Is Tea Party Congressman Joe Walsh supporting a one-state solution for Palestine?
By Ali Abunimah – The Electronic Intifada – 09/19/2011
Illinois Republican Congressman Joe Walsh has introduced a resolution in the US House of Representatives that seems to support formal Israeli apartheid. Or does it in fact support a one-state solution with equal voting rights for Israelis and Palestinians alike?
Walsh was elected last year in Illinoi’s 8th Congressional District (north and west suburbs of Chicago) with strong Tea Party support.
Walsh has also introduced legislation to cut $600 million of funding the United States gives to the Palestinian Authority.
Walsh’s House Resolution 394 calls for:
Supporting Israel’s right to annex Judea and Samaria in the event that the Palestinian Authority continues to press for unilateral recognition of Palestinian statehood at the United Nations.
“Judea and Samaria” is the name Israel gives to the Israeli-occupied West Bank.
After a lengthy preamble setting out standard Israel lobby talking points, the draft bill declares:
Resolved, That the House of Representatives firmly supports Israel’s right to annex Judea and Samaria in the event that the Palestinian Authority continues to press for unilateral recognition of Palestinian statehood at the United Nations.
There’s just one tiny catch. What happens to the almost three million Palestinians who live in the Israeli-occupied West Bank if they are annexed by Israel?
Does Israel then have the “right” to expel them? Do they live under permanent second class status, as African Americans did before US Civil Rights legislation, or like blacks in South Africa under apartheid?
Or is Walsh actually proposing a one-state solution in which Palestinians get to vote in Israeli elections?
Walsh is mysteriously silent on this crucial point. I have put the question to him via Twitter (@RepJoeWalsh):
@avinunu
Ali Abunimah .@RepJoeWalsh If Israel annexes West Bank as you propose, should Palestinians living there get equal voting rights? Yes or no? cc @RJCHQ
Sep 19 via Twitter for MacFavoriteRetweetReply
He’s an avid and active Twitter user, so let’s see if he has an answer for this straightforward query.
Bummer
Barack Obama turns out to be just another drug warrior
Jacob Sullum from the October 2011 issue of Reason
It is not hard to see how critics of the war on drugs got the impression that Barack Obama was sympathetic to their cause. Throughout his public life as an author, law professor, and politician, Obama has said and done things that suggested he was not a run-of-the-mill drug warrior. In his 1995 memoir Dreams From My Father, the future president talked candidly about his own youthful drug use, in sharp contrast with the Democrat who then occupied the White House and the Republican who succeeded him. As an Illinois state senator in 2001, he criticized excessively harsh drug sentences and sponsored a bill that allowed nonviolent, low-level offenders to enter court-supervised treatment instead of going to jail, saying “we can’t continue to incarcerate ourselves out of the drug crisis.”
As a candidate for the U.S. Senate in 2004, Obama called the war on drugs “an utter failure” and advocated marijuana decriminalization. As a U.S. senator, he cosponsored legislation aimed at reducing the federal government’s draconian crack cocaine sentences. Unlike Bill Clinton, who notoriously admitted smoking pot while claiming he “didn’t inhale,” Sen. Obama forthrightly told a 2006 meeting of magazine editors, “When I was a kid, I inhaled, frequently. That was the point.”
Obama stood apart from hard-line prohibitionists even when he began running for president. In 2007 and 2008, he bemoaned America’s high incarceration rate, warned that the racially disproportionate impact of drug prohibition undermines legal equality, advocated a “public health” approach to drugs emphasizing treatment and training instead of prison, repeatedly indicated that he would take a more tolerant position regarding medical marijuana than George W. Bush, and criticized the Bush administration for twisting science to support policy—a tendency that is nowhere more blatant than in the government’s arbitrary distinctions among psychoactive substances.
The promise of a more enlightened, less repressive national drug policy generated considerable excitement among anti-prohibition activists. Marsha Rosenbaum left her job as head of the Drug Policy Alliance’s San Francisco office to raise money for Obama. The young senator also attracted significant support from three billionaire philanthropists—George Soros, Peter Lewis, and John Sperling—who are among the leading benefactors of drug policy reform. “I was delighted” at the prospect of an Obama victory, recalls Rick Doblin, president of the Multidisciplinary Association for Psychedelic Studies. “[I was] encouraged that President Obama was going to be much, much better than President Bush when it comes to drug policy.”
According to Obama’s drug czar, the president has indeed made a sharp break with the failed policies of the past. “We certainly ended the drug war, now almost two years ago,” Gil Kerlikowske declared on Seattle’s PBS station last March. Kerlikowske was referring to an interview he gave The Wall Street Journal three months after Obama picked him to head the Office of National Drug Control Policy. “Regardless of how you try to explain to people it’s a ‘war on drugs,’ ” the former Seattle police chief told the Journal, “people see a war as a war on them. We’re not at war with people in this country.” According to the Journal, Kerlikowske’s distaste for martial metaphors was “a signal that the Obama administration is set to follow a more moderate—and likely more controversial—stance on the nation’s drug problems,” dealing with drugs “as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration.”
So far this much-ballyhooed shift has not been perceptible in Obama’s drug control budgets. Even if it were, moving money from law enforcement to “treatment and prevention” would hardly amount to ending the war on drugs.
Kerlikowske’s earnest insistence that you can end the war on drugs if you stop calling it that gives you a sense of the chasm between rhetoric and reality in Obama’s drug policies, which by and large have been remarkably similar to his predecessor’s. With the major exception of crack sentences, which were substantially reduced by a law the administration supported, Obama has not delivered what reformers hoped he would. His most conspicuous failure has been his policy on medical marijuana, which is in some ways even more aggressively intolerant than George W. Bush’s, featuring more-frequent raids by the Drug Enforcement Administration (DEA), ruinous IRS audits, and threats of prosecution against not only dispensaries but anyone who deals with them. “I initially had high hopes,” says Marsha Rosenbaum, “but now believe Obama has abdicated drug policy to the DEA.”
It would be going too far to say that Obama has been faking it all these years, that he does not really care about the injustices perpetrated in the name of protecting Americans from the drugs they want. But he clearly does not care enough to change the course of the life-wrecking, havoc-wreaking war on drugs.
Mercy for Drug Offenders
In retrospect, there were warning signs that Obama would disappoint supporters who expected him to de-escalate the war on drugs, just as he has disappointed those who expected him to end the wars in Iraq and Afghanistan. As a U.S. senator he bragged about co-sponsoring the Combat Meth Act, which is the reason cold and allergy sufferers throughout the country are treated like potential felons whenever they try to buy decongestants containing pseudoephedrine. He staunchly defended the Edward Byrne Memorial State and Local Law Enforcement Assistance Grant Program, which has fueled the incarceration of nonviolent drug offenders and funded the regional task forces behind racially tinged law enforcement scandals in places such as Tulia, Texas. As New York Times columnist Charles Blow noted last year, this grant program, created at the end of the Reagan administration, “has become the pet project of Democrats” because it’s “an easy and relatively cheap way for them to buy a tough-on-crime badge while simultaneously pleasing police unions.” In 2006 Obama warned that George W. Bush’s attempt to eliminate the Byrne grants (which Obama revived with a $2 billion infusion as part of his 2009 stimulus package) “gives criminals and drug dealers a break by taking cops off the streets.”
Even on an issue that seemed to genuinely trouble him—the sentencing rules for crack cocaine, which treated the smoked form of the drug as if it were 100 times worse than the snorted form—Obama seemed less than fully committed. In 2007 he told a gathering of African-American newspaper columnists in Las Vegas that as president he’d appoint a panel to study crack sentences, which are imposed on defendants who are overwhelmingly black, and issue a report “that allows me to say that based on the expert evidence, this is not working and it’s unfair.” As Boston Globe columnist Derrick Jackson observed at the time, that was a weird thing to say, since the U.S. Sentencing Commission, the panel of experts empowered to decide what penalties are appropriate for federal crimes (within the parameters set by Congress), had repeatedly said crack sentences were irrational and unjust. Obama also wondered whether “we want to spend all our political capital on a very difficult issue that doesn’t get at some of the underlying issues.”
In the event, the Obama administration, to its credit, did support crack sentencing reform, although it’s debatable how much political capital it spent in the process. “Attorney General [Eric] Holder really wanted to see crack reform happen,” says Julie Stewart, president of Families Against Mandatory Minimums, “and I think so did Obama.” The Fair Sentencing Act, which Obama signed into law in August 2010, shrank the 100-to-1 weight ratio dictated by federal law (so that five grams of crack, for example, triggered the same five-year mandatory minimum sentence as 500 grams of cocaine powder), making it 18 to 1 instead—also irrational and unjust, but considerably less so. “That was the best that they could get out of the Congress,” says Eric Sterling, president of the Criminal Justice Policy Foundation, “and the administration worked for that.” But by the time Obama took office, there was a bipartisan consensus, including conservative Republicans such as Sen. Orrin Hatch of Utah, Sen. Jeff Sessions of Alabama, and Rep. Dan Lungren of California, that crack penalties were unjustifiably harsh. The Fair Sentencing Act was approved by unanimous consent in the Senate and by a voice vote in the House. Only one member of Congress—House Judiciary Committee Chairman Lamar Smith (R-Texas)—spoke against it.
More generally, Obama has repeatedly expressed the view that many people in federal prisons are serving unconscionably long sentences. Yet he has not used his unilateral, absolute, and constitutionally unambiguous clemency power to shorten a single sentence, even though he has not otherwise been reticent about pushing his executive authority to the limit (and beyond). Obama went almost two years, longer than every president except George Washington and George W. Bush, before approving any clemency petitions. So far all 17 of his clemency actions have been pardons for long-ago crimes, most which did not even result in prison sentences, as opposed to commutations, which authorize the early release of current prisoners. While seven of the pardons involved drug offenders, the most severe sentence among them was five years for conspiracy to import marijuana, which 63-year-old Randy Eugene Dyer of Burien, Washington, completed more than 30 years ago. As of mid-2011, Obama had received about 4,000 petitions for commutations, in addition to 900 that were pending when he took office. He had not approved any.
This is not for lack of glaring injustices. Last year a federal prisoner named Hamedah Hasan, who is seeking clemency with help from the American Civil Liberties Union (ACLU), wrote an open letter to Obama. “I am a mother and grandmother serving my 17th year of a 27-year federal prison sentence for a first time, nonviolent crack cocaine offense,” she said. “I never used or sold drugs, but I was convicted under conspiracy laws for participating in a drug organization by running errands and wiring money. Had I been convicted of a powder cocaine offense, I would be home with my three daughters and two grandchildren by now. I have had a lot of time to think about where I went wrong, and I genuinely take full responsibility for my actions. But I hope you will see that over 16 years in prison is enough time for me to pay my debt to society.”
Another crack offender, Kenneth Harvey, is serving a life sentence for possession of more than 50 grams with intent to deliver, a crime he committed in his early 20s. Although legally required to send Harvey away for life because of two prior drug convictions (neither of which resulted in prison time), the judge who sentenced him recommended that he be granted clemency after 15 years, and an appeals court agreed. Yet Harvey, now 45, has been in prison for more than two decades. Last year USA Today reported that his family “thought when Barack Obama got elected president, they’d have a shot.”
Clarence Aaron, arrested when he was a student at Southern University in Baton Rouge with no criminal record, is serving three consecutive life sentences without the possibility of parole for arranging a meeting between a childhood friend and a cocaine dealer. He has been behind bars since 1993. “There’s no reason he needs to serve more time,” says Eric Sterling. “The system is rife with these injustices. Obama’s record on clemency is shameful.”
Nor does Obama seem curious about why so many federal drug prisoners are black—more than a quarter of those sentenced in fiscal year 2010, including four-fifths of crack offenders. Sterling says the Justice Department’s Office of Civil Rights should investigate this sort of disparity, especially since federal crack cases often involve low-level dealers and small amounts of the drug. According to the U.S. Sentencing Commission, 35 percent of federal crack cases in fiscal year 2006 involved less than 25 grams. “There is a prima facie case that drug prosecutions are racially discriminatory, as a matter of pattern and practice,” Sterling says. “It demands inquiry.”
Obama the candidate agreed. “There does seem to be a racial component to some of the arrest, conviction, prosecution rates when it comes to these offenses, and that’s something I think we should take seriously,” he said during a 2007 appearance in New Hampshire. “That’s not a black or white issue; that’s an American issue. Our basic precept is equality under the law. And we’ve got to have a president and a Justice Department and a civil rights division that is willing to enforce the law equally.…If we’re going to have drug laws, it shouldn’t matter that you’re dealing them in public housing vs. a suburb, out of your mom’s backyard.”
“If we’re going to have drug laws…” Despite the implication, Kerlikowske, whose statutory mandate requires him to “take such actions as necessary to oppose any attempt to legalize” prohibited drugs, assures us that legalization “is not in the president’s vocabulary, and it’s not in mine.” Obama, by contrast, called it “an entirely legitimate topic for debate” during a YouTube town hall in January, but only after chuckling at the idea.
‘Willfully Blind’ to Science
Obama’s advocacy of a “public health” approach to drugs based on science uncorrupted by politics has amounted to even less in practice than his pre-presidency qualms about harsh, racially skewed sentences. Although he had long advocated lifting the 1988 ban on federal funding for needle exchange programs, which he said “could dramatically reduce rates of infection among drug users,” his first budget kept the ban intact. It was Congress that later removed the restriction. “As far as we know, the White House did nothing to move Congress along,” says Allan Clear, executive director of the Harm Reduction Coalition. “The general sense is that the administration is scared of syringe exchange’s political taint. You can’t say this administration is serious about a) addressing HIV to the best of its ability and b) basing its drug policies in science while it holds good public health at arm’s length.”
Yet needle exchange, which Obama at least did not actively resist, is probably the strongest aspect of his supposedly science-based drug policy. It is hard to see the scientific rationale for “zero tolerance” laws that treat a driver who smoked pot a few days ago (but who still has detectable levels of marijuana metabolites in his urine or blood) like someone who polished off a pint of bourbon right before hitting the road—a policy the Obama administration advocates in the name of “combating drugged driving.” And the administration’s demand for increased scrutiny of doctors’ painkiller prescriptions unscientifically ignores the evidence that such crackdowns discourage medically appropriate pain treatment, leaving some patients in agony to prevent others from getting high.
The clearest indication of Obama’s readiness to sacrifice scientific integrity in the service of prohibitionist orthodoxy is the administration’s position on the medical benefits of marijuana. Eight days before Obama took office, the DEA rejected a petition from University of Massachusetts at Amherst plant scientist Lyle Craker, who wanted permission to grow marijuana for research purposes. The request was far from frivolous: The DEA licenses private producers of other controlled substances, such as MDMA and psilocybin, for scientific use but has always made an exception for marijuana, which can be legally grown only at a University of Mississippi farm that is operated under contract with the National Institute on Drug Abuse, an agency that is more interested in the hazards posed by cannabis than its potential benefits. Craker, backed by the Multidisciplinary Association for Psychedelic Studies (MAPS), argued that the DEA should allow competition with the government’s pot farm to facilitate research by increasing the quality and variety of cannabis available to scientists. In 2007 DEA Administrative Law Judge Mary Ellen Bittner agreed. But on January 12, 2009, acting DEA Administrator Michele Leonhart overrode Bittner and denied Craker’s petition.
The incoming administration did not challenge Leonhart’s decision, and a year later Obama appointed her to head the DEA. Last March the ACLU filed a brief asking Leonhart to reconsider. “The government claims that marijuana offers no medical benefit to patients, and yet the government is simultaneously cutting off access to research material for scientific studies that seek to determine what medical benefit marijuana might have,” it said. “The result is that the federal government remains willfully blind to the possibility of scientific results that do not match its political preconceptions.” The ACLU argued that the government’s obstruction of research that could demonstrate marijuana’s therapeutic benefits contradicts Obama’s professed commitment to sound science.
Leonhart further illustrated the marijuana exception to that commitment in July, when she officially rejected a nine-year-old petition in which Americans for Safe Access, which supports the right of patients to use cannabis for medical purposes, asked the DEA to remove the plant from Schedule I of the Controlled Substances Act, the law’s most restrictive category. Schedule I is supposedly reserved for drugs that have “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and no “accepted safety for use under medical supervision.” Marijuana is much safer than many less restricted drugs, it has clear medical applications, and no one seriously contends it has a higher “potential for abuse” than, say, cocaine, morphine, or methamphetamine, all of which are on Schedule II. The DEA’s marijuana decisions show politics continues to trump science under a president who promised the opposite.
Raids in a Time of Tolerance
Unwilling to wait for an outbreak of scientific integrity at the DEA, voters or legislators in 16 states and the District of Columbia have taken it upon themselves to legalize the medical use of marijuana. While running for president, Obama repeatedly suggested he was cool with that. Campaigning in New Hampshire during the summer of 2007, he said raiding patients who use marijuana as a medicine “makes no sense” and is “really not a good use of Justice Department resources.” In a March 2008 interview with southern Oregon’s Mail Tribune, he went further, saying, “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue.” Two months later, when another Oregon paper, Willamette Week, asked Obama whether he would “stop the DEA’s raids on Oregon medical marijuana growers,” he replied, “I would, because I think our federal agents have better things to do.”
Critics of the war on drugs were therefore puzzled that DEA raids on medical marijuana providers continued after Obama took office in 2009, even as the White House reaffirmed that “federal resources should not be used to circumvent state laws.” That February The Washington Times reported that Obama planned to suspend the raids after he “nominates someone to take charge of DEA, which is still run by Bush administration holdovers.” We know how that worked out: He picked Leonhart, the Bush administration holdover who had been the agency’s deputy administrator since March 2004 and its acting administrator since November 2007. Prior to that, Leonhart oversaw medical marijuana raids as the special agent in charge of the DEA’s Los Angeles office.
In theory, Leonhart still had to answer to her boss, Attorney General Holder, who claimed to be implementing Obama’s promise to stop harassing state-sanctioned medical marijuana suppliers. “The policy is to go after those people who violate both federal and state law,” Holder declared during a March 2009 session with reporters in Washington. “Given the limited resources that we have,” he said during a visit to Albuquerque three months later, the Justice Department would focus on “large traffickers,” not “organizations that are [distributing marijuana] in a way that is consistent with state law.”
That October the Justice Department issued a memo that expanded on this policy. While emphasizing that marijuana remained completely illegal under the federal Controlled Substances Act, Deputy Attorney General David Ogden told federal prosecutors that “as a general matter” they “should not focus federal resources” on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Ogden mentioned two specific classes of people who should be left alone: “individuals with cancer or other serious illnesses” and their caregivers. But he also listed criteria for federal prosecution, such as “sales to minors,” “sale of other controlled substances,” and “financial and marketing activities” inconsistent with state law, that make sense only when applied to suppliers. He warned that “claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws”—meaning that federal prosecutors had to distinguish between bona fide medical marijuana dispensaries and fake ones.
“That was a pivotal moment for the national medical marijuana movement,” says Ethan Nadelmann, executive director of the Drug Policy Alliance. “It essentially provided a green light for states which had already legalized medical marijuana to say if dispensaries are operating legally under state law, the feds will not get involved. It also sent a message to state legislators in the states that were considering medical marijuana legislation, that the federal government would respect new laws.” As Trish Regan reports in her 2011 book Joint Ventures, the administration’s apparent promise to leave legitimate dispensaries alone helped set off a “green rush” of entrepreneurs eager to exploit the newly permissive environment in states such as California and Colorado.
Yet the DEA’s raids continued. If anything, the pace picked up. Americans for Safe Access counts at least 41 raids on growers or dispensaries between Obama’s inauguration and the Ogden memo, almost five a month on average. As of late May, there had been at least 106 raids since the Ogden memo, nearly six a month. In fact, medical marijuana raids have been more frequent under Obama than under Bush, when there were about 200 over eight years.
Rob Kampia, executive director of the Marijuana Policy Project, says the raids seem to be consistent with the letter, if not the spirit, of the Ogden memo, which demands “clear and unambiguous compliance” with state law. In states where the rules for supplying medical marijuana are unclear, such compliance is difficult to achieve. For example, California, where most of the raids have occurred, does not explicitly authorize the medical marijuana dispensaries that have sprung up across the state. California’s Compassionate Use Act, approved by voters in 1996, allows only patients or their “primary caregivers” to grow and possess marijuana. At first dispensary operators claimed to be their customers’ caregivers, but in 2008 the California Supreme Court ruled that a caregiver has to do more than supply marijuana. Nowadays dispensaries tend to operate as patient “collectives” or “cooperatives,” an arrangement that Attorney General Jerry Brown (now governor) approved in 2008. But some local officials disagree with this reading of state law, taking the position that all dispensaries are illegal. In any event, the Justice Department does not necessarily defer to state officials’ interpretations of state law, meaning that even a California Supreme Court ruling approving dispensaries might not count as definitive.
Four months after the Ogden memo, Jeffrey Sweetin, the special agent in charge of the DEA’s Denver office, publicly disavowed the notion that the feds needed to consider state law at all. “It’s still a violation of federal law,” Sweetin told The Denver Post in February 2010. “The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They’re violating federal law; they’re at risk of arrest and imprisonment.”
‘Exactly the Same As What Bush Said’
Alarmed by Sweetin’s remarks, Rep. Jared Polis (D-Colo.) asked Holder at a May 2010 hearing before the House Judiciary Committee whether they were “contrary to your stated policy.” Yes, Holder said, “that would be inconsistent with the policy as we have set it out…if the entity is, in fact, operating consistent with state law and…does not have any of those factors” mentioned in the Ogden memo. He said those criteria would determine “whether or not federal resources are going to be used to go after somebody who is dealing in marijuana.”
Given Holder’s assurances, it came as a surprise when U.S. attorneys began warning local and state officials that compliance with state law provides no protection against federal prosecution. In a letter dated February 1, 2011, Melinda Haag, the U.S. attorney for the Northern District of California, responded to questions from Oakland City Attorney John Russo about the city’s plans to license four large-scale marijuana growing operations. “We will enforce the CSA [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana,” Haag wrote, “even if such activities are permitted under state law.” She threatened to prosecute not only city-licensed growers but also “individuals who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers.”
During the next few months, U.S. attorneys sent similar letters to officials in at least seven other states: Arizona, Colorado, Hawaii, Montana, Rhode Island, Vermont, and Washington. All of them claimed to be consistent with the Ogden memo, which they said applied only to patients, and most claimed to be based on consultations with Holder and Deputy Attorney General James Cole (Ogden’s successor). One of the letters took the vague threats against people who “facilitate” drug offenses a step further. Referring to a bill that would have authorized state-licensed dispensaries to distribute medical marijuana, two U.S. attorneys, Jenny Durkan and Michael Ormsby, warned Washington Gov. Christine Gregoire on April 14 that “state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.” Two weeks later, citing that threat, Gregoire vetoed the legislation.
After Gregoire’s veto, the ACLU and several members of Congress asked Holder to clarify how prosecuting state-authorized medical marijuana suppliers could possibly be consistent with not prosecuting them. Rhode Island Gov. Lincoln Chafee, who halted plans for state-licensed dispensaries after receiving a threatening, hand-delivered letter from U.S. Attorney Peter Neronha on April 29, said he wanted an assurance from the Justice Department that “they are not going to raid us and shut us down.” During a June visit to Providence, The Providence Journal reported, Holder was “peppered with questions about the Justice Department’s position on dispensaries.” He promised that “we’re going to bring clarity so that people understand what this policy means and how this policy will be implemented.”
Holder’s much-anticipated explanation came in a memo quietly released on the night of June 30, right before a long holiday weekend. It brought nothing like clarity. Deputy Attorney General Cole insisted that the recent prosecution threats were “entirely consistent” with the Ogden memo, which he claimed applied only to patients and caregivers, meaning people “providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.” Alluding to Oakland’s aborted plan, he expressed special concern about “large-scale, privately operated industrial marijuana cultivation centers” with “revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.” But he gave no indication that smaller-scale, nonprofit dispensaries would be tolerated. And while Cole did not mention state employees, he warned that “those who knowingly facilitate” the cultivation or distribution of marijuana “are in violation of the Controlled Substances Act” and that those “who engage in transactions involving the proceeds” of marijuana sales could be charged with money laundering—meaning that investors, landlords, banks, and even vendors who deal with dispensaries could be subject to forfeiture and prosecution.
The Ogden memo’s guidelines for distinguishing between genuine dispensaries and criminal fronts went down the memory hole, along with all of the assurances from Obama and Holder about respecting state law. Indeed, since the Justice Department now says anyone but patients and caregivers is fair game for prosecution, Obama’s policy is indistinguishable from Bush’s. “That line,” says Americans for Safe Access spokesman Kris Hermes, “is exactly the same as what Bush said for years: ‘We’re not targeting patients.’ There is no change.” The problem is that most of the “individuals with cancer or other serious illnesses” whom the Obama administration claims to be sparing are not up to the task of growing their own marijuana. When DEA raids or Justice Department threats to landlords shut down dispensaries, Hermes notes, “patients wake up the next morning wondering where they’re going to find their medication.” The administration’s position, essentially, is that patients can have marijuana; they just can’t get it anywhere.
Why would Holder make such a big deal out of changing the policy and then abandon the new approach while denying that he was reversing himself? “I don’t think Eric Holder really is in command of the department,” says Eric Sterling. “I think the prosecutors are in command, and Holder is something of a figurehead. The statements that he has made are being contradicted by the actual policies coming out.” It looks like federal prosecutors and DEA agents recoiled at Obama’s promises of tolerance, especially as dispensaries multiplied and came to be seen as legitimate businesses. The idea of explicitly authorized, officially licensed dispensaries and grow operations spreading across the country was too much for drug warriors to take.
Perhaps Obama shared their concerns about widespread defiance of the federal ban on marijuana. Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, notes “the historical fear that Democrats have had for the last 40 years” of being “painted as soft on crime.” In any case, while polls indicate that “medical marijuana is far more popular than Obama is,” Kampia observes, “very few voters vote on the medical marijuana issue.” If Obama “has not chosen to make the effort” required to impose a new policy on a resistant bureaucracy, Sterling adds, “part of the reason is that those who care have not made him pay a political price yet.”
‘Empty Threats’
Still, there is only so much the federal government can do to crack down on medical marijuana. The feds account for less than 1 percent of marijuana arrests, and the DEA has about 5,500 special agents nationwide, compared to more than 730,000 state and local law enforcement officers, including nearly 70,000 in California alone. “We’ve seen a lot of empty threats,” says Steph Sherer, executive director of Americans for Safe Access. “We have seen hundreds of letters from the Department of Justice to landlords, and they have not yet prosecuted landlords. Many have received the letters, ignored them, and not lost their property. I’ve seen over 500 raids since I started this organization [in 2002], and each of those raids involved at least three people. We’ve seen about 5 percent of those people get prosecuted. The day-to-day battle is 98 percent about intimidation.”
The emptiness of the federal government’s threats will become steadily clearer as the number of medical marijuana states grows and dispensaries proliferate. That is why U.S. attorneys intervened in the legislative process, actively discouraging states from authorizing dispensaries by intimidating governors and legislators with the possibility of a federal crackdown. Even scarier to dedicated drug warriors is the prospect raised by Proposition 19, the marijuana legalization initiative that attracted support from 46 percent of California voters last fall. “They were within striking distance of legalizing marijuana,” says Bill Piper, director of national affairs at the Drug Policy Alliance. “It’s probably freaking out a lot of people in law enforcement.” Similar efforts are under way in California, Colorado, and Washington, with an eye toward the 2012 elections.
Critics of such measures, like opponents of medical marijuana laws, say they are unconstitutional. That view is not only mistaken (see “Unbanned in Phoenix,” page 26) but beside the point. The federal government simply does not have the resources to enforce marijuana prohibition without assistance from the states. The feds can make trouble over the short term, but ultimately they will have to accommodate themselves to that reality. The Ending Federal Marijuana Prohibition Act of 2011, introduced in June by Reps. Barney Frank (D-Mass.) and Ron Paul (R-Texas), points the way, leaving the states free to address marijuana as they see fit, with the national government’s role limited to blocking importation into states that continue to ban the drug.
Meanwhile, Obama, assuming he is re-elected, may have to contend not just with dispensaries that provide cannabis to patients but with state-legal pot shops that sell the drug just for fun. How will he react? “That’s the $64,000 question,” says Alison Holcomb, who is leading the effort to qualify a legalization initiative for Washington’s 2012 ballot. “We’re hoping that the answer is something similar to the Ogden memo in 2009, saying if people are playing by the rules and Washington state wants to give this a shot, we’re not going to spend federal resources going after them.”
We know how Obama responds when the question of marijuana legalization comes up in public: He laughs. The highest-rated questions submitted for his “virtual town meeting” in March 2009 dealt with pot prohibition. “I don’t know what this says about the online audience,” Obama said with a smirk, eliciting laughter from the live audience, “but…this was a fairly popular question.”
Obama’s dismissive attitude was especially galling in light of his own youthful pot smoking, which he presents in Dreams From My Father as a cautionary tale of near-disaster followed by redemption. “Junkie. Pothead,” he writes. “That’s where I’d been headed: the final, fatal role of the would-be black man.” Judging from the reports of friends interviewed by The New York Times in 2008, Obama exaggerated his brush with addiction for dramatic effect. More important, he has never publicly acknowledged the plain truth that people who smoke pot rarely become junkies or suffer any other serious harm as a result—unless they get caught.
As Richard Nixon’s National Commission on Marihuana and Drug Abuse pointed out when Obama was all of 10 years old, the biggest risk people face when they smoke pot is created by the government’s attempts to stop them. In 1977, when Obama was a pot-smoking high school student in Honolulu, President Jimmy Carter advocated decriminalizing marijuana possession, telling Congress that “penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself.”
That is hardly a radical position. Polls indicate that most Americans think pot smokers should not be treated like criminals. In a 2002 CNN/Time poll, 72 percent of respondents said “people arrested for possession of small amounts of marijuana” should “pay a fine but without serving any time in jail.” In a 2010 Newsweek poll, 55 percent of respondents endorsed a new California law that “will downgrade the possession of one ounce of marijuana from a misdemeanor to an infraction similar to a traffic ticket, punishable by a simple $100 fine and no arrest record.” While running for the U.S. Senate in 2004, Obama told a group of students at Northwestern University he supported that sort of policy, saying “we need to rethink and decriminalize our marijuana laws.” But three years later, when he was running for the Democratic presidential nomination, he changed his mind, saying he was against decriminalization.
Obama’s reversal on this issue is hard to reconcile with his avowed concerns about the drug war’s disproportionate impact on minorities. Research by Queens College sociologist Harry Levine shows that blacks are much more likely to be arrested for marijuana possession than whites, even though survey data indicate they are no more likely to smoke pot. In New York City, where marijuana arrests have increased dramatically since the late 1990s, blacks are five times as likely to be busted as whites. The number of marijuana arrests by the New York Police Department (NYPD) from 1997 through 2006 was 11 times the number in the previous 10 years, despite the fact that possession of up to 25 grams (about nine-tenths of an ounce) has been decriminalized in New York. Levine found that police routinely trick people into taking out their marijuana, thereby converting a citable offense (possession) into a misdemeanor (public display). The arrests are racially skewed mainly because they stem from a “stop and frisk” program that targets black neighborhoods.
Obama attended Columbia University in the early 1980s, well before the big increase in marijuana arrests that began a decade later. There were about 858,000 pot arrests nationwide in 2009, more than twice the number in 1980, and the crackdown has been especially aggressive in New York City under Mayors Rudolph Giuliani and Michael Bloomberg (another former pot smoker). “The odds are not bad,” observes Ethan Nadelmann, “that a young Barry Obama, using marijuana at Columbia, might have been arrested had the NYPD been conducting the number of marijuana arrests then that it is now.”
A misdemeanor marijuana conviction could have been a life-changing event for Obama, interrupting his education, impairing his job prospects, and derailing his political career before it began. It would not have been fair, but it would have spared us the sorry spectacle of a president who champions a policy he once called “an utter failure” and who literally laughs at supporters whose objections to that doomed, disastrous crusade he once claimed to share.
Senior Editor Jacob Sullum can be reached at (jsullum@reason.com)
Israeli Army Targeting Jenin’s Freedom Theatre
Matthew Eskin for the Alternative Information Center | September 8, 2011
In the past six weeks, the Jenin Freedom Theatre, still recovering from the unsolved 4 April murder of its co-founder and mentor, Juliano Mer-Khamis, has faced a new stumbling block: the Israeli military.
First, at 3:30 in the morning on 27 July, Israeli soldiers arrived at the Freedom Theatre to arrest Adnan Naghnaghiye, Location Manager of the Theatre, and Bilal Saadi, chairperson of the Theatre’s Board of Directors in Jenin. Soldiers further threw stones and huge blocks of concrete at the building, shattering several windows. In the Theatre’s press release, night guard Ahmad Nasser Matahen relates how “they told me to open the door to the theatre. They told me to raise my hands and forced me to take my pants down. I thought my time had come, that they would kill me.” When General Manager Jacob Gough and Theatre co-founder Jonatan Stanczak arrived on the scene, they were “forced at gunpoint to squat next to a family with four small children surrounded by approximately 50 heavily armed Israeli soldiers. Whenever we tried to tell them that they are attacking a cultural venue and arresting members of the theatre,” adds Jonatan, we were told to shut up and they threatened to kick us, I tried to contact the civil administration of the army to clarify the matter but the person in charge hung up on me.”
Adnan and Bilal were detained without charges for almost a month, denied access to a lawyer for over two weeks, and subjected to beatings and sleep deprivation, all as part of a supposed investigation into the murder of Juliano Mer-Khamis.
Then, on 6 August, Rami Awni Hwayel, a 20-year old acting student who currently holds a lead role in the theatre’s adaption of Waiting for Godot, was handcuffed, blindfolded, and taken away by the Israeli army at the Shave Shomeron checkpoint between Nablus and Jenin. Though the army quickly determined he had nothing to do with Juliano’s murder, he was held for a month pending investigation of a confession, extracted during interrogation, that he had illegally sought employment in Israel for 10 days many years ago. In an open letter to the Israeli Embassy in London, Jacob Gough relates how at a court hearing on 17 August, the military judge “stated that the police and army were wrong to have picked up Rami and spent this time as they have on this matter, and that Rami obviously has no connection to the murder of Juliano, however, in what just seems to be an attempt to ‘save face’, the Israeli authorities are looking to imprison him under the aforementioned charge.” The army usually punishes perpetrators of this ‘crime’ by sending them back across the border; for Rami, who, like Adnan and Bilal, was initially held for over two weeks without a lawyer, it will now be more difficult than it usually is for a resident of Jenin refugee camp to secure a visa to tour Waiting for Godot throughout America this September.
Finally, at 2am on 22 August, the Israeli army arrived in Jenin, surrounded the Theatre and entered the home of the Nagnaghiye family, where they beat and arrested Mohammed, theatre security guard and brother of Adnan. They also ransacked and trashed all three floors of the Nagnaghiye family home: “Furniture was thrown to the floor and broken, and there was even dog excrement on the floor. The army also took another three residents of the camp on the same night.”
The stated reason for all of these arrests is an Israeli investigation into the unsolved murder of Juliano Mer-Khamis. However, in an interview given on 3 September, Jacob Gough related that “initially [the army] gave the normal rubbish excuses, like ‘they’re acting against the security of the region’. We then found out they are supposedly doing an investigation into the murder of Juliano. But then I don’t count investigations where you kidnap people and treat them inhumanely, treat them to sleep deprivation- for a week they didn’t sleep- and then you try to get them to confess. Like this they work. That’s not an investigation, that’s trying to pin it on somebody.”
Indeed, Jacob says in an Open Letter to the Israeli Security Apparatus that “in every one of [Bilal’s] court hearings so far, when the Israeli security services have requested an extension of detention, it has been noted in court documents that no information pertaining to the murder of Juliano has been gained from interrogation”, and that “on Sunday 14 August Adnan was in court for another extension of detention, [and] the judge gave the security services an additional 8 days but stated that they needed to wrap the interrogation up as they have not gained much from this time before.”
In addition, the inhumane treatment inflicted on the detainees casts doubt on the real motives of the Israeli army. On 22 August, the same day that Mohammed Nagnaghiye was taken, the two men detained on 27 July – Mohammed’s brother Adnan and Bilal Saadi- were released with no charges filed against them. In the open letter to the Israeli Embassy, Jacob relates that “finally after 2 weeks [Bilal’s] lawyer was allowed access to him… he told her that they had treated him ‘inhumanely’. As of now we only know that they were using disorientation techniques (he had no idea whether it was night or day) and whilst having him shackled painfully and after denying him food for a long period of time they then put food in front of him, obviously with no possible way for him to eat with dignity.” Adnan had been “in much a similar position to Bilaal, but spent 16 days without access to a lawyer.”
Israel also appears to be deliberately impeding the movement of Freedom Theatre actors in and out of the West Bank. In our interview last Saturday at the Theatre, Jacob related that members of Rami’s theatre troupe, which plans to tour Waiting for Godot through America in September, “have all had to have visa application meetings with the American consulate. The American consulate doesn’t come to the West Bank, so these students have to go to Jerusalem and Jordan. Jerusalem is a lot easier. In the past these students have never had problems getting to Jerusalem, and suddenly- stopped. None of these children can go, they are all perceived as a security threat.” In a phone interview on 5 September, Jacob reiterated that “there is no doubt in my mind that this is related [to the army’s arrests]…it all occurred at exactly the same time…[this is] another part of the Israeli army crackdown. I’m sure it’s connected.”
In the Jenin refugee camp “there is fear, fear of being associated with the theatre, [because] we have had someone killed, lots of people arrested…”. But fear seems to be a common factor on both sides of the equation. “After Juliano’s death”, Jacob explains, “it was shown how much support the Freedom Theatre has in the world, and not just people. Politicians, organizations, media as well…[one] of the most dangerous things for Israel, is showing that places like the Freedom Theatre can reach really far…we’ve had the actor’s union in Britain, actors’ unions in America, France, Germany- the Parliament in Britain, France, Germany, Sweden, at least- Congressmen in America as well- people phoning the Israeli embassies and sending them letters all the time, asking what’s happening, what are you doing to the Freedom Theatre. The Israeli embassies started sending back replies, which I’ve never seen before! I’ve never seen the Israeli embassy reply to these kinds of letters, they just go whatever…we don’t care. It feels like we’re hitting a nerve, and we try to harness that.”
On 1 August , the General Secretary of Equity, the trade union representing 36,500 UK based performers, actors and creative workers, wrote to the Israeli Embassy in London to ask why the Freedom Theatre’s “location manager, Adnan Naghnaghiye, and Board member, Bilal Saadi, “are currently being detained following an attack on the theatre”. The letter concludes that “as an organisation which campaigns for freedom of expression, we are obviously very distressed about these reports. I therefore urge you to ensure that the individuals concerned are released immediately and safely returned to Jenin.”
Two weeks later, on 16 August, Equity received a reply from the Israeli Embassy. Citing the murder of Mer-Khamis, the letter states that “the authorities have instigated profound and comprehensive investigations which led them to the arrest you mention in your letter. Although we are aware that damage to the property was caused during the arrest, this was not intentional.”
In his open letter to the Israeli Embassy, Jacob replies that “though it is good of the ambassador to admit damage was caused to the theatre, to say throwing rocks at windows is unintentional is not just wrong, but also a lie. Anyhow, even unintentional harm/damage is at the very least negligent.” An even more curious lapse on the Israeli Embassy’s part, however, is that they ignored completely Equity’s complaint regarding the arrests of Adnan and Bilal, and instead spoke of the arrest of Rami, which was not even mentioned in Equity’s letter and which had nothing to do with ‘damage to the property’ of the theatre, because it occurred far from the theatre! Through this strategic move, the Embassy seeks to deflect attention away from the army’s mistreatment of Adnan and Bilal, and onto “[Rami’s] involvement in a number of other unsolved crimes”- the heinous crimes, namely, involved in crossing the Green Line briefly to bring a little money back to his impoverished refugee camp.
If Rami and his classmates are able to tour ‘Waiting for Godot’ through the US this September, “the hope”, says Jacob in his reply to the Embassy, “is [that] they will manage to get offers of scholarships to continue their training, a rare opportunity and ray of light for these youth who have spent their whole lives under occupation…This whole farce of court proceedings puts this trip for [Rami] in a very precarious position and further works to undermine the work of The Freedom Theatre, which I would say seems to be more the goal of the Israeli authorities than a genuine investigation into the murder of our friend and leader, Juliano Mer Khamis.”
When Juliano founded the Freedom Theatre in Jenin in 2006, he hoped to use performance and art to show to the world a Palestinian people and their vibrant, creative culture and self-identity. In April 2006, four years after the Battle of Jenin, in which 15-20% of the camp’s infrastructure was destroyed by the Israeli army, Mer-Khamis said in an interview with author Arthur Nelsen in London that “in Jenin – especially in Jenin – something is happening, in the good sense of the word. There is a universalist discourse, an international happening…an international campaign around a new kind of resistance…we want to be part of this third Intifada which is on the way in a way to hopefully influence at least some of the people in Jenin camp, towards non-violent, cultural international resistance.”
The Freedom Theatre’s hope remains that, after the violent suppression of the first two Intifadas, a successful Palestinian revolution today must revitalize Palestinian culture and self-identity, and inspire international recognition not merely of a Palestinian state and governing power, but first and foremost of a Palestinian people. On 4 April 2005, one year before the founding of the Freedom Theatre, Juliano said that “we are facing the end of the destruction of the Palestinian people by the Israeli forces. We are in a situation today where not only the political and the economic infrastructure are destroyed, the Israelis are destroying the neurological system of the society, which is culture, identity, communication. We felt that creating a project which will deal with the arts, with cinema, with theatre, with the media activities, computers, web sites, is the best way to fight this deconstruction of the identity of the Palestinian, which is deliberately done in the last year by the Israelis. Israel is pushing back the Palestinian people into the Stone Age…communicating with the outside world, bringing people from the outside world, breaking the wall down, if not physically, metaphorically- is creating the grounds for hope. We cannot bring hope, hope- we cannot bring it in a sack or a package. We can create the grounds so people can build up hope, and this is our task today, to create the grounds for those children.”
In the face of Israeli army harassment, Jenin’s Freedom Theatre has received an outpouring of support, both internationally and within Palestine. In addition to the ferocious and impassioned letter-writing campaign, it has received many donations from abroad to support increasing legal fees.
Additionally, most recent events may indicate that, in response to international pressure, the army is relaxing its crackdown on the Theatre. Mohammed Nagnaghiye, who was arrested on 22 August, received a 15-day extension of his arrest on the 29th, but was then unexpectedly released on 3 September. He did not report any abuse at the hands of the army, and was quickly allowed access to a lawyer. In addition, two technicians at the Theatre, Mohammed Saadi and Ahmad Matahen, along with an acting student, Momeen Syatat, were told to hand themselves in to the Salem military base outside of Jenin by 1 September. The Theatre wrote on its website, “to walk into the arms of the Israeli security service quite often means disappearing from the surface of the earth, never knowing when you will come back and knowing that you are most certainly facing harsh treatment. We demand that Mohammed, Ahmad, and Momeen be treated no worse and no better than any Israeli citizen brought in to participate in a civil criminal investigation. Their legal rights, as stipulated by international law, must be honoured.”
Thankfully, all three residents of Jenin refugee camp were simply asked a few questions, and then released. Over the phone on 4 September, Jacob noted that “the pressure that the theatre put on and that our friends around the world put on, seems to have made a difference. Otherwise the army would’ve kept acting the way it usually does…They even said to some of the guys who went the other day ‘we like the Freedom Theatre, we support the Freedom Theatre!’”
Indeed, at strategic moments Israel does claim to support the Freedom Theatre. Juliano was, after all, an Israeli citizen and well-known Israeli actor; in addition, token gestures of goodwill towards Palestinian arts initiatives bolster Israel’s public image. In reply to Equity’s letter, the Israeli Embassy in London spoke of how “Mr Juliano Mer-Khamis, the director of the theatre, was shot and killed in his car by masked terrorists…Mr. Mer-Khamis…taught alternatives to violence to Jenin’s youth…following his death, the Israeli authorities took it upon themselves to solve his murder and bring his murderers to trial.” In his open reply to the Embassy, however, Jacob retorts that “as there is no evidence or lead or knowledge of who may have committed this attack, it is rather presumptuous of the Israeli Embassy to say it was a Palestinian. Likewise we don’t comment on any theories that it may have been an Israeli…Juliano [son of an Israeli mother and a Palestinian father] was a symbol of co-operation that served very well to show that Jewish-Israelis can live and work with Palestinians, something many far-right Zionists would not like to see…”
In addition, though he taught alternatives to violence, Juliano never tried to teach alternatives to resistance- throughout his life he remained unequivocally opposed to the Israeli occupation of Palestine. As he said in 2006, shortly after the founding of the Theatre, “What we [are] doing in the theatre is not trying to be a replacement or an alternative to the resistance of the Palestinians in the struggle for liberation. Just the opposite. This must be clear…We are joining, by all means, the struggle for liberation of the Palestinian people, which is our liberation struggle.”
It is this commitment to resistance that motivates Israel to crack down on the Freedom Theatre. As the Theatre continues, in the memory of Juliano, to support the struggle for the revitalization of the Palestinian people, it remains to be seen whether the Israeli powers will continue to impede its progress.
Recap of first day of Irvine 11 trial: “no unlawful act was committed”
Nora Barrows-Friedman – The Electronic Intifada – 09/08/2011
Today’s opening statements in the Irvine 11 trial included explicit deconstruction by the defense team of the Orange County District Attorney’s argument that the Muslim students who protested an Israeli official’s speech last year did so in violation of a California penal code for conspiracy.
“You cannot have a conspiracy to commit an unlawful act if there is not an unlawful act that has been committed,” stated a defense attorney in the courtroom today.
The trial, now underway in the Orange County courthouse in Santa Ana, California, focuses on the prosecution’s claim that the students violated the penal code that could send the students to jail for up to two years on two misdemeanor counts: conspiracy to disrupt a meeting, and disruption of a meeting.
Kifah Shah, media coordinator and spokesperson for the Irvine 11 solidarity group, Stand With the Eleven, told The Electronic Intifada that approximately 100 supporters packed the courtroom after attending a press conference outside of the courthouse. Several major media organizations also attended the pre-trial debriefing, which was organized by local community leaders from such groups as the Muslim Public Affairs Council (MPAC), Jewish Voice for Peace (JVP), the Council on American-Islamic Relations (CAIR), and several interfaith leaders and professors at UC Irvine.
The LA Times’ Orange County-based Daily Pilot reported that Father Wilfredo Benitez of the Saint Anselm of Canterbury Episcopal Church stated at the press conference that “[t]his smells of persecution. In a free country … this should simply not be happening.” The report continued:
Moutaz Herzallah, whose son Taher is among the defendants, said Rackauckas “threw the [U.S.] Constitution in the trash” when he decided to press charges.
Moutaz Herzallah, who is from Gaza, said he immigrated to the United States “to have peace, dignity and honor” and that the D.A. should be prosecuted for his disregard of the Constitution.
Shah said that the opening day of the trial “went really well.”
“There were a lot of people there, and a lot of community members came out to support. There was a sentiment of eagerness in the room awaiting and anticipating justice. There was a hopeful feeling,” she added.
I asked her if she had a sense of whether the selected jurors were given a clear picture of what went on during Ambassador Oren’s speech that has led to the prosecution of the students, following the opening statements by the defense and prosecution teams.
Shah replied:
Yes. They went over what happened and explained it thoroughly to the jury. They went through exactly what happened, and obviously in their own terms. In terms of the opening statements, the prosecution is arguing that this was a “heckler veto” — meaning that individuals don’t like what’s being said, and decide to “veto” a speech. The prosecution lawyer reiterated that the students tried to “shut down” the event, to provide the evidence during his statements that [the protest] was a conspiracy. He also went over the fact that they belong to a group, the Muslim Student Union (MSU), and that these defendants “conspired together as a group to enact a heckler’s veto.”
He said that the MSU “was not happy” that the ambassador, Michael Oren, was coming to campus, and “they didn’t want to debate the ambassador — they decided they wanted to shut down the event within the guise of acting as individuals. They wanted to shut him down.” Like I said, he repeatedly asserted that the Irvine 11 wanted to shut down the event.
The other part is that he also talked about that it’s the act itself that the jury will deliberate upon, and not the content of the speech. He added that in the beginning of [Oren’s event] itself, the chair of the Political Science department had stated that we “expect and relish debate on campus, but will expect nothing but civility and courtesy” [from the audience]. And then he said that even the Chancellor, when the protest began, that “this is outrageous, and this violates the rules.” So the prosecuting attorney chose these statements in particular to tell a story to the jury — that this was a violation of rules, that this was a conspiracy to shut down the event.
The defense attorneys also laid out what the defendants did during the protest, and what that looked like for them. What … really hit it on the head was that [defense attorney] Reem Salahi stated exactly what was written on the index cards [from which the students read during their protest]. This was a concerted, calculated effort — it was not their intention to resist removal, they were not trying to stall or prolong anything — they simply wrote down what they wanted to say on their index cards, said what they had to say, which amounted in total for each of them just a few seconds, which took up a cumulative five minutes including the jeers from the crowd.
In their emails [that were subpoenaed during the investigation], the students were talking about not resisting, being nonviolent, acting with a certain demeanor — the defense was illustrating how it wasn’t their intention in any way to “shut down” the event. At the end of the event, even Michael Oren had said that he wished the students who protested and were removed from the ballroom “had stayed … it was that group that I wanted to address.”
The defense said really well that “you cannot have a conspiracy to commit an unlawful act if there is not an unlawful act that has been committed.” So what the prosecution has is a conspiracy to commit a crime, and then the actual committing of that crime. But in terms of whether or not a crime was committed, we’re looking at CA Penal Code section 403 which states that there is a violation if a meeting has been disturbed or broken up. However, there was not a crime that was committed here — Oren did finish his speech, at the end of which he stated that he wished the students had stayed.
Another argument is that Oren wasn’t able to do a question and answer — but if you look at how the event was advertised, they didn’t even say that there was an intention that there was going to be a question and answer section to Oren’s speech. The penal code was not violated. That means that the prosecution’s argument of a “shut down” didn’t happen.
In closing, I asked Shah to talk about the solidarity efforts of her campaign, Stand With the Eleven.
Well, even from the opening statements, this is a political opportunity for the district attorney’s office — everyone knows he’s running for re-election, and I really think that if this is selective prosecution, it’s really important to remember that now it’s not just about these ten students, but it’s significant for all Americans at this point. The precedent that is set concerns everyone’s rights to free speech.
The district attorney is the one who’s committing egregious acts of intolerance and persecution. It’s not about these ten students in a courtroom anymore, now it’s about every American and everyone’s rights to free speech.
The Electronic Intifada will continue to update our readers on the Irvine 11 trial. The verdict is set for 23 September.
Censoring Military Personnel Is Un-American
Suzanne Ito | ACLU | September 2, 2011

Today, the ACLU filed a brief in a case on behalf of Col. Morris Davis, who was fired from his job at the Congressional Research Service (CRS) for publicly criticizing the Obama administration’s decision to try some Guantánamo detainees in federal courts and some in the military commissions system.
Col. Davis is a decorated veteran of the United States Air Force. From 2005 to 2007, he served as the Chief Prosecutor for the Department of Defense’s Office of Military Commissions, which was created to prosecute suspected terrorists being held at Guantánamo. He resigned from that position in October 2007 because he came to believe that the military commission system had become fundamentally flawed, and has openly and publicly criticized the commissions ever since.
In 2008, Col. Davis began working as the Assistant Director of the Foreign Affairs, Defense and Trade Division at CRS. His work at CRS had nothing to do with Guantánamo or the military commissions, and in fact, CRS was fully aware of his previous public criticism of the military commissions when he was hired.
Despite this, CRS fired Col. Davis after the Wall Street Journal and Washington Post published opinions he authored expressing his views about the military commissions. Immediately after these opinions were published, Davis was informed that his employment would be terminated because of the pieces.
In December 2009, we sent CRS a letter informing it that by firing Col. Davis, it had violated his First Amendment right to speak, as a private citizen, about issues that have nothing to do with his job there. We informed CRS that if they did not reinstate Col. Davis, we would sue.
They refused to reinstate Col. Davis, so we sued. The defendants in the case, Librarian of Congress James H. Billington and former CRS Director Daniel P. Mulhollan, asked a district court to dismiss the case. That court refused. Mulhollan is currently appealing that decision to the D.C. Circuit Court of Appeals. The brief we filed today opposes that appeal.
This country’s handling of detainees in the so-called “war on terror” is an issue of great public concern, and few have the experience and authority to speak on this issue as Col. Davis. Firing him for stating an opinion is unconstitutional and un-American. We hope the appeals court agrees.




