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Time to prosecute Donald Trump – posted 9/19/2021

September 19, 2021 2 comments

Former President Donald Trump organized a coup to overthrow democracy in America. Although he was not ultimately successful, Trump tried to steal the last presidential election to seize power for himself. In the process, he turned a formerly conservative party into a party of extremists. The Republican Party now poses a fascist threat to democracy.

Trump’s actions during his presidential term crossed many legal and ethical lines. In addressing the question of his potential prosecution, it is challenging to limit the inquiry about his crimes. I choose to narrow it down to Trump’s actions in the period of time after his electoral defeat and through January 6, 2021.

Arguably, refusing to support a peaceful transition of power after losing the election and organizing an insurrection to topple democracy are his worst crimes.

While there is dispute about whether a sitting President can be indicted on criminal charges, there is broad agreement that there is no federal prohibition on charging a former President who committed crimes while in office.

The biggest obstacle to prosecution is the seeming lack of will to do it. No previous president has ever been indicted. Prosecutors would, no doubt, wonder about both the obstacles in making a case as well as their chances for securing a conviction.

Trump is slippery. This is someone who has been a party in 3,500 lawsuits in federal and state court. In his book Plaintiff in Chief, James D. Zirin writes:

“Trump’s litigation history shows him more often suing than sued. It was how he engaged with people. He would sue almost anyone for anything. He never collected a big judgment, but he wasn’t in it for the money. Trump enjoyed the possession of money and the things that money could buy. But more than money, his goal was the possession of supreme power, the joy of domination over those who crossed his path.”

Zirin goes on to say that Trump has rarely won in court. Typically, Trump settles or, if he was the plaintiff, he drops the case. In his business career before the presidency, Trump was charged with race and sex discrimination, sexual harassment, fraud, breach of trust, money laundering and defamation. Between 1991-2009, his hotel and casino businesses filed Chapter 11 bankruptcy four times.

At the start of his presidency, he paid $25 million to settle the Trump University case where he swindled thousands of students. He also paid $2 million for misusing his charitable foundation.

Lawsuits are a sport for Trump. They have often been more about getting headlines for himself than actually winning. Even when Trump loses, he will say he won. Sound familiar?

There is deep cynicism about the legal system protecting rich people, including sleazy rich people. Money talks. Still, I would suggest that Trump’s track record proves he should not be considered above the law. In the past, he has lost in court and he has had to pay or negotiate very expensive settlements.

Many seem to think Trump is some kind of teflon Superman as a litigant. History shows he is not. That is not to say he will not use scorched earth tactics that most reasonable lawyers and judges despise. That is his game. He will automatically label any investigation of his criminal activity a “witch hunt”.

It is legal error to think that a powerful case cannot be made against Trump for his actions in the last period of his presidency after the November 2020 election. A conviction could be obtained on multiple charges. Inciting an insurrection to prevent Congress and Vice-President Pence from counting electoral votes cannot possibly be kosher.

Laurence Tribe, the Harvard Law professor and constitutional law expert, has argued that Trump engaged in conspiracy to commit sedition, an extreme abuse of power. Trump was in cahoots with the Proud Boys, the Oath Keepers and others to prevent Congress and Vice President Pence from certifying an election winner.

Trump aided and abetted assault and battery against U.S. Capitol police officers. When he had the opportunity to call off attackers, he refused. There is a strong argument that his speech alone on January 6 incited a riot. Back on December 19, he had tweeted that people should come to a Washington DC on January 6. He said it would be “wild”.

The Trump 2020 campaign, along with its fundraising committees, made more than $3.5 million in direct payments to people and firms involved in the Washington DC protest on January 6. After taking the stage at noon on January 6, Trump spoke for an hour and fifteen minutes. Among other things, he said:

  • “They rigged it like they’ve never rigged an election before.”
  • “When you catch somebody in a fraud, you’re allowed to go by very different rules.”
  • “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country any more.”
  • “And we’re going to the capitol…But we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness they need to take back our country.”

During his speech, the crowd started chanting “Fight like hell” and “Fight for Trump”. When Trump finished, the chants changed to “Storm the capitol”, “Invade the Capitol Building” and “Take the Capitol right now”.

While Trump is an expert at walking the line and creating plausible deniability, it is fair to say that many in the mob stormed the capitol at his direction. A number of the insurrectionists have said as much in defense of their own cases.

No case that might be brought is ironclad. There are two cases that have been brought by U.S. Capitol police officers. There are also the lawsuits filed by Congressman Eric Swalwell and Bennie Thompson, citing violation of the Ku Klux Klan Act.

I would also be remiss if I did not mention Trump’s election interference. Both his actions in Georgia pressing their Secretary of State to “find” votes and his pressure on Acting Attorney General to declare the election “corrupt” are actionable.

The Department of Justice could prosecute Trump. Part of saving democracy is sending a clear message that breaking the law in the Oval Office will be punished. Congress’ failure to follow through on the impeachments and remove Trump did not send the necessary message.

Not to prosecute sends a different message: that an out-of-control President faces no consequences. It almost guarantees future repetition of the type of misconduct that Trump exemplified.

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The U.S. Supreme Court has become an embarrassment – posted 9/12/2021

September 12, 2021 1 comment

Probably no institution has been held in higher regard than the U.S. Supreme Court. In spite of a checkered history, the Court has been almost venerated which makes it particularly painful to note its Texas abortion decision. Or I should say anti-abortion decision.

In a shadow docket decision, the Court acquiesced in Texas’s enactment of a law that flouts almost fifty years of federal precedent.

The Texas law represents the most significant challenge to abortion rights since the Supreme Court struck down another Texas law that criminalized abortion in Roe v Wade. The new law bans abortion after six weeks of pregnancy. Many women will be unaware that they are even pregnant at that point. The law also makes no exceptions for rape, incest or nonviable pregnancies in which the fetus has detectable cardiac activity or cases in which the fetus has a fatal and untreatable condition.

The law has other odious features. It has a novel enforcement mechanism. Private citizens can bring a civil lawsuit against any person “who performs or induces an abortion” or who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion”. If the private citizen prevails, they can win $10,000 and payment of their attorney’s fees. As has been pointed out, this is a bounty hunter’s delight.

When the Court overturns constitutional rights that have been guaranteed for almost fifty years, it is not simply embarrassing. It is so out-of-touch that it promotes disrespect for the rule of law.There are so many things wrong with the Court’s cursory decision that I simply wanted to list what floored me.

  • There are six million women of reproductive age in Texas. In taking away constitutional rights guaranteed by Roe, it denies women control of their own bodies. The Court treats women like they are broodmares, not autonomous citizens with rights.
  • Almost all abortions are barred by the Texas law. Abortion providers in Texas say that 85 to 90 percent of the abortion procedures they previously performed were after the six week period.
  • The Court used the sleazy maneuver of the shadow docket to eviscerate constitutional rights in Texas. It is not just that the Court did something rotten – it is how they did it that stinks. Without a record, briefing, and argument and with no split in the circuits which is typically required, the Court, in an unsigned opinion, took a drastic step when there was no need to do it. They have already accepted a Mississippi case, Dobbs v Jackson Women’s Health Organization, that will be heard in the next term that raises the question of a 15 week abortion ban.
  • The Court tossed aside the requirement of standing. Any bounty hunter can sue someone who “aids or abets” an abortion. This could mean a friend, a counselor, a doctor, or a taxi driver. Contrary to law around standing, bounty hunters need have no involvement in the particular case.
  • Many have accurately compared the bounty hunter provision of the Texas law to the nineteenth century Fugitive Slave Act. The Fugitive Slave Act deputized citizens to surveil, stalk, and apprehend people trying to escape slavery. The bounty hunter provision of the Texas law could not be more parallel to the Fugitive Slave law.
  • Allowing no exception for rape, incest and nonviable pregnancies is medieval. It evidences that the law’’s authors have an absolute disregard for women’s lives. Responses like that of Texas Governor Greg Abbott that he is going to end rape are laughable. The law makes an exception for “medical emergencies” but that law is undefined. It will be up to doctors to decide whether their patient qualifies and they could be sued by those who disagree.
  • The Texas law will disproportionately adversely affect low-income people, minorities and people who live far away from abortion clinics. It is a safe bet well-off people will have the means and connections to get reproductive care outside the state. The poor will suffer more. It is also reasonable to speculate that the law will intimidate some people out of getting abortion care they need and others will seek unsafe underground abortions out of desperation..
  • The United Nations Working Group on Discrimination Against Women and Girls has condemned the Texas abortion law as sex discrimination and a violation of international law.
  • In contrast to the United States, Mexico’s Supreme Court just de-criminalized abortion. The United States will likely be joining countries like Egypt, El Salvador, Iraq and Mauritania in having the most reactionary laws in the world around abortion rights.

Not surprisingly, the Biden Administration, through the Department of Justice, stepped in and filed a civil lawsuit to stop Texas’s abortion law. Attorney General Merrick Garland correctly called the Texas law “a scheme to nullify the Constitution of the United States”. He also pointed to the likelihood other states will follow the Texas roadmap. It remains unclear how this will play out.

The Texas case shows that dressing up in Handsmaid’s Tale outfits is not enough. The Democrats’ neglect of the Supreme Court and its politics is coming home to roost. You have to ask: how many significant policy initiatives would survive Supreme Court review? The Republican shenanigans with blocking Merrick Garland and the tragic death of Justice Ginsberg have paid off for them. The Republicans are purveyors of the ultimate realpolitick.

While the term “court-packing” has an unfortunate negative connotation, Democrats need to add possibly four seats to the Court. There is no constitutional limitation on increasing the number of justices on the Supreme Court. The Court originally had six justices. It can be done. Republicans are the last ones who have the right to cry foul. Their gaming made horrible decisions like the Texas abortion case possible.

The new ultra-conservative Supreme Court is at the beginning of what could be a long run. The vision of the current Supreme Court majority appears to be nineteenth century Christian nationalism featuring unregulated crony capitalism and subordinate women and minorities. The future as the past is less than inspiring.

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War is a racket – posted 9/5/2021

September 5, 2021 5 comments

Probably like many, I remember exactly where I was when I first heard about the events of 9/11. I was on my way to work in Claremont, listening to Don Imus on my car radio. Imus sportscaster, Warner Wolf, reported on seeing the World Trade Center on fire as he watched from his Lower Manhattan apartment. I had a hard time leaving my car as I listened to the events unfold.

Now, 20 years later, I suppose I have a dark view. There is an unfortunate direct line of unbridled and relatively little-questioned militarism from the Vietnam War to the war on terror. We have seen the collapse of the Soviet Union, the end of the Cold War, the failure of any peace dividend, and the almost endless wars in Iraq and Afghanistan.

While mainstream commentators may deplore aspects of our military interventions, I would like to offer a more critical take on how we have been led into never-ending wars.

In the middle of World War I, progressive critic, Randolph Bourne, wrote, ”War is the health of the state”. To understand the American obsession with war, the place to look is our military-industrial complex. Since the end of World War II, it has expanded as a way to massively subsidize corporations and as a mechanism for employment. The military industrial complex depends on war and a search for new enemies.

As a society we have developed an addiction to the war business. Congress always approves enormous military spending and that is a bi-partisan affair. There are multiple pots of money devoted to fighting wars, preparing for more wars and dealing with the consequences of wars previously fought. Some few Democrats complain about the size of the trillion dollar war budget but, in the end, they are always ignored. There is too much money to be made by the military-industrial complex.

The Pentagon and its contractors thrive on new weaponry and there are never-ending opportunities to develop more sophisticated and advanced instruments of death from guns to tanks to drones to nukes.

The United States does not have a classic colonial empire but it does have roughly 800 military bases located in more than 70 countries and territories abroad. We can project military power anywhere in the world. We have created a global military machine to police a global empire. A big part of the reason for the empire is for the protection and control of world markets.

Americans have been fed a steady diet of propaganda to justify our continuing military interventions. We need to appear benevolent and we need to appear like we are fighting for democracy. So it has always been with imperial states. Governments all use a sales effort and marketing to sell war. In this, I do not think we are different from other empires.

A senior United States Marine Corps officer, Major General Smedley Butler, who served in military actions in the Philippines, China, Central America, the Caribbean and France in World War I, wrote in his book “War is a Racket”:

“Beautiful ideals were painted for our boys who were sent out to die. This was the “war to end wars”. This was the “war to make the world safe for democracy”. No one told them that dollars and cents were the real reason. No one mentioned to them, as they marched away, that their going and their dying would mean huge war profits.”

Butler went on:

“I spent 33 years and four months in active military service and during that period I spent most of my time as a high class muscle man for Big Business, for Wall Street and the bankers. In short. I was a racketeer, a gangster for capitalism. I helped make Mexico and especially Tampico safe for American oil interests in 1914. I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in. I helped in the raping of half a dozen Central American republics for the benefit of Wall Street. I helped purify Nicaragua for the International Banking House of Brown Brothers in 1902-1912. I brought light to the Dominican Republic for the American sugar interests in 1916. I helped make Honduras right for the American fruit companies in 1903. In China in 1927 I helped see to it that Standard Oil went on its way unmolested. Looking back on it, I might have given Al Capone a few hints. The best he could do was operate his racket in three districts. I operated on three continents.”

I do not see the last twenty years since 9/11 as that different from Butler’s era except that the militarism has vastly expanded. War is good for Lockheed Martin, Boeing, Northrup Grumman, their executives and lobbyists and others of their ilk. We still have a revolving door where retired Pentagon officials get jobs with arm contractors while working class people die to support the war profiteering.

Four administrations spent many trillions fighting the war on terror and they always wrongly lauded progress. During that time we saw renewed use of torture and creation of black sites, increased use of drone assassinations, mass warrantless surveillance, the Patriot Act and the weakening of the Fourth Amendment.

I worry that the military industrial complex is already ratcheting up for the next war, possibly against China. Threat inflation is their business.

Right now the United States is building ultra-expensive new nuclear weapons. Northrup-Grumman Corporation has a contract to replace our aging Minuteman III missiles. The Pentagon purchased 659 ICBMs. By some insane logic, this is seen as a military necessity. Among others, Daniel Ellsberg has pointed out the faulty logic and the obsolescence of ICBMs.

We could take steps to back off from the self-destructive militarism. Congress could begin by repealing the 2001 and 2002 Authorizations for the Use of Military Force. They have been used too broadly to authorize forever-war.

Our biggest national security threat is climate change. Increasingly, the U.S. military and other militaries around the world will need to focus on disaster relief, flood prevention, firefighting and population resettlement. The handwriting for that is already on the wall.

When he wrote these words back in 1963, Bob Dylan was ahead of his time:

“Come you masters of war
You that build the big guns
You that build the death planes
You that build all the bombs
You that hide behind walls
You that hide behind desks
I just want you to know
I can see through your masks”

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Inheritors of the New England Abolitionist Tradition – posted 8/31/2021

August 31, 2021 8 comments

Current debates about racism, critical race theory or the 1619 Project generally lack historical perspective. Advocates take positions pro or con without putting 2021 issues in any historical context. As an anti-racist, I would like to situate current struggles in a different framework.

I would suggest that New Englanders are the inheritors of a most proud and noble abolitionist tradition that includes figures like William Lloyd Garrison, David Walker, Maria Stewart, Nathaniel Peabody Rogers, John Quincy Adams, Charles Sumner, Henry David Thoreau, Ralph Waldo Emerson, John Greenleaf Whittier and Harriet Beecher Stowe.

There is a long interracial tradition of New Englanders taking the national lead in opposing racism and slavery. New England’s reputation as a cradle of American civilization is tied up with being in the anti-slavery vanguard.

Surprisingly though, abolitionists have been inadequately recognized in American history for their contributions to moving the struggle against racism forward. They started as a tiny despised minority and ended up persuading much of a nation. The abolitionists present a paradigm that all later progressive social movements in American history draw on.

I would begin with William Lloyd Garrison of Newburyport, Massachusetts and later Boston. In the late 1820’a there were about two million African Americans held in slavery. Few voices were raised in opposition. Garrison got the idea of publishing a newspaper to promote the immediate abolition of slavery. In 1831, he started the Liberator, a paper that had more black than white readers. In the first issue, Garrison wrote:

“…I unreflectingly assented to the popular but pernicious doctrine of gradual abolition. I seize this moment to make a full and unequivocal recantation, and thus publicly to ask pardon of my God, of my country and of my brethren the poor slaves, for having uttered a sentiment so full of timidity, injustice and absurdity…I will be as harsh as truth, and as uncompromising as justice…I am in earnest – I will not equivocate – I will not excuse – I will not retreat a single inch – and I will be heard.”

The world around Garrison did not appear to be moving in any direction he favored. The introduction of the cotton gin had made slavery economically indispensable to both the South and the North. Slavery was extremely profitable and deeply entrenched. Nevertheless, Garrison persisted, helping to found the New England Anti-Slavery Society and later the American Anti-Slavery Society.

Garrison believed in moral suasion. He actually believed he could convert all kinds of people, including slaveholders, to oppose slavery.

Garrison paid a heavy price for his writing and activism. Southern states placed a bounty on his head. In 1835, a Boston mob constructed a gallows in front of his office, apprehended him, put a rope around him and almost lynched him. He was rescued at the last minute and put in jail for his own protection. The mob burned him in effigy.

Allies in the Boston African American community supported the anti-slavery fight. In 1830, David Walker, a leader of the Boston black community, authored An Appeal to the Colored Citizens of the World. Walker opposed colonization, a movement that sought to move free blacks to a colony in Africa. At the time, even some abolitionists supported colonization. Garrison published Walker’s Appeal.

Maria Stewart, an African American woman from Hartford Ct and later Boston, became one of the first women to speak publicly including to mixed audiences of black and white men and women. That was almost unheard of then. Stewart lectured before the New England Anti-Slavery Society and Garrison also published her anti-slavery writing. She became famous for powerful speeches she delivered in the early 1830’s.

In 1835, the New Hampshire Anti-Slavery Society based in Concord published the Herald of Freedom, a weekly newspaper with its motto “No compromise with slavery”. A Plymouth-based attorney Nathaniel Peabody Rogers became the editor. In 1840, Rogers represented New Hampshire abolitionists at the World Anti-Slavery Convention in London. Thoreau wrote highly of Rogers and he became a subject of an 1844 Thoreau essay.

Abolitionists built a school in Canaan, New Hampshire named Noyes Academy that admitted 14 black students including Henry Highland Garnet, a later-to-be well-known abolitionist. The school only last a few months. Locals objected to the attendance of black students. They used a team of oxen to drag the school building off its foundation. The building was then destroyed.

On the political front, John Quincy Adams and Charles Sumner, both of Massachusetts, deserve special mention. After this presidency, Adams fought the Slave Power as a Congressman. For years, against massive opposition, he brought up petitions from his constituents demanding an end to slavery. As a master of parliamentary procedure, Adams fought the Slave Power tooth and nail.

Sumner was right there with Adams. Through a long political career, including 20 years as a U.S. Senator, Sumner fought eloquently. He was a great orator. In 1856, South Carolina Rep. Preston Brooks attacked Sumner on the floor of the Senate after a Sumner speech excoriating slavery. Brooks felt Sumner had slandered his family. The assault almost killed Sumner. It took Sumner several years to recover but he went on to lead the Radical Republicans in the Senate right through the Civil War.

New England abolitionists were also most outspoken on the literary front. Henry David Thoreau, Ralph Waldo Emerson, and John Greenleaf Whittier, all of Massachusetts, and Harriet Beecher Stowe of Connecticut all saw slavery as monstrous. Thoreau wrote “Slavery in Massachusetts” and raked the state for its collaboration with slaveholders. He also fiercely defended John Brown. Emerson denounced the Fugitive Slave Act.

Whittier, a Quaker and a poet, devoted twenty years of his life to abolitionism. He edited a leading Northern anti-slavery newspaper, the Pennsylvania Freeman. In May 1838 its offices were burned to the ground by a pro-slavery mob. Stowe was most famous for writing “Uncle Tom’s Cabin”. Stowe supported the Underground Railroad. Supposedly when Stowe met President Lincoln in 1862 he said, “so you are the little woman who wrote the book that started this great war”.

I think all American progressives are in debt to the New England abolitionists. Although they were stereotyped as single-minded fanatics, they were quintessential moralists who placed human rights at the center of their world view. They transformed words into deeds and made peaceful co-existence with slavery an impossibility.

As 21st century activists, we are building on the abolitionist tradition. In our era, advancing an anti-racist agenda means attacking the pillars of institutionalized racism which have led to huge economic inequality, restricted voting rights, mass incarceration, poor housing, medical apartheid, and re-segregated public education.

Opponents of critical race theory and the 1619 project have shown no willingness to face the actual history of our country.

Just as the abolitionists moved from being a tiny minority to transforming a majority, we inheritors of that tradition can move toward a more just society now and in the years ahead. The New England abolitionists are a great example to follow.

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Jaan Laaman’s legacy of prison reform – posted 8/22/2021

August 22, 2021 1 comment

I saw that after 37 years behind bars Jaan Laaman was released from federal prison. The name Jaan Laaman would likely not be known by younger people but there are some older people who might remember.

Laaman was a 1960’s radical. He grew up in a blue collar family in Roxbury, Massachusetts and later in Buffalo, New York. Early on, he developed a sense of solidarity with black people. As a teenager he got locked up for a non-political crime. He did some time in prison and he said he became more aware of what life was like for victims of the capitalist system.

Upon his release, he later went to Cornell and UNH and he joined Students for a Democratic Society, the radical student organization of that era. He became a full-time activist and he supported the Black Liberation and anti-war movements.

In 1971, he spoke at an anti-war rally. The authorities charged him with a parole violation for his talk and they sent him to Attica Correctional Facility in upstate New York. Laaman served a period of time at Attica before the September 1971 prison riot. There he met Sam Melville, another radical.

Melville had been party to multiple bombings of government and corporate offices. He was linked to the Weather Underground. Melville was one of the leaders of the Attica uprising. He was seen alive after the uprising was put down by the state police but two days later his name showed up on a list of prisoners killed during the riot. Thirty three prisoners and ten hostages died.

It is hard to know how much Melville’s example affected Laaman. He was close to Melville. Possibly he was already connected to underground clandestine work.

After Laaman got out, he again got into trouble. In 1972, the police arrested him for bombing a Richard Nixon for President Headquarters building and a police station in New Hampshire. No one was injured in these bombings except Laaman who hurt his hand. The state convicted Laaman for the bombings and he was sentenced to 20 years in prison.

He won early release in 1978 after winning on appeal. He served over five years in New Hampshire State Prison.

During his time in the New Hampshire State Prison, Laaman shook the place. He brought seven legal actions against the prison. The Court described Laaman as an “able, prolific and often successful jailhouse lawyer”. Laaman operated a legal clinic for prisoners. In a published opinion, the Court went on about Laaman:

“He has served as an elected inmate representative since 1973 when he helped establish a formal grievance procedure, and has continuously acted informally as a spokesperson and mediator for other prisoners. He has been an officer in the New England Prisoners’ Association and has attempted to establish a prisonwide newspaper at NHSP…Laaman is popular among the inmates and evidences a genuine concern for them…He writes personal letters for the semi-literate, speaks on behalf of men who can’t talk, and demands the things he feels are right and needed.”

Laaman’s case turned into a class action, Laaman v Helgemoe, to improve the living conditions, treatment and programs available at the New Hampshire State Prison. In 1975, Federal Judge Hugh Bownes appointed New Hampshire Legal Assistance as counsel for the prisoners. A number of pro see individual cases were consolidated into the case.

Legal Assistance challenged the totality of prison conditions including visitation and mail privileges, work, education and rehabilitation opportunities, medical care, harassment of the named plaintiffs and overall conditions and practices. It was an everything but the kitchen sink lawsuit.

Judge Bownes ruled that the conditions and treatment accorded prisoners at NHSP violated the Eighth Amendment prohibition against cruel and unusual punishment. The Court entered a comprehensive order to address the many unconstitutional conditions at NHSP. In a section of the court order entitled “Debilitating Conditions”, Judge Bownes wrote:

“..Deep anger and hatred of the society that relegates prisoners in the name of reform to cages with nothing to do, frustration and hostility engendered by false promises, and the loss of pride and self-esteem inherent in such a degrading experience spawn antiauthoritarian and often violent criminal behavior. Time at NHSP costs a man more than part of his life; it robs him of his skills, his ability to cope with society in a civilized manner, and, most importantly, his essential human dignity. Degeneration is hastened at NHSP by the impediments placed in the way of inmates who try to gain something positive during their imprisonment.”

A 38 page consent decree approved by the judge ordered creation and implementation of a classification system, protection for inmates from violence and aggression, adequate sanitation, medical care and mental health care, and meaningful vocational and educational opportunities. The Court recognized that idleness was negative and found a requirement that inmates obtain rehabilitation opportunities.

For over three decades, New Hampshire Legal Assistance continued to vigorously enforce the terms of the consent decree. Consent decrees are not self-executing. Without vigorous enforcement, things backslide.

I do not think it is appreciated now how significant the Laaman case has been. Before Laaman and cases in other states like it, federal courts had a hands-off approach and prisoners’ rights were very narrowly circumscribed. A very punitive mentality reigned both in the courts and prisons.

This was captured by George Jackson, the prison writer and revolutionary, who wrote in his book Soledad Brother:

“Most [prison] policy is formulated in a bureau that operates under the heading Department of Corrections. But what can we say about these asylums since none of the inmates are ever cured. Since in every instance they are sent out of the prisons more damaged physically and mentally than when they entered. Because that is the reality.”

Judicial attitudes did change in response to prisoners’ efforts to improve conditions through litigation. While the Laaman case did not create a constitutional right to rehabilitation, it did recognize that inmates had a right to be incarcerated in conditions which did not threaten their sanity and were not counterproductive to their efforts to rehabilitate themselves.

After Laaman got out of NHSP, he moved to Boston and he worked as a community organizer. He opposed South African apartheid and U.S. imperialism in Central America. He helped organize the Amandla music festival held at Harvard Stadium in July 1979 where Bob Marley and the Wailers headlined.

Laaman later went underground again. The police charged him with seditious conspiracy although that charge did not go forward. He ended up convicted of five bombings, one attempted bombing and criminal conspiracy. Sentenced to 53 years in prison, he served 37 years.

In his last prison stint, Laaman taught meditation classes and yoga. As a yoga practitioner, he initiated a yoga class for people with disabilities, those with limited mobility and those wheelchair-bound.

Progressives now seem more about prison abolition and ending mass incarceration than they do about improving conditions of people still confined.

I think that is a mistake because so many remain incarcerated. The Laaman consent decree helped to break the cycle of incarceration and offered vocational opportunities that helped re-entry to society. Back in 1977 there were 261 prisoners in NHSP. In 2020 there were 2283. The provisions of the Laaman consent decree have helped countless inmates. That is an undeniable legacy.

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Stream We Are Still Here by R.J. Phillips Band | Listen online for free on SoundCloud -posted 8/18/2021

August 18, 2021 Leave a comment

I just wanted to share this song “We are still here” composed by Joe DeFilippo and performed by the R.J. Phillips Band, a group of Baltimore musicians.

https://soundcloud.com/hillipsand/we-are-still-here

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A multi-pronged coup attempt against democracy – posted 8/15/2021

August 15, 2021 Leave a comment

Even before Donald Trump lost to Joe Biden in the November 2020 presidential election, Trump whined that the election was rigged. He spouted wild unsupported conspiracy theories that the election would be corrupted by mail-in ballots. Before the 2016 election Trump did essentially the same thing except then he ended up winning.

When he did lose in 2020, Trump’s response was to manufacture a monstrous lie. Out of no evidence, he created the Big Lie the election was stolen. Trump has repeated the Big Lie religiously so that he could transform reality to resemble his lies. He and his allies have worked to purge Republicans who do not buy into his fiction.

Unlike almost all presidents in U.S. history who accepted the will of the voters, Trump embarked on a non-stop campaign to overturn a democratic election. Never accepting the peaceful transfer of power, Trump worked single-mindedly between November 2020 and January 2021 to find a way to install himself as a dictator. He never conceded.

After he lost, he demonstrated a loss of interest in the job of being president. His energies fixated on how he could maintain power because losing was inconceivable for him. Trump’s cumulative actions added up to a multi-pronged offensive against democracy. When his non-violent schemes failed, he opted for violence.

The stages can now be clearly delineated. When Trump’s court strategy failed, he turned to state legislatures. When that failed, he attempted to manipulate the Department of Justice and the military. When every strategy he tried could not get the job done, he resorted to a violent insurrection on January 6 to prevent certification of the Electoral College vote.

Trump’s coup attempt, which has been joked about as inept, came uncomfortably close to success. If Mike Pence, Jeffrey Rosen or General Mark Milley had acted differently, the election might have been thrown into the House of Representatives, with uncertain results. For those who doubt there was a legitimate coup danger, closer scrutiny of the events between November 2020-January 2021 are in order.

After the election, the Trump legal team filed 60 federal lawsuits focused on swing states. These frivolous lawsuits were laughed out of court, even by Trump-appointed judges. Trump made zero headway. His colorful cast of lawyers, including some genuine nutcases, violated professional ethics by repeatedly making false statements of fact to multiple tribunals.

Trump then tried to bully and threaten state election officials, governors and state legislators to do his bidding. A litany of death threats and threats of physical harm directed against election officials has continued since last November. We have had the Arizona audit and Trump pleading with Georgia Secretary of State Brad Raffensperger “to find 11,780 votes”. The solicitation of election fraud is almost certainly a crime.

Trying to get friendly state legislatures to appoint electors may turn out to be one of the most dangerous legacies of Trump’s efforts. As a minority party, Republicans are looking at ways to maintain their power beyond voting. Unlike earlier authoritarians, Republicans suppress votes rather than entirely eliminating the right to vote.

In the future, Republican lawyers will be arguing the “independent state legislature doctrine” to justify the power of state legislatures to run elections as they see fit. It is a possible vehicle for overturning close elections. Instead of votes deciding elections, state legislatures conceivably will.

Trump treated the Department of Justice as if it was his private play thing, not a non-partisan law firm. Although Attorney General William Barr was a sycophant who always went along with his boss, when he disputed Trump’s baseless claims of election fraud, that was the end for him. Trump replaced Barr with Jeffrey Rosen whom Trump badgered daily. Trump sought investigation of election conspiracy theories including satellite interference from Italy and Dominion Voting System improprieties.

In a December 27 call, Trump urged Rosen to make a false declaration. According to Rosen’s deputy Richard Donaghue, Trump said, “Just say the election was corrupt and leave the rest to me and the R. Congressmen”. Trump wanted to create the appearance of wrong-doing. He intended to use Rosen to nullify the election.

Behind Rosen’s back, Trump also conspired with Rosen’s underling, Jeffrey Clark. Trump wanted to replace Rosen with Clark as Attorney General because Clark was willing to play ball with Trump’s criminal games.

On December 27, Clark produced a letter he wanted Rosen and Donaghue to sign. Following Trump’s lead, Clark wanted to bypass Georgia’s governor and call the Georgia state legislature into session to reject Biden electors and appoint Trump electors. Rosen and Donaghue would not go along.

White House lawyer Pat Cipillone persuaded Trump not to fire Rosen. If Trump had fired Rosen and replaced him with Clark, the entire senior leadership of the Justice Department was poised to resign en masse.

We also now know that the former U.S. Attorney in Georgia, Byung Pak, a Trump appointee, was told he would be fired if he refused to say there was election fraud in Georgia. He abruptly resigned on January 4.

Trump clashed with General Mark Milley, Chairman of the Joint Chiefs of Staff, who worried Trump might call on the armed forces to decide the outcome of the 2020 election. Trump was replacing senior officials at the Pentagon with his loyalists. General Milley compared November 2020 with 1933 when Hitler used an attack on the German Parliament to establish a Nazi dictatorship. Milley said, “This is a Reichstag moment”.

After the December 12 pro-Trump demonstration in Washington D.C. protesting the Supreme Court not coming to his rescue, Trump tweeted on December 19: “Big protest in D.C. on January 6th. Be there, will be wild!”.

Probably the most cogent statement made about January 6 comes from Capitol Police Sgt. Harry Dunn. When he testified before the House select committee investigating January 6, he said:

“If a hitman is hired and he kills somebody, the hitman goes to jail. But not only the hitman goes to jail, the person who hired them does. There was an attack carried out on January 6. And a hitman sent them. I want you to get to the bottom of that.”

Take your pick on the crimes Trump has committed: solicitation of election fraud, conspiracy, obstruction of an official proceeding (Electoral College certification), violation of the Hatch Act and inciting insurrection jump out. Failure to prosecute likely guarantees a repeat performance in the future by Trump or a Trump clone. You don’t have to be a cynic to wonder if our legal system is up to the task.

With Trump we have a cult leader who incited a violent and deadly insurrection. He presents himself as some kind of national savior to his followers. He has promoted a culture of hatred and dehumanization against immigrants and an utter disregard for the rule of law. Believing himself above the law, he has no hesitation in trying to steamroll any obstacles in his path to power. This behavior is far more consistent with the fascist strongman tradition than any kind of conservatism.

Nobody should be reassured that we barely escaped this time.

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Summer time – posted 8/14/2021

August 14, 2021 2 comments
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Next chapter in the persecution of Attorney Steven Donziger – posted 8/8/2021

August 8, 2021 2 comments

Back in April, I wrote an article about Attorney Steven Donziger’s fight with the oil giant, Chevron. The story is a model for how a powerful corporation can corrupt our legal process and try and buy results. As Donziger has said, “I’m like a corporate political prisoner”.

In 2011, Donziger, a human rights attorney, had won an epic two-decades long lawsuit against Chevron. Back between 1964-1992, Chevron, previously Texaco, had dumped 16 billion gallons of benzene-laden oil waste into the forest, rivers and streams of Ecuador. On behalf of 30,000 indigenous people of Ecuador, Donziger and a team of attorneys won an unprecedented $9.5 billion judgment against Chevron. The judgment has been upheld by both the Supreme Court of Ecuador and Canada.

Since April there have been some significant developments in the Donziger-Chevron saga. In July, the federal court in New York found Donziger guilty of six charges of criminal contempt. Donziger has already served more than 700 days of home confinement with an ankle bracelet and he is looking at an additional six month jail term with sentencing on October 1.

Donziger is the only lawyer in U.S. history to be deprived of his liberty pre-trial on a misdemeanor charge. He is also the only person ever charged in the U.S. with criminal contempt for appealing a court order related to discovery in a civil case.

Chevron has pursued a scorched earth strategy against Donziger. To divert attention from their environmental crimes, they have demonized and attempted to destroy him. That may sound like hyperbole but it is not.

Chevron hired private investigators to track Donziger. They created a publication to smear his reputation. With their virtually unlimited resources they put together a legal team of hundreds of lawyers from 60 law firms to try and ruin Donziger and they have done real damage.

Donziger cannot work, travel, earn money or leave his home. He has been disbarred, had his passport seized, and his bank accounts have been frozen. He now has a lien on his apartment where he lives in New York. Donziger owes enormous court fines and costs and he remains under house arrest.

Chevron had filed a Racketeer-Influenced and Corrupt Organizations or RICO lawsuit against Donziger. The case is before Federal Judge Lewis A. Kaplan, a former tobacco company lawyer. Kaplan once described Chevron as:

“..a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities, gasoline, heating oil, other fuels and lubricants on which everyone of us depends every single day.”

Chevron had originally sought $60 billion in damages against Donziger. Two weeks before trial Chevron dropped the monetary claim entirely to deny Donziger a jury trial. They wanted the case before Kaplan. With the money claim gone, Kaplan had the option to deny Donziger’s request for a jury trial and he did that.

The Court charged Donziger with contempt for refusing to hand over his computer, cellphone and other electronic devices. Donziger did not comply, citing client confidentiality, as identification of his clients could place them in great danger. When Judge Kaplan asked the U.S. Attorney to prosecute the contempt, the U.S. Attorney refused the prosecution.

While corporate power had already turned the tables on Donziger, here is the point where things went sideways. Instead of random assignment of judges as required by local court rules, Judge Kaplan handpicked another judge, Loretta Preska, to preside over the contempt case. Under an unusual procedure, Kaplan also appointed a private law firm, Seward and Kissel, as prosecutors since the U.S. Attorney had declined to prosecute the alleged contempt.

The appointed private law firm, Seward and Kissel, had and has a disqualifying conflict of interest as they had a direct tie to Chevron. Chevron had been their client as recently as 2018 but that was not disclosed until months into trial. Still, Seward and Kissel remain as prosecutors.

As for the judge handpicked by Kaplan, Loretta Preska, she is a member of the Federalist Society, a conservative legal organization that has received funding from Chevron. As Kaplan had done, Preska also denied Donziger’s request for a jury trial. At the trial she denied virtually all the objections of Donziger’s defense team while sustaining all prosecution objections. Martin Garbus, one of Donziger’s lawyers, said this about Kaplan picking Preska:

“He knows in choosing her, he is choosing the one judge in the Southern District, perhaps, who is going to go after Steven in the worst possible way. And Kaplan was exactly right”.

Prosecution witnesses in Donziger’s contempt trial included attorneys from Gibson Dunn, a law firm which had represented Chevron in litigation against Donziger.

What we have is the hijacking of a legal proceeding by a hugely powerful corporation that uses its massive resources to crush an environmental activist lawyer. Changing the subject away from its environmental crimes has been an effective strategy. The company will do anything to avoid paying the $9.5 billion court judgment.

The punishment Donziger is suffering is crazily out of whack to any standard of fairness. It is off the charts and it is Chevron sending a message to all its adversaries, current and potential: cross us and you will pay. Lengthy home arrest and jail time for a lawyer under these circumstances is beyond unusual.

Donziger’s lawyer, Martin Garbus, is famous for his trial skills, for being a civil libertarian and for having vast experience as an international lawyer. He said:

“I have seen many, many oppressive judges, and I have seen many, many rigged court systems. The way this is rigged is peculiar and amazing in New York. Nothing like this has ever happened before in the American legal system.”

Donziger is, of course, appealing the contempt charges and he remains hopeful about his chances on appeal. He is also fighting his disbarment. Many have raised public questions about these proceedings including Sen. Ed Markey, Sen. Sheldon Whitehouse, former Federal Judge Nancy Gertner and former Federal Judge Mark Bennett.

The Donziger prosecution reflects a deep tension and a corrosive passivity within our legal system. The other side of the coin from the legal system’s failure to enforce judgments against a climate-ruining corporation is the hyper-persecution of activist lawyers like Donziger.

Edward Abbey once said, “There is no force more potent in the modern world than stupidity fueled by greed”. With its role in climate destruction, that speaks directly to Chevron. As a society, we are failing to respond to the real dangers.

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Native American family separation was cultural genocide – posted 8/1/2021

August 1, 2021 2 comments

Maybe readers have seen those stories about the mass graves of Indian children found at boarding schools in Canada and the United States. The remains of thousands of children have been found around the school sites and more unmarked mass graves keep appearing.

Beyond superficial apologies, the explanations given do not do justice to the scale of the crimes committed.

Native American history, as conventionally told, has big gaps. One gap is the story of how between 1869-1978 the federal government removed hundreds of thousands of Native American children, some as young as five, from their parents. By 1926, 83% of Indian school age children were attending boarding school.

Since Trump’s election in 2016, family separation became a big issue but the problem has very deep, under-appreciated roots in American history. That history has been erased.

After the violent removal of Native Americans from their land by white settlers and the creation of reservations, Native children became subject to a policy that was called “assimilation”. It was actually cultural genocide.

First started by Christian missionaries, boarding schools required Native American children to be educated according to Anglo-American standards. Federal law mandated the education. Nationally, 350 boarding schools came into existence. The schools attempted to divest the children of their Native identities.

As the founder of Carlisle Indian School, the first government-run, off-reservation boarding school for Native Americans, Richard Henry Pratt expressed it, the goal was “kill the Indian, save the man”. He desired to take children at a young age, remove them from family and eradicate Indian culture.

Before starting Carlisle, Pratt, a U.S. Army lieutenant, ran a prison school for Indians in Florida that focused on destroying culture, language and family connection as a means to assimilate Native children into mainstream American life.

The schools gave the children new names. They stripped the children of their clothing and forced them to wear military style uniforms. The schools made the children cut their long hair, forbid them from speaking their Native American languages and prevented them from practicing their religion. The children were physically punished for being caught speaking Native languages.

The schools told the children that what their parents practiced would send them to hell. They were forced to adapt Christianity. The indoctrination was intended to make the children ashamed to be Native Americans.

Pratt also saw family separation as a strategy to control the adults in tribes. In a letter he wrote in 1879 to the Commissioner of Indian Affairs, Pratt said that he took the children of tribal leaders to the boarding school because their parents “will be restrained by that fact and invited to seek for themselves a better state of civilization”.

The colonialist mentality saw stripping away Native identity as part of the process of bringing Native people from savagery to civilization. A similar process went on in Canada, Australia and New Zealand.

There was significant resistance by Native people. Families that refused to cooperate were jailed. The boarding schools discouraged close family proximity and they were typically located far from reservations. Many children tried to escape. If captured they were beaten and whipped. They also were subject to other harsh punishment like solitary confinement.

Why so many children died at the schools remains something of a mystery although it is easy to speculate. Illness and suicide were two reasons. Some who tried to escape died trying. It is impossible to know the numbers.

In June, Interior Secretary Debra Haaland, the nation’s first Native American Cabinet secretary, ordered a federal Indian Boarding School Initiative to recover the histories of the institutions. Secretary Haaland wants the investigation to identify the children who attended and their tribal affiliations. She also wants to find records of cemeteries or burial sites that may contain unidentified human remains.

Haaland herself has a connection to Carlisle Indian School. Her great-grandfather was removed from his family and sent to Carlisle. Haaland said, “I am a product of these horrific assimilationist policies”. In requesting the Initiative, she wrote:

“Survivors of the traumas of boarding school policies carried their memories into adulthood as they became the aunts and uncles, parents and grandparents to subsequent generations…The loss of those who did not return left an enduring need in their families for answers that, in many cases, were never provided.”

There was a culture of pervasive physical and sexual abuse at the schools. It is hard to get a handle on the extent of the abuse because the issue of abuse was not recognized in that era. Stories come from survivor interviews.

Along with the federal government, Christian churches and especially the Catholic Church played an integral role in the boarding schools. Under the Civilization Fund Act, Christian missionaries and other “persons of good moral character” were charged with introducing Native children to “the habits and arts of civilization”.

The Native boarding schools were poorly funded and overcrowded. They were infamous for inadequate food, poor health care and neglect. Infections often would sweep through dirty dorms.

The schools had an Outing program where students were lent to non-Native patrons who exploited them as low-cost labor. Patrons paid the school for the student’s services but they did not pay the students who typically performed domestic or farm work.

Many schools failed to keep accurate records of student deaths. If they were notified at all, parents of those students who died were often notified after the child’s burial. When students died, classmates were sometimes forced to bury the bodies in mass graves.

This history has been hidden. Christine McCleave, the chief executive officer of the Native American Boarding School Healing Coalition, estimates that fewer than 10% of the U.S. public knows anything about the history of Indian boarding schools in this country.

I would mention that family separation did not end with the decline of Indian boarding schools. Between 1941-1967, a shockingly high number of American Indian children, as many as one-third, were forcibly removed from their families and were permanently placed in homes with white parents.

Unlike Canada, the United States has failed to create a Truth and Reconciliation Commission to consider these matters. Nor has it ever acknowledged or addressed its role in the cultural genocide of Native American children. Senator Elizabeth Warren introduced a bill that would create a Truth and Healing Commission on Indian Boarding School Policy but it died in Congress when it was first introduced. Sen. Warren plans to re-introduce the legislation.

In considering the widely-recognized problems in Native American communities like substance abuse and suicide, the context of cultural genocide and its legacy is typically missed. Traumatic childhood experiences disrupt brain development and can lead to negative health outcomes for adults. We as a society need to stop blaming and start listening. Truth-telling about cultural genocide has barely begun.

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