ARTS & FARCES internet

In an article co-published with the New Orleans Times-Picayune, Sabrina Shankman and Tom Jennings of Frontline, Brendan McCarthy and Laura Maggi of the New Orleans Times-Picayune, and AC Thompson of ProPublica report that New Orleans police were told they could shoot looters after hurricane Katrina. The journalists source the story from present and former members of the New Orleans police department and report that “it’s not clear how broadly the order was communicated” and that some officers refused to carry it out.

A police lieutenant provided a partial videotape of a police captain relaying the order: “We have authority by martial law to shoot looters,” the journalists report being able to hear Captain James Scott tell officers on the videotape. The lieutenant who shot the video refused to provide the complete recording. The report notes Captain Harry Mendoza “told federal prosecutors last month that he was ordered by Warren Riley, then the department’s second-in-command, to ‘take the city back and shoot looters.’” A police lieutenant under Mendoza told the reporters he’d testify to hearing the same order. Riley denies issuing the order to shoot looters. Scott refused to comment but his attorney said “that a fuller version of the videotape places his remarks in a different context.” Three unnamed sources corroborate Mendoza’s account or Riley’s order; one named source “did not recall Riley explicitly saying that officers could shoot looters.”

Universal standards for the use of deadly force, up to this incident, allow police to shoot only to protect themselves or others from an imminent physical threat—“great bodily harm.” And, as the reporters note, martial law does not constitutionally exist in Louisiana. Nonetheless, then-Mayor Ray Nagin called for martial law in meetings with Riley and used the phrase on the radio. Nagin, like Scott, refused to comment.

The team reports that it remains unclear with whom the orders originated or “whether they were heard by any of the officers involved in shooting 11 civilians in the days after Katrina.”

What everyone agrees on is that Riley did order his captains to “take back the city.” Samuel Walker, professor emeritus at the University of Nebraska at Omaha and author of 13 books on police, civil liberties, and criminal justice told the reporters such a statement is “absolutely wrong, [a] complete invitation to disaster.”

This past Thursday the US Supreme Court, in a 5-4 decision in Citizens United v. Federal Election Commission (.pdf; 2.6MB), ruled that the US government may not limit the spending of corporations in political elections. The only limitation on corporate political speech that remains is the ban on direct contributions to candidates. Welcome to the United Corporations of America, where every vote is for sale and each of them has a price.

Corporations were granted fictional personhood in 1886 when the US Supreme Court, in Santa Clara County v. Southern Pacific Railroad, found that corporations were subject to due process and beneficiaries of the equal protection provisions of the Fourteenth Amendment. With that decision, corporations were solidly identified with private property instead of the public grants and interests that had been their overarching governance previously. That single decision also significantly weakened the public claims on corporate charters, and is seen by most corporate governance experts as an endorsement of the corporation being a “natural entity” with natural rights, rather than a created fiction chartered by the state for a specific purpose in the public interest, subject to state control. It was a mistake; an error.

As David D. Kirkpatrick notes in the New York Times, “A lobbyist can now tell any elected official: if you vote wrong, my company, labor union, or interest group will spend unlimited sums explicitly advertising against your re-election.”

The court’s ultra-conservative majority used a questionable interpretation of the First Amendment to establish that corporations enjoy the same constitutional protections as citizens. Except more. In short, if this ruling does nothing else—and many experts claim that large corporations will not exercise their new rights—it more solidly codifies corporate personhood. Already some corporations are not welcoming this new development. According to an Associated Press report, some 40 corporate executives sent a letter to congressional leaders, through Fair Elections Now, urging approval for public financing of US congressional elections.

American International Group (AIG), the insurance company that US taxpayers have bailed out to the tune of US$170 billion and of which the US citizenry now owns 80%, just doesn’t get it. David Cho and Brady Dennis writing for the Washington Post broke the story that AIG will distribute about US$165 million in bonuses to the very executives who drove the company into the ditch and required the taxpayer bailout to begin with. The bonuses cover 400 employees and range from US$1,000 to US$6.5 million, Edmund Andrews and Peter Baker report for the New York Times.

Never mind that Timothy Geithner, US Treasury secretary, had a come to Jesus telephone conversation with AIG CEO Edward Liddy that Liddy described to the Post as “difficult.” Geithner told Liddy that the “payments were unacceptable and had to be renegotiated.” Liddy wrote a letter back to Geithner agreeing to “restructure some of the payments” but saying he had “‘grave concerns’ about the impact on the firm’s ability to retain talented staff ‘if employees believe that their compensation is subject to continued and arbitrary adjustment by the US Treasury.” Liddy was appointed by Bush’s Treasury Secretary Henry Paulson Jr.

What? He’s worried about being able to retain the people that drove the company over the cliff. By all means, let them go. In fact, why weren’t they shown the door when this travesty first came to light? And get this: Geithner’s Treasury Department lawyers concurred with AIG: “the firm would risk a lawsuit if it scrapped the retention payments at the AIG Financial Products subsidiary, whose troublesome derivative trading nearly sank AIG.” AIG promised its employees about US$600 million in bonuses payable in 2009-10.

In a secret 23 October 2001 37-page memo (.pdf; 11.9Mb) to then-White House counsel Alberto Gonzales, John Yoo—then a deputy assistant attorney general in the Office of Legal Counsel—and Robert Delahunty—a special counsel in the office—authorized the US military to operate domestically. President Bush had asked Yoo and Delahunty if he could use the military against terrorist activities inside US borders. Bush got the answer he wanted; the Yoo-Delahunty memo authorized raids on terrorist cells domestically and also authorized property seizures. Yoo and Delahunty rationalized the position by writing that deadly force is a legitimate self-defense. As such, it would override any Fourth Amendment privacy breaches, or pretty much anything else.

Yoo and Delahunty took the position that the Posse Comitatus Act—which specifically bars domestic military law enforcement operations—wouldn’t apply because the military would be performing a national security function, not law enforcement.

Neil Lewis, writing for the New York Times, reports that the memo also stated that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully” and that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

Nine such previously-secret legal opinions were publicly disclosed by the Justice Department on Monday. According to the Washington Post‘s R. Jeffrey Smith and Dan Eggen, the Bush administration had maintained that the memos must be kept secret as recently as November.

If the George W. Bush presidency is going to be remembered for anything it’s going to be the subversion of the executive branch’s adherence to the rule of law. It was systematic and pervasive.

In 2002, Jose Padilla was arrested at O’Hare airport as an “enemy combatant.” The next day then-Attorney General John Ashcroft announced that Padilla had a radiological weapon he was planning on detonating in the US. From then on, Padilla was referred to as the “Dirty Bomber” and was imprisoned, without charges, for more than three years. The Bush administration repeatedly argued the president is empowered to imprison anyone—even US citizens like Padilla—indefinitely without charges. The only requirement is the use of the “enemy combatant” label.

Civilized people will agree that this is tyrannical totalitarianism. Nothing less.

In November 2005, the Bush administration finally brought charges against Padilla. Charges were brought not because Bush was backtracking from his unconstitutional assertion—the Fifth and Sixth Amendments are absolutely clear on the issue—but rather to cynically avoid a ruling on the matter by the US Supreme Court (remember Sam Alito wasn’t yet a Supreme). Padilla was convicted in August 2007 of “conspiracy to support Islamic terrorism overseas,” not even remotely related to Ashcroft’s original statement.

The Padilla case probably wasn’t the start of Bush’s unchecked expansion of executive powers, but it was certainly the most disturbing. There were many, many others.

There’s a sentiment among some Obama supporters that’s almost as disturbing: That we shouldn’t focus on politically divisive investigations of past crimes by an outgoing administration. Rather, we should focus on transpartisan reconciliation and movement beyond these bad behaviors.