Sunday, May 25, 2014

The empire strikes back: How Brandeis foreshadowed Snowden and Greenwald

So-called liberals attack the whistle-blower duo -- and a brilliant Supreme Court justice saw it all coming

In the famous wiretapping case Olmstead v. United States, argued before the Supreme Court in 1928, Justice Louis Brandeis wrote one of the most influential dissenting opinions in the history of American jurisprudence. Those who are currently engaged in what might be called the Establishment counterattack againstGlenn Greenwald and Edward Snowden, including the eminent liberal journalists Michael Kinsley and George Packer, might benefit from giving it a close reading and a good, long think.

Brandeis’ understanding of the problems posed by a government that could spy on its own citizens without any practical limits was so far-sighted as to seem uncanny. (We’ll get to that.) But it was his conclusion that produced a flight of memorable rhetoric from one of the most eloquent stylists ever to sit on the federal bench. Government and its officers, Brandeis argued, must be held to the same rules and laws that command individual citizens. Once you start making special rules for the rulers and their police – for instance, the near-total impunity and thick scrim of secrecy behind which government espionage has operated for more than 60 years – you undermine the rule of law and the principles of democracy.

“Our Government is the potent, the omnipresent teacher,” Brandeis concluded. “For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

Kinsley’s anti-Greenwald screed in the New York Times Book Review, and Packer’slonger and subtler essay for the British magazine Prospect, deliberately ignore or finesse the question of what the government has taught us through its black budgets, its institutional paranoia, its super-secret and extra-constitutional spycraft. Those two articles, and others like them, amount to a sophisticated effort to change the subject on the Greenwald-Snowden affair now that its initial impact has faded, and also to reassure by way of bewilderment: In the face of all this confusion about who’s right and who’s wrong, the best policy is to keep calm, carry on and leave all this boring stuff to the experts. Instead of focusing on the larger issues of privacy, power and secrecy articulated by Brandeis or on the corroded nature of contemporary democracy, Kinsley and Packer urge us to deplore the perceived personality defects or political misjudgments of Greenwald and Snowden, and throw up a virtual smokescreen of invidious comparison. OK, maybe that whole NSA thing wasn’t super awesome – but you could be living in Communist Russia!

You know, I have some criticisms of Glenn Greenwald too, and I’d be happy to share them with you, or with him, on some other occasion. George Packer is no dolt, and he scores a few hits on both Greenwald and Snowden in his enormous and detailed article, which at least on the surface is much more evenhanded and thoughtful than Kinsley’s drive-by hackwork. But to observe that Greenwald can make infelicitous or inconsistent statements at times, or that his argument about the chilling cultural effect of mass surveillance is not well worked out, does not add up to “a pervasive absence of intellectual integrity.” For that I’m afraid that Packer – still in ideological rehab, it seems, for his “liberal interventionist” support of the Iraq War and the neoconservative foreign-policy agenda – had better look in the mirror.

When Greenwald derides mainstream journalists (in his response to Kinsley) as “jingoistic media courtiers” tasked with attacking “anyone who voices any fundamental critiques of American political culture,” he is not being polite or diplomatic, and is no doubt painting with too broad a brush. There are numerous exceptions, and as Greenwald surely knows, the newsrooms of the New York Times, the Washington Post and the Wall Street Journal have over the decades been the sites of vigorous internal debate about how best to cover issues of surveillance, espionage and national security. But as a general tendency, he’s more right than wrong, and in this instance Kinsley and Packer are fighting a vigorous rearguard action on behalf of the entrenched interests of the Beltway elite, the self-described serious grownups of the “permanent government” and their well-connected media allies.

Any pretense of a critical relationship toward power — which was once supposed to be the journalist’s role in a democratic society — has been abandoned altogether (in Kinsley’s case) or eaten away to nothing by reasonable-sounding nuance and dispassionate analysis, as with Packer. Kinsley’s review has already been subjected to widespread mockery, even by “mainstream” commentators like the Washington Post’s Erik Wemple, and no wonder; it reads as if it had been cranked out during a single Acela Express trip from New York to D.C. (and filed by the time he reached Wilmington). Kinsley appears to feel that the entire topic of Greenwald and Snowden is beneath him, and that it raises no questions to which the right-thinking people in his circle don’t already know the answers: Journalists have no special rights or privileges, David Gregory was being “perfectly reasonable” when he accused Greenwald on “Meet the Press” of being a criminal, and we simply can’t allow “newspapers and reporters to chase down and publish any national security leaks they can find.” Who gets to decide how, when and whether government secrets are released? Why, the government, of course! Isn’t it obvious? More

Dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States


Tuesday, May 20, 2014

It's time to call a spade a spade: Israel and apartheid

South Australian Senator Nick Xenophon's comments following his recent trip to the Palestinewill have come as a shock to many. Describing his experiences of visiting the West Bank city of Hebron, he declared "What I saw in Hebron was heartbreaking - the division, the segregation, the palpable fear in the community".

He went on to offer a rather blunt prognosis: "It seems unsustainable that you have two different legal systems for people living in the same community".

Xenophon's words come in the wake of similar comments made in private (but since widely publicised) just a couple of weeks earlier, by US Secretary of State John Kerry. Israel, Kerry said, risked becoming "an apartheid state" should a two-state solution remain elusive. His comments have since been widely criticised by the Israeli government and their supporters. However in subsequent clarifications Kerry, expresses regret merely for the choice of the word "apartheid" but was otherwise unapologetic over his concerns about developments on the ground word. He continued to stress that "in the long term, a unitary, binational state cannot be the democratic Jewish state that Israel deserves or the prosperous state with full rights that the Palestinian people deserve." In fact Kerry's clarification concludes with a veiled challenge to Israeli government policies: "While Justice Minister Livni, former Prime Ministers Barak and Ohlmert have all invoked the spectre of apartheid to underscore the dangers of a unitary state for the future, it is a word best left out of the debate here at home."

With all this focus on the A-Word, it is important to be clear that in a legal sense apartheid is not limited to the South African context, but is defined in international law by the Rome Statute of the International Criminal Court. Apartheid describes acts committed with ones knowledge "as part of a widespread or systematic attack directed against any civilian population…committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime".

The settlements are of course considered illegal under international law by a large range of states, but Israel, the US (and now Australia) continue to contest this. However US officials reportedly blame the settlements for the collapse of the latest round of Israeli-Palestinian negotiations.

Kerry's comments may well to be the first time a senior US official has used the term apartheid to describe the situation in Israel-Palestine. Yet for all the controversy, what is most surprising and significant about Kerry's and Senator Nick Xenophon'ssimilar comments, is that their statements reflect an emerging consensus of a type very rare in one of the modern world's most intractable and internationalised conflicts. What we are seeing is emerging agreement among US, Palestinian and even Israeli government officials, along with others, that the situation in Israel-Palestine amounts to - or is rapidly descending into – apartheid.

Kerry is right that Ehud Barak as Israeli Defense Minister and former Prime Minister warned of impending apartheid. Ehud Olmert as Israeli Prime Minister also identified the threat of a South African-style anti-apartheid struggle should Palestinians in occupied territory continue to be denied the vote. Recently Israeli Justice Minister and lead peace negotiator Tzipi Livni gave a similar warning. In fact one can go back as early as the 1967 Arab-Israeli war, when David Ben-Gurion, Israel's first Prime Minister, reportedly declared that "Israel will become an Apartheid State" if the occupation was allowed to continue.

Kerry is also not alone among US officialdom. Official analysis of Israel's human rights situation by the US State Department also closely aligns with a situation of apartheid.

Outside the highly coded and sensitive language of diplomacy, a range of former top-level Israeli government officials have also shared their concerns over the reality of apartheid for

Palestinians under occupation. These include former admiral, internal security chiefand Knesset member Ami Ayalon, Yuval Diskin who is also a former internal security chief, former Israeli attorney general Michael Ben-Yair, former Israeli ambassador to South Africa Alon Liel, and Shulamit Aloni and Yossi Sarid, both former education ministers.

High-level former US officials also equate Israel's occupation of Palestinian territory with apartheid, including former US CENTCOM commander General James Mattis and former US President Jimmy Carter.

Palestinian leaders have also voiced serious concerns around Israeli apartheid, including PLO Executive Committee member Hanan Ashrawi, chief Palestinian peace negotiator Saeb Erekat, and Palestinian legislator Mustafa Barghouthi. More


Monday, May 19, 2014

Apache prisoners on the train to Florida. 1886

Photographic proof of American colonialism and genocide.


Geronimo, Naiche and other Apache prisoners on the train to Florida. 1886. Photo by C.D. Arnold. The Apaches are identified as (front row, from left) Fun, Perico, Naiche, Geronimo, Chappo, Garditha. In second row: Yanozha next to Jasper Kanseah; fourth from left, Ahnandia; extreme right, Beshe. The women at the back, identified from left, Ha-o-zinne, wife of Naiche; Bi-ya-neta, wife of Perico; Nohchlon, wife of Chappo; Tah-das-te, wife of Ahnandia.


Friday, May 16, 2014

Never stop being outraged by injustice

Dear friends,

Although I became an Elder last year, this is my first time writing to all of you, so to introduce myself: I am a lawyer and human rights defender. My background is in the women’s rights movement in Pakistan, where I still live and work.

As a human rights lawyer, I look at every issue through a human rights lens. This is particularly important for climate change, which cannot be understood as a purely scientific, environmental issue. Above all, climate change affects people – and the most vulnerable among us are affected most of all.

Jimmy Carter, Mary Robinson and I discussed this very topic with young activists, students and entrepreneurs in Paris last month. These young people are rightly outraged by the injustice of climate change. They are frustrated with political leaders who, by failing to act, are condemning their generation and future generations to a world of conflict, hardship and inequity. My message to these and all young people is: never stop being outraged. Never allow yourselves to become apathetic and pessimistic.

In turn, we Elders were inspired by what we saw and heard during that debate. A room full of young people determined to put their energy into mobilising their fellow citizens, challenging leaders and corporations, changing their own lifestyles, and working together across borders to find solutions to climate change.

It was a privilege to be asked to join The Elders, a group with with no vested interests apart from our common humanity, who are unafraid to speak truth to power. And I have been glad to see that even with our combined experience and influence, we do not underestimate the importance of listening to our ‘Youngers’. I look forward to many more such productive and inspiring discussions.

Best wishes,

Hina Jilani


Monday, May 5, 2014

The Woman Who Breaks Mega-Dams

Ruth Buendía Mestoquiari has built her career, and staked the fate of her people, on the law.

Ruth Buendía Mestoquiari

But she doesn't have a law degree. In fact, she didn't even start elementary school until she was a teenager and didn't finish high school until age 25. While her peers went to class, she spent her childhood in the 1980s and 90s shuttling between her native village of Cutivireni, the town of Satipo, and the city of Lima, as Peru's two-decade civil war devastated her community and claimed her father, who was killed in the violence when Buendía was only 12.

What Buendía does have is five children, all 18 and younger, and a "wonderful husband." She has the distinction of being the first female president of CARE, an organization representing roughly 10,000 indigenous Asháninka who live along the banks of the Ene River in the Peruvian Amazon. And she has a knack for blocking massive hydroelectric dams, having thwarted not one but two planned projects that she believed would displace the Asháninka and destroy the ancestral lands they depend on for their livelihoods. It's a threat she characterizes as "economic terrorism," in an allusion to the armed terrorism she experienced during the civil war.

Through it all, she's managed to redeem what we've come to consider something of a dark art: the lawsuit.

The 37-year-old, who received a Goldman Environmental Prize this week for her efforts, has employed several tactics in her duels with the dams, which were first proposed as part of an energy agreement between Peru and Brazil in 2010. She's marshaled technology, using a laptop and computer simulation to show constituents how the dams would flood the Ene River Valley. She's courted media attention, established international partnerships, and mobilized her people in regional assemblies.

But above all, she's insisted, again and again, that she has the law on her side—specifically an International Labor Organization treaty that Peru ratified in 1994 andnational legislation that the country passed in 2011. Both require the government to consult with indigenous communities before launching development projects—be they infrastructure initiatives or mining concessions—that will affect them. The concept is known as "prior consultation."

Buendía's primary argument isn't that the dams are illegal per se, but rather that Peruvian authorities must first secure her people's consent about how the projects should proceed—if, that is, there are grounds to proceed in the first place. By filing lawsuits in Peruvian courts with the help of legal advisors and making her case to bodies like the D.C.-based Inter-American Commission on Human Rights, Buendía has pressured Peruvian officials and Brazilian companies to halt the construction of the Pakitzapango and Tambo-40 dams—at least for now.

In prioritizing legal strategies over others, Buendía's key insight is to fight fire with fire. After all, the proposed dams are a product of a compact between governments—a 50-year energy agreement that Peru and Brazil struck in 2010. The plan was for Brazilian corporations to dam rivers in the Amazon rainforest in Peru and produce up to 7,200 megawatts of hydropower.

Peru's leaders trumpeted the numerous benefits the dams would bring: Brazilian companies would be investing heavily in one of the country's few energy sources—its rivers—and leveraging a renewable energy source at that. The projects would create thousands of jobs for Peruvians and bring affordable energy to rural areas. But under the deal, most of the power generated would have been exported to Brazil. And the Asháninka, along with several studies by conservation groups, have warned of the grave environmental and social impacts of the plants. The dams, for instance, could flood the surrounding jungle, submerging arable land, threatening water quality, endangering the forest's biodiversity and the rivers' fish populations, and forcing Asháninka to migrate.

"They think we're going to break windows and protest like in Conga, but we aren't,” Buendía told The New York Times in 2012, in reference to fierce demonstrations in northern Peru against a gold-mine project. "Just as they do to us with legal documents we are going to do to them."

International treaties and national laws have granted the Asháninka rights, she reasons. Now it's up to the Asháninka to apply the law. More


Sunday, May 4, 2014

The Jewish National Fund’s list of projects in the settlements

On its website, The Jewish National Fund (JNF-KKL) presents itself as an environmental friendly non-governmental organization, with deep roots in Zionist history. The JNF often leads supporters and donors to believe that it does not fund projects in the occupied territories, which are highly controversial even among Zionists.

In the past, the JNF used sub-contractors for projects across the Green Line, including ones that demanded the evacuation of Palestinian families from their homes in East Jerusalem.

However, a 2012 document obtained by investigative journalist Raviv Druker reveals a list of projects in the settlements funded by the Jewish National Fund. In some cases, the JNF even insists on public credit for the projects.

Here is a link to the Hebrew document on Raviv Druker’s blog (PDF). These are the projects themselves (I added some of the locations of the settlements in brackets):

1. Amphitheatre in Shilo – 2 million NIS

2. Infrastructure projects in Ariel – 4.5 million NIS

3. Central Park in Avnei Hefetz [near Tulkarem] – 2.5 million NIS

4. Promenade in Gush Ezion [south of Jerusalem]: 250,000 NIS. Will be called “JNF Promenade”.

5. Promenade in Kfar Adumin [East of Jerusalem]: almost 1.5 million NIS.

6. Bike Lane in the Mateh Binyamin Regional Council: 1.7 million NIS.

7. Agriculture farm in Eitam: 2.5 million NIS

8. A park and observation point in Mitzpe Yericho [near Jericho]: 600,000 NIS

9. Historical site in Rosh Tzurim [near Bethlehem]: 400,000 NIS

10. Habanim Park in Hebron: 700,000 NIS

11. Infrastructure work in Alon Moreh’s Yeshiva [near Nablus]: 300,000 NIS

12. Public ground in Shavei Shomron: 350,000 NIS

13. Public ground in Har Bracha [near Nablus]: Almost 1 million NIS

14. Kikar Park in Beit El (near Ramallah]: 120,000 NIS.

This is, according to Druker, from 2012. Recently, he says, “the rate of investments has grown.”

The context for the publication is Tzipi Linvi’s attempt to extend the State’s Comptroller’s oversight to the JNF – claiming that the fund is an arm of the government (it is), so it must be audited like any other. Housing Minister Uri Ariel of the settlers’ Jewish Home party opposes the move, claiming that JNF is involved in important activities that should be kept out of the public’s eye. Now we know what he means.


Despite denials, JNF to continue eviction effort of J’lem Palestinians

Lying by omission: The JNF’s role in setting Negev land policy

For additional original analysis and breaking news, visit +972 Magazine's Facebook page or follow us on Twitter.


Thursday, May 1, 2014

Anti-Palestinian arson attacks on the rise

This week, Giacinto-Boulos Marcuzzo, the Roman Catholic Bishop of Nazareth had a note delivered at his home, warning that he and his followers had until May 5 to leave the “land of Israel”. On Tuesday April 29, Israeli police announced that a Jewish man from Safed had been arrested after delivering the note.

Jonathan Cook

In a similar incident, vandals also targeted a church at Tabgha on the Sea of Galilee that marks the site where Christians believe Jesus performed the miracle of the loaves and fishes. A cross was smashed and several pews damaged.

“The Christian community feels increasingly threatened,” Samuel Barhoum, the Episcopalian archdeacon of Jerusalem, told Al Jazeera. “We see that Israel is going further and further to the right. It does not matter whether you are Muslim or Christian, in these people’s eyes we are the enemy.”

A wave of violence over the past fortnight, including attacks on two mosques and a church, has shocked Israel’s Palestinian citizens, who comprise a fifth of the population, and raised fears that Israeli right-wing extremists are growing bolder as they shift attention to targeting Palestinian areas inside Israel.

One such incident took place in Umm al-Fahm, the second largest Palestinian city in Israel.

‘Dangerous epidemic’

On April 18, Palestinian worshippers, arriving at the Araq al-Shabab mosque in Umm al-Fahm for morning prayers, discovered the mosque had been the target of an arson attack. The doors, according to Jamil Mahajana, the local imam, were still smouldering and the words “Arabs out!” had been sprayed nearby.

The attacks prompted Amir Peretz, a dovish minister in Israel’s government, to speak out, warning that violence by Jewish extremists had become a “dangerous epidemic”.

Palestinians have been protesting against the attacks and demanding action. This week, some 2,500 residents of Fureidis, a town south of Haifa, marched to demand action from the police and the government of Israeli Prime Minister Benjamin Netanyahu, the day after a local mosque was defaced with a Star of David and graffiti saying “Shut down mosques”. Some 20 cars parked nearby had their tyres slashed.

The protesters chanted, “Netanyahu is a coward” and “Racism is spreading.”

Mohammed Barakeh, a Palestinian member of Israel’s parliament who led a protest last week in Umm al-Fahm, personally blamed Netanyahu for the spate of attacks.

“Extremist groups are being encouraged by Netanyahu’s constant sloganeering that Israel is a Jewish state, suggesting that an Arab population has no right to be here,” Barakeh told Al Jazeera.

“The extremists see Netanyahu has made recognition of Israel’s Jewishness a central demand in the peace talks. They see the racist legislation his government adopts. They see the police do nothing to tackle this phenomenon. And they conclude that the government quietly approves of their behaviour.”

Price-tag campaign

In January, a report by a United Nations agency, OCHA, documented 2,100 incidents of settler violence in the occupied territories alone since 2006.

Right-wing extremists describe violence against Palestinians, whether in the occupied territories or in Israel, as “price tag” attacks. The term is meant to indicate that there will be a cost to Palestinians if either the power of the settlers is challenged or the Palestinians seek diplomatic concessions from Israel.

The first major price-tag attack inside Israel occurred in late 2011, when a mosque in the Galilee village of Tuba-Zangaria was set on fire. No one has been charged for the attack.

There may be several possible triggers for this current wave of attacks, including the Israeli right’s concern that the peace talks, which formally came to an end this week, do not make headway. Jewish nationalists are also reportedly angry at the impending visit of the pope.

Israeli officials have indicated recently that they intend to take price-tag attacks more seriously, after several outbreaks of violence by extremist settlers against Israeli security forces. In the most recent incident last month, police were beaten as they tried to demolish unauthorised buildings in the militant settlement of Yitzhar.

‘Acts of terror’

In response, Israeli Defence Minister Moshe Yaalon said he was considering – for the first time – using administrative detention orders against right-wing extremists. That would allow them to be locked up on secret evidence, as is currently the case with the Palestinians.

However, the government has so far refused to categorise settler violence as “acts of terror”, which would give the security forces stronger powers. During a cabinet debate on the subject last summer, Netanyahu reportedly said such a move would be a diplomatic mistake, encouraging observers to draw a comparison between the settlers and the Palestinian movement Hamas.

Micky Rosenfeld, a spokesman for the Israeli police, confirmed that there has been a recent “escalation” in violence by hardline nationalists inside Israel, as well as in occupied Jerusalem and the West Bank.

Rosenfeld denied that the police were not doing enough to stop the attacks. A special task force was established last year to investigate price-tag attacks. Its activities, however, are limited to the West Bank. Police say they face serious difficulties in tracking down suspects.

“There is no network planning these incidents. They are sporadic and committed by individuals who often decide on the spur of the moment to carry out an attack,” said Rosenfeld.

Calling the attacks “unsettling”, Netanyahu promised that the government would invest more resources, including bringing in the Shin Bet, the domestic intelligence service that is more commonly used against Palestinians.

Palestinian leaders, however, accused Israeli authorities of repeatedly turning a blind eye to attacks by Jewish extremist groups. “If these crimes were being committed by Palestinians against Jews, the culprits would be caught within hours or days,” said Awad Abdel Fattah, a member of the Higher Follow-Up Committee, the main political body for Palestinians inside Israel. More