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They pledge allegiance to the thought
That every politician ought
To take a stand that's foursquare for the Lord.
They think if they say, "God is great!
Don't separate him from the state!"
Election is the blessing he'll afford.
Belief in God is not the issue in the continuing brouhaha over the constitutionality of the Pledge of Allegiance. Rather, it's the government's endorsement of a monotheistic God.
Amid all the recent assaults on the Bill of Rights, including the latest
trashing in the USA Patriot Act and the denial of habeas corpus to
citizens, amid all this, in the span of one week, the Supreme Court has
issued rulings almost beyond the dreams of the most ardent civil
Listen to the exultant cry of Steven Hawkins, executive director of the
National Coalition to Abolish the Death Penalty, who said this is "the
most favorable term in a quarter of a century, in terms of death penalty
For those who have gazed aghast over the past generation as jury rights
have been trampled by tough-on-crime fanatics and liberal elites, there
are paragraphs in certain opinions in the Court's rulings that are as
momentous as any in the Warren Court. From whose pen did these
"My observing over the past twelve years the accelerating propensity of
both state and federal legislatures to adopt sentencing factors
determined by judges that increase punishment beyond what is authorized
by the jury's verdict, and my witnessing the belief of a near majority
of my colleagues that this novel practice is perfectly OK, cause me to
believe that our people's traditional belief in the right of trial by
jury is in perilous decline. That decline is bound to be confirmed, and
indeed accelerated, by the repeated spectacle of a man's going to his
death because a judge found that an aggravating factor existed.
We cannot preserve our veneration for the protection of the jury in
criminal cases if we render ourselves callous to the need for that
protection by regularly imposing the death penalty without it."
John Paul Stevens, you guess? No, Antonin Scalia. His emphasis on the
fundamental role of the jury as guardian of our rights under the
Constitution runs entirely counter to the trend of the past couple of
decades, when judges have, with either the approval or indifference of
legislatures and the press, been allowed not only to deprecate the
jury's fundamental right to nullify and set the law aside but also to
set jurors' verdicts aside and impose their own, often with lower
standards of proof.
By and large, liberals have been the architects of these erosions of
fundamental popular rights, whether it was Tip O'Neill rushing through
totalitarian drug laws in the mid-1980s; or Clinton's Antiterrorism and
Effective Death Penalty Act (which, among other horrors, junked the
doctrine of habeas corpus); or the hate crimes statutes written into
many state codes at the behest of gay, feminist and liberal civil rights
groups in the wake of the James Byrd and Matthew Shepard killings.
Scalia exposes the contradictions tellingly in his concurring opinion in
Ring v. Arizona, where the Court struck down, 7 to 2, an Arizona
statute that allowed judges rather than juries to impose the death
penalty. He rightly chides Justice Stephen Breyer for inconsistency in
endorsing the right of judges to overrule the jury in tacking on
enhanced punishment under hate crimes statutes, and then, in Ring v.
Arizona, for tacking the other way. Scalia's term for this kind of
pirouette is "death-is-different jurisprudence."
Another momentous Supreme Court ruling, Atkins v. Virginia,
concerns a case in which a man with an IQ of 59 was sentenced to death
for committing a robbery and murder. The Court has ruled 6 to 3 that
times have changed and that it's not OK these days to put the retarded
Scalia, dissenting, made an argument in consonance with his view of the
jury's paramount role, as expressed in Ring. Why, he asked,
should the determining of a person's mental competence be allotted to
the social scientists, the IQ testers, the battery of so-called experts
so memorably stigmatized in the works of the late, great Stephen Jay
Gould? Liberals don't want to execute the mentally retarded; they just
want to abort or sterilize them. In the Atkins trial, Scalia noted, the
jury had been given testimony on the murderer's mental capacity but had
regarded it as insufficient in detaining the defendant from the death
Scalia asks, How can one exempt people from the capital penalty on the
grounds of mental incapacity to recognize the concepts of punishment and
retribution, and then put them away in prison for their rest of their
Where Scalia is caught in an obvious contradiction is in his endorsement
of the notion that only those prepared to vote for the death penalty
should be allowed on a jury, and that appeals court judges opposed to
the death penalty should recuse themselves in capital cases. "There is
something to be said," Scalia writes in his dissent in Atkins,
"for popular abolition of the death penalty; there is nothing to be said
for its incremental abolition by this Court." Again, it's a good
argument, but abolition of slavery began in part with the refusal of
juries to abide by statutes endorsing slavery. Ditto with religious
freedom, starting with William Penn, whose jury refused to convict him
for flouting the Conventicle Act.
If he were consistent, Scalia would recognize that jurors should be
rejected only if they have a material interest in the outcome of the
case. And given that some 30 percent or more in the United States are
opposed to the death penalty, such juries would more than likely have a
death penalty opponent among the twelve. On the role and rights of the
jury I strongly recommend Godfrey Lehman's Is This Any Way to Run a
Meanwhile, we should honor the tremendous efforts of the defense teams
who fought these cases to the Supreme Court and who have been rewarded
by two decisions that overturn the death sentences of hundreds. But the
fact remains that it is the death penalty itself that needs to be
abolished, and this is a peerless moment of opportunity for death
penalty activists to press forward.
The Court majority said in the Atkins decision that the Eighth
Amendment prohibition on cruel and unusual punishment reflects social
values, which change from century to century and decade to decade
(notwithstanding Scalia, who gazes back nostalgically 2,000 years to St.
Paul). What an excellent springboard for an invigorated campaign to end
the barbarism of judicial killing.
With the Bush Administration too often feeling the pain of its corporate
sponsors, and with the Enron scandal (so far) producing little political
fallout or legislative change on Capitol Hill, advocates of corporate
accountability have cause for frustration. (Martha Stewart is not much
consolation.) But in one area corporate critics can feel encouraged. For
several years, a small group of lawyers and labor advocates has been
trying to hold transnational companies responsible for their actions by
suing them in the United States for abetting and/or benefiting from
human rights abuses overseas. Finally, these corporation-chasers are
beginning to see signs of possible success.
In about a dozen cases, attorneys in the United States, on behalf of
villagers, indigenous people and labor leaders overseas, have filed
legal action against large corporations under the Alien Tort Claims Act
(ATCA), a law passed in 1789 that allowed foreigners to sue one another
in US courts. The law was not much used until 1979, when the family of a
17-year-old boy tortured and killed by a Paraguayan policeman
successfully employed it to sue the officer. Afterward, human rights
lawyers turned to the act as a way to address human rights violations
conducted or enabled by multinational firms.
In 1996, for instance, the Washington-based International Labor Rights
Fund (ILRF) filed an ATCA suit against Unocal, an oil and gas firm,
charging that it knowingly used slave labor to build a pipeline in
Burma. The plaintiffs included villagers who said they were forced at
gunpoint to work on the project. A federal judge dismissed the ATCA
lawsuit, arguing that Unocal did not have direct control over the
Burmese military regime, a partner in the pipeline project. That
decision is under appeal, but, in a legal first, in June a California
state judge ordered Unocal to stand trial. In that trial, in September,
the plaintiffs will argue under state law that partners in a joint
venture can be held responsible for each other's actions. That would be
a blow to Unocal. Evidence in the federal case showed it was well aware
that human rights abuses were committed by the military regime in
relation to the pipeline.
ATCA-wielding lawyers and activists have been going after corporate
malfeasance around the globe. Earlier this year, a case filed against
Shell by EarthRights International and the Center for Constitutional
Rights got a major boost. This lawsuit claims the oil company is liable
for human rights abuses committed by the Nigerian military against the
Ogoni people, who opposed a Shell pipeline. Shell repeatedly filed
motions to dismiss the case, but in February a federal judge denied
these motions and permitted the case to move into the discovery phase.
Now the plaintiffs can take depositions of Shell officials and review
Texaco was sued in New York by indigenous people of Ecuador, who charged
it with destroying their local environment by dumping a million gallons
of toxic waste into the ecosystem for two decades. The company's
actions, they claim, devastated rainforest areas, caused an increase in
cancer and other diseases and brought several tribes to the brink of
extinction. In March the two sides argued about whether the case should
be dismissed on jurisdictional grounds. The court has not yet ruled. Two
years ago, residents of Bougainville Island in Papua New Guinea filed a
lawsuit in San Francisco against the London-based Rio Tinto mining firm.
The plaintiffs maintained that the corporation, which took over a
company that developed a mine on the island, was in cahoots with a
government that engaged in human rights abuses and destroyed entire
villages in wiping out local resistance to the project. In March a
federal judge dismissed the lawsuit after the State Department argued
that the case could interfere with an ongoing peace process in Papua New
Guinea. But the judge said the Papua New Guinea government would have to
agree to permit the plaintiffs to file a case there.
In addition to the Unocal case, the ILRF is handling ATCA lawsuits
against Coca-Cola (for allegedly using paramilitary forces to
suppress--violently--union activity in Colombia), Del Monte (for
allegedly employing thugs who tortured union leaders in Guatemala),
DynCorp (for allegedly spraying Ecuadorean farmers and villagers with
toxic chemicals that were supposed to be dumped on coca plants in
Colombia) and the Drummond Company, a mining firm (for allegedly hiring
gunmen to torture, kidnap and murder labor leaders in Colombia). In a
case against ExxonMobil, ILRF contends that Mobil, which formed a
joint-venture natural gas project with the Indonesian government, paid
the Indonesian military for security and that these troops committed
human rights atrocities--including murder and torture--against villagers
in the Aceh province.
As these ATCA lawsuits creep forward, corporations here and abroad have
to take notice. A plaintiff's win would compel transnationals to
consider bringing their activities overseas into sync with international
human rights standards. As the Wall Street Journal noted, a
ruling against Unocal--if upheld--"could subject a long list of US
companies to lawsuits in American courts as human rights groups seek to
expand the reach of American tort law to foreign soil." Already the
Street is paying attention. "I've started getting calls from mutual fund
managers," says Terry Collingsworth, ILRF's executive director. "They
tell me that they cannot base stock recommendations on moral
considerations. But if there is a chance a company could be damaged by a
big award in a trial, its business practices overseas become quite
relevant." That is, "the markets" are watching and waiting--to see if
Third World locals screwed by transnationals can find justice in courts
far from their villages.
Victims of domestic violence defend their right to keep their children.
Just-released inmates with infectious diseases need continuous treatment.
Why public and press have a right to witness military tribunal proceedings.
So what's it called if during war you criticize the President for any reason?
And how long does this war go on (and this is where this theory's really pretty clever)?
On Friday, September 15, four days after the terrorist attacks, an
18-year-old Moroccan boy received an unusual request from his school
guidance counselor: Come see me as soon as you can and bring your
passport. On Monday, well before his 8 am class, the boy climbed the
steps to James Monroe High School in Fredericksburg, Virginia, and
handed over papers showing that his visa had expired. A half-hour later
he was waiting anxiously in the school security office. He didn't know
the police were going to handcuff him and take him down to the station.
"I was upset I had already missed the first period, Virginia
Government," said the young man, who spoke on the condition of anonymity
in a phone call with his lawyer listening in.
Officer Jim Shelhorse, public information officer for the Fredericksburg
police, said the police never suspected the boy of terrorist activity.
And the boy's lawyer says that he had a pending application to extend
his visa, which meant that he was free to be here. But such distinctions
were lost on the police and school. And by the time his visa did expire
on December 4, the boy was already imprisoned in an Immigration and
Naturalization Service (INS) detention center in Arlington, Virginia. "I
am treated like a criminal," he said in a phone interview from the
detention center this winter. "I am with drug dealers and gun dealers.
They are not mistreating me but I am not comfortable."
The way the school guidance counselor turned in this student is just one
example of how, post-9/11, ordinary citizens have become watchdogs
policing the gateways to this country. Whereas the INS used to be solely
responsible for enforcement, others now eagerly participate in that
task. In fact, this activity has been encouraged: Weeks after the
terrorist attacks, the Bush Administration asked people to report
suspicious activity at the same time that it announced plans to use
immigration laws to fight terrorism, giving the impression that
immigration is everyone's business. Then, in December, a month after the
Justice Department asked police around the country to track down and
interview some 5,000 Middle Eastern men, the INS announced it was
placing 314,000 immigrants wanted for deportation on an FBI database
used by nearly all police agencies to check criminal charges. Now even a
local police officer writing a traffic ticket can determine that a
violator is subject to a deportation order and presumably make an
arrest. And on January 31 President Bush announced the creation of a
national volunteer agency called Citizen Corps to engage "ordinary
Americans" in reporting suspicious activity to the authorities. The
government will also expand the "Neighborhood Watch" program, in which
people report their neighbors' suspected terrorist connections.
As critics point out, when ordinary citizens or the police and FBI do
the INS's work, they don't know what they are doing. The result is both
inefficiency and discrimination. "It discourages immigrants from
providing information when they are the victims," said Lucas Guttentag,
director of the ACLU's Immigrants' Rights Project. "And it creates this
population that is exploited, denied protections of the law to the
detriment of society as a whole." The problem isn't new. In 1997 the
police in Chandler, Arizona, conducted a sweep of illegal immigrants as
part of an effort to "beautify" the rumpled agricultural town. Working
with the Border Patrol, police approached people on the street based on
the "lack of personal hygiene" and "strong body odor common to illegal
aliens," according to police reports leaked to the press. Police then
asked to see ID and immigration papers. Among the 432 people caught in
the "Operation Restoration" dragnet were scores of US-born Hispanics who
sued the city for discrimination.
Federal immigration officers undergo a seventeen-week residential
program that includes instruction on how to legally arrest someone on
grounds like fraudulent document production. Lacking such training,
police in Chandler often wrongly concluded documents were fakes and
arrested people anyway. "There has to be a reasonable, particularized
suspicion of wrongdoing," said Stephen Montoya, a civil rights lawyer
who represented the Chandler plaintiffs. "It can't just be because you
speak Spanish." In the case of the high school boy, the school guidance
counselor had little reason to ask for papers besides his national
identity. The boy's lawyers have argued that the school had no
jurisdiction to ask for immigration documents, and that a high school
student can't be denied basic education because he is an undocumented
immigrant. But the immigration judge rejected those arguments. (School
officials declined to comment.)
Legally, the 1996 Illegal Immigration Reform and Immigrant
Responsibility Act makes it easier for law enforcement to collaborate
with the INS and request information from the government. And though the
law doesn't require schools to report immigration violations, "drawing
the line is very difficult for individual citizens," says Peter Schuck,
a Yale Law School professor. In the past, however, courts have struck
down laws encouraging citizens to become INS snitches. California's
Proposition 187, which attempted to recruit social workers and
government bureaucrats to report immigration violators so they would be
denied access to public services, was declared unconstitutional by
Ironically, some of the post-9/11 policies actually obstruct
antiterrorism efforts by discouraging people from cooperating with
authorities. When the Justice Department asked 5,000 Arab-American men
to come forward, it was unclear whether the men were putting themselves
at risk of being turned in to the INS. "That's not a good law
enforcement strategy," said Ben Johnson, associate director of advocacy
at the American Immigration Lawyers Association.
Perhaps even more disturbing, alerting the government because someone
appears swarthy or wears a turban is now considered acceptable behavior.
"What is wrong with calling the FBI?" said Father James Mueller, a
priest in Queens, New York, when I asked if he had any regrets about
making a report on Rafiq Butt, a 55-year-old Pakistani, after neighbors
saw six Middle Easterners go to an apartment he shared with three other
Pakistani men. Butt died in detention of a heart attack. In another
case, on November 13, FBI agents wearing biohazard gear swooped into the
home of two Pakistani men; their neighbors reportedly suspected them of
manufacturing anthrax after they saw them dumping a cloudy liquid (soapy
water from a clogged sink) and handing over a silver canister (a food
dish for a friend) outside their home. The men said they understood.
The Virginia high school student was similarly charitable. He came to
this country by himself last year trying to escape what he would only
describe as discrimination based on his sexual orientation. A Queens
mosque helped him with a place to stay and he eventually met a friend
who offered him his country house in Fredericksburg while he completed high school. He had only attended the school for three days when
he was arrested. "This happened because of one person," he said. "The
majority of people treated me very good. The students were nice. They
showed me the whole school. They were helpful. The math teacher liked
me. It was Algebra II. I had it when I was in eighth grade. I did the
exercises very fast." At press time he was out on bond, living with a
foster family in Washington, working on getting his GED and waiting for
a July asylum hearing. His future plans are to attend college and major
in finance, perhaps in Canada.
As the shock of September 11 fades, courts are standing up for civil