Monday, June 28, 2010

Holder v. Humanitarian Law Project


"We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force." -- Ayn Rand - The Nature of Government

Congratulations Amerika, you just might be officially now a fascist police state!

The very recent Holder v. Humanitarian Law Project decision (No. 08-1498, also 09-89) of the Supreme Court, coupled with last week’s Arar v. Ashcroft denial of certiorari (No. 09-923), sure makes the case for claiming that the U.S. is a fascist police-state.

The U.S. government can now decide unilaterally who/what is a terrorist organization and who/what is not. And anyone speaking/corresponding or otherwise engaged with such a designated terrorist group is “providing material support” to the terrorists — and is therefore subject to prosecution at the discretion of the U.S. government. And if, in the end, it turns out that one definitely was not involved in terrorist activities, there is no way to receive redress by the state.

GREAT!
No redress...

So what organization do YOU belong to that might be considered "terrorist" by our government? Right to Life? PETA? Tea Parties? Given the attention lately on "homegrown terrorism" and the dubious MIAC report which portrays and targets certain groups in Amerika as "needing to be watched", this is definitely setting the stage for some very unsavory clashes with the government.

First of all, what is a “fascist police-state”? This article explains:
A police-state uses the law as a mechanism to control any challenges to its power by the citizenry, rather than as a mechanism to insure a civil society among the individuals. The state decides the laws, is the sole arbiter of the law, and can selectively (and capriciously) decide to enforce the law to the benefit or detriment of one individual or group or another.

In a police-state, the citizens are “free” only so long as their actions remain within the confines of the law as dictated by the state. If the individual’s claims of rights or freedoms conflict with the state, or if the individual acts in ways deemed detrimental to the state, then the state will repress the citizenry, by force if necessary. (And in the end, it’s always necessary.)

What’s key to the definition of a police-state is the lack of redress: If there is no justice system which can compel the state to cede to the citizenry, then there is a police-state. If there exists apro forma justice system, but which in practice is unavailable to the ordinary citizen because of systemic obstacles (for instance, cost or bureaucratic hindrance), or which against all logic or reason consistently finds in favor of the state—even in the most egregious and obviously contradictory cases—then that pro forma judiciary system is nothing but a sham: A tool of the state’s repression against its citizens. Consider the Soviet court system the classic example.

A police-state is not necessarily a dictatorship. On the contrary, it can even take the form of a representative democracy. A police-state is not defined by its leadership structure, but rather, by its self-protection against the individual.

A definition of “fascism” is tougher to come by...

For our purposes, I think we should use the syndicalist-corporatist definition as practiced by Mussolini: Society as a collection of corporate and union interests, where the state is one more competing interest among many, albeit the most powerful of them all, and thus as a virtue of its size and power, taking precedence over all other factions. In other words, society is a “street-gang” model that I discussed before. The individual has power only as derived from his belonging to a particular faction or group—individuals do not have inherent worth, value or standing.

Now then! Having gotten that out of the way, where were we?

Holder v. Humanitarian Law Project: The Humanitarian Law Project was advising groups deemed “terrorists” on how to negotiate non-violently with various political agencies, including the UN. In this 6-3 decision by the U.S. Supreme Court, the Court ruled that that speech constituted “aiding and abetting” a terrorist organization, as the Court determined that speech was “material support”. Therefore, the Executive and/or Congress had the right to prohibit anyone from speaking to any terrorist organization if that speech embodied “material support” to the terrorist organization.

The decision is being noted by the New York Times as a Freedom of Speech issue; other commentators seem to be viewing it in those terms as well.

My own take is, Holder v. Humanitarian Law Project is not about limiting free speech—it's about the state expanding it power to repress. The decision limits free speech in passing, because what it is really doing is expanding the state’s power to repress whomever it unilaterally determines is a terrorist.

In the decision, the Court explicitly ruled that “Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not.” In other words, the Court makes it clear that Congress and/or the Executive can solely and unilaterally determine who is a “terrorist threat”, and who is not—without recourse to judicial review of this decision. And if the Executive and/or Congress determines that this group here or that group there is a “terrorist organization”, then their free speech is curtailed—as is the free speech of anyone associating with them, no matter how demonstrably peaceful that speech or interaction is.

For example, if the Executive—in the form of the Secretary of State—decides that, say, WikiLeaks or Amnesty International is a terrorist organization, well then by golly, it is a terrorist organization. It no longer has any right to free speech—nor can anyone else speak to them or associate with them, for risk of being charged with providing “material support” to this heinous terrorist organization known as Amnesty International.

But furthermore, as per Holder v. Humanitarian Law Project, anyone associating with WikiLeaks—including, presumably, those who read it, and most certainly those who give it information about government abuses—would be guilty of aiding and abetting terrorism. In other words, giving WikiLeaks “material support” by providing primary evidence of government abuse would render one a terrorist.

This form of repression does seem to fit the above definition of a police-state. The state determines—unilaterally—who is detrimental to its interests. The state then represses that person or group.

By a 6-3 majority, the Supreme Court has explicitly stated that Congress and/or the Executive is “uniquely positioned” to determine who is a terrorist and who is not—and therefore has the right to silence not just the terrorist organization, but anyone trying to speak to them, or hear them.

And let's just say that, after jumping through years of judicial hoops, one finally manages to prove that one wasn’t then and isn’t now a terrorist, the Arar denial of certiorari makes it irrelevant. Even if it turns out that a person is definitely and unequivocally not a terrorist, he cannot get legal redress for this mistake by the state.

Throw on top of this, the Disclose Act that is being pushed in through the legislature that restricts and dictates to some organizations and not others, who choose to support a political candidate or platform, and you have a government gaining even more control of free speech.

Throw on top of that a President who operates on Executive Orders, thereby bypassing the Congress.

We currently have a government that has taken control of companies, taken control of healthcare, taken control of the financial sector, decides what laws states can and cannot pass, and now has the right to call organizations terrorist. It's working on controlling the Internet as well.

It's not hysteria, it's not hyperbole.
This is happening.
Right before our eyes.

Yes, we will have free speech as long as the federal government agrees on it.
There will be no room for dissenting opinion.

That doesn't sound like the America we all used to know.


"My friends, we live in the greatest nation in the history of the world. I hope you'll join with me, as we try to change it." -Barack Obama

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