Human Rights and Selective Amnesia: Gazans’ expulsion from humanity

In 1946, mostly due to the efforts of Eleanor Roosevelt, the spouse of the late president Franklin Delano Roosevelt, a committee was convened to draft what would become the Universal Declaration of Human Rights (UDHR). As Mary Ann Glendon and Johann Morsink, individual authors of separate books on the UDHR, point out, the context for this document was hardly ideal: it was being developed in the midst of the increasing tensions of the Cold War, in the aftermath of the Holocaust and the British handoff of Palestine to form the new Jewish state, and in the midst of an emerging insistence on self-rule in South Asia, among other places. Passed in 1948, ratified by 48 nations initially, the UDHR is heralded as a guidebook for human rights, presumably obligating all 192 UN member nations to acknowledge, if not observe it. It is, by most accounts a “Western” document, crafted by philosophers among others. It evokes the ideals of liberalism and the sacrosanct rights thought to be afforded to the individual, as well as the Kantian notion of human dignity (as something that is beyond value, that does not have a market price). It expresses the unconditional protection that individuals are thought to have with regard to their lives, their health, their ability to marry who they wish (an idea that has taken on a new light in the last few years), to form community with whomever one chooses, to have the ability to determine oneself as one pleases.

The UDHR is a breathtaking document, a mix of unadulterated optimism and seductive naïveté. It is impossible to read without asking how such a framework would ever be enforced. Indeed, this is exactly what students in my courses ask (or more cynically, scoff at). Hannah Arendt, writing in the aftermath of the Holocaust, criticized a human rights framework because of this paradoxical nature:

 

The Rights of Man, supposedly inalienable, proved to be unenforceable—even in countries whose constitutions were based upon them—whenever people appeared who were no longer citizens of any sovereign state.[1]

 

The question of enforceability ironically reveals the point of the UDHR: these protections should be assumed to be universal, unconditional, unanimously observed. And yet, as Arendt implies—the loss of human rights is predicated on the increasing dehumanization and vulnerability of those same human beings. The loss of human rights is preceded by the loss of one’s home, the loss of recognition of one’s “distinct” and precious existence.

The question of human rights arises when a people is inexorably moved toward dehumanization: displaced, violated, removed from their land. But the removal of people from their community, their home, already signals “the loss of government protection,” as Arendt says, and the loss of status as beings worth protecting: political beings, legal human beings. This loss is succinctly clinched by philosopher Giorgio Agamben’s phrase “bare life”—the unique, sacred existence of a people rendered into a barely distinguished mass of existence.

The long-standing paradox of human rights is that the declaration to observe them is a hollow scream that follows their loss, which is the consequence of the loss (if there ever was) of government interest in valuing a people.

We see this loss in US government policies since 9/11, most recently inaugurated by the Bush Administration but continued and enhanced under the Obama Administration: solitary confinement in Supermax and Guantanamo Bay; the tortuous force-feeding of Guantanamo hunger strikers; the aggressive detention of undocumented migrants in the US; the aggressive deportation attempts of child refugees from Central America, the rendition of suspected terrorists in CIA black sites (and eventually to US prisons); the entrapment of Black and South Asian Muslim men in FBI stings.

Today’s most vivid example is the continued support of Israel’s assault on Gaza, and the US’s support of that assault. Even as pictures of severely injured and dismembered children proliferate on-line, the Washington Post publishes team editorials and op-eds insisting that Israel must “crush Hamas.” Israel justifies carpet-bombing Gaza and the death of hundreds of children by insisting that Hamas uses “human shields.” Even while confessing to being traumatized by pictures of dead civilians, Senator John Kerry repeated the White House line that Israel “has the right to defend itself.”

The latter is a stale and hollow canard, reiterated by American newspapers and politicians alike. It is especially hollow in the face of an obviously one-sided genocidal pummeling of a tiny region. Gaza is, let’s remember, one of the most densely populated regions in the world—where there are no exits or escape from the relentless bombing except into the sea.

As of last night, the sixth UN school was bombed by Israel despite 17 warnings as to the shelter’s location. The UN schools were supposed to be protected shelters—intended as refuges for Palestinians who feared their homes would be targeted by Israeli missiles, Yet, despite reports of massive numbers of injuries and casualties, no one in the Israeli government has seen fit to issue an apology. “Self-defense.”

Let us assume for even a moment that despite many first-hand accounts to the contrary, Israel is correct in that Hamas is using “human shields.” Shouldn’t this very possibility give Israel pause? If it were indeed a brinksmanship game, given that Israel has been—will be—barely scathed by Hamas’ rockets, shouldn’t it refrain from blanketing Gaza with missiles that are seen to be annihilating hospitals, children, doctors—all unanimously agreed to be innocent targets? (Never mind that Palestinian men, too, are innocent targets, even as few acknowledge that.) It may be relevant to mention here that Israel is familiar with practice of using Palestinians as human shields. Despite a 2005 Israeli Supreme Court ruling that banned the Israeli government from doing so, it was accused of the same practice as recently as last year.

Yet, the constant Israeli retort of “self-defense” obscures Palestinians’ entitlement to human rights as channeled into the UDHR, prioritizing a selective amnesia in the aftermath of the genocide of European Jews. This robotic line is hardly unique to Israel. It has been echoed in justifying the U.S.’s “war on terror.” Remember President George W. Bush’s insistence, in the aftermath of 9/11: “You’re with us or against us”? This is what the assemblage of a “national security” apparatus is—the totalizing, synchronized governmental rhetoric that surrounds us whichever way we turn: From the creation of the US Department of Homeland Security, to the expansion of the NSA (the National Security Agency), to the shift in name from INS (Immigration and Naturalization Service) to ICE (Immigration and Citizenship Enforcement), the modern Western discourse reminds us that “national security” takes priority above any other consideration. The message emanates from its paid lackeys and chicken hawks alike, from Senator Dianne Feinstein to NSA Director Keith Alexander and to DNI Director James Clapper to politicians looking forward to their next campaign (witness Elizabeth Warren’s page and the votes of “progressive politicians from Bernie Sanders to Patrick Leahy) to mercenaries looking for their next million. But “any other consideration” includes not just cost, labor, energy—but also the Lives of Other People (Just Not Ours).

In effect, this is the current post 9/11 global paradigm: F*ck the Lives of Other People (FLOP) in the name of national security. Pundits have called it the New Imperialism, but I think it’s much more apt and succinct to label it as National Security FLOP. This is not to say that NatSec FLOP is original, unique, or singular, but it heralds in a (relatively) new epoch, in which human rights have no currency (except when convenient to a government’s rhetorical ethos). Herein lies the brilliant rhetoric of “self-defense,” used all too often to launch an overwhelming, disproportionate attack on an already vulnerable group, invoking the human rights of those that are not in danger: Kill, but always insist that it’s in order to protect “our own”—even when the facts say otherwise.

The seduction of NatSec FLOP is contagious, especially when consumed in conjunction with the self-aggrandizing allure of hunting “TERRORISTS.” Indeed, both of these positions were enthusiastically adopted by nations whose agendas were conveniently enhanced and justified by riding the coat-tails of American muscularity: the UK, India, Turkey, Pakistan, to name a few.

This is the paradox of human rights that seems to be in play in current moment: the rights of certain individuals can only be secured through the promise to kill others in the name of human rights. This is the supposed trade-off promulgated by the United States, borrowed and appropriated by other nations as convenient: National Security versus Rights. For the US, the trade-off promises, at the domestic level, to be deceptively effective: Freedom v. Security (if you want to be safe, then agree to give up (“some of”) your rights—to privacy, to your public dissent, to your conscience, to the violation of your home, your person, your speech, your freedom. Except that most of us–especially Blacks, Latinos, Muslims, the poor–residing in the US were never offered that choice.

Internationally, National Security has become the defense, the Maginot line against which cries of human rights evaporate.

We see this with regard both to Prime Minister Benjamin Netanyahu’s response to condemnations of Israel’s bombing of Gaza hospitals, UN schools, private residences, and massive number of children dead: Israel has the “right to defend itself.”

Here’s the thing about self-defense: Self-defense means the deployment of sufficient force to block attacks or injury on one’s property, home, or person. It does not mean initiating and sustaining attacks that are disproportionately larger than any imaginable provocation. Self-defense does not mean continuously bombing innocent bystanders—not even accidentally—not one, not two, and certainly not thousands of them—children, women, men, doctors, safety personnel.

According to Norman Finkelstein, who recently wrote a piece on Human Rights Watch’s artful evasion in blaming Israel for its large-scale killings:

International law prohibits an occupying power from using force to suppress a struggle for self-determination, whereas it does not prohibit a people struggling for self-determination from using force.[…]The International Court of Justice (ICJ) stated in its 2004 advisory opinion that the Palestinian people’s “rights include the right to self-determination,” and that “Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination.” Israel consequently has no legal right to use force to suppress the Palestinian self-determination struggle. Israel also cannot contend that, because this self-determination struggle unfolds within the framework of an occupation, it has the legal right, as the occupying power, to enforce the occupation so long as it endures.

It is difficult to reconcile Israel’s actions with its claims to self-defense, when it has complete control over Gaza’s borders. Self-defense is usually accepted as reasonable when one (person, community, region, nation) is unable to leave the region under attack. Self-defense does not mean blockading all possible openings to a densely packed region that has no other exits nor avenues to get out of the way of these rockets.

In the U.S., it is easy to be habituated to corporate media’s spin and ideology surrounding Israel’s actions toward Palestine, Gaza, and the West Bank: it is a fairly standard position that has had long-standing, even when contradicted by opposite realities. And certainly, it is no secret that the US and Israel share the close intimacy, from providing Israel’s funding, weaponry, and moral support, even in the face of heinous crimes.

Here is Arendt again:

What is unprecedented is not the loss of a home but the impossibility of finding a new one. Suddenly, there was no place on earth where migrants could go without the severest restrictions, no country where they would be assimilated, no territory where they could found a new community of their own…this moreoever had nothing to do with any material problem of overpopulation; it was a problem not of space but of political organization. Nobody had been aware that mankind, for so long a time considered under the image of a family of nation, had reached the stage where whoever was thrown out of one of these tightly organized closed communities found himself thrown out of the family of nations altogether.” (Arendt, 1951, 293–4)

 

Arendt here is referring to European minorities who had been displaced, survived the camps, been relocated into refugee camps. But it doesn’t take much to extend this discussion to Palestinians today.

Man, it turns out, can lose all so-called Rights of Man without losing his essential quality as man, his human dignity. Only the loss of a polity expels him from humanity. (Arendt 1951, 297)

 

How does one go about resurrecting the humanity of a people that has been completely, politically, legally, internationally, abandoned? The answer is obvious, but the solution can only occur when Israel, the US, and the rest of the West drops their convenient, selective, amnesia.

_______________________________

[1] Hannah Arendt, Origins of Totalitarianism (Harcourt, 1951). P. 293.

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Treating Prisoners as Well as Farm Animals

The legislature in the Commonwealth of Massachusetts is now considering passing Bill S.2232. Officially entitled, “An Act to ensure continued humane animal care in Massachusetts,” this commendable bill is designed to prevent cruelty and ill-treatment to farm animals. Here are some key excerpts:

The purpose of this section, subject to exceptions, is to prohibit the confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.

(b) Notwithstanding any other provision of law, a person is guilty of unlawful confinement of a covered farm animal if the person is a farm owner or operator who knowingly tethers or confines any covered animal, on a farm, for all or the majority of any day, in a manner that prevents such animal from:

(1) Lying down, standing up, and fully extending his or her limbs; and

(2) Turning around freely.

[snip]

(d) For the purposes of this section:

[snip]

(3) “Enclosure” means any cage, crate, or other structure (including what is commonly described as a “gestation crate” for pigs; or a “veal crate” for calves used to confine a covered animal).
[snip]

(6)”Fully extending his or her limbs” means fully extending all limbs without touching the side of an enclosure
(7) “Person” means any individual, firm, partnership, joint venture, association, limited liability company, corporation, estate, trust, receiver, or syndicate.
[snip]

(9) “Turning around freely” means turning in a complete circle without any impediment, including a tether, and without touching the side of an enclosure.
[snip]
(e) Any person who violates any of the provisions of this chapter is guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not to exceed one thousand dollars ($1,000).

This simple, yet precise bill raises the standards for the ethical treatment of animals that will, eventually, be slaughtered for food. Thus, while it is clear that the animals in question will most likely meet their demise intentionally, according to this bill, they should be treated humanely.

Perhaps I should say, “better-than-humanely” or “animal-humanely,” since as we know some tens of thousands of human beings, if not more, are currently confined and shackled in small cells, which certainly impede their ability to “fully extend their limbs without touching the side of an enclosure,” or to “turn around freely without any impediment, including a tether.” As we know, even when we choose to ignore it, our well-deserved sympathy for farm animals or house pets, or many other animals, often does not extend—even as a matter of federal policy—to human beings considered undesirable: imprisoned Black men and women, undocumented migrants or children, and mostly Muslim men who were casualties of American fear in the endless War on Terror—namely those who have been or still reside in Guantanamo.

Some significant portion of these prisoners are in solitary confinement in US prisons. The numbers, as the organization Solitary Watch (SW) states, are difficult to determine. Official numbers do not appear to include those who are undocumented and in “detention facilities”—including thousands of child migrants. None of these prisoners are likely to be granted the same range of unshackled movement, or even the same level of “animal-humane” treatment from their captors or guards. As a recent story by Katie Pavlich demonstrated, child migrants are expected to live inside caged facilities while the US government considers how to process them. The photos obtained on townhall.com show multiple children stuffed into chain-link cages with hardly any room to turn around “without impediment.” The slideshow at a CBS news website shows similar crowding and cages.

There are too many stories are out there about the subhuman treatment of pregnant prisoners who give birth while chained, with prison officials by their side. While there is a federal prison policy, passed in 2007, that prohibits shackling pregnant women, there are only a few similar prohibitions against state prison facilities, pertaining only to about 20 states. To its infinite credit, Massachusetts is among the most recent of states to pass such a policy. S.2063 was passed earlier this year, although its standards are lower than the humane animal care bill under consideration.

While S.2232, the humane-animal care bill, mandates unconditional freedom of movement for farm animals, Massachusetts’ prohibition against tethering pregnant prisoners onlymandates “the opportunity for a minimum of 1 hour of ambulatory movement each day.” Also, unlike a similar bill passed in California, the Massachusetts bill does not pertain to undocumented women. Plenty of other states have no such restrictions, as seen in this horrific recounting from the documentary Checkpoint Nation, of Maria, a woman who was taunted by an ICE official by her side in Tucson, Arizona, while giving birth.

Similarly, the stories of men locked up in tiny cubicles for years at a time proliferate without limit. Listen to these comments by Anthony Graves, wrongly convicted and sentenced to death row. Graves spent 18 years imprisoned, 16 of them in solitary confinement. He has also likened his 8 x 10 cell to a cage fit for animals, prompting prison officials to taunt him like an animal. In similarly dehumanizing fashion, Khalif Brauder was held in solitary confinement, without adequate nutrition, in Rikers as a teenager for fraudulent reasons. Mahmud Abouhalima is imprisoned in a Supermax prison where he has been shackled and forced to live for years in a cage no bigger than 8 feet wide. Yet others tell of being imprisoned in cells that are even smaller, as in these answers to the question of how large a prison cell.

There are countless stories of men who have been beaten and tortured so badly their spines have been broken.

But every single story that is published about these sub-human standards of treatment—in light of S.2232, perhaps we should call them “sub-animalistic” standards—is met with contempt or indifference. Others cheer that these men and women (and children) are being met with appropriate, well-deserved or justifiable treatment. And this Old Testament attitude persists despite the countless—yes, countless—cases of wrongful convictions or, in our post-9/11 legal world, the normalization of the complete absence of proof.

Back in 1997, political philosophers Robert Goodin, Carole Pateman and Roy Pateman published a scholarly article entitled, “Simian Sovereignty.” In it, they argued that simians—apes, orangutans, chimps and others of that species closely resembled human beings, and thus should be able to live and co-exist side by side with human beings. Goodin et al. cited several philosophers from the seventeenth and eighteenth centuries who argued for the close resemblance between human beings and simians. For example, they cite Lord Monboddo, as being “optimistic” that “the Orang Outang is, if not in the beginning, at least in one of the first stages of society, and in the progress towards a more civilized state.”

The premise of Goodin et al’s article was that simians most closely resemble human beings and therefore deserve to be treated in a superior fashion (as presumably human beings are). When I first read their article in 1997, I was rather skeptical of the comparison, because I wasn’t convinced of their premise. Today, I am still rather skeptical of the comparison, but for obverse reasons: the superior standards that they argue be extended to simians have not yet been extended to many who are supposed to fit into the category of”human”— particularly those who are undesirable, vilified or marginalized.

We are accustomed to thinking of human beings as autonomous, of being individuated, of—through long periods of Kantian story-telling—according them a certain level of respect, of ascribing them a certain dignified status, and by extension, a certain level of protection. In the Kantian story, humans exist between angels and animals, with their intellectual faculties rescuing them from the status of the latter. Their faculties are utilized to govern and restrain their material sides and impulses. Kant’s story continues to be a predominant linchpin in organizing our understanding of the world. In French philosopher Jacques Derrida’s posthumously published book, The Animal That I therefore Am, he points to Adorno’s stance that an idealist insults man by referring to the animal in him. It is certainly true that for many centuries to be understood as merely an animal was an insult. It was a condemnation of all that was unreflective, irrational, morally uncontrolled by one’s intellectual faculty.

There is a documented history that demonstrates how sympathy for animals is elicited much more prolifically and easily than is sympathy for others who suffer similar conditions to caged animals. We see it in this story, from 1994, about how orphaned mountain lion cubs elicited two and 1/3 times more donations ($21,000) than did the children ($9,000) orphaned after their mother was attacked by the cubs’ mother. Today, all 50 states have felony penalties for cruelty to animals.

Notably, in February 2006, a 38-year old man in Columbus, Ohio, was arrested for dog fighting, after officials found twenty-six wounded pit bulls confined in wooden crates. As the chief deputy sheriff reported then: “These dogs were kept in these things with no windows…It is still a phenomenon to me that people enjoy watching these animals suffer like this. It’s just so brutal.” I point to a case that is nearly 8 years old, because the sympathy (rightfully) expressed for the dogs—caged in crates with no windows–is still withheld from men and women and children  who are imprisoned in similar conditions: in Supermax prisons or in Guantanamo Bay or in immigration detention facilities.

We seem to have arrived at a moment when the term “animal” no longer refers as accurately to the non-human animal. If anything, as we have seen over the last few decades, non-human animals are seen to resemble human animals more and more: dolphins can think and sing and feel; chimpanzees can communicate. Octopi have been discovered to wield and implement tools. These facts shatter the foundation of Karl Marx’s celebration of the singularity of human potential.

Yet, there seems to be an inverse disparity between our unadulterated love for animals and our shame and moral outrage in the face of mistreatment and cruelty and the relative lack of concern for human beings facing similar conditions. What are we to make of the seeming fact that certain human beings will not be recognized as having the same kind of protections afforded to animals? How do we understand both their status and their continued misery—a misery that continues and hears fewer objections, less outrage?

The strongest argument in favor of cruel treatment to prisoners is that they have been convicted of heinous actions, and as such, they merit such treatment. But that argument is easily undermined in the face of the fact that so many prisoners who are caged have never seen the inside of a courtroom for their supposed crimes. Most detainees in immigration facilities or in Guantanamo have neither been tried nor convicted, as we well know.

A more cynical reading would suggest that S.2232, pending in the Massachusetts legislature, only offers super-humane treatment to animals that will eventually be slaughtered and eaten, and as such, is not a real fix. But shouldn’t treatment of human beings who are vilified approximate the treatment of farm animals?  It is not too cynical to say that if we had a federal, uniform standard of treatment for imprisoned men, women and children matching the standards of S.2232, that would mark some level of progress in a world in which the US government professes to believe in human rights.

________________________________________

A version of this piece was published on truth-out.org today.

White Papers, Targets, and U.S. Citizens: What’s All the Fuss?

Revised 6:59 am.

The last few days, the mainstreamish media and Congress have professed shock and outrage over the Office of Legal Counsel white paper and its ambiguous rationale on President Obama’s targeted killing program. But, really, there’s very little new about it, save some ostensible rationale that will facilitate a long-standing politics of execution.

But, much news media and Congress (except for DNC Chair Debbie Wasserman-Schultz) have known about targeted killings for years. As Tara Kelvey and Josh Begley have noted, the New York Times has covered drones for years, even when they have ostentatiously skirted around the reasons for those killings. Similarly, the Brennan hearings were a perfect place for Congress to engage in, as Jeremy Scahill called it on Up with Chris this morning, “Kabuki oversight”—namely, the spectacle of watching senators like Dianne Feinstein and others to act as if they were overwhelmingly outraged by the non-responsiveness of the CIA, OLC, and WH to their repeated requests for an answer to the question of the rationale for targeted killing without oversight.

Why then are they suddenly exercised over it now? I’m puzzled by the fuss, given the way the sudden controversy is framed is shock and horror that a U.S. citizen might be fingered for death if they are suspected to be an “imminent” threat to America. So, suddenly—what—everyone cares that U.S. citizens Anwar and Abdulrahman Al-Awlaki , Samir Khan, and Kamal Derwish were killed?

Why weren’t our esteemed media and Congress that exercised about the provisions in NDAA 2012 that authorized POTUS to arrest and detain U.S. citizens (um…and foreign nationals) anywhere for posing an imminent threat?

After all, many more U.S. citizens are likely to be intercepted and indefinitely detained by the following NDAA 2012 provision (the one that Obama insisted be included on threat of veto. Remember?):

Subtitle D–Detainee Matters
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
 
    (a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
    (b) Covered Persons- A covered person under this section is any person as follows:
    (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
    (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

The rest of the clause is just as interesting.

After the November elections, Sen. DiFi tried an interesting re-do in NDAA 2013 with an amendment that limited indefinite detention to non-citizens—but you’ll remember that it ‘mysteriously disappeared.’  If anything, U.S. citizens are much more vulnerable to the arrest and indefinite detention provisions from these bills than drones strikes. Right?

Mind you, it is heartening that even ‘forward leaners’ like Kristal Ball are so worked up over the undue authority that the WH/DoJ/OLC is taking to dilute the grounds by which they justify the targeting of U.S. citizens.

But the issue with drones is not just that they target U.S. citizens. But that they miss. And kill thousands of non-US citizens. And thousands of innocent civilians. And hundreds of children. On other sovereign lands. And turn peaceful foreign nationals into hostile, understandably vengeful, potential allies of organizations that the US has deemed to be our enemies.

There are compelling reasons to review the underlying rationales and “logic” of an Administration that wants to maintain a thick shell of secrecy around policies and authoritarian practices as heinous as killing U.S. citizens. The urge to dissect these policies is especially important as we consider future elections in relation to the executive authority that has been expanded for future presidents to exploit.

While the white paper is in the news, it’s worth taking advantage of the timeliness to explore other, older, facets of the Bush and Obama Administrations’ expansion of power.  In the short run, U.S. citizens stand to be much more vulnerable to the provisions of NDAA 2012 than the targeted killing rationale of the white paper.  This is especially true of Muslim-American men, who have been vulnerable to Sec. 1032 of NDAA 2012 since the endless, borderless, War on Terror was declared. And have been vulnerable to much, much, much, muchmuch, more than that.

Drones are being used for tracking here in the U.S, but not yet as lethal weapons. On the other hand, the (ex post?) rationale of Sec. 1032 in NDAA 2012 stands to round many more up in conjunction with anxieties about their acquaintances, associations, and communications in relation to the monstrous fear of Al-Qaeda and the all things “terrorist.” But we know that those ‘more’ will less likely be young white men from the burbs of Mill Valley (to date, we’ve only seen one like that–and he got a trial), than young brown and black men from the “terrorist-laden” terrain of Queens, the Bronx, or the less-than-affluent suburbs of Boston and Portland, OR.

And in so saying, perhaps I’ve answered my own question: maybe we care more about the OLC white paper because it obfuscates the obvious: these aren’t policies intended towards non-Muslims. We can scrutinize the rationale of the white memo as a way to distract most Americans from focusing on the fact that policies like indefinite detention, pre-emptive policing, and—yes—targeted killings—haven’t been and won’t likely be directed towards innocent (non-Muslim) Americans. Rather, such policies will continue to be aimed many more Muslim-Americans (and non-Americans) who won’t–can’t–possibly expect the U.S. to respect their innocence unless there are clear and evident reasons to suspect otherwise.

Then They Came For Me: The Futility of the Neimoller Argument

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out–
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out–
Because I was not a Jew.
Then they came for me–and there was no one left to speak for me.
 

 

Apparently, Martin Niemoller, a German theologian and pastor, was an initial supporter of the Nazi party. He did not say the above words until after well after he had been released from a German concentration camp, the second of two where he was incarcerated from 1938-45. He finally saw the light…well after his harassment by the German state. His poem can be summed up hence: we should care about the fate of others, because our fates hang in the balance.

Even though he was eventually targeted by the Nazis, Niemoller is hardly a paragon of virtue, as a quick browse of his wikipage will attest: he was apparently anti-Semitic, and cared mostly to protect his parish of Christians who were mistaken as Jews—rather than to protect Jews themselves. Yet, his argument is trotted out at every cocktail hour and dinner in liberal neighborhoods in America. This utilitarian argument is unfurled to make a plea for why Americans should care about the galloping abridgment of rights that has been occurring since well before September 11, 2001.

But it is not a compelling argument. It is especially unpersuasive for those who have never wondered whether they will live an entire lifetime without having their bodily cavities invaded by some policewoman’s already dirty latex glove.

Indeed, it is a specious argument, especially in view of the following examples:

In November of this year, 26 year old Rezwan Ferdaus was convicted of plotting to attack the Pentagon and Capitol building by making IED detonators. Ferdaus, like Tarek Mehanna before him, and Fahad Hashmi before him, and Mohamed Osman Mohamud before him, and myriad young Muslim men before them, were arrested for “terrorist” plots. They were arrested on very little evidence—in many cases—on hearsay of FBI agents or other unsavory witnesses. Many of them were incarcerated without charges for years, deprived of access to lawyers, family, other people (because they were held in solitary confinement). Many of them were notoriously entrapped by FBI agents. And a number of them—to finally escape the excruciating wait of being held in solitary confinement on trumped-up pretences that they had violated some prison rule—finally pled guilty. i.e., without trials, without public evidence, to charges of plotting to launch terror plots.

It is a repeated phenomenon—occurring all over the US. The most recent surveillance and entrapment projects were lead by the NYPD with the full support and approval of the FBI.

In 2005, 2 female Queens teenagers, unknown to each other, were arrested on suspicion of terrorism. Their crime? Tashnuba Hayder and Adamah Bah were separately reporting to the INS at 26 Federal Plaza in Manhattan. Passing each other, they noticed that they were Muslim (one was in hijab, the other in a niqab), likely greeted each other with “Salaam Aleikum” (we don’t actually know the phrase they used). This aroused the suspicion of the immigration agents who later reported them to the FBI, which proceeded some time later to arrest and interrogate them without their families or lawyers for 7 weeks. Both were released after protest by friends and teachers. However, 16 year old Hayder’s release came at a price: she was required to agree to be deported to Bangladesh. You can barely find the details of their ordeals on-line (I have written about them in detail elsewhere).

Today, thousands of Muslim men and women in the United States must watch their words carefully, be careful about context when expressing political dissent, and be wary of others in religious places of worship—lest they be undercover FBI agents. The danger of being entrapped or arrested is so rampant that Constitutional lawyers give advice to Muslim mothers warning them to keep an eye on their sons so as to avoid the claws of the FBI.

How many white men and women today must be careful about what they say when expressing political dissent? The laws that have been passed in the decade since 9/11 don’t name Muslims. And yet, we know that the populations being watched and targeted are not young white men and women from wealthy suburban families. The US is not targeting Germany or Sweden or France with drone strikes in order to catch terrorists. Young white men with assault rifles are not the subjects of anti-terrorist pre-emptive policing or of FBI surveillance–despite the fact that they are more likely to terrorize six year olds in leafy New England suburbs, young adults in movie theatres in Colorado, or town meetings with US congresswomen in Tuczon, Arizona.

In light of the intent and application of 9-11 laws, the Neimoller argument is a selfish and useless argument. It is used futilely to convince some comfortable, protected segment of the American populace to care about the repeal of rights because it could happen to them one day. Because—god forbid, someday, somewhere, someone who is white—or at least bourgeois (e.g. owning an espresso-machine, luxury car, iPad, Kindle, iPhone and 3 MacBooks, who splurges on ski trips to Aspen and considers Northface shells a wintertime necessity)—might be incarcerated, detained, tortured, have their private phone and email conversations with their extramarital lovers monitored. Or have their bank accounts and charitable contributions monitored to assess whether they’ve contributed to terrorist organizations.

Anti-privacy laws, search laws, pre-emptive policing laws are not being directed against young white American college students. The violations of material support statutes are not being prosecuted against HSBC in the same way that they are being prosecuted against Somali migrants.

The reason to care about the repeal of rights and the production of oppressive laws is because they punish, humiliate, target, dehumanize some other segment of the population: whistleblowers, Muslim men and women, political dissenters, children killed by “accidental” drone strikes, children deliberately targeted and killed by drone strikes, men and women who are rendered to far away places for torture on behalf of the United States government. Not because they might, remotely—somewhere, someday—be used to punish you.

If there are white or non-white wealthy Americans out there who watch the news and are aware of what’s happening to dark black and brown people, to Muslim, Arabs, Syrians, Palestinians, poor women, innocent black and brown children—and they aren’t ALREADY convinced that there is a serious rights abridgement taking place—making the argument that they should care because it could ONE day happen to them is a waste of breath.

They don’t care. If they are not interested in political and legal solidarity, they will not be moved by the pragmatic “we are all in this together fabrication.” Because they are not in it “with us.” The odds are overwhelmingly against their lives being upended (or simply ended) by counter-terrorism laws. Not because they are more innocent. They are no more or less innocent than a Muslim, Arab, Black, South Asian, Latino family—of crime, of violating sanctions, of crime, of terrorism, of illicit activity.

They are not in it “with us” because they are more visibly and folklorically “American.” They are more white. More conservative. More comfortable—economically. They are aware of these aforementioned attributes, and reasonably sure that they will rarely be lumped in “with us” by the American government. And so, they are more at ease with the extralegal rollback of rights, because their activities will not be held against them.

The legal framework of the War on Terror is designed neither to threaten comfortably ensconced Whites or Blacks, nor many quiet upper-class brown folks who take pains to be visibly obedient. It is designed to apply to those who are on the borders, on the margins of society—racially, residentially, economically, or socially. Or for those who might be “comfortable” at some level, but who are teetering close to that edge.

Or for those who are politically uncomfortable or angry with the reprehensible actions of the US government. This is how Syed Hashmi and Tarek Mehanna and Reswan Ferdhaus attracted the attention of the FBI.

Wait, you say. There are plenty of white men (and some white women) who’ve been trapped in the Legal War on Terror: John Walker Lindh, whistleblowers Bradley Manning, Julian Assange, John Kiriakous, Thomas Drake. Lynn Stewart.

The reason we know their names, the reason that their situations are so much more broadly publicized is because the American media and public find their situations to be so fascinating: The idea that counter-terrorism laws could be applied to men or women who are white–strikes the mainstream media (MSM) as a fascinating novelty. As importantly, the notable exceptions of white men such as Manning, Assange, Kiriakou allow MSM and the comfortable American public to assure themselves that the war on Terror isn’t racist. It confirms for them that counter-terrorism laws are being applied “equally” against all potential threats—Muslims or whites. It’s just disproportionately catching Muslims, because…well, you know.

Utilitarianism—supporting something because it’s useful or has strategically positive consequences—is a popular framework in our neoliberal era. We constantly make calculations based on this: the lesser of 2 evils, the more incremental of 2 evils, the Alan Dershowitz straw man question (what if torture of 1 person saved 100 people?). Or my favorite: 2 potential Supreme Court Seats that will go to the anti-abortion conservatives so I should vote for Obama because thousands of Pakistanis and Yemenis will die of drone strikes regardless of whether Romney or Obama wins. And besides most poor black and brown women in the US will never have access to abortion anyway regardless of the next 2 SC justices.”

In other words, it reinforces the whole white privilege thing: I have mine. Others won’t get theirs. Let me just get mine.

At heart, utilitarianism is an economic calculus that works for savings accounts and bank corporations. It is a useless framework to argue in defense of preserving and defending the rights of vulnerable and marginal groups.

The only argument that should be used in favor of caring about privacy rights, rights against torture, pre-emptive search and seizure, rights that protect dissenting speech, access to lawyers, and due process, is for their own sake. I know that this is a strange idea in our brave new world. But why we can’t just care about rights because they’re rights? Constitutional and human rights should be vocally defended, amply utilized. The defense of rights should be carefully kept away from specious arguments about “national security,” and from utilitarian arguments about the pragmatic usefulness of defending rights for other people.

Persecuted peoples should be uncompromisingly defended on the indubitable, unconditional, grounds of their humanity.

And rights should be directly defended for their own sake. They are not like exotic delicacies from faraway countries: they’re don’t have to be rare. They shouldn’t have to be carefully hoarded.*
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*The last two paragraphs of this post have been revised/updated.