DOJ demands info on dissenters

SUBHEAD: Attorney General Sessions goes to court to seize website's database and visitor information.

By Sam Sacks on 15 August 2017 for District Sentinel -
(https://www.districtsentinel.com/massive-doj-demand-info-dissenters-goes-court/)



Image above: A sticker advertising www.disruptj20.org in Washington, D.C. in January 2017. Photo by Elvert Barnes. From original article.

The U.S. Department of Justice (DOJ) is demanding details on visitors to an anti-Trump protest website in what consumer advocates are calling an “unconstitutional” invasion of privacy.

The Guardian reports:

On 17 July, the DoJ served a website-hosting company, DreamHost, with a search warrant for every piece of information it possessed that was related to a website that was used to coordinate protests during Donald Trump’s inauguration. The warrant covers the people who own and operate the site, but also seeks to get the IP addresses of 1.3 million people who visited it, as well as the date and time of their visit and information about what browser or operating system they used.
The website, www.disruptj20.org, was used to coordinate protests and civil disobedience on 20 January, when Trump was inaugurated.
“This specific case and this specific warrant are pure prosecutorial overreach by a highly politicized department of justice under [Attorney General Jeff] Sessions,” said Chris Ghazarian, general counsel for DreamHost. “You should be concerned that anyone should be targeted simply for visiting a website.”
The warrant was made public Monday, when DreamHost announced its plans to challenge the government in court. The DoJ declined to comment.

DreamHost expanded on its concerns regarding the warrant in a blog post, writing:

Chris Ghazarian, our General Counsel, has taken issue with this particular search warrant for being a highly untargeted demand that chills free association and the right of free speech afforded by the Constitution. …
The request from the DOJ demands that DreamHost hand over 1.3 million visitor IP addresses — in addition to contact information, email content, and photos of thousands of people — in an effort to determine who simply visited the website. (Our customer has also been notified of the pending warrant on the account.)
That information could be used to identify any individuals who used this site to exercise and express political speech protected under the Constitution’s First Amendment. That should be enough to set alarm bells off in anyone’s mind.
This is, in our opinion, a strong example of investigatory overreach and a clear abuse of government authority.

The Electronic Frontier Foundation (EFF), a nonprofit dedicated to defending online free speech and privacy rights, labeled the warrant “unconstitutional.”

“I can’t conceive of a legitimate justification other than casting your net as broadly as possible to justify millions of user logs,” EFF senior staff attorney Mark Rumold told The Guardian. “This [the website] is pure First Amendment a
dvocacy – the type of advocacy the First Amendment was designed to protect and promote.”
In a blog post published Monday, the EFF expanded on the privacy concerns at stake in the case:

No plausible explanation exists for a search warrant of this breadth, other than to cast a digital dragnet as broadly as possible. But the Fourth Amendment was designed to prohibit fishing expeditions like this. Those concerns are especially relevant here, where DOJ is investigating a website that served as a hub for the planning and exercise of First Amendment-protected activities.

EFF notes that it will continue to monitor the case. DreamHost adds in its blog post that it has “been working closely with the Electronic Frontier Foundation and their counsel throughout this process,” but notes “the EFF is not representing us in this case, [but] they understand our arguments and have been lending professional support.”

A court hearing on DreamHost’s challenge to the warrant will be held this Friday in Washington, D.C.

---

SUBHEAD: More reporting on this issue.

By Sam Sacks on 15 August 2017 for District Sentinel -
(https://www.districtsentinel.com/massive-doj-demand-info-dissenters-goes-court/)


Image above: Poster for demonstration to resist Trump Inauguration distributed by DisruptJ20.org and #DisruptJ20. From original article.

The Justice Department will attempt on Friday to defend a warrant requiring an internet host to turn over 1.3 million IP addresses of visitors to a website critical of the Trump administration.

Dreamhost, the subject of the DOJ order, called it a “clear abuse of government authority.” The company has been fighting the warrant for months leading up to Friday’s court date on the matter.

Federal prosecutors are seeking the IP addresses of anyone who visited disruptj20.org, a website hosted by Dreamhost, as well as the website’s database records, and the personal information of administrators and thousands of individuals who interacted with the site.

Disrupt J20 organized one of the many Inauguration Day protests against the incoming Trump administration. Law enforcement officials believe the group was involved in one particular action that allegedly led to the injury of six police officers and $100,000 in property damage in downtown Washington, DC.

After initially receiving the DOJ’s data request, Dreamhost requested the department narrow the scope of its warrant. US officials, instead, filed a motion in DC Superior Court forcing Dreamhost to comply with the warrant. Last week, the company responded by filing it’s own legal arguments against the sweeping DOJ order.

In a blog post on its website, Dreamhost argued that the information the government is seeking “could be used to identify any individuals who used this site to exercise and express political speech protected under the Constitution’s First Amendment.”

“That should be enough to set alarm bells off in anyone’s mind,” the company added.

The digital rights group, the Electronic Frontier Foundation has been providing “professional support” to the web host in its legal battle against the DOJ.

“No plausible explanation exists for a search warrant of this breadth, other than to cast a digital dragnet as broadly as possible,” said EFF senior staff attorney Mark Rumold.

Outside the digital realm, hundreds of people are still facing serious legal jeopardy stemming from the Inauguration Day protests. More than 200 people were charged with felony rioting, and could face up to a decade in prison.

The Washington Post reported in April that DC police had actually infiltrated the group ahead of its planned January protest.
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Authority for Use of Military Force

SUBHEAD: Congress must reclaim war-making authority from President Trump by repealing the AUMF.

By Marjorie Cohn on 6 July 2017 for Truth Out -
(http://www.truth-out.org/news/item/41186-congress-must-reclaim-war-making-authority)


Image above: A US Air Force MQ-1B Predator unmanned aerial vehicle, carrying a Hellfire air-to-surface missile lands at a secret air base in the Persian Gulf region on January 7, 2016. Photo by John Moore.From original article.

The House Appropriations Committee unexpectedly passed an amendment to the Department of Defense Appropriations bill last week that would repeal the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 after the 9/11 terrorist attacks.

If this effort to revoke the AUMF proves successful, the repeal would effectively limit Donald Trump's ability to use military force against North Korea, Iran and elsewhere.

In the 2001 AUMF, Congress authorized the president to use military force against groups and countries that had supported the 9/11 attacks. Congress rejected the George W. Bush administration's request for open-ended military authority "to deter and preempt any future acts of terrorism or aggression against the United States." ISIS (also known as Daesh) did not exist in 2001.

Although Congress limited the scope of the AUMF, it has nevertheless been used as a blank check for military force more than 37 times in 14 different countries, according to the Congressional Research Service.

Bush relied on the 2001 AUMF to invade Afghanistan and start the longest war in US history. Barack Obama used the AUMF to lead a NATO force into Libya and forcibly change its regime; ISIS then moved in to fill the vacuum.

Obama also invoked the AUMF to carry out targeted killings with drones and manned bombers, killing myriad civilians. Trump relies on the AUMF for his drone strikes in Syria, Iraq, Yemen, Somalia, Libya and Afghanistan, which have killed thousands of civilians.

Rep. Barbara Lee (D-California) introduced the new amendment, tweeting, "GOP & Dems agree: a floor debate & vote on endless war is long overdue." Lee was the only Congress member to vote against the AUMF in 2001. She said, "I knew then it would provide a blank check to wage war anywhere, anytime, for any length by any president."

Lee clarified that her amendment would repeal "the overly broad 2001 AUMF, after a period of eight months after the enactment of this act, giving the administration and Congress sufficient time to decide what measures should replace it."

It remains to be seen whether Lee's amendment will be defeated in the House of Representatives, as it is opposed by the House Foreign Affairs Committee, which said it "should have been ruled out of order" because the Appropriations Committee lacked jurisdiction over the matter.

The AUMF Should Be Repealed to Constrain Trump's War-Making
Lee's amendment raises the issue of how much war-making authority Congress should delegate to the president.

The 2001 AUMF should be repealed. But Congress should not give Trump a newer, more tailored, one. Trump cannot be trusted with war-making authority.

Tensions with North Korea continue to escalate. In response to Pyongyang's ballistic missile test, the Trump administration participated with South Korea in a massive live-fire ballistic missile exercise as a warning to Kim Jong-un. Trump warned he is considering "some pretty severe things."

Trump's recent saber-rattling against North Korea led Laura Rosenberger, a former State Department official who worked on North Korea issues, to warn that Trump is "playing with fire here -- nuclear fire."

Trump has indicated his willingness to use nuclear weapons. As he said on MSNBC in 2016, "Somebody hits us within ISIS, you wouldn't fight back with a nuke?"

Secretary of Defense James Mattis cautioned against war with North Korea. In May, he stated on CBS's "Face the Nation" that a conflict in North Korea "would be probably the worst kind of fighting in most people's lifetimes." It would be "tragic on an unbelievable scale," he said at a Pentagon press conference.

Nikki Haley, US ambassador to the United Nations, warned the Security Council, "One of our capabilities lies with our considerable military forces. We will use them if we must, but we prefer not to have to go in that direction." But, she said, North Korea is "quickly closing off the possibility of a diplomatic solution."

The UN Charter requires the pursuit of peaceful alternatives to the use of military force. Christine Hong, associate professor at the University of California, Santa Cruz, wrote in the Progressive, "Unsurprisingly, few media outlets have reported on North Korea's overtures to the United States, even as these, if pursued, might result in meaningful de-escalation on both sides. To be clear: peaceful alternatives are at hand.

Far from being an intractable foe, North Korea has repeatedly asked the United States to sign a peace treaty that would bring the unresolved Korean War to a long-overdue end."

But Trump, not known for his patience, is unlikely to pursue a diplomatic solution for long.
Moreover, his uses of military force thus far have been conducted unlawfully.

Trump's Unlawful Military Attacks
Trump's drone strikes cannot be justified by the 2001 AUMF or any other act of Congress. They thus violated the War Powers Resolution.

Passed in the wake of the Vietnam War, the War Powers Resolution requires the president to report to Congress within 60 days of initiating the use of military force. The Resolution allows the president to introduce US Armed Forces into hostilities or imminent hostilities in only three situations:
First, after Congress has declared war, which has not happened since World War II. Second, in "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces," which has not occurred. And third, when there is "specific statutory authorization," such as an AUMF.

The UN Charter requires that countries settle their disputes peacefully. The Charter forbids a country from using military force against another country, except in self-defense or with the approval of the Security Council.

Trump launched 59 Tomahawk cruise missiles against Syria in retaliation for an unproven claim that the Syrian government was responsible for a deadly chemical attack in Khan Sheikhoun.

"There's no doubt that international law, the UN Charter, prohibits the use of military force for retaliation or for reprisal, punishment," said Mary Ellen O'Connell, professor of international law at the University of Notre Dame. "You can only use military force in self-defense, and he did not."

Trump's Tomahawk missiles in Syria did not comply with the UN Charter or the War Powers Resolution.

The Trump administration utilized a self-defense rationale for shooting down a Syrian fighter jet and two Iranian-made drones. But neither Syria nor Iran had attacked the United States. And the Security Council did not sanction the US strikes. Those shoot-downs also violated the UN Charter.

The Stakes of the Effort to Repeal the AUMF
Trump's military interventions and the frightening prospect that he may attack North Korea raise the question of whether the 2001 AUMF should be repealed.

In 2015, Obama proposed repealing the 2001 AUMF and replacing it with a new one. Obama's proposal contained no geographical limitation and would have allowed the use of military force against ISIS and "associated forces," which is overly broad. And although it would have prohibited "enduring offensive operations," it contained a loophole that would have permitted the limited use of ground troops by labeling operations "defensive."

Obama essentially asked Congress to bless endless war against anyone he wanted, wherever he wanted. Congress declined Obama's invitation.

Article I of the Constitution gives Congress the power to declare war. Congress should retain that authority as the framers intended, not hand it over to an unpredictable and volatile president. The fate of the world is at stake.

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Twilight of American freedom

SUBHEAD: We have entered a new regime without justice. It’s called the American police state.

By John Whitehead on 5 June 2017 for the Rutherford Institute-
(https://www.rutherford.org/publications_resources/john_whiteheads_commentary/twilight_of_the_courts_the_elusive_search_for_justice_in_the_american_polic)


Image above: Scott Simons speaks through a bullhorn during a protest about the police shooting of Dillon Taylor in Salt Lake City, Monday, August 18, 2014. Simons is the father of Kelly Simons who was shot and killed by police in 2013. Photo by Salt Lake Tribune. From (http://www.wnd.com/2014/08/black-cop-kills-white-man-media-hide-race/).

“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”—Supreme Court Justice William O. Douglas

As the U.S. Supreme Court’s ruling in County of Los Angeles vs. Mendez makes clear, Americans can no longer rely on the courts to mete out justice.

Continuing its disturbing trend of siding with police in cases of excessive use of force, a unanimous Court declared that police should not be held liable for recklessly firing 15 times into a shack where a homeless couple—Angel and Jennifer Mendez—was sleeping.

Understandably, the Mendezes were startled by the intruders, so much so that Angel was holding his BB gun, which he used to shoot rats, in defense.

Despite the fact that police barged into the Mendez’s backyard shack without a search warrant and without announcing their presence and fired 15 shots at the couple, who suffered significant injuries (Angel Mendez suffered numerous gunshot wounds, one of which required the amputation of his right leg below the knee, and his wife Jennifer was shot in the back), the Court once again gave the police a “get out of jail free” card.

Unfortunately, we’ve been traveling this dangerous road for a long time now.

In the police state being erected around us, the police and other government agents can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.

Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.

These are the hallmarks of the emerging American police state: where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens.

While the First Amendment—which gives us a voice—is being muzzled, the Fourth Amendment—which protects us from being bullied, badgered, beaten, broken and spied on by government agents—is being disemboweled.

A review of critical court rulings over the past decade or so, including some ominous ones by the U.S. Supreme Court, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order and protecting the ruling class and government agents than with upholding the rights enshrined in the Constitution.

• Police can stop, arrest and search citizens without reasonable suspicion or probable cause.
  
• Police officers can stop cars based on “anonymous” tips or for “suspicious” behavior such as having a reclined car seat or driving too carefully.
  
• Police officers can use lethal force in car chases without fear of lawsuits.
  
• Police can “steal” from Americans who are innocent of any wrongdoing. Asset forfeiture laws, which have come under intense scrutiny and criticism in recent years, allow the police to seize property “suspected” of being connected to criminal activity without having to prove the owner of the property is guilty of a criminal offense.
  
• Americans have no protection against mandatory breathalyzer tests at a police checkpoint.
  
• Police can forcibly take your DNA, whether or not you’ve been convicted of a crime. A divided U.S. Supreme Court determined that a person arrested for a crime who is supposed to be presumed innocent until proven guilty must submit to forcible extraction of their DNA. In doing so, the Court opened the door for a nationwide dragnet of suspects targeted via DNA sampling.
  
• Police can use the “fear for my life” rationale as an excuse for shooting unarmed individuals. Incredibly, a report by the Justice Department found that half of the unarmed people shot by one police department over a seven-year span were “shot because the officer saw something (like a cellphone) or some action (like a person pulling at the waist of their pants) and misidentified it as a threat.”
  
• Police have free reign to use drug-sniffing dogs as “search warrants on leashes.”
  
• Not only are police largely protected by qualified immunity, but police dogs are also off the hook for wrongdoing. The Fourth Circuit Court of Appeals actually ruled in favor of a police officer who allowed a police dog to maul a homeless man innocent of any wrongdoing.
  
• Police can subject Americans to strip searches, no matter the “offense.” This “license to probe” is now being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches—some involving anal and vaginal probes—without any evidence of wrongdoing and without a warrant.
  
• Police can break into homes without a warrant, even if it’s the wrong home.
  
• Police can use knock-and-talk tactics as a means of sidestepping the Fourth Amendment. Aggressive “knock and talk” practices have become thinly veiled, warrantless exercises by which citizens are coerced and intimidated into “talking” with heavily armed police who “knock” on their doors in the middle of the night.
  
• Police can interrogate minors without parents present.
  
• It’s a crime to not identify yourself when a policeman asks your name. A majority of the high court agreed that refusing to answer when a policeman asks “What’s your name?” can rightfully be considered a crime under Nevada’s “stop and identify” statute.
  
• Police can carry out no-knock raids if they believe announcing themselves would be dangerous. Legal ownership of a firearm is also enough to justify a no-knock raid by police.
  
• The military can arrest and detain American citizens.

As I make clear in my book Battlefield America: The War on the American People, we are dealing with a nationwide epidemic of court-sanctioned police violence carried out against individuals posing little or no real threat, who are nevertheless subjected to such excessive police force as to end up maimed or killed.

When all is said and done, what these assorted court rulings add up to is a disconcerting government mindset that interprets the Constitution one way for the elite—government entities, the police, corporations and the wealthy—and uses a second measure altogether for the underclasses—that is, you and me.

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Southern cracker view of Hawaii

SUBHEAD: Jeff Sessions dismisses Hawaii as ‘an Island in the Pacific’ that shouldn't be able to question Trump.

By Charles Savage on 20 April 2017 for the New York Times  -
(https://www.nytimes.com/2017/04/20/us/politics/jeff-sessions-judge-hawaii-pacific-island.html)


Image above: Jefferson Beauregard Sessions, the racist US Attorney General doubts Hawaii federal judge's authority. From original article.

[IB Publisher's note: Anytime the Untied States wants to cut Hawaii off and reaffirm separation and the sovereignty stolen over a century ago it's okay with me. Hey Jeff, we'll gladly accept just being an island in Pacific if you'll just leave us alone.]
 
Attorney General Jeff Sessions spoke dismissively about the State of Hawaii while criticizing a Federal District Court ruling last month that blocked the Trump administration from carrying out its ban on travel from parts of the Muslim world.

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power,” Mr. Sessions said this week in an interview on “The Mark Levin Show,” a conservative talk radio program.

Mr. Sessions’s description of Hawaii, where the federal judge who issued the order, Derrick K. Watson, has his chambers, drew a rebuke from both of the United States senators who represent the state. Annexed as a territory of the United States in the late 19th century, Hawaii became the 50th state in 1959.

“Hawaii was built on the strength of diversity & immigrant experiences — including my own,” Senator Mazie Hirono, Democrat of Hawaii, wrote on Twitter. “Jeff Sessions’ comments are ignorant & dangerous.”

The other senator from Hawaii, Brian Schatz, who is also a Democrat, expressed similar sentiments, writing on Twitter: “Mr. Attorney General: You voted for that judge. And that island is called Oahu. It’s my home. Have some respect.”

Asked for a response from Mr. Sessions, Ian Prior, a spokesman for the Justice Department, said in an email: “Hawaii is, in fact, an island in the Pacific — a beautiful one where the attorney general’s granddaughter was born. 

The point, however, is that there is a problem when a flawed opinion by a single judge can block the president’s lawful exercise of authority to keep the entire country safe.”

(The State of Hawaii is a chain of islands, one of which is also called Hawaii; the judge’s chambers, however, are in Honolulu, which is on the island of Oahu.)

Judge Watson, an appointee of former President Barack Obama, was confirmed in 2013 by a 94-to-0 vote; Mr. Sessions, then a United States senator from Alabama, was among those who cast an approving vote. 

A former federal prosecutor, Judge Watson earned his law degree from Harvard alongside Mr. Obama and Neil M. Gorsuch, the newly seated Supreme Court justice. He is the only judge of native Hawaiian descent on the federal bench.

Last month, Judge Watson issued a nationwide injunction blocking President Trump’s travel ban, ruling that the plaintiffs — the State of Hawaii and Ismail Elshikh, the imam of the Muslim Association of Hawaii — had reasonable grounds to challenge the order as religious discrimination. 

He cited comments dating to Mr. Trump’s original call, during the 2016 campaign, for a “total and complete shutdown of Muslims entering the United States.”

During the arguments, the government had contended that looking beyond the text of the order to infer religious animus would amount to investigating Mr. Trump’s “veiled psyche,” but Judge Watson wrote in his decision that there was “nothing ‘veiled’” about Mr. Trump’s public remarks. 

Still, Mr. Sessions reiterated that line of argument in the radio interview, saying he believed that the judge’s reasoning was improper and would be overturned.

“The judges don’t get to psychoanalyze the president to see if the order he issues is lawful,” Mr. Sessions said. “It’s either lawful or it’s not.”

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The Inevitability of Impeachment

SUBHEAD: Trump’s impeachment will happen. The only question is how grave a catastrophe America faces first.

By Robert Kuttner on 29 January 2017 for Huffington Post -
(http://www.huffingtonpost.com/entry/the-inevitability-of-impeachment_us_588e8d52e4b0b065cbbcd09f)


Image above: A caricature of Donald Trump. From (http://opinion.premiumtimesng.com/2016/11/08/175721/).

Trump has been trying to govern by impulse, on whim, for personal retribution, for profit, by decree ― as if he had been elected dictator. It doesn’t work, and the wheels are coming off the bus. After a week!

Impeachment is gaining ground because it is the only way to get him out, and because Republicans are already deserting this president in droves, and because the man is psychiatrically incapable of checking whether something is legal before he does it.

Impeachment is gaining ground because it’s so horribly clear that Trump is unfit for office. The grownups around Trump, even the most slavishly loyal ones, spend half their time trying to rein him in, but it can’t be done.

They spend the other half fielding frantic calls from Republican chieftains, business elites and foreign leaders. Trump did what? Poor Reince Priebus has finally attained the pinnacle of power, and it can’t be fun.

It is one thing to live in your own reality when you are a candidate and it’s just words. You can fool enough of the people enough of the time maybe even to get elected. But when you try to govern that way, there is a reality to reality—and reality pushes back.

One by one, Trump has decreed impulsive orders, un-vetted by legal, policy, or political staff, much less by serious planning. Almost immediately he is forced to walk them back by a combination of political and legal pressure—and by reality.

Unlike in the various dictatorships Trump admires, the complex skein of constitutional legal and political checks on tyranny in the United States are holding—just barely at times, but they are holding. And the more reckless Trump’s behavior, the stronger become the checks.

Only with his lunatic effort to selectively ban refugees (but not from terrorist-sending countries like Saudi Arabia and Egypt where Trump has business interests) has Trump discovered that the American system has courts. It has courts. Imagine that.

The more unhinged he becomes, the less will conservative judges be the toadies to ordinary Republican policies that they too often have been. Anybody want to wager that the Supreme Court will be Trump’s whore?

In the past week, Republicans from Mitch McConnell on down have tripped over each other rejecting his view of Putin. They have ridiculed his screwball claim of massive voter fraud.

They are running for cover on how to kill ObamaCare without killing patients or Republican re-election hopes. This is actually complicated, and nuance is not Trump’s strong suit. Rep Tom McClintock of California spoke for many when he warned:

“We’d better be sure that we’re prepared to live with the market we’ve created” with repeal, said Rep. Tom McClintock. (R-Calif.)

“That’s going to be called Trumpcare. Republicans will own that lock, stock and barrel, and we’ll be judged in the election less than two years away.”

Sen. Lindsey Graham, mocking Trump’s own nutty tweeting habits, sent out a tweet calling a trade war with Mexico “mucho sad.”

Trump’s own senior staff has had to pull him back from his ludicrous crusade against Mexico and Mexicans, where Trump forces the Mexican president to cancel an official visit one day, and spends an hour on the phone kissing up the next day.

Trump proposed to reinstate torture, but key Republican leaders killed that idea. Sen. John Thune (S.D.), the Senate’s third ranking Republican said Wednesday that the ban on torture was settled law and the Republicans in Congress would oppose any reinstatement. Trump’s own defense secretary holds the same view. After blustering out his new torture policy, Trump meekly agreed to defer to his defense advisers.

All this in just a week! Now capped by federal judges starting to rein him in.

Two weeks ago, in this space, just based on what we witnessed during the transition, I wrote a piece calling for a citizens impeachment panel, as a shadow House Judiciary Committee, to assemble a dossier for a Trump impeachment, and a citizens’ campaign to create a public impeachment movement.

In the two weeks since then, Free Speech for People has launched a citizens’ campaign to impeach Trump. About 400,000 people have already signed the impeachment petition.

The bipartisan group Citizens for Responsibility and Ethics in Washington, (CREW) has been conducting a detailed investigation. Senior legal scholars associated with CREW have filed a detailed legal brief in their lawsuit, documenting the several ways Trump is in violation of the Emoluments Clause, which prohibits a president from profiting from the actions of foreign governments.

There are already plenty of other grounds for impeachment, including Trump’s putting his own business interests ahead of the country’s and his weird and opportunistic alliance with Vladimir Putin bordering on treason.

A lesser-known law that goes beyond the Emoluments Clause is the STOCK Act of 2012, which explicitly prohibits the president and other officials from profiting from non-public knowledge.

Impeachment, of course, is a political as well as a legal process. The Founders designed it that way deliberately. But after just a week in office, not only has Trump been deserting the Constitution; his partisan allies are deserting him.

Despite his creepy weirdness, Republicans at first thought they could use Trump for Republican ends. But from his embrace of Putin to his sponsorship of a general trade war, this is no Republican. One can only imagine the alarm and horror being expressed by Republicans privately.

In 1984, the psychiatrist Otto Kernberg described a sickness known as Malignant Narcissism. Unlike ordinary narcissism, malignant narcissism was a severe pathology.

It was characterized by an absence of conscience, a pathological grandiosity and quest for power, and a sadistic joy in cruelty.

Given the sheer danger to the Republic as well as to the Republicans, Trump’s impeachment will happen. The only question is how grave a catastrophe America faces first.

• Robert Kuttner is co-editor of The American Prospect and professor at Brandeis University’s Heller School. His latest book is Debtors’ Prison: The Politics of Austerity Versus Possibility.

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Homeland Security goes rogue

SUBHEAD: Federal court order restricting Trump's ban on "Muslim" immigration being ignored by DHS.

By M. Hanrahan & P McCausland  on 29 January 2017 for NBC News -
(http://www.nbcnews.com/news/us-news/trump-immigration-ban-still-place-despite-court-ruling-says-dhs-n713696)


Image above: Protest in Seattle against Trump immigration ban. From original article.

Hours after a federal judge issued a stay on President Donald Trump's executive order temporarily restricting entry to the U.S. from seven Muslim-majority countries, the Department of Homeland Security (DHS) and a senior White House adviser issued robust responses, emphasizing that the order remains in force.

In a statement issued in the early hours of Sunday, the Department said: "President Trump's Executive Orders remain in place — prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety."

It added that the department will "continue to enforce all of President Trump's Executive Orders in a manner that ensures the safety and security of the American people."

In addition, Stephen Miller, a senior adviser to the White House, told the Associated Press that nothing in the judge's order "in anyway impedes or prevents the implementation of the president's executive order which remains in full, complete and total effect."

The responses came just hours after federal Judge Ann Donnelly of the Eastern District of New York granted an emergency stay on parts of the order late Saturday. Her ruling came in response to a lawsuit brought by the ACLU on behalf of two Iraqi refugees who had been detained at New York's John F. Kennedy airport.

The stay will prevent the government from deporting citizens from the affected countries that had already arrived in the U.S.The ACLU estimated that around 200 people would be affected by the ruling.

For travelers outside of the U.S. however, even those with valid visas, the ruling will not change the restrictions imposed on them by the order.

Who is affected by Trump's executive order?

• Citizens of seven Muslim-majority nations - Iraq, Iran, Syria, Somalia, Sudan, Libya and Yemen will be prohibited from entering the U.S. for 90 days.
• Green card holders from any of those countries currently outside of the U.S. will need to report to a local U.S. consulate for "extra vetting," and admitted or rejected on a case-by-case basis, according to administration officials.
• Refugees seeking asylum in the U.S.: All refugees will be banned from entering the country for 120 days. Refugees from Syria will be banned indefinitely.
• Anyone with U.S. citizenship will not be affected.

A DHS spokesperson on Saturday told the Associated Press that foreign-born U.S. residents who could have been barred from re-entering the United States under Trump's immigration order have been allowed back into the country.

The official said all green card holders from the seven countries who sought to enter the U.S. Saturday were granted special permission.

Not all aspiring immigrants have been so lucky, however. Since the order has been in force, stories have been emerging about families and individuals aiming to rejoin their loved ones being refused entry to the U.S.

While a dozen travelers were being held at New York's John F. Kennedy International Airport on Saturday after they arrived, many more across the world were told they would not be able to board connecting flights to their destination in the U.S.

Amir Rashidi, an Iranian immigrant who lives in Seattle, told NBC News that his mother — who had become an American citizen — sponsored his sister's family to come to the United States. They had all obtained green cards, a process that can take years.

All but one arrived safely in Seattle. Rashidi's niece, 27-year-old Mahsa Fazmali, was slated to arrive on Friday, but then Trump signed the executive order.

Fazmali flew without a problem from Tehran to Dubai, and she had even found her seat on her flight to the Emerald City.

"She was on the plane sitting on her seat," her uncle said.

But then her name was called over the PA system and she was ordered to deplane with her belongings. According to Rashidi, airport officials could not explain why her green card would not allow her to travel to the United States.

She and the other immigrants who were looking for answers only learned of the travel ban from a nearby television turned to the news. Fazmali then flew back to Tehran.

Related: Officials Say Visas Were Being Revoked Prior to Trump's Executive Order

---

By Tyler Durden on 29 January 2017 for Zero Hedge -
(http://www.zerohedge.com/news/2017-01-29/homeland-security-states-it-will-continue-enforce-trumps-travel-ban)

Following a tumultuous night, in which late on Saturday evening a Brooklyn Federal Judge issued a partial ban on Trump's immigration order, on Sunday morning the Department of Homeland Security issued a statement saying it planned on continuing to “enforce all of the president’s executive orders in a manner that ensures the safety and security of the American people.”

The DHS said the court order would not affect the overall implementation of the White House order and the court order affected a small number of travelers who were inconvenienced by security procedures upon their return, Fox News first reported.

“The president’s executive orders remain in place—prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety,” the statement said.

However, the DHS also added it would "comply with judicial orders" not to deport detained travelers affected by President Donald Trump's order.

In a separate report from the NY Post, the ACLU was said to be getting “multiple reports” that federal customs agents are siding with President Trump — and willfully ignoring a Brooklyn federal judge’s demand that travelers from seven Muslim countries not be deported from the nation’s airports.

“The court’s order could not be clearer… they need to comply with the order,” Omar Jadwat, director of the ACLU’s Immigrants Rights project, told The Post late Saturday. “It’s enough to be a serious concern,” Jadwat said of the reports.

Stephen Miller, a senior adviser to the White House, said, "Nothing in the Brooklyn judge's order in anyway impedes or prevents the implementation of the president's executive order which remains in full, complete and total effect."

As reported before, just before 9pm on Saturday, U.S. District Judge Ann Donnelly in New York issued an emergency order temporarily barring the U.S. from deporting people from nations subject to President Donald Trump's travel ban, saying travelers who had been detained had a strong argument that their legal rights had been violated.

The stay was ordered after lawyers for the ACLU filed a court petition on behalf of people from seven predominantly Muslim nations who were detained at airports across the country as the ban took effect.

Homeland Security said the order affects a small amount of people traveling internationally. The DHS said the order was the “first step towards reestablishing control over America's borders and national security.”

Prior to the ruling, Trump’s travel ban sparked protests around the country at several international airports. Demonstrators ranged from a few dozen people to thousands. Protests are scheduled to continue on Sunday at least seven cities: Orlando, Boston, Philadelphia, Atlanta, Seattle, Washington and Chicago, mostly at airports.

Under Trump's order, it had appeared that an unknown number of foreign-born U.S. residents now traveling outside the U.S. could be stuck overseas for at least 90 days even though they held permanent residency "green cards" or other visas.  

However, an official with the DHS said Saturday night that no green-card holders from the seven countries cited in Trump's order had been prevented from entering the U.S. Trump also billed his sweeping executive order as a necessary step to stop "radical Islamic terrorists" from coming to the U.S.

It included a 90-day ban on travel to the U.S. by citizens of Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen and a 120-day suspension of the U.S. refugee program.

Early on Sunday, Trump in his first official statement since the Brooklyn Court ruling stayed his ground and tweeted that "our country needs strong borders and extreme vetting, NOW. Look what is happening all over Europe and, indeed, the world - a horrible mess!

The DHS said in the statement that they “will faithfully execute the immigration laws, and we will treat all of those we encounter humanely and with professionalism.” They also added that they plan to ensure the safety of the American people by making sure those entering the U.S. pose no threat.
The full DHS statement is below:

Department Of Homeland Security Response To Recent Litigation

The Department of Homeland Security will continue to enforce all of President Trump’s Executive Orders in a manner that ensures the safety and security of the American people. President Trump’s Executive Orders remain in place—prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety. President Trump’s Executive Order affects a minor portion of international travelers, and is a first step towards reestablishing control over America's borders and national security.

Approximately 80 million international travelers enter the United States every year. Yesterday, less than one percent of the more than 325,000 international air travelers who arrive every day were inconvenienced while enhanced security measures were implemented. These individuals went through enhanced security screenings and are being processed for entry to the United States, consistent with our immigration laws and judicial orders.

The Department of Homeland Security will faithfully execute the immigration laws, and we will treat all of those we encounter humanely and with professionalism. No foreign national in a foreign land, without ties to the United States, has any unfettered right to demand entry into the United States or to demand immigration benefits in the United States. 

The Department of Homeland Security will comply with judicial orders; faithfully enforce our immigration laws, and implement President Trump’s Executive Orders to ensure that those entering the United States do not pose a threat to our country or the American people.

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Monsanto and First Amendment

SOURCE: Russ Pascatore (russ.pascatore@titanx.com)
SUBHEAD: Protesters supported by donations are not a new idea. There are national holidays for some of them.

By Billy Talen on 24 January 2017 for Al Jazeera -
(http://www.aljazeera.com/indepth/opinion/2017/01/monsanto-amendment-170124075931929.html)


Image above: Reverend Billy getting arrested during an anti-Monsanto protest in Des Moines, Iowa in 2016. Photo by Sharon Donovan. From original article.

On January 11 in Des Moines, Iowa, Reverend Billy Talen and his co-defendant, Father Frank Cordaro, were found innocent of the charge of trespass, with possible $500 fine and 30 days in prison. In her decision, Judge Carol Coppola refused to accept the prosecution's motion to stop Talen and Cordaro from invoking the First Amendment in their defence.

"Your honour - he's a professional protester!" the Assistant District Attorney called out in horror. Wylie Stecklow, my long-suffering pro-bono lawyer standing next to me, cast a wry sidelong glance.

Why the demonisation of protest?

Protesters supported by volunteer donations are not a new idea. We create national holidays for some of the prominent ones. Sometimes, you just have to go out and ask for help! In the Church of Stop Shopping, we have 200 people who give $2 each month. We call these friends "Holy Rollers".

The motion in the link above was filed for the Iowa judge to consider before our recent trial. It proposed that my co-defendant and I not be allowed to defend our actions by invoking the First Amendment, on the grounds that we have protested many times in our past and are therefore free speech abusers. Professional protester!

Norman Siegel, for many years the head of the New York American Civil Liberties Union (ACLU), told us that in his experience this motion is without precedent. Retire a portion of the Constitution for a trial? Retroactively suspend a defendant's First Amendment rights? What other kind of defence strategy would a protester even consider?

Monsanto's attacks on citizens that are critical of its popular herbicide, RoundUp, and its glyphosate toxin are similar to fundamentalist religions like Scientologists, Zionists, or the National Rifle Association.

In contrast to their problems elsewhere in the world - where half a dozen countries have enacted prohibitions on its use and more are considering such action - in the United States, the company is successful in stifling its dissent, especially in Iowa, where newspapers accept large ad buys and the government works openly to accommodate the chemical giant.

A critical researcher can be defamed publicly and dogged for years in the press and scientific journals. The recent study from Kings College's genetic researchers linking glyphosates to liver and kidney disease is the latest smoking gun, but Monsanto's spin machine will surely swing into action in the coming days.

In our case, what we were all fearing was that the prosecution was protecting Monsanto. But the government's argument blew up, as it should have. The judge was not about to banish the Constitution from her court. She dismissed the charges in about two hours, which is very quick, in court time. We didn't even select a jury.

The criminalisation of expressive freedoms may be a hallmark of Donald Trump's hate era. Iowa is a Trump state, as well as a Monsanto state. And Iowa is very much a Monsanto state: It absorbs more of the herbicide, RoundUp, than any other state in the union, and Iowa's cancer rates are said to be high.

Iowa Governor Terry Branstad endorsed Trump, and now will be the new ambassador to China. Monsanto will like that. The World Food Prize party, where we were protesting - local wags call it "Monsanto's Oscars", has been subsidised by Iowa taxpayers up to $1m annually and features big cash awards to GMO advocates. Monsanto got Iowans to pay for their poison. The party's location says it all: They rent the entire Iowa State Capitol building.

This is certain: Our nation's pro-business bias habitually places the law enforcement community in opposition to the US Constitution's protection of free speech. When the national emotion is fear, then all free speech is suspicious, and, for the corporations, free speech is a baffling gift economy. Free speech is just that: it's free. You can't sell it, therefore it must be illegal.

When the official emotion is fear, then protesters symbolise the part of life that makes change. In evolution, adaptation is made possible by the arrival of mutation, of free radicals that come in the wind and the waves and upset the host organism. You must have resistance in a healthy democracy, but the resistance will change you.
The Iowa prosecutor, after thoroughly losing this case, made a final speech about "respecting our police". The implication was that the people in the room who defend the First Amendment are disrespectful to the state troopers.

Well, respect for the Constitution and respect for our police should never be in conflict. These police handcuffed us a football field away from the state capitol's front door. They need to look again at those five freedoms: Worship, Speech, Press, Peaceable Assembly and Redress of Grievances. The First Amendment, born in 1791, makes remarkably modern instruction.

We left the courtroom knowing that there is much to be done. We are given the responsibility for this double teaching. Free speech and organic farming have common ground. They are both nature. They are wild and alive. The words and the seeds give so much, if we let them grow freely.

See also:
Ea O Ka Aina: Slow river through the campaigns 8/23/16
Ea O Ka Aina: Golden Toads in the Too Big to Fail 9/13/13
Ea O Ka Aina: 05/01/2010 - 06/01/2010 5/1/10
Ea O Ka Aina: Moutain Top Removal Action 6/1/10
Island Breath: The Church of Stop Shopping in Hanapepe 8/28/07

Trump’s angry inaugural speech

SUBHEAD: The cries of protesters added to the sense that a hostile takeover was underway.

By Howard Fineman on 20 January 2017 for Huffington Post -
(http://www.huffingtonpost.com/entry/trump-inaugural-speech_us_588273b3e4b096b4a231a7ad?gwtwrz5gpwy8ir7ldi)


Image above: A policeman, in militarized unitform, stands in Times Square, as a guard during the televised inauguration of Donald Trump as the 45th president of the United States, Jan. 20, 2017, in New York City. From original article.

Forgive me, but I love presidential inaugurations.

Covering politics and adoring America ― especially our Constitution ― I relish the pageantry of the law-based transition of power, even if I know that we are still not a perfect union.

I have covered many inaugurations, and they’ve shared certain reassuring characteristics. The speech allows each new president to start things off on a peaceable note, however urgent the tasks at hand.

It’s a chance to pay homage to the constitutional process, to acknowledge those who may not have supported the incoming president during the campaign, to offer soothing words about the durability of freedom.

And for the better part of a century, the inaugural speech has allowed new presidents to reaffirm our faith in an active global alliance of free nations for the spread of humanistic values.

Well, President Donald J. Trump’s speech offered almost none of that.

It was a triumphant day for the new president — but you wouldn’t know it from his angry, conspiratorial address.

No one like him has ever been elected, so in one sense, this departure from the norm wasn’t surprising.

At the same time, it was a shocking thing to hear and see and feel from a couple hundred feet below the podium.

First, the urgency and the anger. Ronald Reagan came to town in 1981 with a good bit of the same attitude. But it wasn’t nearly as pure or simplistic as what Trump expressed in his jeremiad Friday.

When Reagan was inaugurated, he made sure to stress that he wasn’t against government per se, or even against Washington, D.C. Rather, he said, he was against wastefulness.

Trump, on the other hand, made it personal, even if he didn’t mention any names. And he made ominous allusions that called to mind old European tropes.

“For too long,” he said, “a small group in our nation’s capital has reaped the rewards of government while the people have borne the cost.”

Who is this “small group?” Does he mean Congress? The wider federal bureaucracy? The K Street lobby corps? The press?

Maybe he was talking about the whole churning machine of Washington itself. But something that vast wouldn’t seem to fit the devil-in-hiding liturgy of Trump’s more conspiratorial, xenophobic supporters, led by White House counselor Steve Bannon.

Trump’s vehement tone was all the more striking given the relatively small turnout for the event on the Mall ― which was nowhere near as crowded as it had been for some past inaugurations ― and the genial, unthreatening mood of many of his supporters in seats beneath the Capitol’s West Front.

Tony Ledbetter, for example, was a Trump elector in Florida, but he’s also a county chair with roots in the Reagan campaign of 1980. A practiced politician, he begged off comparing Trump to his original hero, saying his main hope for the new president is simply that he “create jobs.”

Presidents tend not to talk about themselves very much in their inaugural speeches. But Trump, as usual, departed from tradition, and did so in the dramatic, passionate tones of a revolutionary leader.

“I will fight for you with every breath in my body,” he declared, “and I will never let you down.”

At times, the anti-Washington populism of Trump’s speech ― he indicted much of the very system that had just installed him ― made his predecessors, even Reagan, seem like go-along, get-along types.

“The forgotten men and women of our country will be forgotten no longer,” he said.

There was the pitchman’s urgency to it all, with little stately, secular sermonizing. “The time for empty talk is over,” he said. “Now arrives the hour of action.”

The language throughout was nakedly combative, even bloody. Of drugs and violence, he vowed, “This American carnage stops right here and it stops right now.”

The wealth of the middle class has been “ripped from their homes,” he said. Americans will be able to watch their country “eradicate from the face of the earth” every shred of “radical Islamic terrorism.” All of us, he said, citing an old military slogan, “bleed the same red blood of patriots.”

In fact, rather than simply nodding to the idea of patriotism and love of country, Trump made it the central feature of his vision.

“At the bedrock of our politics,” he said, “will be a total allegiance to the United States of America, and through our loyalty to our country, we will rediscover our loyalty to each other.”

And to underscore the centrality of patriotism, he said that he was “issuing a new decree” in the name of the “people assembled here today.”

“From this day forward, it’s going to be only America first,” he said. “America first.”

The cries of protests wafting up to the West Front added to the sense that a hostile takeover was underway.

As inherently American as presidential inaugurations are, no modern president has ever made patriotism per se the central feature of his message.

There are two reasons for that. One is that the United States has, since World War II, been part of a global alliance of nations standing for values that are American but that transcend any one nation.

The other reason is that the president, in the oath of office, doesn’t declare allegiance to the United States, its people or its borders. Rather, the oath is a vow to “preserve, protect and defend the Constitution.”

The Constitution, not the president, is the boss in America, and it cannot be fired.

But unless I missed something in his abattoir of an address, Trump did not mention on Friday who the real boss is.

.

WikiLeaks' Assange on US Election

SUBHEAD: Irrespective of the election outcome, the real victor is the US public which is better informed.

By Julian Assange on 8 November 2016 for WikiLeaks  -
(https://wikileaks.org/Assange-Statement-on-the-US-Election.html)


Image above: Julian Assange and WikiLeaks logo in an overly "optimistic" article about Podesta Email impact on election. From (http://www.usapoliticstoday.com/julian-assange-reveals-that-hillarys-campaign-is-over-in-october-once-he-expose-this/julian-assange-and-wikileaks/).

In recent months, WikiLeaks and I personally have come under enormous pressure to stop publishing what the Clinton campaign says about itself to itself. That pressure has come from the campaign’s allies, including the Obama administration, and from liberals who are anxious about who will be elected US President.

On the eve of the election, it is important to restate why we have published what we have.

The right to receive and impart true information is the guiding principle of WikiLeaks – an organization that has a staff and organizational mission far beyond myself. Our organization defends the public’s right to be informed.

This is why, irrespective of the outcome of the 2016 US Presidential election, the real victor is the US public which is better informed as a result of our work.

The US public has thoroughly engaged with WikiLeaks’ election related publications which number more than one hundred thousand documents. Millions of Americans have pored over the leaks and passed on their citations to each other and to us. It is an open model of journalism that gatekeepers are uncomfortable with, but which is perfectly harmonious with the First Amendment.

We publish material given to us if it is of political, diplomatic, historical or ethical importance and which has not been published elsewhere. When we have material that fulfills this criteria, we publish.

We had information that fit our editorial criteria which related to the Sanders and Clinton campaign (DNC Leaks) and the Clinton political campaign and Foundation (Podesta Emails).

No one disputes the public importance of these publications. It would be unconscionable for WikiLeaks to withhold such an archive from the public during an election.

At the same time, we cannot publish what we do not have. To date, we have not received information on Donald Trump’s campaign, or Jill Stein’s campaign, or Gary Johnson’s campaign or any of the other candidates that fufills our stated editorial criteria.

As a result of publishing Clinton’s cables and indexing her emails we are seen as domain experts on Clinton archives. So it is natural that Clinton sources come to us.

We publish as fast as our resources will allow and as fast as the public can absorb it.
That is our commitment to ourselves, to our sources, and to the public.

This is not due to a personal desire to influence the outcome of the election. The Democratic and Republican candidates have both expressed hostility towards whistleblowers.

I spoke at the launch of the campaign for Jill Stein, the Green Party candidate, because her platform addresses the need to protect them.

This is an issue that is close to my heart because of the Obama administration’s inhuman and degrading treatment of one of our alleged sources, Chelsea Manning. But WikiLeaks publications are not an attempt to get Jill Stein elected or to take revenge over Ms Manning’s treatment either.

Publishing is what we do. To withhold the publication of such information until after the election would have been to favour one of the candidates above the public’s right to know.

This is after all what happened when the New York Times withheld evidence of illegal mass surveillance of the US population for a year until after the 2004 election, denying the public a critical understanding of the incumbent president George W Bush, which probably secured his reelection.

The current editor of the New York Times has distanced himself from that decision and rightly so.
The US public defends free speech more passionately, but the First Amendment only truly lives through its repeated exercise.

The First Amendment explicitly prevents the executive from attempting to restrict anyone’s ability to speak and publish freely. The First Amendment does not privilege old media, with its corporate advertisers and dependencies on incumbent power factions, over WikiLeaks’ model of scientific journalism or an individual’s decision to inform their friends on social media.

The First Amendment unapologetically nurtures the democratization of knowledge. With the Internet, it has reached its full potential.

Yet, some weeks ago, in a tactic reminiscent of Senator McCarthy and the red scare, Wikileaks, Green Party candidate Stein, Glenn Greenwald and Clinton’s main opponent were painted with a broad, red brush.

The Clinton campaign, when they were not spreading obvious untruths, pointed to unnamed sources or to speculative and vague statements from the intelligence community to suggest a nefarious allegiance with Russia. The campaign was unable to invoke evidence about our publications—because none exists.

In the end, those who have attempted to malign our groundbreaking work over the past four months seek to inhibit public understanding perhaps because it is embarrassing to them – a reason for censorship the First Amendment cannot tolerate. Only unsuccessfully do they try to claim that our publications are inaccurate.

WikiLeaks’ decade-long pristine record for authentication remains. Our key publications this round have even been proven through the cryptographic signatures of the companies they passed through, such as Google. It is not every day you can mathematically prove that your publications are perfect but this day is one of them.

We have endured intense criticism, primarily from Clinton supporters, for our publications. Many long-term supporters have been frustrated because we have not addressed this criticism in a systematic way or responded to a number of false narratives about Wikileaks’ motivation or sources.

Ultimately, however, if WL reacted to every false claim, we would have to divert resources from our primary work.

WikiLeaks, like all publishers, is ultimately accountable to its funders. Those funders are you. Our resources are entirely made up of contributions from the public and our book sales. This allows us to be principled, independent and free in a way no other influential media organization is.

But it also means that we do not have the resources of CNN, MSNBC or the Clinton campaign to constantly rebuff criticism.

Yet if the press obeys considerations above informing the public, we are no longer talking about a free press, and we are no longer talking about an informed public.

Wikileaks remains committed to publishing information that informs the public, even if many, especially those in power, would prefer not to see it. WikiLeaks must publish. It must publish and be damned.

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Legislation against Ecocide

SUBHEAD: Ecocide law challenges the view of nature as a lifeless “object” for human use.

By Femke Wijdekop on 15 August 2016 for -
(http://greattransition.org/publication/against-ecocide)


Image above: Illustration of Gaia. From (https://plus.google.com/photos/114619857924598835322/albums/5921667805572944945).

The current legal regime allows states and corporations to despoil the environment with impunity. This injustice has inspired a new movement of legal experts and citizens calling for the codification of ecocide as a fifth crime against peace, joining genocide, crimes of aggression, crimes against humanity, and war crimes. Their work aims to transform our understanding of nature from property to an equal partner with humans in building sustainable societies.

The political and enforcement hurdles are formidable, but an awakened and engaged citizenry, strengthened by the Paris climate agreement, may prove powerful enough to elevate the prevention of crimes against nature to an internationally recognized norm.

The Rights of Nature

Last summer, I sat in a Dutch courtroom and listened to a verdict that would make headlines around the world. The judges of The Hague District Court ruled that the government of the Netherlands had a legal obligation to act in the best interests of current and future generations by lowering its CO2 emissions. For the first time, a court had established a “duty of care” towards future citizens in matters of climate policy.

This landmark verdict encouraged non-governmental organizations (NGOs) in Belgium, France, the Philippines, and other countries to seek climate justice through legal and human rights frameworks.¹

For example, a groundbreaking judgment in Seattle last fall ruled that the State of Washington had a constitutional obligation and public trust duty to preserve, protect, and enhance air quality for current and future generations.²

The rise—and success—of climate litigation has been an exciting development in the legal landscape. Such litigation challenges short-term political thinking with legal action that focuses on the long-term consequences of today’s decisions.

An even bigger breakthrough might be on the horizon, as lawyers around the world are advocating for the introduction of a legal duty of care towards the natural world.

This effort aims to make ecocide—the massive damage and destruction of ecosystems, such as the deforestation of the Amazon, the Deep Horizon oil spill, the Fukushima nuclear disaster, and Athabasca tar sands extraction—an international crime.

 Their strategy is to add ecocide to the Rome Statute of the International Criminal Court (ICC) as the fifth crime against peace (along with genocide, crimes of aggression, crimes against humanity, and war crimes), and to have ecocide law introduced in the national jurisdictions of the member states of the ICC.³

Initiatives to criminalize ecocide express an emerging ecocentric worldview in law that affords intrinsic value and rights to nature.⁴

This duty of care toward nature demands that human laws be harmonized with nature’s laws. To achieve this, we must act as “Earth guardians,” giving voice and legal standing to nature’s rights and interests when crafting legislation and public policy.

In an ecocentric framework, it is not enough to integrate the interests of future generations in lawmaking; the interests of nature must also be integrated to do justice to our interconnection with and dependence on the natural world.

This ecocentric worldview challenges the dominant legal paradigm in which nature is seen as “property,” and humans its owners. In prevailing legal and economic systems, the human relationship with the natural world has been one of exploitation and domination, and environmental destruction has been accepted as collateral damage in the pursuit of profit.

Ecocide law challenges the view of nature as a lifeless “object” for human use, drawing a clear line beyond which massive anthropogenic damage to ecosystems is a crime.

A Short History of Ecocide

Though the concept of ecocide may seem novel to some, it has been a part of environmental discourse for over four decades. The term was coined in 1970 by the American biologist Arthur Galston at the Conference on War and National Responsibility. In the 1950s, he had worked in a laboratory helping to develop a chemical component of the defoliant Agent Orange, infamously used in the Vietnam War to destroy vegetation and poison communities on a massive scale.

Appalled by the use of his creation, Galston became an antiwar activist and the first person to label the massive damage and destruction of ecosystems as ecocide. The word derives from the Greek oikos, meaning “house or home,” and the Latin caedere, meaning “to demolish or kill.” Ecocide thus literally translates to “killing our home.”

In 1972, Swedish Prime Minister Olof Palme explicitly referred to the Vietnam War as ecocide in his opening speech for the United Nations Conference on the Human Environment.

“The immense destruction brought about by indiscriminate bombing, by large scale use of bulldozers and herbicides is an outrage sometimes described as ecocide, which requires urgent international attention,” he expounded. The conference adopted the Stockholm Declaration, the first international legal document to explicitly recognize the right to a healthy environment.

At the People’s Forum, an unofficial event running parallel to the UN Conference, thousands of people took to the streets, demanding that ecocide be declared a crime.

The 1970s and 1980s saw extensive study and debate within the UN about expanding the 1948 Genocide Convention, with several countries advocating the inclusion of ecocide. In 1985, the official Whitaker Report recommended the inclusion of ecocide in the draft Code of Offences Against the Peace and Security of Mankind, the precursor to the 1998 Rome Statute.

The following year, ecocide was defined in the draft Code as “a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment,” language that was broadly supported by most members of the UN’s International Law Commission.

The 1991 version of the Code included draft Article 26: “An individual who willfully causes or orders the causing of widespread, long-term, and severe damage to the natural environment shall, on conviction thereof, be sentenced.”

In 1995, however, such language was withdrawn from the draft code through a unilateral decision by the commission chairman, likely under pressure from a few states and the nuclear lobby.⁵ Whatever the reason, ecocide was never included in the Rome Statute of the ICC.

Conceptual Comeback

The idea of codifying ecocide as an international crime has enjoyed a resurgence in recent years. In 2010, Scottish lawyer Polly Higgins proposed to the International Law Commission that the Rome Statute be amended to include ecocide, defining it as “the extensive damage to, destruction of, or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”

Notably, she speaks of the “inhabitants” of a territory instead of its “human population,” aiming to protect not only humans, but also all other members of the animal kingdom.

Since 2010, Higgins has been seeking support for her ecocide amendment from heads of state, lawyers, business leaders, civil society, and the international community.⁶

This year, she has focused in particular on the officials of Small Island Developing States, whose countries are under severe threat from intensifying storm activity and rising sea levels induced by climate change. Higgins’s goal is to create a legal duty of care compelling the international community to provide assistance to these and other territories that suffer from such human-induced ecocide.

An emerging social movement, notably End Ecocide on Earth, has complemented this work. An international team of lawyers (French, American, and Togan) have drafted End Ecocide on Earth’s own ecocide amendment to the Rome Statute, which focuses on protecting ecosystem services and the global commons (including the atmosphere, the oceans and seas beyond territorial waters, the Arctic, Antarctic, and migratory species).

The team defines ecocide as “an extensive damage or destruction which would have for consequence a significant and durable alteration of the global commons or ecosystem services upon which rely a group or subgroup of a human population” within the framework of known planetary boundaries.⁷

The protective space for the global commons and ecosystem services they propose aims to stop the exploitation of these resources resulting from national sovereignty and unbridled capitalism.

The movement has been gaining momentum in political, academic, and legal circles. At the climate conference in Paris this past December, the Ecuadorian president Rafael Correa, with the support of Bolivia and Venezuela, called for the creation of an international court of environmental justice to punish crimes against nature and for the adoption of an international declaration of nature’s rights.

Argentinian Nobel Peace Prize winner and human rights activist Adolfo Pérez Esquivel has been advocating since 2009 on behalf of the International Academy of Environmental Sciences for the establishment of an international tribunal for crimes against the environment. Various legal scholars have also put forth detailed blueprints for making environmental destruction a crime under international law.⁸

A Tool for Peace

This increasing support for the international prohibition of ecocide comes at a time of unprecedented ecological crisis. Severe environmental damage engenders a cycle of violence that abrogates the rights to life, health, and security of people living in the affected areas.

 Furthermore, such destruction and pollution can lead to food scarcity, forced displacement, and conflict between displaced peoples and the inhabitants of the territories to which they migrate. In this way, the ecological crisis is closely connected to the social and humanitarian crises of the early twenty-first century.

Designating ecocide an international crime against peace can catalyze a transition to a green economy and a more peaceful global civilization. It would alert corporations and states that there are legal consequences to serious damage and destruction of ecosystems, and establish a normative threshold which it is illegal to cross.⁹

Harmful extractive practices would thus become riskier for transnational corporations and their investors, stimulating greater investment in renewables and sustainable agriculture. Just as abolition in the nineteenth century radically changed people’s view of slavery in a short period of time, so, too, does an international prohibition of ecocide promise to realign prevailing value systems, placing the preservation of ecological integrity above the profit motive.

Political consensus and enforcement remain formidable but surmountable barriers. Amending the Rome Statute requires a two-thirds majority of signatories, i.e., the heads of state for eighty-two countries. Small Island Developing States and Andean countries such as Bolivia and Ecuador, with indigenous cultures supportive of legal protection for the Earth, might formally propose the ecocide amendment at the ICC this year.

If this proves successful, the next challenge would be to get Russia, India, China, and the United States on board. These major powers are not party to the ICC, complicating effective, long-term global enforcement of a prohibition of ecocide.

Enforcement of ecocide law under the Rome Statute would follow the “complementarity principle,” under which the ICC would only intervene when national judicial systems fail and a state party is either unwilling or unable to bring perpetrators of ecocide to justice.

Of course, this will likely prove challenging. The ICC, lacking a “global” police force or other enforcement arm, depends on the cooperation of the international community and its own standing as a reputable international institution. Yet while enforcement of the prohibition of genocide under the Rome Statute has been a thorny challenge, genocide is now the exception, rather than the norm. The same will likely happen with ecocide.

Adding ecocide to the Rome Statute as the fifth crime against peace will provide the legal tools for lawyers to act and speak on behalf of those harmed by massive environmental damage and destruction, making it increasingly unlikely that the international community will deem it acceptable for ecocide to occur.

Despite the immense challenges this movement faces, the December 2015 Paris climate agreement offers grounds for optimism. The move among investors from fossil fuels to renewables, the environmental advocacy of religious leaders such as Pope Francis, and the increasing pressure of climate litigation on policymakers suggest that a global ecological sensibility may be rising.

Anchoring this sensibility in laws that protect the intrinsic value of the natural world would be a significant step in the Great Transition to a sustainable world.

Endnotes

1. Megan Darby, “Around the World in 5 Climate Change Lawsuits,” Climate Home, September 7, 2015, http://www.climatechangenews.com/2015/07/08/around-the-world-in-5-climate-change-lawsuits/.

2. “BREAKING: Judge Protects Right to Stable Climate in Groundbreaking Decision in Washington Case!” press release, Our Children’s Trust, November 19, 2015, http://www.ourchildrenstrust.org/event/717/breaking-judge-protects-right-stable-climate-groundbreaking-decision-washington-case/.

3. UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), July 17, 1998.

4. See Pablo Solón’s insightful analysis in “Notes for the Debate: Rights of Mother Earth,” Systemic Alternatives, August 20, 2014, http://systemicalternatives.org/2014/08/20/notes-for-the-debate-the-rights-of-mother-earth/.

5. Anja Gauger, Mai Pouye Rabatel-Fernel, Louise Kulbicki, Damien Short, and Polly Higgins, Ecocide Is the Missing 5th Crime Against Peace (London: Human Rights Consortium, 2012), 10, 11, http://sas-space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf.

6. For an introduction to Higgins’s work, see Polly Higgins, “Ecocide, the 5th Crime Against Peace” (lecture, TEDxExeter, Exeter, UK, May 1, 2012), https://www.youtube.com/watch?v=8EuxYzQ65H4/.

7. For more information, see https://www.endecocide.org/ecocides/.

8. “Court of Environmental Justice Is at Breaking Point: Ecuadorian Minister of Environment,” Andes, November 30, 2015, http://www.andes.info.ec/en/news/court-environmental-justice-breaking-point-ecuadorian-minister-environment.html; Ciara Nugent, “Latin American Leaders Denounce Effects of Capitalism on Environment,” Argentina Independent, October 13, 2015, http://www.argentinaindependent.com/currentaffairs/newsfromlatinamerica/latin-american-leaders-denounce-effects-of-capitalism-on-environment/; Laura Gauchalla, “International Environmental Justice Court Needed, Summit Participants Say,” Reuters, April 23, 2010, http://news.trust.org//item/20100423103200-guad9/; Steven Freeland, Addressing the Intentional Destruction of the Environment during Warfare under the Rome Statute of the International Criminal Court (Cambridge, UK: Intersentia, 2015); Laura McNamara, “Ecocide: An Environmental Investigation with a Legal Twist,” Journalism Grants, interview with Gilles van Kote, July 7, 2015, http://journalismgrants.org/news/2015/ecocide-an-environmental-investigation-with-a-legal-twist.

9. Bronwyn Lay, Laurent Neyret, Damien Short, Michael Urs Baumgartner, and Anonio Oposa, Jr., “Timely and Necessary: Ecocide Law as Urgent and Emerging,” The Journal Jurisprudence 28 (December 2015): 451-452, http://www.jurisprudence.com.au/juris28/lay.pdf.


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