In 2007, the Ninth US Circuit Court of Appeals ruled that the bans on training, service and certain types of expert advice were unconstitutionally vague, but upheld the bans on personnel and expert advice derived from scientific or technical knowledge. Both sides appealed to the Supreme Court, which agreed to hear the consolidated cases in October. The cases are Holder v. Humanitarian Law Project, No. 08-1498, and Humanitarian Law Project v. Holder, No. 09-89.

David D. Cole, a lawyer with the Center for Constitutional Rights, which represents the challengers, is arguing that the case concerns speech protected by the First Amendment “promoting lawful, nonviolent activities,” including “human rights advocacy and peacemaking.”

A number of victims of McCarthy-era persecution filed a friend-of-the-court brief urging the Supreme Court to remember the lessons of history.

“I signed the brief,” said Chandler Davis, an emeritus professor of mathematics at the University of Toronto, “because I can testify to the way in which the dubious repression of dissent disrupted lives and disrupted political discourse.” Professor Davis refused to cooperate with the House Un-American Activities Committee in 1954, and was dismissed from his position at the University of Michigan. Unable to find work in the United States, he moved to Canada. In 1991, the University of Michigan established an annual lecture series on academic freedom in honor of Professor Davis and others it had mistreated in the McCarthy era.

The material support law authorizes the secretary of state to designate “foreign terrorist organizations,” and makes it a crime to provide certain statutorily defined “material support” for even the nonviolent and humanitarian activities of such groups. Similar to the Smith Act and federal executive orders in the 1940s and ’50s, the law grants the executive branch unreviewable discretion to designate groups as “terrorist” and creates vague bans on providing “expert advice or assistance,” “training,” “service” or “personnel” to designated groups. It threatens, once again unconstitutionally, to interfere with the rights of free speech and association.

The AEDPA’s vague ban on “assistance” and “advice” is essentially no different from the McCarthy-era attempt to root out association with and advocacy for groups unpopular with the government. Starting in the 1930s, and through the 1960s, Congress and the executive branch identified organizations – the Communist Party and groups with ties to the Communist Party – as using illegal means, including terrorism, with the aim of overthrowing the US government by force and violence. The Smith Act and the Subversive Activities Control Act made it a crime to associate with these designated groups or to speak in support of these groups. These were crimes regardless of whether or not that speech or association supported or furthered the groups’ unlawful activities.

Our society now recognizes that the McCarthy era was a shameful episode in American history, characterized by widespread abuses of executive and legislative power, fueled by demagoguery and overzealous government action, ultimately encompassing “loyalty” investigations of over four million American citizens. See, e.g., Ellen Schrecker, “Many Are the Crimes: McCarthyism in America” (1998),  (the McCarthy era is “the most widespread and longest lasting period of political repression in American history.”).

While few individuals were ultimately prosecuted under the McCarthy-era laws, thousands were persecuted. Among the latter, larger group were Amici and their relatives, none of whom intended to or actually did engage in violence against this country. Nonetheless, they were investigated, libeled, terminated from and unable to secure employment, blacklisted, prosecuted and imprisoned. One of the key lessons from this era is that when the federal government fans the flames of public passion by enacting overreaching criminal statutes, staging Congressional hearings and investigating the loyalty of millions of American citizens, it implicitly condones and sanctions retributions against individuals, such as Amici. Eventually, our society and this court understood that these consequences were unacceptable. We should not make these mistakes again.

It is against this background that this court issued the decisions that are the controlling law that governs this case. In a series of landmark First Amendment decisions, this court struck down these statutes, restored freedom of speech and halted guilt by association. This court concluded that the Congressional and executive branch excesses were unconstitutional. The court held that punishing speech without showing incitement to crime and punishing association without showing specific intent to further illegal ends penalizes innocents and chills the political freedoms at the very core of our democracy.

These principles are equally applicable today, where the federal government (once again) has designated certain organizations as proscribed and purports to make it a crime to speak for or otherwise associate with such organizations. Now, when, once again, our safety and security have been threatened, this court should reaffirm the rights to free speech and association.

Stephen Rohde, a constitutional lawyer, was co-counsel with Arnold & Porter on the amicus brief filed by victims of McCarthyism in Humanitarian Law Project v. Holder.

© 2010 Daily Journal Corporation. All rights reserved.

The Real Bill Ayers December 6, 2008

Posted by rogerhollander in Barack Obama, John McCain, Political Commentary, U.S. Election 2008.
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Published: December 5, 2008
New York Times

Chicago

IN the recently concluded presidential race, I was unwillingly thrust upon the stage and asked to play a role in a profoundly dishonest drama. I refused, and here’s why.

Unable to challenge the content of Barack Obama’s campaign, his opponents invented a narrative about a young politician who emerged from nowhere, a man of charm, intelligence and skill, but with an exotic background and a strange name. The refrain was a question: “What do we really know about this man?”

Secondary characters in the narrative included an African-American preacher with a fiery style, a Palestinian scholar and an “unrepentant domestic terrorist.” Linking the candidate with these supposedly shadowy characters, and ferreting out every imagined secret tie and dark affiliation, became big news.

I was cast in the “unrepentant terrorist” role; I felt at times like the enemy projected onto a large screen in the “Two Minutes Hate” scene from George Orwell’s “1984,” when the faithful gathered in a frenzy of fear and loathing.

With the mainstream news media and the blogosphere caught in the pre-election excitement, I saw no viable path to a rational discussion. Rather than step clumsily into the sound-bite culture, I turned away whenever the microphones were thrust into my face. I sat it out.

Now that the election is over, I want to say as plainly as I can that the character invented to serve this drama wasn’t me, not even close. Here are the facts:

I never killed or injured anyone. I did join the civil rights movement in the mid-1960s, and later resisted the draft and was arrested in nonviolent demonstrations. I became a full-time antiwar organizer for Students for a Democratic Society. In 1970, I co-founded the Weather Underground, an organization that was created after an accidental explosion that claimed the lives of three of our comrades in Greenwich Village. The Weather Underground went on to take responsibility for placing several small bombs in empty offices — the ones at the Pentagon and the United States Capitol were the most notorious — as an illegal and unpopular war consumed the nation.

The Weather Underground crossed lines of legality, of propriety and perhaps even of common sense. Our effectiveness can be — and still is being — debated. We did carry out symbolic acts of extreme vandalism directed at monuments to war and racism, and the attacks on property, never on people, were meant to respect human life and convey outrage and determination to end the Vietnam war.

Peaceful protests had failed to stop the war. So we issued a screaming response. But it was not terrorism; we were not engaged in a campaign to kill and injure people indiscriminately, spreading fear and suffering for political ends.

I cannot imagine engaging in actions of that kind today. And for the past 40 years, I’ve been teaching and writing about the unique value and potential of every human life, and the need to realize that potential through education.

I have regrets, of course — including mistakes of excess and failures of imagination, posturing and posing, inflated and heated rhetoric, blind sectarianism and a lot else. No one can reach my age with their eyes even partly open and not have hundreds of regrets. The responsibility for the risks we posed to others in some of our most extreme actions in those underground years never leaves my thoughts for long.

The antiwar movement in all its commitment, all its sacrifice and determination, could not stop the violence unleashed against Vietnam. And therein lies cause for real regret.

We — the broad “we” — wrote letters, marched, talked to young men at induction centers, surrounded the Pentagon and lay down in front of troop trains. Yet we were inadequate to end the killing of three million Vietnamese and almost 60,000 Americans during a 10-year war.

The dishonesty of the narrative about Mr. Obama during the campaign went a step further with its assumption that if you can place two people in the same room at the same time, or if you can show that they held a conversation, shared a cup of coffee, took the bus downtown together or had any of a thousand other associations, then you have demonstrated that they share ideas, policies, outlook, influences and, especially, responsibility for each other’s behavior. There is a long and sad history of guilt by association in our political culture, and at crucial times we’ve been unable to rise above it.

President-elect Obama and I sat on a board together; we lived in the same diverse and yet close-knit community; we sometimes passed in the bookstore. We didn’t pal around, and I had nothing to do with his positions. I knew him as well as thousands of others did, and like millions of others, I wish I knew him better.

Demonization, guilt by association, and the politics of fear did not triumph, not this time. Let’s hope they never will again. And let’s hope we might now assert that in our wildly diverse society, talking and listening to the widest range of people is not a sin, but a virtue.

 

William Ayers, a professor of education at the University of Illinois at Chicago, is the author of “Fugitive Days” and a co-author of the forthcoming “Race Course.”

What a Long, Strange Trip It’s Been November 10, 2008

Posted by rogerhollander in U.S. Election 2008.
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by: Bill Ayers, In These Times

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Upon the end of a surreal campaign season, Bill Ayers speaks out. (Photo: Chris Walker / The Chicago Tribune)

   

 

 Bill Ayers looks back on a surreal campaign season.

    Whew! What was all that mess? I’m still in a daze, sorting it all out, decompressing.

    Pass the Vitamin C.

    For the past few years, I have gone about my business, hanging out with my kids and, now, my grandchildren, taking care of our elders (they moved in as the kids moved out), going to work, teaching and writing. And every day, I participate in the never-ending effort to build a powerful and irresistible movement for peace and social justice.

    In years past, I would now and then – often unpredictably – appear in the newspapers or on TV, sometimes with a reference to Fugitive Days, my 2001 memoir of the exhilarating and difficult years of resistance against the American war in Vietnam. It was a time when the world was in flames, revolution was in the air, and the serial assassinations of black leaders disrupted our utopian dreams.

    These media episodes of fleeting notoriety always led to some extravagant and fantastic assertions about what I did, what I might have said and what I probably believe now.

    It was always a bit surreal. Then came this political season.

    During the primary, the blogosphere was full of chatter about my relationship with President-elect Barack Obama. We had served together on the board of the Woods Foundation and knew one another as neighbors in Chicago’s Hyde Park. In 1996, at a coffee gathering that my wife, Bernardine Dohrn, and I held for him, I made a $200 donation to his campaign for the Illinois State Senate.

    Obama’s political rivals and enemies thought they saw an opportunity to deepen a dishonest perception that he is somehow un-American, alien, linked to radical ideas, a closet terrorist who sympathizes with extremism – and they pounced.

    Sen. Hillary Clinton’s (D-N.Y.) campaign provided the script, which included guilt by association, demonization of people Obama knew (or might have known), creepy questions about his background and dark hints about hidden secrets yet to be uncovered.

    On March 13, Sen. John McCain (R-Ariz.), apparently in an attempt to reassure the base,- sat down for an interview with Sean Hannity of Fox News. McCain was not yet aware of the narrative Hannity had been spinning for months, and so Hannity filled him in: Ayers is an unrepentant “terrorist,” he explained, “On 9/11, of all days, he had an article where he bragged about bombing our Pentagon, bombing the Capitol and bombing New York City police headquarters. … He said, ‘I regret not doing more.'”

    McCain couldn’t believe it.

    Neither could I.

    On the campaign trail, McCain immediately got on message. I became a prop, a cartoon character created to be pummeled.

    When Alaska Gov. Sarah Palin got hold of it, the attack went viral. At a now-famous Oct. 4 rally, she said Obama was Ïpallin’ around with terrorists.- (I pictured us sharing a milkshake with two straws.)

    The crowd began chanting, “Kill him!” “Kill him”- It was downhill from there.

    My voicemail filled up with hate messages. They were mostly from men, all venting and sweating and breathing heavily. A few threats: “Watch out!” and “You deserve to be shot.” And some e-mails, like this one I got from satan@hell.com: “I’m coming to get you and when I do, I’ll water-board you.”

    The police lieutenant who came to copy down those threats deadpanned that he hoped the guy who was going to shoot me got there before the guy who was going to water-board me, since it would be most foul to be tortured and then shot. (We have been pals ever since he was first assigned to investigate threats made against me in 1987, after I was hired as an assistant professor at the University of Illinois at Chicago.)

    The good news was that every time McCain or Palin mentioned my name, they lost a point or two in the polls. The cartoon invented to hurt Obama was now poking holes in the rapidly sinking McCain-Palin ship.

    That ’60s Show

    On Aug. 28, Stephen Colbert, the faux right-wing commentator from Comedy Central who channels Bill O’Reilly on steroids, observed:

    To this day, when our country holds a presidential election, we judge the candidates through the lens of the 1960s. … We all know Obama is cozy with William Ayers a ’60s radical who planted a bomb in the capital building and then later went on to even more heinous crimes by becoming a college professor. … Let us keep fighting the culture wars of our grandparents. The ’60s are a political gift that keeps on giving.

    It was inevitable. McCain would bet the house on a dishonest and largely discredited vision of the ’60s, which was the defining decade for him. He built his political career on being a prisoner of war in Vietnam.

    The ’60s – as myth and symbol – is much abused: the downfall of civilization in one account, a time of defeat and humiliation in a second, and a perfect moment of righteous opposition, peace and love in a third.

    The idea that the 2008 election may be the last time in American political life that the ’60s plays any role whatsoever is a mixed blessing. On the one hand, let’s get over the nostalgia and move on. On the other, the lessons we might have learned from the black freedom movement and from the resistance against the Vietnam War have never been learned. To achieve this would require that we face history fully and honestly, something this nation has never done.

    The war in Vietnam was an illegal invasion and occupation, much of it conducted as a war of terror against the civilian population. The U.S. military killed millions of Vietnamese in air raids – like the one conducted by McCain – and entire areas of the country were designated free-fire zones, where American pilots indiscriminately dropped surplus ordinance – an immoral enterprise by any measure.

    What Is Really Important

    McCain and Palin – or as our late friend Studs Terkel put it, “Joe McCarthy in drag” – would like to bury the ’60s. The ’60s, after all, was a time of rejecting obedience and conformity in favor of initiative and courage. The ’60s pushed us to a deeper appreciation of the humanity of every human being. And that is the threat it poses to the right wing, hence the attacks and all the guilt by association.

    McCain and Palin demanded to “know the full extent” of the Obama-Ayers “relationship” so that they can know if Obama, as Palin put it, “is telling the truth to the American people or not.”

    This is just plain stupid.

    Obama has continually been asked to defend something that ought to be at democracy’s heart: the importance of talking to as many people as possible in this complicated and wildly diverse society, of listening with the possibility of learning something new, and of speaking with the possibility of persuading or influencing others.

    The McCain-Palin attacks not only involved guilt by association, they also assumed that one must apply a political litmus test to begin a conversation.

    On Oct. 4, Palin described her supporters as those who “see America as the greatest force for good in this world” and as a “beacon of light and hope for others who seek freedom and democracy.” But Obama, she said, “Is not a man who sees America as you see it and how I see America.” In other words, there are “real” Americans – and then there are the rest of us.

    In a robust and sophisticated democracy, political leaders – and all of us – ought to seek ways to talk with many people who hold dissenting, or even radical, ideas. Lacking that simple and yet essential capacity to question authority, we might still be burning witches and enslaving our fellow human beings today.

    Maybe we could welcome our current situation – torn by another illegal war, as it was in the ’60s – as an opportunity to search for the new.

    Perhaps we might think of ourselves not as passive consumers of politics but as fully mobilized political actors. Perhaps we might think of our various efforts now, as we did then, as more than a single campaign, but rather as our movement-in-the-making.

    We might find hope in the growth of opposition to war and occupation worldwide. Or we might be inspired by the growing movements for reparations and prison abolition, or the rising immigrant rights movement and the stirrings of working people everywhere, or by gay and lesbian and transgender people courageously pressing for full recognition.

    Yet hope – my hope, our hope – resides in a simple self-evident truth: the future is unknown, and it is also entirely unknowable.

    History is always in the making. It’s up to us. It is up to me and to you. Nothing is predetermined. That makes our moment on this earth both hopeful and all the more urgent – we must find ways to become real actors, to become authentic subjects in our own history.

    We may not be able to will a movement into being, but neither can we sit idly for a movement to spring full-grown, as from the head of Zeus.

    We have to agitate for democracy and egalitarianism, press harder for human rights, learn to build a new society through our self-transformations and our limited everyday struggles.

    At the turn of the last century, Eugene Debs, the great Socialist Party leader from Terre Haute, Ind., told a group of workers in Chicago, “If I could lead you into the Promised Land, I would not do it, because someone else would come along and lead you out.”

    In this time of new beginnings and rising expectations, it is even more urgent that we figure out how to become the people we have been waiting to be.

    ———

    Bill Ayers is a Distinguished Professor of Education and Senior University Scholar at the University of Illinois at Chicago. He is the author of “Fugitive Days” (Beacon) and co-author, with Bernardine Dohrn, of “Race Course: Against White Supremacy” (Third World Press).

Michelle Bachmann Channels McCarthy: “Obama Very Anti-American,” Congressional Witch Hunt Needed October 19, 2008

Posted by rogerhollander in U.S. Election 2008.
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»

by: Sam Stein, Huffington Post

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Representative Michelle Bachmann. (Paul Giambarba / t r u t h o u t)

    In a television appearance that outraged Democrats are already describing as Joseph McCarthy politics, Minnesota Rep. Michelle Bachmann claimed on Friday that Barack Obama and his wife Michelle held anti-American views and couldn’t be trusted in the White House. She even called for the major newspapers of the country to investigate other members of Congress to “find out if they are pro-America or anti-America.”

    Appearing on MSNBC’s Hardball, Bachmann went well off the reservation when it comes to leveling political charges against the Democratic nominee.

    “If we look at the collection of friends that Barack Obama has had in his life,” she said, “it calls into question what Barack Obama’s true beliefs and values and thoughts are. His attitudes, values, and beliefs with Jeremiah Wright on his view of the United States…is negative; Bill Ayers, his negative view of the United States. We have seen one friend after another call into question his judgment — but also, what it is that Barack Obama really believes?”

    Goaded by a Chris Matthews to explain exactly what she was talking about (at one point Bachmann seemed to imply that liberalism was anti-Americanism), the congresswoman waded deeper into the mud.

    “Remember it was Michele Obama who said she is only recently proud of her country and so these are very anti-American views,” she said. “That’s not the way that most Americans feel about our country. Most Americans are wild about America and they are very concerned to have a president who doesn’t share those values.”

    Matthews later pressed her to name a single member of Congress other than Obama who she thought was anti-American. Bachmann, who initially wouldn’t budge, called for a major “expose” into the matter.

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