( Tomdispatch.com ) – I thought I was done with free speech. For nearly two decades, I reported on it for the international magazine Index on Censorship. I wrote a book, Outspoken: Free Speech Stories, about controversies over it. I even sang “I Like to Be in America” at the top of my lungs at an around-the-clock banned-book event organized by the Boston Coalition for Freedom of Expression after the musical “West Side Story” was canceled at a local high school because of its demeaning stereotypes of Puerto Ricans. I was ready to move on. I was done.

As it happened, though, free speech — or, more accurately, attacks on it — wasn’t done with me, or with most Americans, as a matter of fact. On the contrary, efforts to stifle expression of all sorts keep popping up like Whac-A-Mole on steroids. Daily, we hear about another book pulled from a school; another protest closed down on a college campus; another university president bowing to alumni pressure; another journalist suspended over a post on social media; another politically outspoken artist denied a spot in an exhibition; another young adult novel canceled for cultural insensitivity; another drag-queen story hour attacked at a library; another parent demanding control over how pronouns are used at school; another panic over the dangers lurking in AI; another op-ed fretting that even a passing acquaintance with the wrong word, picture, implication, or idea will puncture the fragile mental health of young people. 

The list ranges from the ditzy to the draconian and it’s very long. Even conduct can get ensnared in censorship battles, as abortion has over what information healthcare providers are allowed to offer or what information crisis pregnancy centers (whose purpose is to dissuade women from seeking abortions) can be required to offer. Looming over it all, we just had an election brimming with repellent utterances financed by gobs of corporate money, which, the Supreme Court ruled in its 2010 Citizens United decision, is a form of speech protected by the First Amendment.

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I suspect that if you live long enough, everything begins to seem like a rerun (as much of this has for me). The actors may change — new groups of concerned moms replace old groups who called themselves concerned mothers; antiracists police academic speech, when once it was anti-porn feminists who did it; AI becomes the new Wild West overtaking that lawless territory of yore, the World Wide Web — but the script is still the same.

It’s hard not to respond to the outrage du jour and I’m finding perspective elusive in the aftermath of the latest disastrous election, but I do know this: the urge to censor will continue in old and new forms, regardless of who controls the White House. I don’t mean to be setting up a false equivalence here. The Trump presidency already looks primed to indulge his authoritarian proclivities and unleash mobs of freelance vigilantes, and that should frighten the hell out of all of us. I do mean to point out that the instinct to cover other people’s mouths, eyes, and ears is ancient and persistent and not necessarily restricted to those we disagree with. But now, of all times, given what’s heading our way, we need a capacious view and robust defense of the First Amendment from all quarters — as we always have.

Make No Law 

In a succinct 45 words, the First Amendment protects citizens from governmental restrictions on religious practices, speech, the press, and public airings of grievances in that order. It sounds pretty good, doesn’t it? But if a devil is ever in the details, it’s here, and the courts have been trying to sort those out over the last century or more. Working against such protections are the many often insidious ways to stifle expression, disagreement, and protest — in other words, censorship. Long ago, American abolitionist and social reformer Frederick Douglass said, “Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong that will be imposed upon them.” It was a warning that the ensuing 167 years haven’t proven wrong.

Censorship is used against vulnerable people by those who have the power to do so. The role such power plays became apparent in the last days of the recent election campaign when the Washington Post and the Los Angeles Times, at the insistence of their owners, declined to endorse anyone for president. Commentary by those who still care what the news media does ranged from a twist of the knife into the Post‘s Orwellian slogan, “Democracy Dies in Darkness” to assessments of the purpose or value of endorsements in the first place. These weren’t the only papers not to endorse a presidential candidate, but it’s hard not to read the motivation of their billionaire owners, Jeff Bezos and Patrick Soon-Shiong, as cowardice and self-interest rather than the principles they claimed they were supporting. 

Newspapers, print or digital, have always been gatekeepers of who and what gets covered, even as their influence has declined in the age of social media. Usually, political endorsements are crafted by editorial boards but are ultimately the prerogative of publishers. The obvious conflict of interest in each of those cases, however, speaks volumes about the drawback of news media being in the hands of ultra-rich individuals with competing business concerns. 

Journalists already expect to be very vulnerable during Donald Trump’s next term as president. After all, he’s called them an “enemy of the people,” encouraged violence against them, and never made a secret of how he resents them, even as he’s also courted them relentlessly. During his administration, he seized the phone records of reporters at the New York Times, the Washington Post, and CNN; called for revoking the broadcast licenses of national news organizations; and vowed to jail journalists who refuse to identify their confidential sources, later tossing editors and publishers into that threatened mix for good measure. 

It can be hard to tell if Trump means what he says or can even say what he means, but you can bet that, with an enemies list that makes President Richard Nixon look like a piker, he intends to try to hobble the press in multiple ways. There are limits to what any president can do in that realm, but while challenges to the First Amendment usually end up in the courts, in the time the cases take to be resolved, Trump can make the lives of journalists and publishers miserable indeed.

Tinker, Tailor, Journalist, Spy

Among the threats keeping free press advocates up at night is abuse of the Espionage Act. That law dates from 1917 during World War I, when it was used to prosecute antidraft and antiwar activists and is now used to prosecute government employees for revealing confidential information.

Before Trump himself was charged under the Espionage Act for illegally retaining classified documents at his Mar-a-Lago estate in Florida after he left office, his Justice Department used it to prosecute six people for disclosing classified information. That included Wikileaks founder Julian Assange on conspiracy charges — the first time the Espionage Act had ever been used against someone for simply publishing such information. The case continued under President Biden until Assange’s plea deal this past summer, when he admitted guilt in conspiring to obtain and disclose confidential U.S. documents, thereby setting an unnerving precedent for our media future.

In his first term, Trump’s was a particularly leaky White House, but fewer leakers (or whistleblowers, depending on your perspective) were indicted under the Espionage Act then than during Barack Obama’s administration, which still holds the record with eight prosecutions, more than all previous presidencies combined. That set the tone for intolerance of leaks, while ensnaring journalists trying to protect their sources. In a notably durable case – it went on from 2008 to 2015 — James Risen, then a New York Times reporter, fought the government’s insistence that he testify about a confidential source he used for a book about the CIA. Although Obama’s Justice Department ultimately withdrew its subpoena, Risen’s protracted legal battle clearly had a chilling effect (as it was undoubtedly meant to). 

Governments of all political dispositions keep secrets and seldom look kindly on anyone who spills them. It is, however, the job of journalists to inform the public about what the government is doing and that, almost by definition, can involve delving into secrets. Journalists as a breed are not easily scared into silence, and no American journalist has been found guilty under the Espionage Act so far, but that law still remains a powerful tool of suppression, open to abuse by any president. It has historically made self-censorship on the part of reporters, editors, and publishers an appealing accommodation.

Testing the Limits

Years ago, the legal theorist Thomas Emerson pointed to how consistently expression has indeed been restricted during dark times in American history. He could, in fact, have been writing about the response to protests over the war in Gaza on American campuses, where restrictions came, not from a government hostile to unfettered inquiry, but from institutions whose purpose is supposedly to foster and promote it.

After a fractious spring, colleges and universities around the country were determined to restore order. Going into the fall semester, they changed rules, strengthened punishments, and increased the ways they monitored expressive activities. To be fair, many of them also declared their intention to maintain a climate of open discussion and learning. Left unsaid was their need to mollify their funders, including the federal government. 

In a message sent to college and university presidents last April, the ACLU recognized the tough spot administrators were in and acknowledged the need for some restrictions, but also warned that “campus leaders must resist the pressures placed on them by politicians seeking to exploit campus tensions to advance their own notoriety or partisan agendas.”

As if in direct rebuttal, on Halloween, the newly philosemitic House Committee on Education and the Workforce issued its report on campus antisemitism. Harvard (whose previous president Claudine Gay had been forced out, in part, because of her testimony to the committee) played a large role in that report’s claims of rampant on-campus antisemitism and civil rights abuses. It charged that the school’s administration had fumbled its public statements, that its faculty had intervened “to prevent meaningful discipline,” and that Gay had “launched into a personal attack” on Representative Elise Stefanik, a Republican committee member and Harvard graduate, at a Board of Overseers meeting. The report included emails and texts revealing school administrators tying themselves in knots over language that tried to appease everyone and ended up pleasing no one. The overarching tone of the report, though, was outrage that Gay and other university presidents didn’t show proper obeisance to the committee or rain sufficient punishment on their students’ heads.

Harvard continues to struggle. In September, a group of students staged a “study-in” at Widener, the school’s main library. Wearing keffiyehs, they worked silently at laptops bearing messages like “Israel bombs, Harvard pays.” The administration responded by barring a dozen protesters from that library (but not from accessing library materials) for two weeks, whereupon 30 professors staged their own “study-in” to protest the punishment and were similarly barred from the library.

The administration backed up its actions by pointing to an official statement from last January clarifying that protests are impermissible in several settings, including libraries, and maintained that the students had been forewarned. Moreover, civil disobedience comes with consequences. No doubt the protesters were testing the administration and, had they gotten no response, probably would have tried another provocation. As Harry Lewis, a former Harvard dean and current professor, told The Boston Globe, “Students will always outsmart you on regulating these things unless they buy into the principles.” Still, administrators had considerable leeway in deciding how to respond and they chose the punitive option.

Getting a buy-in sounds like what Wesleyan University President Michael Roth aimed for in a manifesto of sorts that he wrote last May, as students erected a protest encampment on his campus. Laying out his thinking on the importance of tolerating or even encouraging peaceful student protests over the war in Gaza, he wrote, “Neutrality is complicity,” adding, “I don’t get to choose the protesters’ messages. I do want to pay attention to them… How can I not respect students for paying attention to things that matter so much?” It was heartening to read.

Alas, the tolerance didn’t hold. In this political moment, it probably couldn’t. In September, Roth called in city police when students staged a sit-in at the university’s investment office just before a vote by its board of trustees on divesting from companies that support the Israeli military. Five students were placed on disciplinary probation for a year and, after a pro-divestment rally the next day, eight students received disciplinary charge letters for breaking a slew of rules. 

Why Fight It

The right to free expression is the one that other democratic rights we hold dear rely on. Respecting it allows us to find better resolutions to societal tensions and interpersonal dissonance than outlawing words. But the First Amendment comes with inherent contradictions so, bless its confusing little heart, it manages to piss off nearly everyone sooner or later. Self-protection is innate, tolerance an acquired taste. 

One of the stumbling blocks is that the First Amendment defends speech we find odious along with speech we like, ideas that frighten us along with ideas we embrace, jack-booted marches along with pink-hatted ones. After all, popular speech doesn’t need protection. It’s the marginal stuff that does. But the marginal might be — today or sometime in the future — what we ourselves want to say, support, or advocate.

And so, I return to those long-ago banned book readings, which culminated with everyone reciting the First Amendment together, a tradition I continued with my journalism students whenever I taught about press freedoms. Speaking words out loud is different from reading them silently. You hear and know them, sometimes for what seems like the first time. Maybe that’s why our communal celebration of the First Amendment seemed to amuse, embarrass, and impress the students in unequal measure. I think they got it, though. 

I recognize that this kind of exhortation is many planks short of a strategy, but it’s a place to start, especially in the age of Donald Trump, because, in the end, the best reason to embrace and protect the First Amendment is that we will miss it when it’s gone.

Copyright 2024 Nan Levinson

Tomdispatch.com

CNN gleaned the following salty quotes from Bob Woodward’s new book, War:

In April, after Netanyahu had crowded nearly two million people into the small southern Gaza province of Rafah, the Israeli prime minister told Biden he wanted to invade Rafah, as well.

““What’s your strategy, man?” Biden asked Netanyahu during an April phone call, Woodward reports.

“We have to go into Rafah,” Netanyahu said.

“Bibi, you’ve got no strategy.” Biden responded.

Biden was likely saying that Netanyahu had no vision for what a post-war Gaza would look like, and how to shape it in Israel’s interest. The Israeli PM only had tactics — invading neighborhoods and destroying them, constantly expelling Palestinians from their temporary refuges to other places, most of them in rubble and without adequate food, water or medical care. Those tactics are severe violations of international law, but Biden seemed to think that the bigger problem with them was that they were not accompanied by any grand strategy.

After Netanyahu tried to get Iran’s goat by bombing its embassy in Damascus and Iran’s response with a missile launch was ineffectual, Biden told Netanyahu to “take the win.” Netanyahu struck Iran in a minor operation to save face. Biden said he knew Netanyahu would do something to Iran, but to pressure him into a light retaliation he said he had told him to do nothing.

Biden seemed to think he could rein in Netanyahu by just jawboning him. But he realized when the Israelis defied the US president by invading Rafah in May that Netanyahu had just been shining him on with denials.

CNN says Biden said in private after Netanyahu crossed the red line and invaded Rafah, “He’s a fucking liar.”

He also said that spring, “That son of a bitch, Bibi Netanyahu, he’s a bad guy. He’s a bad fucking guy!”

Click here

Then when Netanyahu took out a Hezbollah military commander in Beirut in July, Biden held a tense call with the Israeli head of state, shouting, “Bibi, what the fuck? You know the perception of Israel around the world increasingly is that you’re a rogue state, a rogue actor.” Of course Netanyahu defended his actions in the Revisionist Zionist way, insisting that you defeat enemies by crushing them when you can.

OK, so as a writer and professor I am not impressed by profanity. A person can usually make a stronger point with a little eloquence than with a potty mouth.

That said, Woodward is reporting that Biden does not have scales over his eyes about Netanyahu. But the prime minister is not just a “bad fucking guy.” The gangster John Gotti was a “bad fucking guy.” Netanyahu has polished off tens of thousands of innocents and is now threatening to level a whole country, Lebanon, the way he leveled Gaza.

“Bad Effing Guy,” Digital, Dream / Dreamland v3 / Clip2Comic, 2024.

Netanyahu has become a Slobodan Milosevic. When Communist Yugoslavia fell apart in 1990-1992, some politicians saw a possibility for expanding their power through ethnic chauvinism. Milosevic depicted Serbs as beset by enemies, and came into conflict initially with both Croatian Catholics and Bosnian Muslims. All these groups spoke a form of Serbo-Croatian, and most people were not religious, but their religious heritage was all that divided them, so Milosevic concentrated on that.

Although Milosevic depicted himself as a victim, you could tell he was an aggressor because his territory kept growing at the expense of neighbors. Early in the conflict his army fought the Croatians. He genocided the Bosnian Muslims. He went after the Muslims in Kosovo. He wanted to have his Serbian ethno-state expand and shrink the territory of the other ethnic groups. Serbia would grow much bigger through massacres.

Bill Clinton and Madeleine Albright stopped Milosevic. The US Air Fore pushed his armies back from the Bosnians and Kosovars. Although NATO initially refused to intervene, Clinton ultimately got the orgranization’s backing for post-war reconstruction and stability operations.

In contrast to Clinton, Biden is perfectly sanguine about Milosevicism when it is carried out by the Israeli prime minister.

I cannot understand Biden’s Hamlet-like indecision. Biden lets Netanyahu get away with murder, constantly running interference for him. He said he doubted the number of Palestinian casualties. That is just mean. He said “People die in war.” He denied that Israel is committing a genocide. He set red lines, and when Netanyahu called his bluff, Biden backed down.

He may have muttered some profanities under his breath about Netanyahu, but Biden did nothing. He could have cut off Netanyahu’s ammunition. The Israelis ran out of ammunition a long time ago. Biden resupplies them in real time from Pentagon stockpiles, in ways that may be illegal in US law. Biden’s secretary of state deep-sixed a US AID finding that Israel was using American weapons to commit war crimes. According to ProPublica, Blinken lied about Israel’s war crimes to Congress, since admitting them would have triggered the Leahy Act, which forbids US weapons exports if the recipient country seems likely to use them in illegal ways such as hitting civilians. And boy, is Netanyahu hitting civilians. Biden has sent billions in extra weaponry to the “bad fucking guy.” Why?

So I’m not impressed with Biden’s potty mouth about Netanyahu. Most presidents don’t let bad guys get away with murder. Biden does.

Netanyahu’s Israel is indeed acting like a rogue state, and it is because Biden issued them a license to allow that.

In the end, Biden is as much a villain of the piece as Netanyahu. The president knows the score. He refuses to do anything about it. I don’t know if he thinks Arabs aren’t human, or really believes that over 41,000 haven’t been killed. Either way, his views are inexcusable and constitute war crimes in themselves.

Putting aside the chain of events leading to this case, it is, in essence about how politics prevails over law. The focus of the questioning by the various justices centered on Trump’s official acts as president. To what extent are certain acts within a president’s official duties and which ones could be subject to criminal prosecution, committed while in office once the president leaves office? The questions were an effort to distinguish between those official acts within a president’s legal authority that are spelled out in the U.S. Constitution and non-official or private acts, which could be prosecuted after a president leaves office.

The justices’ questions centered on ahistorical, hypothetical examples. This line of questioning began with Justice Thomas asking what defines acts which are part of a president’s official duties? Justice Kagan expressed skepticism in her response to Trump’s attorney questioning whether impeachment and conviction are prerequisites before a president could face criminal charges. Her hypothetical question was “Let’s say a president who ordered the military to stage a coup, he’s no longer president, he wasn’t impeached. He couldn’t be impeached but he ordered the military to stage a coup. And you’re saying that’s an official act?” A similar question was asked by Justice Sotomayer, but it was whether a president could decide “that his rival is a corrupt person and orders the military or orders someone to assassinate him, is that within his official acts from which he can get immunity?”

In another series of questions, the justices paid attention to what could be the difference between absolute and limited immunity. In addressing the issue of absolute immunity, Justice Jackson asked about the significance of Nixon’s pardon, which implies that a president could be prosecuted for his actions while in office. From her line of questioning, she appeared skeptical of a president having absolute immunity. Based on the line of questioning from the conservative majority on the Court, there was a willingness to entertain some form of immunity. In particular, Justice Alito expressed his concern over the danger of an incumbent president who lost a reelection be in as being put in a “peculiarly precarious position,” at the mercy of a prosecution by the incoming presidential administration. It needs to be stated that Alito’s concern is at odds with the historical record.

It is in my view, quite surprising, not just that the justices are willing to overlook Trump’s actions while in office, but most importantly that they ignore what the historical record tells us about the question of presidential immunity. This is where Schmitt’s concept of sovereignty is relevant. Schmitt’s insight appears in his theoretical construction of how politics exercised by a sovereign prevails over law. What his theory of the sovereign tells us is how presidents over time have been immune from prosecution. This immunity is evident in what are obvious violations of national and international law. So while the justices with their hypothetical questions appear to wrestle with the concept of immunity for presidents, historical examples demonstrate the matter of presidential immunity is settled. With the exception of the Nixon administration, presidents have been immune from prosecution.

Andrew Kolin, Trump and Trumpism: The Destructive Politics of American Fascism, Rowman and Littlefield. Click here to buy.

That is because presidents have acted in such a manner that their political actions as sovereigns prevail over law over time. How so? A representative historical samples indicates that presidents have consistently violated national and international legal norms. One way to sidestep law is to declare a state of national emergency. This option fits into Schmitt’s reference to a sovereign deciding on the exception. For example, President Lincoln suspended habeas corpus during the Civil War. President Wilson clearly violated key provisions of the first amendment prior to and during World War I, with the support of Congress, enacting legislation that led to the passage of the Alien and Sedition Acts and the Espionage Act. These measures, in essence, made first amendment rights illegal.

During World War II, there was another political exception to the rule of law, with the confinement of Japanese Americans. In the 1950s, McCarthyism in the context of anti-Communist hysteria, undermined what are supposed to be civil liberties protections. Presidents Johnson and Nixon and Hoover, head of the FBI, made use of Cointelpro and undermined civil liberties while the Church Committee hearings exposed w the illegal actions of the Nixon administration and previous administrations. One significant result was a reform known as the Foreign Intelligence Surveillance Act (FISA), a noble effort to place legal restraints on how presidents made use of illegal surveillance, and yet over time the FISA courts led to illegal acts being ruled as legal.

Consider the response of the Bush administration to the attacks of 9/11. Under the guise of a “war on terrorism,” and given legal cover under John Yoo’s Office of Legal Counsel ruling, the U.S. government found the political means to torture, a clear violation of the Torture Convention, to which the U.S. was a signatory. There is ample evidence of torture practiced in Abu Ghraib and Guantanamo Bay. The question this: were any officials, including former President Bush, subjected to prosecution? The answer is no. In fact, President Obama wanted to move forward and not consider legal remedies, such as prosecution.

These examples point to the use of politics by a sovereign in a time of a declared emergency that serve to justify the sidestepping of the law, eliminating any potential for prosecution. Previous presidents have justified putting aside any possible legal restraints on the exercise of power by declaring states of emergency in either peacetime or wartime. Whatever the Supreme Court decides, presidents in the past have been able to make use of Schmitt’s exception to discard legal-constitutional limits so that presidents can act outside the law by justifying either a real or manufactured emergency and in so doing, become immune from prosecution.

What is unique is that Trump’s attorneys have requested that the Court rule to normalize immunity without any justification in relation to a declared state of emergency. If the Court rules to provide some form of immunity for Trump, it will be realizing Schmitt’s exception, which allows presidents to be completely above the law in all circumstances, acting, in essence, as fascist dictators.

—-

Featured image: “Donald I,” Digital, Dream/ Dreamworld v. 3, IbisPaint, by Juan Cole, 2024

Since Congress, which appears to have a disproportionate number of genocidal maniacs in its ranks, is all right with the Palestinians being subjected to mass murder, it should come as no surprise that they are all right with their remaining unfree from the Jordan River to the Mediterranean Sea.

As often has been the case in American history, the House of Representatives has failed to understand its role in the Constitution. The representatives might like to consult their own website, which notes that the First Amendment says,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The resolution passed Wednesday is a blatant attempt to abridge the freedom of speech. That is why it is a resolution and not incorporated into a law, because the law would be struck down immediately. As for the resolution, it is hateful hot air.

The resolution alleges that the phrase “From the river to the sea, Palestine will be free” is “antisemitic.” They seem to be worse readers of texts even than they are constitutional scholars. The phrase doesn’t mention Jews. It says that Palestine will be free.

Palestine is currently not free.

However, on 13 December, 1993, U.S. Secretary of State Warren Christopher signed the Oslo Peace Accords. These accords, which have the force of U.S. law, specified that Israel would withdraw from Gaza and the Palestinian West Bank by 1997 and turn their governance over to the Palestine Authority, that is, the state of Palestine. Had the Oslo accords been implemented, then from the Jordan River to the Mediterranean Sea, Palestine would have been free.

They were not implemented because the accords were deliberately derailed by the far right wing Likud Party led by Binyamin Netanyahu. Netanyahu boasted about his role in ensuring that Palestine did not become free. The Likud wants to annex the West Bank and Gaza and to ethnically cleanse the Palestinian population (which the New York Times is forbidden to tell you).

Video: “Netanyahu boasting about Manipulating America and derailing Oslo peace process”

So the chant, “From the river to the sea, Palestine will be free,” can be read as an insistence that Oslo, which is US treaty law, actually be implemented.

The congressional resolution insists that the phrase must mean that the state of Palestine would constitute all the land of historic Palestine, i.e. the area of the British Mandate of Palestine. In such a scenario, there would be no place for Israel.

However, in those Oslo Peace Accords of 1993, signed by the chairman of the Palestine Liberation Organization (PLO), Yasser Arafat, that organization agreed to recognize Israel.

So supporters of the PLO and of the state of Palestine obviously do not mean by the chant to take back away that recognition. In fact, the ones who reneged are the Israelis, who took back away their recognition of Palestine.

It may be that some people who use the phrase “from the river to the sea” mean it in an anti-Israel fashion. That it always has this sense is not something that members Congress, most of whom are signally ignorant of the Middle East, can stipulate. If we stop letting Congress play ventriloquist with Palestinians, and listen to actual Palestinians, what do we hear?

Yusuf Munayyer wrote in Jewish Currents, “I wasn’t concerned with Israel’s identity crisis over whether it could be both Jewish and democratic; I was concerned that Palestinians were being denied basic rights throughout their homeland. My column, “From the River to the Sea,” would be focused on the unity of the Palestinian experience and how all Palestinians faced a shared struggle with Zionism regardless of where they lived.”

Rep. Rashida Tlaib wrote, “From the river to the sea is an aspirational call for freedom, human rights, and peaceful coexistence, not death, destruction, or hate.”

MSNBC: “Rep. Rashida Tlaib responds to House censure vote”

Congress complains that the phrase seeks to deprive the Jewish people of the right of self-determination. But the Jewish people in the sense of followers of the Judaic religion are not a national unit. American Jews are Americans. If Congress is saying that all Jews everywhere have the right of collective self-determination and that it can only be exercised in historic Palestine, then it is saying that the 6 million American Jews are deprived of that right. The resolution reduces American Jews to second-class citizens in the US. What could be more antisemitic than this resolution?

The statement is not about the Judaic religion but about the political doctrines of Zionism, which Congress is attempting to impose on us all. Moreover, the perspective adopted in the congressional resolution is not that of garden variety Zionism but that of the most extreme, fascistic forms of the ideology, which rule out a Palestinian state and any basic human rights for the 14 million Palestinians, who surely have as much right to collective self-determination as the 16 million Jews.

In contrast, the Mandatory authority in British Palestine, given that charge by the Versailles Peace Conference and its San Remo satellite conference after World War I, in its last official pronouncement of London’s vision of the future, the 1939 White Paper, said:

“The objective of His Majesty’s Government is the establishment within 10 years of an independent Palestine State in such treaty relations with the United Kingdom as will provide satisfactorily for the commercial and strategic requirements of both countries in the future. The proposal for the establishment of the independent State would involve consultation with the Council of the League of Nations with a view to the termination of the Mandate.

The independent State should be one in which Arabs and Jews share government in such a way as to ensure that the essential interests of each community are safeguarded.”

The mandatory authority envisioned that the Palestinian people in its charge would be no different from the Syrian people under French rule, the Iraqi people under British rule (class A mandates), or the people of French and British [formerly German] Togoland, which were Class B mandates. British Togoland became part of Ghana and French Togoland became the Togolese Republic or Togo. There is today a Syria, an Iraq, a Togo. There is no Palestine. International law was thwarted by hard line Zionists, in the crimes of whom Congress is an accessory after the fact.

The League of Nations and then the United Nations were committed to ending the problem of statelessness and would not have wanted the Palestinians to be colonized forever, and forever to lack collective sovereignty.

Again, this principle was made explicit by the British government:

“His Majesty’s Government are charged as the Mandatory authority “to secure the development of self governing institutions” in Palestine. Apart from this specific obligation, they would regard it as contrary to the whole spirit of the Mandate system that the population of Palestine should remain forever under Mandatory tutelage. It is proper that the people of the country should as early as possible enjoy the rights of self-government which are exercised by the people of neighbouring countries.”

So the first nation to pledge that “from the river to the sea, Palestine will be free” (by 1949!) was the United Kingdom, the mandatory authority to which the League of Nations and then the United Nations forwarded the rule of Palestine. Moreover, its pledges in this regard have continuing force in international law regarding the ultimate disposition of the Palestinian people.

The UN General Assembly partition plan of 1947 was no more than a (remarkably pro-Zionist) suggestion and did not have the force of law. Only the UNSC has executive authority, and that body never adopted the plan. Both the Zionists and the Palestinians rejected it. Some Zionist apologists pretend that David Ben Gurion and other Zionist leaders accepted the plan, but then why did they usurp territory such as the Galilee that was not awarded to them? Ben Gurion wrote in his diary when Israel was founded in 1948 that its borders were not specified in the constitution, just as those of the United States had not been in its. He had in mind an expansionist Manifest Destiny, and tried to annex Egypt’s Sinai Peninsula, Palestinian Gaza and southern Lebanon, and officials around him plotted to get the West Bank from the late 1950s. Does that sound like he accepted the UNGA map?

Moreover, the Palestinian rejection of the UNGA proposal is no grounds for forever denying them the right to citizenship in a state, which is denied to no other people in the world. That is, there are peoples who chafe at the citizenship they have, such as Syrian Kurds, but there is no other group of several million people who have been kept stateless for many decades the way the Palestinians have been.

An end to this statelessness is one of the things that is meant by “from the river to the sea, Palestine will be free.” Congress has repeatedly obstructed any attempt to end Palestinian statelessness or to realize the vision of even the British colonialists, supercilious and racist as they were. Congress is clearly much more so. “It is proper,” British officials maintained, “that the people of the country should as early as possible enjoy the rights of self-government which are exercised by the people of neighbouring countries.” “As early as possible” was not envisioned in 1939 as some date after 2024.

Letter to Texas Governor Greg Abbott regarding Executive Order GA-44

( Tomdispatch.com) – When the Civil War ended in 1865, the 76-year-old Constitution needed an upgrading and those leading the country did indeed dramatically transform it with the passage of the 13th, 14th, and 15th Amendments, known collectively as the Reconstruction Era amendments. The 13th (1865) abolished slavery, while the 15th (1870) gave voting rights to newly freed Black men.

However, it was the 14th Amendment, first drafted in 1866 and ratified in 1868, that would prove the most far-reaching and that today sits all too squarely between Donald Trump and his white nationalist and authoritarian dreams. While much attention has been rightfully focused on its “insurrection” clause (Section 3) and whether, thanks to it, Trump should be allowed to hold office, given his role in the January 6th attempted insurrection at the U.S. Capitol, his actions are also at odds with other key provisions of that amendment.

Trump’s Constitutional Indiscretions

It hardly needs to be said that Donald Trump is no constitutional scholar. At this point, though, there can be little doubt that his instincts are distinctly focused on some version of autocratic rule and white male privilege. No surprise then that, in his adult life, including as president, he’s staked out positions and advocated policies that distinctly conflict with the letter of, and the tone of, the 14th Amendment.

Mind you, he’s brazenly violated other parts of the Constitution as well, including the “emoluments” clause of Article 1, Section 6, and the “appropriations” clause of Article 1, Section 9. The foreign emolument section states that, without congressional assent, neither the president nor other office holders can “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Yet, as the Democrats on the House Oversight Committee documented, “Trump’s businesses received at least $7.8 million in payments from foreign governments and government-backed entities from 20 countries,” in itself adding up to a set of gifts (or do I mean grifts?) of historic proportions. Moreover, that figure is undoubtedly a significant underestimate of what he actually received. According to reporting by Citizens for Responsibility and Ethics in Washington (CREW), Trump’s businesses took in more than $160 million from international sources during his presidency.

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He also got away with violating the constitutional authority given only to Congress to appropriate federal spending by stealing funds from the military to try to build his border wall. To be specific, he diverted $2.5 billion from the military’s construction budget to that wall project of his. In June 2020, a federal appeals court found that the administration had acted illegally. By then, however, the money had been spent and Trump’s tenure would soon come to an end.

Preserving the 14th Amendment

Undoubtedly, however, his determination to put the 14th Amendment in the trashcan of history should draw the most concern. The rights that U.S. citizens cherish — from basic civil and human ones to not being ruled by insurrectionists — are most strongly protected by provisions in that amendment. The struggle to constitutionalize equal rights was one of the most important for the Black community after the Civil War. In November 1865, for example, a “54-foot long petition signed by hundreds of men,” organized by the State Convention of Colored People of South Carolina, was submitted to Congress demanding “equal rights before the law,” “an equal voice,” and “the elective franchise.”

The first line of the 14th Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Known as the “birthright citizenship” statement, it has almost universally been interpreted to mean that anyone born within the territory of the United States is automatically a full citizen. More than 30 countries have the principle of “jus soli” (of the soil) allowing citizenship with no qualifications to, or restrictions on, those born there, regardless of the status of their parents. Among the countries with no restrictions are Brazil, Canada, Cuba, El Salvador, Guyana, Mexico, Tanzania, Tuvalu, and the United States.

That statement was included in the 14th Amendment specifically to revoke the Supreme Court’s pre-Civil War 1857 Dred Scott v. Sanford decision — one of the most egregious it ever made — denying citizenship and any rights to Black people in the United States. Chief Justice Roger B. Taney infamously wrote that Black people and their descendants “had for more than a century been regarded as beings of an inferior order… they had no rights which the white man was bound to respect.”

In the post-Civil War environment, that ruling clearly had to be corrected and so the 14th Amendment’s congressional authors wrote it in such a way as to include not just newly freed slaves but anyone born in the United States. (The one all-too-ironic and shameful exception was Native Americans who weren’t given legal citizenship until 1924 under the Indian Citizenship Act.)

Donald Trump has long expressed a deep opposition to birthright citizenship. He and much of the far right refer to it derogatorily as “birth tourism” and claim that thousands of women are coming to this country just to have children who would automatically become citizens. There should be no doubt that he and his followers are speaking of immigrants of color from the global South. When elected in 2016, he promptly declared that he would abolish birthright citizenship with an executive order. He was then informed that such an order would never stand up legally and only in January 2020 did he finally propose new rules for the State Department that were meant to stop it from issuing visas to visitors coming to this country supposedly for the purpose of birth tourism. It was notable, by the way, that the nations of Western Europe were excluded from those rules, which in any case were so vague as to be impossible to enforce without breaking laws on privacy. Ultimately, the consensus among scholars is that it would take a constitutional amendment to end what is now a constitutional right.

Yet Trump continues to declare that, should he win the presidency in 2024, one of his priorities will indeed be to abolish birthright citizenship. As he put it last year, “As part of my plan to secure the border, on Day One of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship.” His contention that he has a “correct” interpretation of the law is distinctly in conflict with the history of past challenges to that amendment. Previous Supreme Courts, whether dominated by liberals or conservatives, have upheld birthright citizenship on numerous occasions, starting with the 1898 Wong Kim Ark case. Trump, of course, is betting that his three appointments to the court and at least two other conservative justices will finally break with such precedents.

Section 1 of the 14th Amendment also guarantees “due process” and “equal protection under the laws.” That “due process” clause was specifically meant to stop southern whites who returned to power in the post-Civil War era from passing state laws and enacting other policies that would legally treat newly freed Blacks differently. In the immediate aftermath of the war, however, “Black codes” were indeed enacted by pro-slavery whites in southern legislatures. As a result, Congress felt called upon to pass laws, known as the Enforcement Acts, meant to ensure that the 14th and 15th Amendments would be the law of the land and that the rights of Black people would be protected.

In 1896, equal protection for African Americans and other people of color would nonetheless be nearly trampled to death by the Supreme Court’s ruling in Plessy v. Ferguson. That decision, in fact, would sanction racial segregation thanks to a perverse interpretation of the 14th Amendment under the banner of “separate but equal” (which, of course, actually meant separate and distinctly unequal). Almost 60 years of Jim Crow segregation followed until, in 1955, the Supreme Court’s Brown v. Board of Education ruling reinterpreted the equal protection clause to ensure that “separate” could never be interpreted to mean “equal.”

Trump, however, has demonstrated strikingly little fealty to the principle of due process for all. From his 1989 call for the death penalty for five young Black and Brown men before they even had a trial to his threatening insistence that Hillary Clinton and others of his political opponents be jailed based purely on personal grievances and vendettas, he’s never faintly respected the constitutional rights of others. He’s called for protesters to be beaten at his rallies and mused that Black Lives Matter activists should be shot in the legs at demonstrations.

When it came to foreign policy and immigration policy, his administration (with his fervent backing) separated children from their parents in a fierce crackdown on undocumented aliens, while he demanded a “total and complete shutdown of Muslims entering the U.S.” In addition to the racism and cruelty of such policies, they plainly violated the equal protection clause of the 14th Amendment.

For the Civil Rights Movement and, more broadly, all movements for social justice and human rights in the United States, the equal protection clause has proven decisive. The 1964 Civil Rights Act and the 1965 Voting Rights Act were typically passed on the principle of “equal protection.” It was also the basis for ending bans on interracial marriage (Loving v. Virginia), providing abortion rights to women nationally (Roe v. Wade), and allowing same-sex marriage in every state (Obergefell v. Hodges).

As demonstrated by their rulings to end Roe, as well as affirmative action in university admissions (with the exception of military academies like West Point), Trump-appointed Supreme Court justices simply don’t believe in equal protection. For a candidate and party that brand themselves as proponents of “law-and-order” above all else, it’s clear that a reactionary version of “order” is significantly more important than fairness or the equal application of the rule of law to every citizen.

Insurrectionists Can’t Hold Office

Of course, as even certain conservative legal scholars have noted, Trump played a key role in launching the January 6th insurrection and, under the third section of the 14th Amendment, should be ineligible to run again for president. As that section reads, someone — an officer of state — who violates his or her oath “to support the Constitution of the United States” and who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” cannot hold office.

Thanks to Trump, millions of Americans now believe that he won an election he distinctly lost. Although he was told by most of his own experts and in dozens of court decisions that he had done so, he didn’t bother to share that information with his followers. Instead, he continued to foster misinformation and deep anger about that election. Without him, that crowd would never have gathered in Washington to “save America” and “stop the steal.” (“Be there, will be wild!” he tweeted to his followers.) Without him, its participants wouldn’t have gone to the Capitol. Without his exhortations that they needed to “fight like hell,” that crowd he was addressing at the Ellipse in Washington on January 6, 2021, might never have become quite so riled up.

Courts in Colorado and Maine have determined that Trump should not be allowed to stay on the ballot because of Section 3 of the 14th Amendment. In about half of the other states, cases have been filed to remove him due to his role in the insurrection (something on which the Supreme Court will seemingly soon rule).

Most telling, when it came to his cavalier disregard for constitutional rule, has been his claim that, since the oath of office he took as president only required him to “preserve, protect, and defend” the Constitution, he wasn’t obliged (as Section 3 demands) to “support the Constitution” on January 6th, a distinction only someone as venal as Trump would have made. But as CREW noted in response to the petition from Trump’s lawyers in the Colorado case, “The Constitution itself, historical context, and common sense, all make clear that the Fourteenth Amendment’s disqualification clause extends to the President and the Presidency.”

Even conservative lawyers J. Michael Luttig, Peter Keisler, Larry Thompson, Stuart Gerson, and Donald Ayer have argued in their amicus brief in the case that “Trump incited the threat and use of violent force as his last opportunity to stop the peaceful transfer of executive power.” They state unequivocally that he “had the intent that the armed mob, at the very least, threaten physical force on January 6, 2021, in response to his speech on the Ellipse.” And to be clear, as legal scholar and civil rights lawyer Sherrilyn Ifill argues in her brilliant amicus brief, Trump’s insurrection was targeted, in part, against the votes of African Americans.

No Understanding of, or Desire to Understand, the Constitution

In July 2016, as he was about to secure the Republican nomination for president, Trump had a closed-door meeting with House Republicans. In responding to a question about Article 1 of the Constitution that addresses the responsibilities, powers, and limits of the president, Trump stated: “I’m for Article I, I’m for Article II, I’m for Article XII.”

There are, in fact, only seven Articles in the U.S. Constitution.

From the day Donald Trump took office, he had no intention to “preserve, protect, and defend,” no less “support” the Constitution. Instead, he essentially ran roughshod over much of that document. And the issue was never simply his ignorance of the Constitution (though that should be taken for granted), but his outright hostility to it. That he has not yet been held accountable for that should be considered a disgrace in this era and will undoubtedly be seen as such by generations to come. Today, as in the years after its passage to defend the rights of the newly freed, the enforcement of the 14th Amendment remains as much a political question as a legal one.

In a sense, it couldn’t be simpler. President Donald Trump was an officer of the United States who incited and engaged in insurrection and so should be disqualified from ever again holding the office of the presidency. However, based on skeptical questioning by both liberal and conservative Supreme Court justices at the February 8th hearing on the case, it appears that the court will likely not allow Colorado or any other state to bar Trump from the ballot. If so, the Trump danger will continue — for now.

Copyright 2024 Clarence Lusane

Via Tomdispatch.com

( Michigan Advance ) – WASHINGTON — Former President Donald Trump can be prosecuted for charges he schemed to overturn the 2020 election, a three-judge panel of a federal appeals court ruled Tuesday, rejecting Trump’s argument he was immune from criminal prosecution for any alleged conduct during his presidential term.

In a unanimous opinion, the D.C. Circuit Court of Appeals panel denied Trump’s request to throw out the federal charges accusing him of lying to and encouraging supporters who turned violent on Jan. 6, 2021.

Trump and his attorneys argued the case should be dismissed because Trump was acting in his official capacity as president and that allowing a president to be sued would have disastrous consequences.

The court found those arguments were “unsupported by precedent, history or the text and structure of the Constitution.”

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” Tuesday’s unsigned opinion said. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

Trump is expected to appeal the ruling, either to the full D.C. Circuit or directly to the U.S. Supreme Court, in a process that could take months while he continues his campaign as the front-runner for the Republican presidential nomination.

Neither court is required to take the case, but exercising his appellate options will help Trump extend the case, potentially beyond Election Day, although Trump and his legal team have not explicitly said it is part of their strategy to delay the case as long as possible.

Further appeals

The full D.C. Circuit is “highly unlikely” to hear a further appeal of the presidential immunity ruling, according to legal experts Norman L. Eisen, Matthew A. Seligman and Joshua Kolb, who wrote an outline of potential timelines in the case for Just Security, a site devoted to foreign policy, democracy and security analysis, that published Jan. 9.

The Supreme Court is also “unlikely” to hear an appeal, they wrote.

Trump brought the appeal from a trial court in D.C., where he faces federal charges related to the 2021 attack on the Capitol. An investigation by special counsel Jack Smith resulted in a four-count indictment last year accusing Trump of conspiring to overturn the 2020 presidential election.

“MSNBC Video: “Maddow: Trump claim ‘outrighted mocked’ by court in immunity rejection”

The indictment accuses Trump of working with a group of co-conspirators to recruit false slates of electors, lying to the public about non-existent determinative election fraud and encouraging supporters to obstruct the election certification in a violent attack on the Capitol on Jan. 6, 2021.

Trump raised a so-called presidential immunity defense in the trial court, saying he could not be prosecuted for the actions alleged in the indictment because he was acting in his official capacity as president to counteract election fraud.

U.S. District Judge Tanya S. Chutkan denied that claim, a decision Trump appealed to the D.C. Circuit. On Friday, Chutkan also officially postponed his trial, which had been set to begin March 4.

Hours before the three-judge panel issued its ruling, Trump posted in all capital letters on his online platform, Truth Social, that “IF IMMUNITY IS NOT GRANTED TO A PRESIDENT, EVERY PRESIDENT THAT LEAVES OFFICE WILL BE IMMEDIATELY INDICTED BY THE OPPOSING PARTY.”

“WITHOUT COMPLETE IMMUNITY, A PRESIDENT OF THE UNITED STATES WOULD NOT BE ABLE TO PROPERLY FUNCTION!” he wrote.

Jacob Fischler

Jacob covers federal policy and helps direct national coverage as deputy Washington bureau chief for States Newsroom. Based in Oregon, he focuses on Western issues. His coverage areas include climate, energy development, public lands and infrastructure.

Ashley Murray

Ashley Murray covers the nation’s capital as a senior reporter for States Newsroom. Her coverage areas include domestic policy and appropriations.

Via Michigan Advance

Published under Creative Commons license CC BY-NC-ND 4.0.