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Sunday, May 18, 2014

You Can Have Your Kids Taken Away for Smoking Legal Pot



Marijuana may be legal in Colorado, yet harsh drug war laws still penalize society's most marginalized women.

It is no secret that marijuana legalization in Colorado and Washington ushered in internationally unprecedented progressive drug policy in the United States. What is lesser understood, however, is that these new “experimental” reforms do not necessarily peel back all of the many, punitive layers of drug war enforcement. Despite the prevailing notion that the consequences of marijuana prohibition are determined in criminal courts for crimes like possession and sale, some of the harshest punishments are steeped in ever-complicated family law and Child Protective Services (CPS).
Well-intentioned marijuana policy reform thus often leaves women, who are more likely to be their children’s primary caretakers, behind. The effects of enforcing anti-drug family law go so far, in fact, as to punish women for child abuse and neglect crimes ostensibly committed on their fetuses — even in states where marijuana is explicitly legal for all adults 21 and older.
“Drug endangered children” — the term used to describe various programs, tactics, and other efforts to address child abuse via drug use — represents “the new way drug warriors are trying to continue their war on marijuana, and has become a multi-agency federal, state, and local tool, which the states and agencies may use to get even more funds,” Sara Arnold, marijuana policy activist and founder of the Family Law Cannabis Alliance, told RH Reality Check. “Many cannabis [decriminalization] laws actually run the risk of making parents second-class citizens, because they end up being the only ones left who will face penalties for their cannabis use.”
For Colorado mother Amber Buster, marijuana use was a seemingly legal, effective treatment for debilitating side effects of pregnancy. Buster was expecting her third child when she experienced “morning” sickness so severe that her nausea and vomiting lasted throughout the day.
“I couldn’t even drink water or eat crackers,” Buster said. She worried nutritional deficiencies might affect her pregnancy. Familiar with medical marijuana because her mother and spouse are state-licensed users, Buster found that smoking a little weed improved her appetite enough that she could keep some food and liquids down.
Unbeknownst to her, however, Colorado’s marijuana law need not explicitly state exceptions to legalized adult marijuana use for such exceptions to exist. The complicated, incentive-based relationship between federal and state child abuse laws obscures parents’ protections under legalization.
“As long as cannabis is a scheduled controlled substance under federal law, it will be included in laws regarding child abuse/neglect and come into conflict with state laws — and leave it up to CPS departments to decide which policy they follow, unless they are specifically stopped from doing so,” Arnold explained in an email, adding that professionals, like doctors, who are tasked with reporting child abuse also have wide discretion. “Keep in mind that both mandated reporters [of child abuse] and CPS workers have qualified immunity; what this means is that they cannot be sued by parents who are wronged if they report or investigate a parent when they shouldn’t, as long as it was in good faith (and it is always presumed to be so unless there is clear proof it was malicious).”
The Child Abuse Prevention and Treatment Act (CAPTA) requires states receiving federal grants to meet a series of standards. It mandates, for example, that states address the needs of infants “affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure,” and that “health care providers involved in the delivery or care of” drug-exposed infants notify CPS, regardless of whether the baby’s health is threatened.
CAPTA’s failure to further define terms like “affected by an illegal substance” leaves hospital staff incredible discretion in determining which mothers they perceive as potential addicts whose children should be tested, which babies are “affected,” and even which drugs are “illegal.”
This discretion, in turn, allows for an unpredictable system often guided by confusion and biases from individual reporters of abuse and neglect.
Buster informed her primary physician that she was using marijuana for nausea because she had been taught that doctors are “supposed to have the truth in case anything happens.” The doctor thought of her marijuana use as the equivalent of smoking a cigarette, she said, and nonchalantly made a note of it. But nurses in the hospital where Buster gave birth were more concerned, and after discovering the note in her file, they notified the new mother that, despite an uncomplicated delivery and healthy infant, they were “required” to drug-test the baby. (There is no law explicitly requiring them to do so.)
The infant tested positive for THC, prompting three CPS visits to Buster’s home followed by a notice indicating an official finding of child abuse and neglect, all thanks to a well-intended note neither she nor her physician expected to cause such a kerfuffle. To Buster, the entire ordeal was shocking proof that marijuana in Colorado is only legal for some.
Indra Lusero, a Colorado attorney focusing on civil rights related to childbirth, took on Buster’s case. She argued that Buster’s marijuana use was legal under Amendment 64, and that CPS agents failed to find additional evidence of an unfit environment. She won her appeal and had the child abuse finding expunged before Buster went to trial. “The positive test for drug exposure basically became a de facto finding of abuse,” said Lusero. Moreover, she said that she doubts Buster is alone.
“I am confident there are other women who are facing charges [similar to Buster’s] and don’t have access to legal help,” said Lusero. “I am also confident that marijuana use is a factor in some complex cases where there are other variables related to abuse, and if parents had better access to legal help, marijuana use could be mitigated as an influential factor.”
One such example is custody battles, during which marijuana use could be presented as evidence of an unfit parent.
In two marijuana-related child abuse and neglect cases Lusero successfully fought, drug tests at birth were the primary cause of investigation. The law here is fuzzy: Colorado considers a positive drug test for a Schedule I or II controlled substance (as defined by the state’s Controlled Substance Act) an automatic finding of abuse or neglect, unless the Schedule II substance was taken legally as prescribed by a doctor. In Colorado, however, marijuana does not appear in the Schedule I or II category, creating a discrepancy between state and federal law (which does categorize marijuana as Schedule I) that individuals tasked with reporting child abuse have the leisure to define.
You see, CAPTA instructs states receiving funding to establish “mandatory reporters” of child abuse and neglect. In Colorado, these reporters range from marriage counselors to dental hygienists to clergy, all of whom are legally required to report maltreatment given “reasonable cause to know or suspect child abuse or neglect” or having observed “a child being subjected to circumstances or conditions that would reasonably result in abuse or neglect.” At the same time, they are tasked with interpreting the laws and making decisions about home lives that, though often requiring a wealth of intimate knowledge, are based on the individual reporter’s preconceived notions about drugs and who use them, including a host of race- and class-based biases.
“It would be nice to have some kind of policy — even if I could have expected that on my delivery date I would be harassed and forced to get involved in CPS,” said Buster. “It would be nice if maybe doctors would be required to tell you up-front that this could happen, that if you smoke marijuana and they end up testing your baby there’s a lot of things that could happen. At the time, I thought patient confidentiality applied, that it would only be brought up in the case of an emergency.”
Colorado legislators just introduced but failed to pass two bills tasked with “clarifying” the law in terms of drug-related child abuse and neglect, though not necessarily in a way that would have protected Buster.
The bills, SB 14-177 and SB 14-178, sought to define instances of a “drug-endangered child” while treating drug-endangerment as an automatic, punishable finding of child abuse and neglect. Concerning to Colorado legislators and marijuana policy activists alike, however, was that the bills were too sweeping to delicately address a complicated, yet exponentially important, issue. Critics’ amendments significantly reduced the bills’ oversight so that, by the time they reached the finish line, proponents argued the new legislation more narrowly defined drug-related child abuse than existing codes did.
Indeed, the new legislation added via amendments that de facto child abuse findings from drug endangerment can occur “ONLY” when a child’s welfare or health is threatened — a much-needed adjustment.
Still, the bills also expanded the existing code’s de facto finding of child abuse in several ways. SB 14-177, for example, introduced to state law two new definitions by which parental drug use could legally endanger and abuse/neglect children: a child’s “unrestricted access” to a controlled substance (including marijuana) and a parent’s “impairment” due to use of a controlled substance or legal substance capable of causing impairment. Under these new de facto child abuse findings, mandatory reporters would be tasked with judging proper marijuana storage, not to mention acceptable levels of highs, both of which leave the door to discretion wide open.
SB 14-177 and SB 14-178 also tried to broaden the law’s “manufacturing” focus on children near meth labs to consider parents who cultivated, produced, possessed, used, distributed, or obtained a controlled substance — such as voter-approved pot — where a child is present or resides, an automatic finding of child abuse. Amendments adding that abuse “ONLY” exists amid threat of injury soothed but did not eradicate concerns that state-sanctioned home grows might be treated by some individual reporters as de facto child abuse.
Even in their amended state, however, these laws fail to acknowledge that, even when legislative language mandates evidence of a safety risk, linking drug use to abuse ignites a judgement of parenting that is difficult to reverse.
Buster, for example, says her marijuana use was treated as illegal “because they just presumed I was getting my baby high instead of [treating nausea].”
This notion — that a person who smokes marijuana while pregnant is causing abuse to her fetus — is one scientists have repeatedly rejected. In an affidavit related to a similar case, Dr. Peter Fried, a psychology professor at Carleton University in Canada who has dedicated much of his career to studying the effects of prenatal marijuana exposure on infants, wrote:
Based on my 30 plus years of experience examining the newborn, infants, toddlers, children, adolescents and young adults born to women who used marihuana during pregnancy it is important to emphasize that to characterize an infant born to a woman who used marihuana during pregnancy as being ‘physically abused’ and/or ‘neglected’ is contrary to all scientific evidence (both mine and subsequent work by other researchers). The use of marijuana during pregnancy … has not been shown by any objective research to result in abuse or neglect.
Indeed, the legislative push to punish women for marijuana use during pregnancy is based not on science suggesting harm from which to protect children, but the notion of fetal rights.
Dorothy Roberts, University of Pennsylvania professor and author of “Killing the Black Body,” told RH Reality Check, “Punishing or monitoring a pregnant women for drug use relies on a view of the fetus as not just a separate person apart from the mother, but as if their interests are in conflict,” thus promoting the concept of fetal “personhood.”
Roberts also explained that the “very discretionary, very discriminatory” practices of Child Protective Services are rooted in racial stereotypes about drug use and mothering that continue to affect the outcome of CPS cases today.
“Drug use during pregnancy became a crime because it was targeted at Black women,” she said, acknowledging that “it has since moved to punish other women as well, but the conception of a public health problem as a crime relies on the vilification of Black women and their children.”
It began during the crack era, says Roberts, along with which came anti-drug hysteria including “the myth of the pregnant crack addict, who was thought to have no maternal instinct, and the myth of the ‘crack baby,’ who was supposed to be destined to be a criminal, a welfare dependent, a drug addict, and every anti-social behavior imaginable.”
The myth of the “crack baby,” too, has been debunked in several well-regarded studies. One found, for example, that doctors could not tell the difference between babies born crack-exposed from those born poverty-stricken.
The science is clear: Drug-related accusations of child abuse and neglect for crimes committed against a fetus are unsubstantiated.
Fighting against this trend in Child Protective Services will require more than just marijuana legalization. But to move the drug policy reform conversation in a direction that benefits women, there will need to be more women in positions of authority in the marijuana legalization movement — which is often overwhelmingly represented by men.
To offer resources like model legislation, female drug policy reformers are stepping up and organizing their own women-led groups, like the NORML Women’s Alliance and Sara Arnold’s Family Law Cannabis Alliance. As we usher in a new tide of marijuana policy reform, their work is paramount to ensuring marijuana legalization remain dedicated to social and racial justice for men, women, and parents alike.
“This is the next major battle in the long fight of marijuana reform,” said Arnold. “There is still some stigma about this issue even from marijuana reformers, and that has to change. The full might of marijuana reform needs to get behind this.”
Kristen Gwynne is a freelance reporter based in New York. Her work has appeared in The Nation, Salon and RollingStone.co

Saturday, April 12, 2014

DOJ Investigation Confirms: Albuquerque Police 'Executing' Citizens


Following release of report, rights groups calling for removal of mayor and police chief

- Lauren McCauley, staff writer 

Protesting against systemic abuse by the Albuquerque Police Department on Sunday April 6, demonstrators encountered officers in riot gear. (Photo: Cole L. Howard)

Residents of Albuquerque, New Mexico are marching on the police department Saturday to demand retribution against the city's mayor and police chief for their role in the police force's documented "execution" of citizens.

The march comes after the Department of Justice slammed the Albuquerque Police Department for their frequent use of excessive and lethal force in a damning report released on Thursday.

Though, according to advocates, abuse by local law enforcement has been systemic for years, calls for increased scrutiny of the APD were amplified following the police shooting death of James Boyd, a homeless man suffering from mental illness, on March 16.

Advocates welcomed the DOJ's findings, saying the report was "spot on" in terms of identifying the root causes of this behavior, such as the "aggressive culture of the department" and the way in which "force is prioritized in training."

However, according to David Correia, an organizer with the Task Force for Public Safety who has been working with families of victims of APD violence, the DOJ's inclusion of Mayor Richard J. Berry and police chief Gorden Eden in the negotiations for the consent decree, which will dictate how those recommendations will be implemented, is a "non-starter" for the community groups.

The systemic deficiencies identified by the DOJ are "all produced and reinforced through leadership," Correia told Common Dreams. "To say those people should be involved to us is 'no go.' We don't want them to be a part of it."

Further, Correia noted that the report did not go so far as to address some of the larger issues including laws around homelessness, access for people suffering from mental illness and access for veterans, which he says are also major contributors to the police violence in the city.

The Saturday evening protest will begin at 5 PM MST at Civic Plaza from where demonstrators will march to the APD. During another recent protest against the department, police assaulted demonstrators with tear gas.

Activists are calling for the removal of those officials, including Berry and Eden, who oversaw the frequent "execution" of citizens and for a federal monitor to be appointed. Correia said that they need to "interrupt the idea that this is somehow resolved," now that the DOJ has released their report.

"Our fear is that people will now think that the sheriff has come down in his white hat and we can all sit back and relax," Correia continued.

The Justice Department investigation, launched in November 2012, found:
APD officers too frequently use deadly force against people who pose a minimal threat and in situations where the conduct of the officers heightens the danger and contributes to the need to use force;
APD officers use less lethal force, including electronic controlled weapons, on people who are passively resisting, non-threatening, observably unable to comply with orders or pose only a minimal threat to the officers; and
Encounters between APD officers and persons with mental illness and in crisis too frequently result in a use of force or a higher level of force than necessary.
The DOJ also cited "systemic deficiencies" which contribute to these patterns which include deficient policies, failed accountability, inadequate training and supervision, ineffective systems of investigation and adjudication, the absence of a culture of community policing and a lack of sufficient civilian oversight.

This leaked video taken from a police helmet camera depicts APD officers killing unarmed homeless man, James Boyd:

Wednesday, April 2, 2014

United States Is Cruel, Inhuman and Degrading to Poor, UN Report Charges

  News & Politics  


The UN Human Rights Committee says the U.S. should stop criminalizing homeless people for being homeless.

Photo Credit: CBS New York; Screenshot / YouTube.com

Jerome Murdough, 56, a mentally ill homeless veteran, was just trying to stay alive during a New York City cold snap when he thought he found his spot: a stairwell leading to a roof in a Harlem public housing project. But that desperate act set in motion a nightmare ride through New York's criminal justice system that would end with Murdough dying of heat stroke in a Riker's Island jail cell. New York officials now say the system failed Murdough every which way.

When he was discovered, he should have been offered shelter. When he was arraigned, he should not have been slapped with $2,500 bail. When, unable to make bail, he ended up in jail, Murdough, because he was on medication for a mental condition, should have been monitored every 15 minutes, not left unwatched for at least four hours. It was during that untended time that Murdough, as an official told the Associated Press, "basically baked to death."
Now, as New York officials discuss the "tragedy" of last month and scapegoat one Riker's Island guard for Murdough's death — suspending him for 20 days — the United Nations has taken notice. Murdough is just the latest statistic in a series of needless deaths of homeless people while under arrest for "crimes" related to being unhoused, such as loitering or trespassing.

The U.N. Human Rights Committee in Geneva on Thursday condemned the United States for criminalizing homelessness, calling it "cruel, inhuman and degrading treatment" that violates international human rights treaty obligations. It also called upon the U.S. government to take corrective action, following a two-day review of U.S. government compliance with a human rights treaty ratified in 1992.

"I'm just simply baffled by the idea that people can be without shelter in a country, and then be treated as criminals for being without shelter," said Sir Nigel Rodley, chairman of the committee in closing statements on the U.S. review. "The idea of criminalizing people who don't have shelter is something that I think many of my colleagues might find as difficult as I do to even begin to comprehend."

The Committee called on the U.S. to abolish criminalization of homelessness laws and policies at state and local levels, intensify efforts to find solutions for homeless people in accordance with human rights standards and offer incentives for decriminalization, including giving local authorities funding for implementing alternatives and withholding funding for criminalizing the homeless.

Those recommendations run counter to the current trends in the nation. Laws targeting the homeless—loitering laws that ban sleeping or sitting too long in one public spot, or camping in parks overnight—have become increasingly common in communities throughout the country as homelessness has skyrocketed.

The National Law Center on Homelessness & Poverty (NLCHP), a D.C.-based advocacy organization which monitors laws that criminalize homeless people and litigates on behalf of poor people regularly conducts reviews of cities criminalizing homelessness and finds more and more laws banning such activities as sitting or lying in public places with each new survey.

"We welcome the Committee's Concluding Observations and call on our government to take swift action to solve homelessness with homes, not jails and prisons,” said Maria Foscarinis, the NLCHP executive director, in a statement. The NLCHP had submitted a report to the U.N. Committee for review.

Paul Boden, executive director of the Western Regional Advocacy Project, an umbrella organization of advocacy groups in the Western U.S. that is hoping states will sign onto a Bill of Rights for homeless people, said that more and more homeless people are being arrested, prosecuted and killed for actions relating to their poverty.

"The U.S. seems to talk a much bigger rhetoric than it practices," he said. "At the U.N. level, we have a horrible growing record of supporting repressive regimes, and as we bring our neo-liberal policies to America, we're doing the same thing here."

On March 16, a homeless man in Albuquerquewas shot and killed by police who were attempting to arrest him for illegal camping. James Boyd, 38 years old with a history of mental illness, was shot dead by Albuquerque police while his back was turned after a three-hour stand-off. Boyd, armed with a small knife, appeared to be surrendering when he was gunned down. The incident was caught on one of the officer's helmet-cams and has been posted on YouTube by at least half a dozen news outlets.

Albuquerque police officials had concluded that the shooting was justified, but the FBI has since announced it is launching an investigation into the incident and said it is already probing 23 officer-involved shootings in Albuquerque since 2010. On Sunday, hundreds of people marched through Albuquerque to protest the number of police shootings in the city, a day-long event that ended when police fired tear gas into the crowd.

Evelyn Nieves is a senior contributing writer and editor at AlterNet, living in San Francisco. She has been a reporter for both the New York Times and the Washington Post.

Monday, March 24, 2014

The Enclosure of the Commons

The Enclosure of the Commons 

For indigenous communities, biodiversity has always been a local, commonly shared resource on which they have been dependent for their livelihood. The current moves in many countries of the South to introduce new intellectual property laws under the GATT/WTO agreements to, in effect, 'enclose' these 'commons' and bring them under a regime of private property and patents for the benefit of corporations, are a grave threat to their very survival. 

by Vandana Shiva

THE 'enclosure' of biodiversity and knowledge is the final step in a series of enclosures that began with the rise of colonialism. Land and forests were the first resources to be 'enclosed' and converted from commons to commodities. Later on, water resources were 'enclosed' through dams, groundwater mining and privatisation schemes. Now it is the turn of biodiversity and knowledge to be 'enclosed' through intellectual property rights (IPRs). 

The destruction of commons was essential for the industrial revolution, to provide a supply of natural resources for raw material to industry. A life-support system can be shared, it cannot be owned as private property or exploited for private profit. The commons, therefore, had to be privatised, and people's sustenance base in these commons had to be appropriated, to feed the engine of industrial progress and capital accumulation. 

The enclosure of the commons has been called the revolution of the rich against the poor. However, enclosures are not just a historical episode that occurred in 16th century in England. The enclosure of the commons can be a guiding metaphor for understanding conflicts being generated by the expansion of IPR systems to biodiversity. 

The policy of deforestation and the enclosure of commons which started in England, was later replicated in the colonies in India. The first Indian Forest Act was passed in 1865 by the Supreme Legislative Council, which authorised the government to declare forests and wastelands ('benap' or unmeasured lands) as reserved forests. The introduction of this legislation marks the beginning of what is called the 'scientific management' of forests; it amounted basically to the formalisation of the erosion both of forests and of the rights of local people to forest produce. Though the forests were converted into state property, forest reservation was in fact an enclosure because it converted a common resource into a commercial one. The state merely mediated in the privatisation. 

In the colonial period peasants were forced to grow indigo instead of food, salt was taxed to provide revenues for the British military, and meanwhile, forests were being enclosed to transform them into state monopolies for commercial exploitation. In the rural areas, the effects on the peasants were the gradual erosion of usufruct rights (nistar rights) of access, of food, fuel, and livestock grazing from the community's common lands. The marginalisation of peasant communities' rights over their forests, sacred groves and 'wastelands' has been the prime cause of their impoverishment. 

Biodiversity has always been a local commonly owned and utilised resource for indigenous communities. A resource is common property when social systems exist to use it on the principles of justice and sustainability. This involves a combination of rights and responsibilities among users, a combination of utilisation and conservation, a sense of co-production with nature and sharing them among members of diverse communities. They do not view their heritage in terms of property at all, i.e. a good which has an owner and is used for the purpose of extracting economic benefits, but instead they view it in terms of possessing community and individual responsibility. For indigenous peoples, heritage is a bundle of relationships rather than a bundle of economic rights. That is the reason no concept of 'private property' exists among the communities for common resources. 

Within indigenous communities, despite some innovations being first introduced by individuals, innovation is seen as a social and collective phenomena and results of innovation are freely available to anyone who wants to use them. Consequently, not only the biodiversity but its utilisation have also been in the commons, being freely exchanged both within and between communities. Common resource knowledge based innovations have been passed on over centuries to new generations and adopted for newer uses, and these innovations have over time been absorbed into the common pool of knowledge about that resource. This common pool of knowledge has contributed immeasurably to the vast agricultural and medicinal plant diversity that exists today. Thus, the concept of individual 'property' rights to either the resource or to knowledge remain alien to the local community. This undoubtedly exacerbates the usurpation of the knowledge of indigenous people with serious consequences for them and for biodiversity conservation. 

The Western bias in defining property rights 

Today we have to look beyond the state and the market place to protect the rights of the two-thirds majority of India - the rural communities . Empowering the community with rights would enable the recovery of commons again. Commons are resources shaped, managed and utilised through community control. In the commons, no one can be excluded. The commons cannot be monopolised by the economically powerful citizen or corporation, or by the politically powerful state. 

Commons and communities are beyond both the market and the state. They are governed by self-determined norms, and are self managed. In the 'colonial' and 'development' era, the commons were enclosed and community power undermined by takeover by the state. Thus, water and forests were made state property, leading to the alienation of local communities, and the destruction of the resource base. Poverty, ecological destruction and social disintegration and political disempowerment have been the result of such state-driven 'enclosures'. 

In the globalisation era, the commons are being enclosed and the power of communities is being undermined by a corporate enclosure in which life itself is being transformed into the private property of corporations. The corporate enclosure is happening in two ways. Firstly, IPR systems are allowing the 'enclosure' of biodiversity and knowledge, thus eroding the commons and the community. Secondly, the corporation is being treated as the only form of association with legal personality. 

IPRs are the equivalent of the letters patent that the colonisers have used since 1492, when Colombus set precedence in treating the licence to conquer non-European peoples as a natural right of European men. The land titles issued by the Pope through European kings and queens were the first patents. Charters and patents issued to merchant adventurers were authorisations to 'discover, find, search out and view such remote heathen and barbarous lands, countries and territories not actually possessed of any Christian prince or people'. The colonisers' freedom was built on the slavery and subjugation of the people with original rights to the land. This violent takeover was rendered 'natural' by defining the colonised people into nature, thus denying them their humanity and freedom. 

Locke's treatise on property effectively legitimised this same process of theft and robbery during the enclosure movement in Europe. Locke clearly articulates capitalism's freedom to build on the freedom to steal; he states that property is created by removing resources from nature through mixing with labour in its 'spiritual' form as manifested in the control of capital. According to Locke, only capital can add value to appropriated nature, and hence only those who own the capital have the natural right to own natural resources; a right that supersedes the common rights of others with prior claims. Capital is thus, defined as a source of freedom, but this freedom is based on the denial of freedom to the land, forests, rivers and biodiversity that capital claims as its own. Because property obtained through privatisation of commons is equated with freedom, those commoners laying claim to it are perceived to be depriving the owners of capital of freedom. Thus, peasants and tribals who demand the return of their rights and access to resources are regarded as thieves and saboteurs. 

The takeover of territories and land in the past, and the takeover of biodiversity and indigenous knowledge now has been based on 'emptying' land and biodiversity of all relationships to indigenous people. 

All sustainable cultures, in their diversity, have viewed the earth as terra mater (mother earth). The colonial construct of the passivity of the earth and the consequent creation of the colonial category of land as terra nullius (nobody's land), served two purposes: it denied the existence and prior rights of original inhabitants and negated the regenerative capacity and life processes of the earth. 

In Australia, the concept of terra nullius (literally meaning 'empty land') was used to justify the appropriation of land and its natural resources, by declaring the entire continent of Australia uninhabited. This declaration enabled the colonisers to privatise the commons relatively easily, because as far as they were concerned, there were no commons existing in the first place! 

The decimation of indigenous peoples everywhere was justified morally on the grounds that they were not really human; and that they were part of the fauna. As Pilger has observed, the Encyclopedia Britannica appeared to be in no doubt about this in the context of Australia: 'Man in Australia is an animal of prey. More ferocious than the lynx, the leopard, or the hyena, he devours his own people.' In another Australian textbook, Triumph in the Tropics, Australian aborigines were equated with their half-wild dogs. Being animals, the original Australians and Americans, the Africans and Asians possessed no rights as human beings. Their lands could be usurped as terra nullius - lands empty of people, 'vacant', 'waste', and 'unused'. The morality of the missions justified the military takeover of resources all over the world to serve imperial markets. European men were thus able to describe their invasions as 'discoveries', piracy and theft as 'trade', and extermination and enslavement as their 'civilising mission'. 

Whether it is the gradual privatisation and divisibility of community held rights or the declaration of terra nullius, the transformation of common property rights into private property rights, implies the exclusion of the right to survival for large sections of society. The realisation that under conditions of limited availability, uncontrolled exploitation of natural resources involves taking away resources from those who need them for survival, has been an underlying element of Indian philosophy. Prudent and restrained use of resources has been viewed as an essential element of social justice. 

According to an ancient Indian text, the Ishopanishad: 

'A selfish man over utilising the resources of nature to satisfy his own ever increasing needs is nothing but a thief because using resources beyond one's needs would result in the utilisation of resources over which others have a right.' 
This relationship between restraint in resource use and social justice was also the core element of Mahatma Gandhi's political philosophy. In his view: 

'The earth provides enough for everyone's need, but not for everyone's greed.' 
The eurocentric concept of property views only capital investment as investment, and hence treats returns on capital investment as the only right that needs protection. Non-Western indigenous communities and cultures recognise that investment can also be of labour or of care and nurturance. Rights in such cultural systems protect investments beyond capital. They protect the culture of conservation and the culture of caring and sharing. 

There are major differences between ownership of resources shaped in Europe during the enclosures movement and during colonial takeover, and 'ownership' as it has been practised by tribals and farmers throughout history across diverse societies. The former is based on ownership as private property, based on concepts of returns on investment for profits. The latter is based on entitlements through usufruct rights, based on concepts of return on labour to provide for ourselves, our children, our families, our communities. Usufruct rights can be privately held or held in common. When held in common, they define common property. 

Equity is built into usufruct rights since ownership is based on returns on labour. The poor have survived in India in spite of having no access to capital because they have had guaranteed access to the resource base needed for sustenance - common pastures, water, and biodiversity. Sustainability and justice is built into usufructuary rights since there are physical limits on how much one can labour and hence there are limits on returns on investment of labour and return on investment. Inequity is built into private property based on ownership of capital since there is no limit on how much capital one can own and control and invest. 

IPRs as an extension of the eurocentric concept of property to biodiversity and biodiversity-related knowledge
The culturally biased and narrow notions of rights and property that have shaped IPRs are inadequate and inappropriate for indigenous cultures and for the objective of conserving biodiversity and cultural diversity. Through IPRs and TRIPs a particular eurocentric culture has been universalised and globalised. When applied to biodiversity, such narrow concepts of rights become mechanisms for denying the intrinsic worth of diverse species, and denying the prior rights and prior innovations of indigenous communities. 

The thrust of the Western IPR regimes in the area of biodiversity is diametrically opposed to indigenous knowledge systems. Knowledge is considered to be the produce of individual creativity, based on Western scientific thought and systems of knowledge creation and gathering whereby the resource base is merely viewed as 'raw material'. In this paradigm IPRs represent the property rights to the products of mind, thereby resulting in knowledge and creativity being so narrowly defined that the creativity of nature and non-Western knowledge systems have been ignored. 

The two categories of IPRs that have a direct impact on the erosion of prior rights of communities are patents and plant breeders' rights. Plant breeders' rights negate the contribution of Third World farmers as breeders and hence undermine farmers' rights. Patents allow the usurpation of indigenous knowledge as a Western invention through minor tinkering or trivial translation. 

The Union for the Protection of New Varieties of Plant (UPOV) Convention represents a Western-devised (therefore internationally 'acceptable') form of plant variety protection, other than patenting. 

A frequent comment heard in scientific and lay circles, is that 'we should patent all our traditional knowledge and biodiversity'. However, neither traditional knowledge nor biodiversity can be patented by indigenous practitioners because for indigenous societies, it is not 'novel', it is ancient. 

The reason that the collective and cumulative innovation of millions of people of thousands of years can be 'pirated' and claimed as an 'innovation' of Western-trained scientists or corporations is because of two reasons. The first reason is the colonial hangover of the idea that science is unique to the West, and indigenous knowledge systems cannot be treated as scientific. 

The second reason is that countries like the US, where most pirated indigenous innovations are filed for patenting, do not recognise the existing knowledge of other countries as prior art. Thus, while patent regimes offer no protection to indigenous communities for their common innovation and their common resources, they allow the appropriation of their biodiversity and knowledge by scientists and commercial interests of other cultures, including members of the 'modern' scientific culture in their own societies. 

IPR systems evolved in industrialised countries and reflected in the TRIPs agreement only recognise Western knowledge systems as scientific and formal and non-Western knowledge systems are regarded as unscientific and informal. The creation of monopoly rights to biodiversity utilisation through its claim to the creation of 'novelty' can have serious implications for erosion of national and community rights to biodiversity and devaluation of India's indigenous knowledge. TRIPs gives countries the option of formulating its own sui generis regime for plants as an alternative to patent protection . Collective rights can be a strong candidate for such sui generis systems for agricultural biodiversity and medicinal plant biodiversity. Therefore, it is crucial that community-held and utilised biodiversity knowledge systems are accorded legal recognition as the 'common property' owned by the communities concerned. Building such an alternative is essential to prevent biodiversity and knowledge monopolisation by an unbalanced mechanistic and non-innovative implementation of TRIPs or in response to Special 301 threats from the US. 

Examination of existing national and international legal community rights legislation reveals that there are no binding legal instruments or standards that adequately grant rights to indigenous people's collective knowledge and innovations thereby protecting their knowledge from biopiracy. That is not to say there is no scope for such developments. To the contrary, trends and precedents set in the area of international indigenous rights legislation and case law signify a strong movement in this direction, with several significant judgments being passed in recent years. 

The CBD, an instrument passed in 1992, represents the boldest move in the direction of recognising indigenous knowledge traditions and innovations. The Convention deals specifically with biodiversity and makes biodiversity conservation the obligation of member states. It also recognises the role of local communities and tribals in conservation of knowledge for biological wealth. 

In the preamble, the Convention states: 

'that contracting parties recognise the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources and the desirability of sharing equitable benefits arising from the use of traditional knowledge, innovations and practices, relevant to the conservation of biological diversity and sustainable use of its components.' 
Right to enact laws 

The Convention not only recognises the sovereign rights of the nation state to biodiversity and the method of its utilisation through Articles 3 and 4, but also gives them right to enact their own laws for protecting their biodiversity, in a manner best suited to their particular needs and priorities. 

The UN Draft Declaration on the Rights of Indigenous Peoples 1993 yet to be adopted by the UN General Assembly, promises to strengthen the position of indigenous collective rights considerably. For instance, Article 29 states: 

'Indigenous people are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property...' 
Despite the Draft Declaration constituting a non-binding status, the articles indicate a strong international consensus on the positive assertion of indigenous community rights. It will provide a powerful tool in changing attitudes as well as a focus for dialogue and debate at the national and international level. 

The Fourth Technical Conference on Plant Genetic Resources held in 1996 by FAO, produced the Leipzig Declaration on 'farmers' rights'. This Declaration gives legal recognition to farmers' innovation in contributing to the rich diversity of agricultural crops in the world. The central objective of farmers' rights is to ensure control of and access to agricultural biodiversity by local communities, so that they can continue to further sustainably develop their farming systems. 

It is quite evident that there is a lack of fit between the structure of commons and communities, and the structure of Western, especially US concepts of rights and property. 

If commons and communities do not fit into the narrow, non-sustainable and parochial framework of eurocentric jurisprudence, then it is that framework that needs changing rather than the collective nature of rights of communities. 

The challenge at the end of 500 years of colonialism and 50 years of independence and the threshold of the third millennium is to evolve a millennium perspective on the environment, and on people's rights instead of being enslaved by the colonial paradigms that have emerged over the last 500 years of colonial rule.

The above article is an edited extract from a longer version which appeared in The Enclosure and Recovery of the Commons published by The Research Foundation for Science, Technology and Ecology, India. Vandana Shiva is a scientist and activist. She is also a contributing editor for Third World Resurgence. (TWR 84 - August 1997)

Sunday, March 16, 2014

The Real Irish American Story Not Taught in Schools

“Wear green on St. Patrick’s Day or get pinched.” That pretty much sums up the Irish-American “curriculum” that I learned when I was in school. Yes, I recall a nod to the so-called Potato Famine, but it was mentioned only in passing.


To support the famine relief effort, British tax policy required landlords to pay the local taxes of their poorest tenant farmers, leading many landlords to forcibly evict struggling farmers and destroy their cottages in order to save money. From Hunger on Trial Teaching Activity.

Sadly, today’s high school textbooks continue to largely ignore the famine, despite the fact that it was responsible for unimaginable suffering and the deaths of more than a million Irish peasants, and that it triggered the greatest wave of Irish immigration in U.S. history. Nor do textbooks make any attempt to help students link famines past and present.

Yet there is no shortage of material that can bring these dramatic events to life in the classroom. In my own high school social studies classes, I begin with Sinead O’Connor’s haunting rendition of “Skibbereen,” which includes the verse:

… Oh it’s well I do remember, that bleak
December day,
The landlord and the sheriff came, to drive
Us all away
They set my roof on fire, with their cursed
English spleen
And that’s another reason why I left old

By contrast, Holt McDougal’s U.S. history textbook The Americans, devotes a flat two sentences to “The Great Potato Famine.” Prentice Hall’s America: Pathways to the Present fails to offer a single quote from the time. The text calls the famine a “horrible disaster,” as if it were a natural calamity like an earthquake. And in an awful single paragraph, Houghton Mifflin’s The Enduring Vision: A History of the American People blames the “ravages of famine” simply on “a blight,” and the only contemporaneous quote comes, inappropriately, from a landlord, who describes the surviving tenants as “famished and ghastly skeletons.” Uniformly, social studies textbooks fail to allow the Irish to speak for themselves, to narrate their own horror.

These timid slivers of knowledge not only deprive students of rich lessons in Irish-American history, they exemplify much of what is wrong with today’s curricular reliance on corporate-produced textbooks.

First, does anyone really think that students will remember anything from the books’ dull and lifeless paragraphs? Today’s textbooks contain no stories of actual people. We meet no one, learn nothing of anyone’s life, encounter no injustice, no resistance. This is a curriculum bound for boredom. As someone who spent almost 30 years teaching high school social studies, I can testify that students will be unlikely to seek to learn more about events so emptied of drama, emotion, and humanity.

Nor do these texts raise any critical questions for students to consider. For example, it’s important for students to learn that the crop failure in Ireland affected only the potato—during the worst famine years, other food production was robust. Michael Pollan notes in The Botany of Desire, “Ireland’s was surely the biggest experiment in monoculture ever attempted and surely the most convincing proof of its folly.” But if only this one variety of potato, the Lumper, failed, and other crops thrived, why did people starve?

Thomas Gallagher points out in Paddy’s Lament, that during the first winter of famine, 1846-47, as perhaps 400,000 Irish peasants starved, landlords exported 17 million pounds sterling worth of grain, cattle, pigs, flour, eggs, and poultry—food that could have prevented those deaths. Throughout the famine, as Gallagher notes, there was an abundance of food produced in Ireland, yet the landlords exported it to markets abroad.

The school curriculum could and should ask students to reflect on the contradiction of starvation amidst plenty, on the ethics of food exports amidst famine. And it should ask why these patterns persist into our own time.
More than a century and a half after the “Great Famine,” we live with similar, perhaps even more glaring contradictions. Raj Patel opens his book, Stuffed and Starved: Markets, Power and the Hidden Battle for the World’s Food System: “Today, when we produce more food than ever before, more than one in ten people on Earth are hungry. The hunger of 800 million happens at the same time as another historical first: that they are outnumbered by the one billion people on this planet who are overweight.”

Patel’s book sets out to account for “the rot at the core of the modern food system.” This is a curricular journey that our students should also be on — reflecting on patterns of poverty, power, and inequality that stretch from 19th century Ireland to 21st century Africa, India, Appalachia, and Oakland; that explore what happens when food and land are regarded purely as commodities in a global system of profit.

But today’s corporate textbook-producers are no more interested in feeding student curiosity about this inequality than were British landlords interested in feeding Irish peasants. Take Pearson, the global publishing giant. At its website, the corporation announces (redundantly) that “we measure our progress against three key measures: earnings, cash and return on invested capital.” The Pearson empire had 2011 worldwide sales of more than $9 billion—that’s nine thousand million dollars, as I might tell my students. Multinationals like Pearson have no interest in promoting critical thinking about an economic system whose profit-first premises they embrace with gusto.

As mentioned, there is no absence of teaching materials on the Irish famine that can touch head and heart. In a role play, “Hunger on Trial,” that I wrote and taught to my own students in Portland, Oregon—included at the Zinn Education Project website— students investigate who or what was responsible for the famine. The British landlords, who demanded rent from the starving poor and exported other food crops? The British government, which allowed these food exports and offered scant aid to Irish peasants? The Anglican Church, which failed to denounce selfish landlords or to act on behalf of the poor? A system of distribution, which sacrificed Irish peasants to the logic of colonialism and the capitalist market?

These are rich and troubling ethical questions. They are exactly the kind of issues that fire students to life and allow them to see that history is not simply a chronology of dead facts stretching through time.

So go ahead: Have a Guinness, wear a bit of green, and put on the Chieftains. But let’s honor the Irish with our curiosity. Let’s make sure that our schools show some respect, by studying the social forces that starved and uprooted over a million Irish—and that are starving and uprooting people today.
Bill Bigelow
Bill Bigelow taught high school social studies in Portland, Ore. for almost 30 years. He is the curriculum editor of Rethinking Schools and the co-director of the Zinn Education Project. This project offers free materials to teach people’s history and an “If We Knew Our History” article series. Bigelow is author or co-editor of numerous books, including A People’s History for the Classroom and The Line Between Us: Teaching About the Border and Mexican Immigration.

Thursday, February 27, 2014

'Truly Shocking': Govt Spies Hacked into Live Webcam Chats of Millions

'A whole new level of violation' of online users, declares Yahoo, after learning of secret surveillance program called 'Optic Nerve'


- Jon Queally, staff writer 
The GCHQ program saved one image every five minutes from the users' feeds. (Photograph: Chris Jackson/Getty Images)

The latest documents leaked to journalists by NSA whistleblower Edward Snowden and published Thursday in the Guardian newspaper reveal that the British GCHQ spy agency—with possible assistance from its U.S. counterpart—built and maintained a program that allowed it to tap the live webcam chats of millions of internet users with no connection to criminal or national security investigations.

With a program codenamed "Optic Nerve," the documents reveal how the agency hacked into the camera feeds of those using Yahoo! webchats, capturing both snapshots of conversations and metadata associated with the communication. As its name indicates, at least part of the program was aimed at improving the government's ability to use digital eye-recognition technology to detect and catalog online users that may or may be not be part of a criminal investigation.

"The best images are ones where the person is facing the camera with their face upright." —from GCHQ document

"Truly shocking," were the words used by Alex Abdo, staff attorney with the ACLU's National Security Project, to describe the latest details about the dragnet surveillance programs of the GCHQ and the NSA, which seemed to have some knowledge of the program and may have had an active role in executing certain aspects of it.

“In a world in which there is no technological barrier to pervasive surveillance, the scope of the government’s surveillance activities must be decided by the public, not secretive spy agencies interpreting secret legal authorities," said Abdo in a statement. "This report also raises troubling questions about the NSA’s complicity in what is a massive and unprecedented violation of privacy. We need to know more about what the NSA knew, and what role it played.”

If the reporting is true, said Yahoo in a statement, the secret program "represents a whole new level of violation of our users' privacy that is completely unacceptable." A spokesperson for the company was clear in saying the Yahoo! had no knowledge of and would never approve such a blatant violation of its users right to privacy.
As the Guardian reports:
Rather than collecting webcam chats in their entirety, the program saved one image every five minutes from the users' feeds, partly to comply with human rights legislation, and also to avoid overloading GCHQ's servers. The documents describe these users as "unselected" – intelligence agency parlance for bulk rather than targeted collection.
One document even likened the program's "bulk access to Yahoo webcam images/events" to a massive digital police mugbook of previously arrested individuals.
"Face detection has the potential to aid selection of useful images for 'mugshots' or even for face recognition by assessing the angle of the face," it reads. "The best images are ones where the person is facing the camera with their face upright."
Spencer Ackerman, one of the Guardian journalists who wrote today's story, tried to get comment from Gen. Keith Alexander, outgoing director of the NSA, about what the agency's level of involvement  may have been. Alexander was on Capitol Hill to offer testimony to a congressional panel on Thursday, but did not appear interested in responding to Ackerman's questions:

Monday, February 10, 2014

Greenwald/Scahill: How the NSA Helps the US Assassinate



In their first piece written for their new media venture, journalist duo reveal shocking interplay between digital surveillance and Obama's assassination program


- Jon Queally, staff writer 

(Credit: Kirsty Wigglesworth/AP)

In the first investigative piece co-written for their new media venture, journalists Glenn Greenwald and Jeremy Scahill on Monday published a much-anticipated story—based on eye-witness accounts and leaked documents from whistleblower Edward Snowden—describing how the National Security Agency uses its digital surveillance capabilities to assist the CIA and Pentagon as they carrying out controversial overseas assassinations ordered by President Obama.

Published under the masthead of 'The Intercept' at their new First Look website, Greenwald and Scahill report:
The National Security Agency is using complex analysis of electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes – an unreliable tactic that results in the deaths of innocent or unidentified people.
According to a former drone operator for the military’s Joint Special Operations Command (JSOC) who also worked with the NSA, the agency often identifies targets based on controversial metadata analysis and cell-phone tracking technologies. Rather than confirming a target’s identity with operatives or informants on the ground, the CIA or the U.S. military then orders a strike based on the activity and location of the mobile phone a person is believed to be using.
The drone operator, who agreed to discuss the top-secret programs on the condition of anonymity, was a member of JSOC’s High Value Targeting task force, which is charged with identifying, capturing or killing terrorist suspects in Yemen, Somalia, Afghanistan and elsewhere.
His account is bolstered by top-secret NSA documents previously provided by whistleblower Edward Snowden. It is also supported by a former drone sensor operator with the U.S. Air Force, Brandon Bryant, who has become an outspoken critic of the lethal operations in which he was directly involved in Iraq, Afghanistan and Yemen.
The explosive story about the relationship between the NSA, CIA, JSOC, and the White Houes which executes individuals abroad—including American citizens—was first mentioned by Scahill in September of last year when he announced discussions between himself, Greenwald, and eBay co-founder Pierre Omidyar to launch their own journalistic enterprise.

Appearing to fulfill their goal of providing a more adversarial form of journalism than their mainstream counterparts, the NSA refused to respond to questions posed by Scahill and Greenwald for their investigation. However, Caitlin Hayden, a spokesperson for the National Security Council, did release a statement explaining the government's position that “the type of operational detail that" upon which their questions were based "in our view, should not be published.”

Both Scahill and Greenwald joined Amy Goodman on Democracy Now! on Monday to discuss their article and its numerous revelations:
Read the entire First Look story here.

Strikingly, on the same day as the Scahill/Greenwald article was published, an Associated Press story—citing numerous "unnamed" U.S. officials—posited as a dilemma the White House's pending decision to possibly assassinate an American citizen living overseas who the government accuses of being a member of al-Qaeda.

In contrast to not speaking with Greenwald and Scahill, the government officials—hiding behind provided anonymity—seemed very willing to give away lots of potentially telling information about the alleged U.S. target.
According to AP:
Four U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him. And President Barack Obama's new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.
Two of the officials described the man as an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks against them that would use improvised explosive devices.
But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.
Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.
The officials said the suspected terrorist is well-guarded and in a fairly remote location, so any unilateral attempt by U.S. troops to capture him would be risky and even more politically explosive than a U.S. missile strike.
Under new guidelines Obama addressed in a speech last year to calm anger overseas at the extent of the U.S. drone campaign, lethal force must only be used "to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively." The target must also pose "a continuing, imminent threat to U.S. persons" — the legal definition of catching someone in the act of plotting a lethal attack.
The Associated Press has agreed to the government's request to withhold the name of the country where the suspected terrorist is believed to be because officials said publishing it could interrupt ongoing counterterror operations.
The officials spoke on condition of anonymity because they were not authorized to discuss the classified drone targeting program publicly.

Legalizing Oppression

In this photo from Oct. 16, 2006, lawyer Lynne Stewart enters Manhattan federal court for her sentencing. (AP/Louis Lanzano) 

The lynching and disbarring of civil rights lawyer Lynne Stewart, who because she has terminal cancer was recently released from prison after serving four years of a 10-year sentence, is a window into the collapse of the American legal system. Stewart—who has stood up to state power for more than three decades in order to give a voice to those whom authorities seek to crush, who has spent her life defending the poor and the marginalized, who wept in court when one of her clients was barred from presenting a credible defense—is everything a lawyer should be in an open society. But we no longer live in an open society. The persecution of Stewart is the persecution of us all.

Stewart, 74, is living with her husband in her son’s house in New York City after being released from a Texas prison a month ago. Because she is disbarred she cannot perform any legal work. “Can’t even work in a law office,” she said softly last week when I interviewed her at the Brooklyn home. “I miss it so terribly. I liked it. I liked the work.”

Her career as one of the country’s most renowned civil rights lawyers coincided with the fall of our legal system. She said that when she started practicing law in the 1970s it was a “golden era” in which a series of legal decisions—including rulings affecting police lineups and what information and evidence the government had to turn over to defendants on trial—created a chance for a fair defense. But these legal advances were reversed in a string of court decisions that, especially after 9/11, made the state omnipotent. As citizens were stripped of power, she said, “a death of the spirit of the bar” occurred. Lawyers gave up, she said. They no longer saw defending people accused of crime as “a calling, something that you did because you were answering a higher voice.”

“I don’t want to make anything a kind of religious thing, it wasn’t that, but you know, you defended people because they were up against the mightiest organism in the universe: the government of United States, whether they were state or federal,” she said Thursday evening as we sat with her husband, Ralph Poynter, at her son’s dining room table.

Stewart, working with former U.S. Attorney General Ramsey Clark and lawyer Abdeen Jabara in 1995, was the lead trial counsel for Omar Abdel Rahman, an Egyptian Muslim known as “the Blind Sheikh,” who was convicted in October of that year for alleged involvement in the 1993 bombing of the World Trade Center. He received life in prison plus 65 years, a sentence Stewart called “outlandish.” She said Abdel Rahman was put on trial not for any crimes he committed but because the Egyptian government of Hosni Mubarak, as well as Washington, was frightened of his influence over the Egyptian masses. The United States, along with Egypt, wanted to “take him off the scene” and “get him put away where he would no longer exert the influence he had.” The cleric, now 75 and in poor health, is imprisoned in the medical wing of the Butner Federal Correctional Complex in North Carolina.

The court, through numerous rulings, refused to let Stewart mount her defense, ensuring that the government prosecutors would not be challenged. The proceedings were a tawdry show trial, a harbinger of the many judicial assaults against Muslims in the United States after the events of Sept. 11, 2001. I was based in Egypt at the time of the trial as the Middle East bureau chief for The New York Times. I remember being stunned at the repeated mendacity of the government prosecutors, who blamed Abdel Rahman for terrorist attacks he had, in fact, publicly denounced. The prosecutors, for example, accused him of orchestrating the killing of 62 people in 1997 in Luxor, Egypt, although the sheikh at the time condemned the attack and had no connection with the Egyptian group that carried out the massacre. When the guilty verdict was read, Stewart burst into tears, “the only time I ever cried in the courtroom.”

Stewart continued to visit the sheikh after the sentencing. Three years after the trial the government severely curtailed his ability to communicate with the outside world, even through his lawyers, under special administrative measures known as SAMs.

Abdel Rahman asked Stewart during a prison visit in 2000 to release a statement from him to the press concerning a negotiated cease-fire between the Egyptian government and militants. The Clinton administration did not prosecute Stewart for conveying the press release, although she was admonished and prohibited from seeing her client for several months. The Bush administration, however, in April 2002, with the country baying for blood after the attacks of 9/11, decided to prosecute her for the two-year-old press release. Stewart says she never expected to be charged for releasing the press statement.

Minutes before her arrest on April 9, 2002, her husband, who later would organize the successful fight to win her a compassionate release from prison after she diagnosed with breast cancer, was outside on the stoop of their house, which, she said, “in New York is where you go sit on the steps in the summertime when you can’t afford to go to East Hampton.” She heard him in a heated conversation.

“I go to the door and I hear him saying ‘I don’t see any badge, I don’t see any warrant, what are you doing here, anyway?’ ” she said.

Assuming Ralph was being arrested, she told him to take it easy, she would have him home by lunchtime.

“I come around the door and the guy looks and says—and he was clearly a cop, you know, the cheap shoes—and he says, ‘We’re not here for you. We’re here for her,’ pointing to me,” she said. “I was flabbergasted.”

FBI agents took her from her home, and she was released later on a $500,000 bond signed by her three children.

U.S. Attorney General John Ashcroft came to New York in April 2002 to announce that the Justice Department had indicted Stewart, along with a paralegal and an interpreter, on grounds of materially aiding a terrorist organization. Ashcroft that night went on “Late Show With David Letterman” to tell the nation of the indictment as part of the Bush administration’s “war on terror.”

In Stewart’s trial the government again endlessly spewed myths about Islamic terrorism. It demanded a staggering 30-year sentence. U.S. District Judge John Koeltl instructed the jury more than 750 times that the photos of Osama bin Laden and the 2001 World Trade Center attacks shown to the jury by the government on a 10-by-12-foot screen were not relevant to the case. Stewart was sentenced, to most people’s astonishment, to 28 months.

After the sentencing, Stewart publicly declared that passing along the information from Abdel Rahman had been “based on my understanding of what the client needed, what a lawyer was expected to do” and “was necessary” and that, in the same circumstances, she would “do it again.” Subsequently, a federal appeals court under the Barack Obama administration demanded that the district judge reconsider her sentence. She was handed a new sentence by Koeltl—10 years.

The federal government’s orchestration of fear, Stewart said, has made the country increasingly deferential to authority—especially white, male authority. In the Carswell maximum-security prison, the women’s facility where she was incarcerated, she heard numerous accounts of gross injustices endured by poor women. She frequently asked some of these women why they had not demanded a trial rather than submit to a plea deal, or why they had not stood up and proclaimed their innocence. The answer, she said, was always the same: “I was afraid. I was afraid.”

She blames the wrecking of the legal system, in part, on the skyrocketing costs of law school. Law graduates, she said, have to “mortgage their souls in order to go to law school.” When she applied to Rutgers Law School in 1971 the school’s commitment to making sure half the class was women allowed her to get a scholarship. The financial aid, along with the low state tuition, made it possible for her to attend.

In later years she operated a law practice in Greenwich Village for poor clients. Her office was above her husband’s motorcycle shop on the ground floor. “I could take whatever pay stub I wanted,” she said.

The rise of corporate-backed organizations and think tanks designed to veer every public institution away from traditional liberal democratic values has dismantled our civil society, she said. The right-wing Federalist Society, after its founding in 1982, mounted a frontal assault on the legal system. Stewart, after Stanford University asked her to speak there in 2002, arrived on campus to find that the Federalist Society had pressured the university to rescind the invitation. Sympathetic students found her a place to talk, and Federalist Society members peppered her with hostile questions at the event. She was able to knock back their verbal harassment because, she said, she was “a trained trial attorney who had been in the business for almost 30 years” at that time.

The federal government by the 1980s, she said, was “mopping up” the remnants of radical activists, many of whom had been underground for years. She and other civil rights attorneys were able to battle on behalf of these political radicals, but by the end of the 1980s the state had finished its hunts for underground activists. And lawyers, Stewart said, “were no longer part of the game.”

Stewart, who spent a decade in the Harlem school system as a librarian before going to law school, said working with those considered by society to be “throwaway kids” meant that she knew the injustices of the system. The system, she said, has “failed them [poor children] from beginning to end.” This failure to provide elemental justice, spawned by the so-called war on drugs and massive rates of incarceration, especially for poor people of color, was soon replicated within the courts in the name of the war on terror. And this corrosion has spread. Basic legal protections, stripped first from the poor and then from Muslims, have been stripped from us all.

I asked Stewart if there had been a specific moment when she lost hope in the judicial system.

“I always believed, Chris, that I could do it,” she said. “You know, it’s like, you’re the last man. You’re like the kicker [when the opposing team is] running the ball back. You’re the only one between the goal post and everything. But I was there. They had to get by me. If they couldn’t get by me, then they couldn’t win. I have enough ego and belief in myself to say I didn’t believe they could do that every time, that I could win, that I could make a difference. I think I did make a difference for a lot of people, even people who got convicted.”

The climate in the nation’s courtrooms charged irrevocably after 9/11, she said. The occasional victories she and other civil rights lawyers were able to win before then became nearly impossible to replicate.

“The playing field suddenly changed and everything favored the prosecution, certainly in federal cases,” she said. “There was no level playing field anymore. It was like if you were the last guy standing and you had to keep them from making the goal you were at the six-inch line trying to do it. It was impossible to stop them. They controlled it. They controlled what the charges were. They controlled whether an adjournment would be given. They determined whether the cooperation is worthy, and everybody must cooperate, and it changed into a very different system, certainly on the federal level.”

In her own trial the government presented audio recordings of her meetings with Abdel Rahman in the prison in Rochester, Minn. The taping of her conversations, which before the federal Patriot Act would have violated attorney-client privilege, is now legal.

She said of the 9/11 attacks, “We’ve never explored why. Why does this happen? Why, what compelled 21 young men to give up their lives to do this thing? No, we’ve never, we don’t want to look at that. We don’t want to know why.”

“We continue the facade that we are fair,” she said, “that we have this Constitution we respect, and we can rely on, and that we can embrace. You can’t do that, that’s my constitutional rights, etc. When really they’re [our constitutional rights] a puff of smoke. They don’t really exist.”
I asked her what she had learned from being incarcerated.

“I don’t think I ever appreciated the unrelenting stress” of being in prison, she said. “That you’re always waiting for something to come down. That there’s such arbitrary authority. Guard A says, ‘Go down those stairs, use the stairs.’ Guard B says, ‘You can’t use the stairs, you’re not permitted on the stairs.’ And you say, ‘But Guard A just said. ...’ ‘I don’t care what he said, this is my rule!’ That kind of arbitrary thing, you’re always guessing. What does this guy, what does this woman, want me to do? Where am I? Where is this? And that’s 24/7.”

“You’re always on the cusp of doing the wrong thing, or getting in trouble for something,” she said. “I wrote a letter for a woman, and in order to make a copy I emailed it to Ralph.” She went on: “It was basically asking a judge to stay any decision because they were going to take all of her pension as payment for what she had done. And she wanted to get this letter in right away. So I emailed it to [Ralph] and for that I lost, I think, about three months of commissary, and email.”

She said, “It’s almost impossible to organize prisoners in this day and age to stand up, to become a unit, to say no to certain things.”

“I found it virtually impossible to convince the women at Carswell that they should not be always thinking that what happened to them was personal,” she said. “They should be looking at political answers, that where they ended up was not because of some personal lack or weakness but because the political system has designated them to be there as one of the kick-arounds, as one of the not-for-consumption.”

“Why do you think that is?” I asked.

“I think ... television has a lot to do with it,” she said. “There’s a certain idealized life. People that are in trouble get there because they have done it to themselves.” She said that many of the women incarcerated with her lacked self-esteem.

“The women I’ve left behind” are “the one real shadow on my tremendous joy at being home,” she said. “I can no longer even communicate with [them] because the conditions of my probation are that I may not associate with any felons. So I can’t even write to dear Mara, what happened with your case? Someone who got 20 years because she sold some heroin and then a guy died a week later, and they used that murder to enhance her sentence, completely contrary to everything we ever learned.”

One of the saddest moments in prison, she said, was mail call. The names of those who had letters would be read. Some women “waited for their name to be called and it never happened.” Those who did not get mail or visits, she said, “become more and more institutionalized.”

“The world of the prison is the only world; the outside world does not exist for them anymore,” she said.

“I’m not waiting for the working class to make the revolution,” she said. “I think that’s a day long gone by. That might have happened in the ’30s. It didn’t. We have to look at a new way, some new force.”

She said that although she is disbarred she will continue to be a catalyst for change. She quoted Rosa Luxemburg, who said that radicals should at once alleviate human misery and do political work. Stewart said she will continue to fight for the some 150 political prisoners, mostly African-Americans, who have been in prison for decades because they belonged to radical groups such as the Black Panthers or the Black Liberation Army.

“My other goal is not to turn my back on the women in prison,” she said.

She stressed the importance of community.

“The most important thing is don’t let yourself get isolated,” she said. “Don’t feel that you’re the only one in the room that thinks this way and you must be crazy or something, and they’re going to get you because you’re the only one. Find the other people who think like you. They’re out there. There are people out there. There are groups. There’s everyone from the raging grannies right up to the very serious lefties, but there’s somebody out there, make sure you’re not all alone. That’s the worst part of what we face these days. As long as you’re with other people you have a fighting chance, and you can organize more people.”

“This is a pretty loveless world we live in,” she concluded. “We have lots of romantic love. We have lots of ‘Sex and the City.’ But real love, love that is the kind that saves people, and makes the world better, and makes you go to bed with a smile on your face, that love is lacking greatly. You have to search for that.”

Chris Hedges
Chris Hedges writes a regular column for Truthdig.com. Hedges graduated from Harvard Divinity School and was for nearly two decades a foreign correspondent for The New York Times. He is the author of many books, including: War Is A Force That Gives Us Meaning, What Every Person Should Know About War, and American Fascists: The Christian Right and the War on America.  His most recent book is Empire of Illusion: The End of Literacy and the Triumph of Spectacle.