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Francis Scott Key on trial July 4, 2012

Posted by rogerhollander in Civil Liberties, Constitution, History, Race, Racism.
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Roger’s note: The land of the free, and the home of the … slaves.

Wednesday, Jul 4, 2012 06:30 AM EST


Land of the free? Remembering when the man who penned “The Star-Spangled Banner” defended slavery



Francis Scott Key on trialFrancis Scott Key (Credit: Wikipedia)

Excerpted from “Snow-Storm in August: Washington City, Francis Scott Key, and the Forgotten Race Riot of 1835” by Jefferson Morley

In the final two days of U.S. v. Reuben Crandall, on April 25 and 26, 1836, Washington’s district attorney, Francis Scott Key, and defense attorney Richard Coxe addressed the jurors for the last time. The courtroom in City Hall in Judiciary Square was thronged with spectators. Congressmen jockeyed for seats along with national newspaper correspondents. The crowds had come to see Key’s case against the abolitionist movement. Just as the slaveholders’ representatives on Capitol Hill were noisily seeking a “gag rule” to prevent debate over slavery on the floor of Congress, so did Key, the famous author of “The Star Spangled Banner,” seek to silence those who would agitate for freedom on the streets of Washington City. In the trial of New York doctor Reuben Crandall, he hoped to defeat the antislavery men in the court of public opinion. The abolitionist, in turn, hoped to discredit Key, sneering about his hometown, “Land of the Free …. Home of the Oppressed.”

The debate between Key and Coxe crystallized how radical new ideas of rights introduced by the free people of color and their white allies in the early 1830s had galvanized popular thinking in America. These ideas divided Americans into two broad political tendencies that would endure into the 21st century. Key and Coxe were exemplars of what we now know as red and blue politics.

The blues of the 1830s were the liberals of the day, the opponents of slavery, concentrated in the Midwest and Northeast. They had a presence in Congress, led by former president John Quincy Adams, a formidable parliamentarian. They had a wealthy benefactor, New York businessman Arthur Tappan, who organized effective publicity campaigns. And they had made themselves felt in Washington City, thanks to the efforts of editor Ben Lundy, schoolmaster John Cook and others. They were so-called abolitionists and they brought three radical ideas into the realm of American politics:

1) Property rights are not unlimited;

2) American citizenship is open to people of any race;

3) The freedom to advocate both is essential

These strong ideals still animate the American liberal tradition nearly two centuries later. Like the anti-slavery men and women of yore, 21st century liberals believe that property rights can be limited for the common good; that American citizenship should be as inclusive as possible; and that freedom of expression is a prerequisite of a free society. Reuben Crandall’s defense attorney Richard Coxe was no abolitionist and he did not argue in court for Negro equality in U.S. v Crandall. But he did lay out a “true blue” case for freedom of expression to protect those who wanted to advance such ideas.

Key’s response was a classic conservative rebuttal. From the start Key denounced Coxe for even defending the advocates of Negro citizenship and those who questioned the slave owners’ expansive definition of property rights. Compared to Coxe, Key had a much narrower conception of freedom of speech. He argued that the antislavery publications could be suppressed in the name of public safety since they might incite violent rebellion. He defended a narrower conception of American citizenship — that it was reserved for the native-born and whites only. And he had a much more expansive understanding of property rights. White men did have a constitutional right to own property in people, Key insisted.

This general set of ideas still animates red American conservatism against the country’s liberal tendencies. It is true that conservatives no longer believe in chattel slavery as a social practice but they do retain an extreme definition of property rights (embodied in freedom from taxation and regulation); a narrower conception of citizenship (it is reserved for native-born Americans) and a belief that threats to public safety may justify limitations on civil liberties. In U.S. v. Crandall, the famous author of the Star-Spangled Banner argued the red agenda of the day: defending the white man’s property rights, scorning the idea of multiracial citizenship and urging the suppression of those who disagreed.

Richard Coxe spoke first in closing arguments. He was 43 years old and far less eloquent than his opponent. But 23 years of practicing law gave him an understated style that was easy to underestimate. Never, he said, had the performance of his professional duties aroused “feelings of more intense anxiety.” Never, he went on, had he felt a deeper interest in the outcome. The issues decided here, he told the jurors, “May be brought to bear upon each member of this community, and upon our children’s children …. Great principles are to be settled.”

As for himself, Coxe said he felt a sense of duty to “the principles of liberty and of the constitution.” He said that if any individual in the District of Columbia could, like Reuben Crandall, be arrested, have his personal papers seized, and his most confidential correspondence exposed to public gaze, “then I say, this District is no place for me.”

Coxe spoke of Reuben’s plight, arrested and charged, held for eight months and denounced before the community. Coxe wanted to make clear his position was very different than that of his friend Mr. Key.

“This process, thus illegally issued, thus illegally executed, has been justified by the District Attorney. He avows his participation in it, and avows himself ready, whenever required, to prove that it is lawful. “

Coxe wanted to interpose himself forcefully. “On the other hand, I pledge myself on all occasions, and whenever the question shall be presented for judicial decision, to brand it as tyrannical, oppressive, illegal, and unconstitutional.”

Coxe denounced Mr. Key’s case against Reuben Crandall. “It is, gentlemen, preposterous. It is monstrous,” he slashed. “It has no foundation in any principle of law — it can find no support in any dictate of reason. It is a reproach to our community — it is a slander upon our institutions, that an intelligent and highly accomplished individual, should, under such circumstances and upon such grounds, have suffered what has already been inflicted upon him.”

Then he looked to Reuben in the dock. “His books and papers were harmlessly reposing in his trunk and his office, neither injuring nor calculated to injure anyone. From this quiet repose, both have been snatched by the lawless violence which has characterized the proceedings against him: language imputed to him which he never uttered, and bruited forth to rouse into action, and to stimulate to deeds of ferocity, a ruthless mob.”

Coxe knew when to stop. He thanked the jury on behalf of his client. “I submit him and his fate with entire confidence into your hands,” he said. He sat down.

It was half past five o’clock and Judge Cranch called for the court to adjourn for the evening.

The next morning, Key summed up the U.S. government’s case against Reuben Crandall.

“I consider this one of the most important cases ever tried here,” he began. It presented a conflict of rights, he said: the white man’s property rights versus the free speech rights of an antislavery man who sought not only to deprive white men but also to degrade them.

“We are to give up our slaves — not for compensation — not gradually as we may be enabled to substitute other labour… but absolutely, unconditionally immediately,” the District Attorney said. “Nor is this all. They are to remain among us — to be admitted immediately to a full and equal participation in all civil and social privileges. Then, if we do not like our new condition, we can go away — and the friends of human rights and amalgamation can come and take our places.”

So the most important question facing the jurors, Key said, was whether the pamphlets seized from Crandall’s house were “libelous.”

“They declare that every law which sanctions slavery is null and void …” Key reminded them, “That we have no more rights over our slaves than they have over us. Does not this bring the constitution and the laws under which we live into contempt? Is it not a plain invitation to resist them?”

Implacable in his desire to see Crandall hanged, Key asked the jurors to understand the threat to their own honor.

“Are you willing, gentlemen, to abandon your country, to permit it to be taken from you, and occupied by the abolitionist, according to whose taste it is to associate and amalgamate with the negro? Or, gentlemen, on the other hand, are there laws in this community to defend you from the immediate abolitionist, who would open upon you the floodgates of such extensive wickedness and mischief?”

Key’s language would echo in American political rhetoric through the late 20th centuries, especially in the South. Anyone challenging the system of legal slavery (and later legal segregation) would be accused of wanting to associate and amalgamate with the negro. Key thought the prospect was appalling. In summing up, he waxed sarcastic against Crandall.

“If he is an innocent man, cruelly imprisoned under an illegal warrant, and these vile, calumnatory libels, are actually this innocent, persecuted gentlemen’s property — stolen from him — then gentlemen return him his property and let him go free.”

The district attorney’s last words quieted the courtroom.

“It is with you, gentlemen,” he said, “I ask of you but to do your conscientious duty. ”The jury went into a separate room to deliberate. The attorneys, the crowds, the clerks, the defendant could only wait and wonder. Could an antislavery man caught with a trunk full of incendiary sheets get a fair trial in Washington City? Would the jurors be persuaded by Coxe’s plea for freedom of speech? Or by Key’s case for suppressing the antislavery subversives in the name of white supremacy?

Less than three hours later, the jury foreman reappeared. The crowd quieted itself.

Judge Cranch asked the foreman for the verdict on Reuben Crandall.

“Not guilty!” he exclaimed.

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Jefferson MorleyJefferson Morley is a staff writer for Salon in Washington and author of the forthcoming book, Snow-Storm in August: Washington City, Francis Scott Key, and the Forgotten Race Riot of 1835 (Nan Talese/Doubleday). More Jefferson Morley.



The human rights detective May 12, 2012

Posted by rogerhollander in Criminal Justice, Guatemala, Human Rights, Latin America, Peru.
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Friday, May 11, 2012 06:00 PM EST, www.salon.com


How Kate Doyle pursues war criminals in Latin America


Kate Doyle, human rights investigator, combines legal activism with forensic science. (Credit: Reuters/Jorge Lopez)

Kate Doyle’s job isn’t exactly journalism, though she’s nailed more big stories than many Pulitzer Prize winners. Her work does not quite qualify as law enforcement either, though a few bad guys living in confined quarters rue the day she came into their lives. “Human rights detective” sounds flippant, so she prefers “forensic archivist.”

Whatever you call it, war criminals have to pay attention. Last month Doyle, a senior analyst at the non-profit National Security Archive, testified as an expert witness in the Peruvian government’s prosecution of Vladimir Montesinos, the country’s former intelligence chief, who is on trial for ordering the execution of 14 captured leftist guerrillas in 1997. Doyle authenticated a declassified CIA cable she had obtained that included a first person account of Montesinos’s actions.

In the near future, she hopes to take the stand as an expert witness against former de facto Guatemalan president Efrain Rios Montt, who presided over a genocidal “scorched earth” war that killed an estimated 200,000 people in the early 1980s, the worst genocide in the Western Hemisphere in the 20th century. An investigation documented 626 different massacres committed by the U.S.-backed military forces between 1979 and 1984; most of the victims were unarmed Mayan Indians.

Doyle’s forensic investigations over the last 20 years have made her an irritant to governments everywhere — including Washington — as well a friend to the families of the victims of human rights abuses throughout Latin America. She has won a host of awards, including this year’s Abraham Lincoln Brigade Archive and Puffin Foundation award for human rights activism, one of the world’s largest prizes in the field. She will share the award with fellow investigator Fredy Peccerelli, who is the executive director of the Guatemalan Forensic Anthropology Foundation.

“She speaks with such strength because she speaks as an American,” Peccerelli said in an interview. “Very few times do you have someone investigating their own government and pointing to their own officials about their involvement. Kate speaks about the responsibility that Americans bear because of what they did. It’s very powerful.”

(Full disclosure: Doyle is a friend. I relied on CIA documents she obtained from the National Security Archive to write my book Our Man in Mexico: Winston Scott and the Hidden History of the CIA. Like many journalists in Washington and Latin America, I have found her work to be built on a solid foundation of official documentation from the U.S. and other governments. )

She’s also a passionate advocate of freedom of information laws. Thanks in part to her work, seven Latin American countries have adopted freedom of information laws since 2000. The most distinctive feature of these laws is that, unlike the U.S. Freedom of Information Act, they explicitly forbid the withholding of information about human rights abuses on grounds of “national security.” A provision she calls “very important but untested.”

“Having a legal mechanism to obligate the state to provide information is just the beginning,” says Doyle. She shares the information with prosecutors to develop cases based on “criminal patterns of action” that yield specific details of a disappearance or a massacre. Peccerelli’s forensic anthropologists exhume bodies and do DNA analysis.

Doyle has been largely frustrated in Mexico and El Salvador, where legal authorities are reluctant to confront the abuses of the past. But in Guatemala, she and her colleagues have uncovered some remarkable stories that have led to the prosecution of military officers involved in war crimes.

In the late 1990s, a source gave Guatemalan human rights activists a 54-page army log that revealed the fate of scores of people who were “disappeared” by security forces during the mid-1980s. The log included photos of 183 of the victims, along with coded references to their executions.

For the families of the victims, the results of the discovery of the so-called “death squad dossier” were close to miraculous. Not only are the officers named in the documents now under investigation, but thanks to Peccerelli’s DNA work, the bodies of five of the victims were identified and returned to their families, who had never known what had happened to their loved ones 30 years ago.

In 2009, another source gave Doyle a set of internal military documents about the scorched earth campaign of the early 1980s that were so damning in their details that the source recommended she immediately leave the country. “This person was worried that anybody who had possession of such incendiary documents would be targeted,” Doyle said.

The documents will be used by prosecutors in the trial of Rios Montt. “We have a very strong case,” Doyle says. But the continuing power of the Guatemalan military means the 86-year-old retired general may be able to avoid justice.

I asked her if she ever get discouraged by the enormity of the crimes she investigates.

“I don’t,” she replied. “I”ve met so many beautiful, dedicated people in Guatemala who have been working on this for 30 years that I feel privileged. What Fredy’s group has done with DNA findings is amazing. I’m inspired, not discouraged.”

Working with the families of people who have lost loved ones, she says, “is always painful. But I can bring them information that they’ve never been able to get. That’s mitigates the pain.”

I asked her if she ever gets scared.

“I have received threats,” she says with a rueful laugh. “But I’ve never felt one iota as frightened as my colleagues who have to stay in Guatemala all the time. Pressure and hostility and threats come with the territory” — the territory of the forensic archivist.

Jefferson MorleyJefferson Morley is a staff writer for Salon in Washington and author of the forthcoming book, Snow-Storm in August: Washington City, Francis Scott Key, and the Forgotten Race Riot of 1835 (Nan Talese/Doubleday). More Jefferson Morley.

Latin American military men against drug war April 14, 2012

Posted by rogerhollander in Colombia, Criminal Justice, Drugs, Guatemala, Latin America.
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Roger’s note: There was a time when Canada lead the way.  In 1972, the Le Dain Commission headed by Supreme Court Judge Gerald Le Dain, recommended the decriminalization of soft drugs such as marijuana.  That was exactly 40 years ago.  Although ignored by a succession of Canadian governments to this day, the report was a landmark for a policy of a sane harm reduction approach to the drug problem. 

By Jefferson Morley, www.salon.com, April 13, 2012

In Colombia Obama will hear from presidents looking for alternatives to prohibition

Drug warriors no more: Guatemalan president Otto Perez Molina and Colombian president Juan Manuel Santos  

Ending drug prohibition is creeping into the U.S. political debate, thanks to a couple of Latin American military men. Oh sure, George Will’s not-quite endorsement of legalization is noteworthy, but more than one erudite conservative columnist has gone further before. The views of three Latin American statesman are important but former U.S. Secretary of State George Shultz made the same case 23 years ago. The record high in public support for marijuana legalization found in a Gallup poll last year may be a factor, but the Obama administration has declared a “war on pot” since then.

It is the anti-prohibition campaign of Guatemalan President Otto Perez Molina and Colombian President Juan Manuel Santos, one a former general, the other a former defense minister, that has forced the Obama administration to engage critics respectfully for the first time. Perez will be pushing a formal proposal to open discussion of alternative policies at the summit of American heads of state that President Obama is attending, in Cartagena, Colombia this weekend.

While Obama doesn’t support decriminalization, said his advisor Dan Restrepo this week, “we welcome” the debate. “It’s worth discussing,” Vice President Biden told reporters in Central America last month, “but there’s no possibility the Obama-Biden administration will change its policy on legalization.”

So while there’s no change of heart in Washington, there has been a change of tone. The Obama administration cannot afford to blow off the views of two staunch U.S. allies who have both waged drug wars in their countries, not at a time when public opinion in Latin America is increasingly disenchanted with the militarized approach.

Their approach is tactful. Santos says he doesn’t want to change U.S. policy, but merely hear U.S. officials defend it.

“There are good arguments for legalizing, but I would prefer to reach that conclusion after an objective discussion,” Santos told the Washington Post this week. “The U.S. says, ‘We don’t support legalization, because the cost of legalization is higher than no legalization.’ But I want to see a discussion where both approaches are analyzed by experts to say, really, the cost is lower or not.”

In a piece for the Guardian, Perez called for an “intergovernmental dialogue based on a realistic approach – drug regulation. Drug consumption, production and trafficking should be subject to global regulations, which means that consumption and production should be legalized but within certain limits and conditions … Legalization therefore does not mean liberalization without controls.”

Perez and Santos may not make headlines in Cartagena this weekend. In an effort to lower expectations and avoid confrontation with Obama, Santos told reporters in Cartagena yesterday that drugs should not be the “center of discussion” at the summit. At the same time, he added, a review of drug policy was necessary and reflected the will of the “vast majority” of countries in attendance.

“We will not see any shift in policy,” said Juan Carlos Hidalgo of the Cato Foundation, “but this is forcing Washington to engage and defend its position at high levels.”

“In the public forum, ending prohibition will probably only get a brief discussion,” predicted Ethan Nadelman of the Drug Policy Alliance. “Privately it will be much more vigorously discussed. The challenge for the United States will be how to blur the differences. This is the first time ever that the decriminalization and alternatives to prohibition have ever been on the agenda of a major gathering of heads of states.”

Perez and Santos are still in the minority among Latin American presidents, most of whom say, at least publicly, that they oppose legalization. But the desire for alternatives to legalization and prohibition is widespread. In Mexico, President Felipe Calderon has followed the U.S. approach in declaring war on the cartels in 2006. Some 41,000 people have been killed in the last six years without reducing the supply of drugs or increasing the public’s sense of safety.  Calderon has said legalization might be the only solution but with the Mexican presidential election approaching in July is not going to change his policy. After the election is a different story. The Mexican business community is increasingly supportive of legalization and regulation as the only solution to the country’s appalling levels of violence.

As the calls for reconsideration of drug war have proliferated, the Obama administration sent Biden, Homeland Security Secretary Janet Napolitano, and Assistant Secretary of State for the Bureau of International Narcotics and Law Enforcement Affairs William Brownfield to Central America to argue for a prohibitionist policy.

“To send three top officials in a month shows that the administration is taking this seriously,” said Hidalgo. “They don’t want this debate to gain ground.”

But the more the administration responds in Latin America, the more legitimate drug policy reform becomes at home.

Jefferson Morley is a staff writer for Salon in Washington and author of the forthcoming book, Snow-Storm in August: Washington City, Francis Scott Key, and the Forgotten Race Riot of 1835 (Nan Talese/Doubleday).More Jefferson Morley