Terrorism Law, the New McCarthyism February 23, 2010Posted by rogerhollander in Civil Liberties, Criminal Justice, War on Terror.
Tags: chandler davis, civil liberties, eric holder, first amendment, Freedom of speech, guilt by association, human rights, humanitarian law, McCarthyism, patriot act, roger hollander, smith act, stephen rohde, supreme court, terrorism, terrorist, war on terror
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Monday 22 February 2010
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, 2008Posted by rogerhollander in Barack Obama, John McCain, Political Commentary, U.S. Election 2008.
Tags: 1960s, 1984, Barack Obama, Bill Ayers, civil disobedience, demonization, fugitive, guilt by association, orwell, Pentagon, racism, roger hollander, terrorist, Vietnam War, war, weather underground
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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.
Michelle Bachmann Channels McCarthy: “Obama Very Anti-American,” Congressional Witch Hunt Needed October 19, 2008Posted by rogerhollander in U.S. Election 2008.
Tags: guilt by association, McCarthyism, Michelle Bachmann, Republican McCarthyism, Republican Propaganda Tactics, roger hollander, witch hunt
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Saturday 18 October 2008
by: Sam Stein, Huffington Post
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.