Happy Holidays! (to readers and non-readers of my blog)

Fighting for peace without going to war...

Following the thought-provoking post on IntLawGrrls here it seems there is no solution to the issues with regard to the war in Afghanistan. But history is the lighthouse for the future. See my post here earlier. First, there are no clear goals for the U.S. presence in Afghanistan. Besides the amorphous 'war on terror' and less amorphous struggle against the Taliban, the goals are not clear. What do we seek to establish there? Are we there to eradicate the Taliban? Or are we there to minimize their presence? Are we there to catch Osama bin Laden? Or perhaps just to make a show of our presence, as a reminder that the United States will not give in to the terrorists. When the Soviet Union entered Afghanistan many years ago, it did not have clear-cut goals and history is very instructive on that issue. It was there for a long time, trying to fight the same extremists plaguing the region now. But the Soviet Union paid a dear and heavy price for entering Afghanistan. While, indubitably, there are differences between the Soviet Union and today's United States, the war in Iraq was pretty instructive for the latter and repeating the mistakes not only of other countries but one's own, is simply unacceptable.

Second, even if we come to a point of setting clear goals for the war, and if we cross that threshold, there is another problem: are we realistically expecting to achieve those goals? On this issue, there are several obstacles: 1) financing for the war in this dilapidated economy and domestic crisis that the United States is facing, 2) lack of support from allies-- as far as I can see, no one besides the United States is really interested in sending major troops to Afghanistan, 3) the strong counter-arguments for non-intervention in light of the strong opposition to the American intervention in the Middle East overall.

People say that non-intervention is just as bad as adding more troops at the current time. True, the United States has set long-term commitments towards the global war on terror, has expressed its strong willingness and devotion to fighting terror of every shape, form and presence. Moreover, after Iraq the United States has set up on a journey to clear its public image and prove to the world that it takes its role as a world leader responsibly. Leaving a country prey to the terrorists whose goal is to kill women and children, terrorize innocent people and instill fear in the general population would not go well with the world image of the United States. Isolationism and non-intervention in this age of globalized world and interests would be as costly to the United States as a war that is turning sour. But can the United States shoulder this burden on its own without major support from the rest of the world?! I doubt it. We no longer have the resources after Iraq.

At this point the United States has come to the crossroads-- a major one, with respect to the war in Afghanistan and other geopolitical interests in the Middle East. There is a saying, 'damned if you do it, damned if you don't'. Is continuing this vague war against terror possible? Is Afghanistan going to be yet another Iraq for the United States or worse, will the ghost of Vietnam come back and disturb it again and again? But how can the United States hope to affect the world and try to achieve peace in the Middle East, by leaving the struggle against those who do not want peace... It is clear that the Marshall plan that was the great success in Europe may not be the future reality in the Middle East. There are too many cultural, political, religious variables in place now, absent from the political landscape in Europe post-World War II. America at the time was a country largely made up of descendants of Europeans. How hard was it to institute a Marshall plan in Europe by Americans? There was absolutely no opposition to the United States presence in Europe, at least in the West, whereas the very image of the United States and the accompanying American lifestyle is strongly opposed by many in the Middle East. In addition, the whole world had arisen to fight Nazism, fascism symbolized by Hitler. Today, I can't say the same about the war on terror. Many countries are still paying lipservice to the war on terror because it is not affecting them. Of course, the causes of the terror is a subject for another post.

History does not always provide the answers because one can't expect the world to be the same in different ages. But history may prepare the humanity in facing the challenges and solving them as they come, one at a time. The goal though should always be the same: peace to the world at all costs.

Napoleon used to say, 'I waged war to secure peace.' Can the United States fight for peace without going to war? That is the question.

Passage of time and human progress

Look to this day for it is life, the very life of life... For yesterday is already a dream and tomorrow is only a vision. But today, well lived, makes yesterday a dream of happiness and every tomorrow a dream of hope.
 [Sanskrit proverb]

Time has no divisions to mark its passage, there is never a thunderstorm or blare of trumpets to announce the beginning of a new month or year. Even when a new century begins, it is only we mortals who ring bells and fire off pistols.
[Thomas Mann]

We, humans, only live in yesterday or tomorrow. But while we dwell on the past and imagine the future, 'today' is slipping through our fingers like the dry sand. But perhaps yesterday, today and tomorrow are a single continuum... Did 'yesterday' even happen? Or was it a figment of my imagination, an individual desperately trying to project herself onto this world... But if you walk on snow and your footprints show up, with spring the snow will melt, your footprints will disappear entirely. Similarly, your wet prints on the beach will disappear with each new wave of the ocean... So, you as an individual may try so very desperately to leave some footprints on the surface of the world. Yet it may very well be in vain. Are you in control of it at all? Your existential, egotistic and self-centered effort to make things happen the way you want them to happen is futile and ridiculous. Yet throughout history it was ordinary human beings that were able to do exactly that-- they did leave their long-lasting footprints... In fact, their footprints were cast in stone. It is a fine line separating mortals from immortals, heroes from the rest... But it takes something more than egotistic existence that most humans are engaged in. It also depends on the age you live in... Some ages cannot tolerate heroes and in fact annihilate them so very quickly.

The question though is this, how do you live in 'today' as it is given to you, without trying to control it, without running away from it into the past, or shielding from it with the thought about tomorrow... If the clock is running with or without you, whether you like it or not, can you go along with the clock and surrender to the 'present' fully and unconditionally... Can you?!

'Everlasting'

Voice from the trenches...

Took a minute to put out my voice from the trenches... As a defense attorney either in trial or at threshold to trial, I consider myself a foot soldier at war with the criminal justice system. What is the story of the trial lawyer? A psychodrama, a journey, self-revelation, and constant initiation, re-initiation into the inner workings of the criminal justice system... What do others, who do not go through this process, know?! What do they know... Only those in the shoes of the soldier know exactly what it feels like there, in the army... When you are seated next to a human being, who has put his trust, his hopes in you... who understands you with a simple eye contact... A person who has nobody else to like him in the entire system, but you... Someone who is unpopular, who is distrusted, disliked, feared and considered a 'criminal'. When you are seated next to this person who has relied on you, and how your heart sinks at every piece of inadmissible evidence introduced to the jury over your objection, every piece of undiscovered material introduced over your objection, when you are denied a sidebar, not allowed to voice your objections, and succumbed into submission to 'complete and absolute' authority of court that is impermissibly prejudiced and biased against your client... How your face turns red and you are on the verge of fury and a heart attack when you are not allowed to ask a single queston to the jury during jury selection or 'de-selection'. When you are threatened with contempt of court if you start doing effective representation on behalf of your client... This is the process that is not to be described, or written, but to be lived through day in and day out... It takes someone to 'stand up and fight' as a soldier. This is not about intellectual discussions over a cup of coffee, or writing volumes of books about how to be a trial lawyer. This is simply being in the army. Only those who have gone there and have been as foot soldiers know exactly how it is. It is a war where you may win the battle but lose the war because if you win one trial, you are back to square one, and fight for another, and another, and another, endlessly, till the end. There is really no winning at this war, but only fighting for what it is worth... The criminal justice system will never change its institutional law enforcement bias, prejudice against the criminal defendant and custom to wash away, dilute, mischaracterize, misinterpret the rights afforded the accused...

Many people do not understand the role of the defense attorney... We are not defending the 'criminals'. We are there to secure the rights and liberties afforded by laws to the entire, yes, entire, society... If some in this society choose not to exercise them, or decide to take them lightly, disregard them or worse, deprive others of them, that does not mean that we will put down our weapons and cease fighting for those rights!

And if those who get the opportunity and power to use criminal laws to subjugate, oppress, destabilize and disable minorities and those without voice-- those at the lower economic rungs of the society-- they will have to account for constant struggle by us! I do not walk alone. I have followed many and in time others will join me...
You are in the army now!

Law double-edged sword...

There are times when I get the need to escape from the everyday parade, uproar and tumult and really think about what is happening around me. These are times when I step back into silent contemplation and musing, complete seclusion. I just thought, how little and powerless we are as individuals against the machinery that is driving the world. The so-called 'law' that we lawyers have learned to revere and analyze, is in fact a double-edged sword. Yes, it can empower the weak, the oppressed, those without power... But increasingly and devastatingly, it is a tool in the hands of the powerful against very those it was designed to protect... It is a tool to disempower, disenfranchise, destroy the will of ordinary people. Injustice through legal channels and under the guise of the law is commonplace. The Bill of Rights is in the gutter. I speak to older lawyers who tell me, 'We won't be a free society in fifty more years.' Someone in fact said, 'Are we a free society today?!' Those in power have the upper hand over the U.S. Constitution, its interpretation, its application, its very existence. The liberal institutions upon which this country has been built and has survived, now are cast into permanent oblivion. Because of economic crisis, people only care about the daily sustenance, not the rights they once enjoyed... But they do not realize that economic-social rights are part of their rights they have lost. Corruption, impunity, complete lack of accountability are commonplace. Police harrassing, intimidating, threatening and beating up people in the streets. No one seems to care. No one seems to talk about these things. You have no right to privacy, no right to speak your mind, no right to walk in the streets freely and fearlessly... The monster is driving the world... and there is no end to be seen.

The law is being used very wittingly and cunningly by those in power against the very those it was designed to protect.

President Obama is trying hard to work with those who do not share his values. Meanwhile, his own values-- values that earned him his popularity and victory-- are dissolving. He is not standing by his promises to unravel the damage brought upon this country by the monster... The promise was exactly that: to uphold the values he was espousing but is now slowly eschewing... Did American progressivism die with Ted Kennedy?! That is the question.

In Memory

My fellow Democrats and my fellow Americans, I have come here tonight not to argue as a candidate but to affirm a cause. I'm asking you--I am asking you to renew the commitment of the Democratic Party to economic justice.

I am asking you to renew our commitment to a fair and lasting prosperity that can put America back to work.

This is the cause that brought me into the campaign and that sustained me for nine months across 100,000 miles in 40 different states. We had our losses, but the pain of our defeats is far, far less than the pain of the people that I have met.

We have learned that it is important to take issues seriously, but never to take ourselves too seriously.

The serious issue before us tonight is the cause for which the Democratic Party has stood in its finest hours, the cause that keeps our Party young and makes it, in the second century of its age, the largest political party in this republic and the longest lasting political party on this planet.

Our cause has been, since the days of Thomas Jefferson, the cause of the common man and the common woman.

Our commitment has been, since the days of Andrew Jackson, to all those he called "the humble members of society--the farmers, mechanics, and laborers." On this foundation we have defined our values, refined our policies and refreshed our faith.

Now I take the unusual step of carrying the cause and the commitment of my campaign personally to our national convention. I speak out of a deep sense of urgency about the anguish and anxiety I have seen across America.

I speak out of a deep belief in the ideals of the Democratic Party, and in the potential of that Party and of a President to make a difference. And I speak out of a deep trust in our capacity to proceed with boldness and a common vision that will feel and heal the suffering of our time and the divisions of our Party.

The economic plank of this platform on its face concerns only material things, but it is also a moral issue that I raise tonight. It has taken many forms over many years. In this campaign and in this country that we seek to lead, the challenge in 1980 is to give our voice and our vote for these fundamental democratic principles.

Let us pledge that we will never misuse unemployment, high interest rates, and human misery as false weapons against inflation.

Let us pledge that employment will be the first priority of our economic policy.

Let us pledge that there will be security for all those who are now at work, and let us pledge that there will be jobs for all who are out of work; and we will not compromise on the issue of jobs.

These are not simplistic pledges. Simply put, they are the heart of our tradition, and they have been the soul of our Party across the generations. It is the glory and the greatness of our tradition to speak for those who have no voice, to remember those who are forgotten, to respond to the frustrations and fulfill the aspirations of all Americans seeking a better life in a better land.

We dare not forsake that tradition. We cannot let the great purposes of the Democratic Party become the bygone passages of history.

We must not permit the Republicans to seize and run on the slogans of prosperity. We heard the orators at their convention all trying to talk like Democrats. They proved that even Republican nominees can quote Franklin Roosevelt to their own purpose.

The Grand Old Party thinks it has found a great new trick, but 40 years ago an earlier generation of Republicans attempted the same trick. And Franklin Roosevelt himself replied, "Most Republican leaders have bitterly fought and blocked the forward surge of average men and women in their pursuit of happiness. Let us not be deluded that overnight those leaders have suddenly become the friends of average men and women."

"You know," he continued, "very few of us are that gullible." And four years later when the Republicans tried that trick again, Franklin Roosevelt asked "Can the Old Guard pass itself off as the New Deal? I think not. We have all seen many marvelous stunts in the circus, but no performing elephant could turn a handspring without falling flat on its back."

The 1980 Republican convention was awash with crocodile tears for our economic distress, but it is by their long record and not their recent words that you shall know them.

The same Republicans who are talking about the crisis of unemployment have nominated a man who once said, and I quote, "Unemployment insurance is a prepaid vacation plan for freeloaders." And that nominee is no friend of labor.

The same Republicans who are talking about the problems of the inner cities have nominated a man who said, and I quote, "I have included in my morning and evening prayers every day the prayer that the Federal Government not bail out New York." And that nominee is no friend of this city and our great urban centers across this Nation.

The same Republicans who are talking about security for the elderly have nominated a man who said just four years ago that "Participation in social security should be made voluntary." And that nominee is no friend of the senior citizens of this Nation.

The same Republicans who are talking about preserving the environment have nominated a man who last year made the preposterous statement, and I quote, "Eighty percent of our air pollution comes from plants and trees."

And that nominee is no friend of the environment.

And the same Republicans who are invoking Franklin Roosevelt have nominated a man who said in 1976, and these are his exact words, "Fascism was really the basis of the New Deal." And that nominee whose name is Ronald Reagan has no right to quote Franklin Delano Roosevelt.

The great adventures which our opponents offer is a voyage into the past. Progress is our heritage, not theirs. What is right for us as Democrats is also the right way for Democrats to win.

The commitment I seek is not to outworn views but to old values that will never wear out. Programs may sometimes become obsolete, but the ideal of fairness always endures.

Circumstances may change, but the work of compassion must continue. It is surely correct that we cannot solve problems by throwing money at them, but it is also correct that we dare not throw out our national problems onto a scrap heap of inattention and indifference. The poor may be out of political fashion, but they are not without human needs. The middle class may be angry, but they have not lost the dream that all Americans can advance together.

The demand of our people in 1980 is not for smaller government or bigger government but for better government. Some say that government is always bad and that spending for basic social programs is the root of our economic evils. But we reply: The present inflation and recession cost our economy $200 billion a year. We reply: Inflation and unemployment are the biggest spenders of all.

The task of leadership in 1980 is not to parade scapegoats or to seek refuge in reaction, but to match our power to the possibilities of progress. While others talked of free enterprise, it was the Democratic Party that acted and we ended excessive regulation in the airline and trucking industry and we restored competition to the marketplace. And I take some satisfaction that this deregulation was legislation that I sponsored and passed in the Congress of the United States.

As Democrats we recognize that each generation of Americans has a rendezvous with a different reality. The answers of one generation become the questions of the next generation. But there is a guiding star in the American firmament. It is as old as the revolutionary belief that all people are created equal, and as clear as the contemporary condition of Liberty City and the South Bronx.

Again and again Democratic leaders have followed that star and they have given new meaning to the old values of liberty and justice for all.

We are the party. We are the party of the New Freedom, the New Deal and the New Frontier. We have always been the party of hope. So this year let us offer new hope, new hope to an America uncertain about the present, but unsurpassed in its potential for the future.

To all those who are idle in the cities and industries of America let us provide new hope for the dignity of useful work. Democrats have always believed that a basic civil right of all Americans is their right to earn their own way. The party of the people must always be the party of full employment. To all those who doubt the future of our economy, let us provide new hope for the reindustrialization of America. And let our vision reach beyond the next election or the next year to a new generation of prosperity. If we could rebuild Germany and Japan after World War II, then surely we can reindustrialize our own nation and revive our inner cities in the 1980s.

To all those who work hard for a living wage let us provide new hope that the price of their employment shall not be an unsafe workplace and a death at an earlier age.

To all those who inhabit our land from California to the New York Island, from the Redwood Forest to the Gulfstream waters, let us provide new hope that prosperity shall not be purchased by poisoning the air, the rivers and the natural resources that are the greatest gift of this continent.

We must insist that our children and our grandchildren shall inherit a land which they can truly call America the beautiful.

To all those who see the worth of their work and their savings taken by inflation, let us offer new hope for a stable economy. We must meet the pressures of the present by invoking the full power of government to master increasing prices.

In candor, we must say that the Federal budget can be balanced only by policies that bring us to a balanced prosperity of full employment and price restraint.

And to all those overburdened by an unfair tax structure, let us provide new hope for real tax reform. Instead of shutting down classrooms, let us shut off tax shelters.

Instead of cutting out school lunches, let us cut off tax subsidies for expensive business lunches that are nothing more than food stamps for the rich.

The tax cut of our Republican opponents takes the name of tax reform in vain. It is a wonderfully Republican idea that would redistribute income in the wrong direction. It is good news for any of you with incomes over $200,000 a year. For the few of you, it offers a pot of gold worth $14,000. But the Republican tax cut is bad news for the middle income families.

For the many of you, they plan a pittance of $200 a year, and that is not what the Democratic Party means when we say tax reform.

The vast majority of Americans cannot afford this panacea from a Republican nominee who has denounced the progressive income tax as the invention of Karl Marx. I am afraid he has confused Karl Marx with Theodore Roosevelt--that obscure Republican president who sought and fought for a tax system based on ability to pay. Theodore Roosevelt was not Karl Marx, and the Republican tax scheme is not tax reform.

Finally, we cannot have a fair prosperity in isolation from a fair society. So I will continue to stand for a national health insurance.

We must not surrender to the relentless medical inflation that can bankrupt almost anyone and that may soon break the budgets of government at every level. Let us insist on real control over what doctors and hospitals can charge, and let us resolve that the state of a family's health shall never depend on the size of a family's wealth.

The President, the Vice President, the members of Congress have a medical plan that meets their needs in full, and whenever senators and representatives catch a little cold, the Capitol physician will see them immediately, treat them promptly, fill a prescription on the spot. We do not get a bill even if we ask for it, and when do you think was the last time a member of Congress asked for a bill from the Federal Government?

I say again, as I have before, if health insurance is good enough for the President, the Vice President and the Congress of the United States, then it is good enough for you and every family in America.

There were some who said we should be silent about our differences on issues during this convention, but the heritage of the Democratic Party has been a history of democracy. We fight hard because we care deeply about our principles and purposes. We did not flee this struggle. We welcome the contrast with the empty and expedient spectacle last month in Detroit where no nomination was contested, no question was debated, and no one dared to raise any doubt or dissent.

Democrats can be proud that we chose a different course and a different platform. We can be proud that our party stands for investment in safe energy instead of a nuclear future that may threaten the future itself.

We must not permit the neighborhoods of America to be permanently shadowed by the fear of another Three Mile Island.

We can be proud that our party stands for a fair housing law to unlock the doors of discrimination once and for all. The American house will be divided against itself so long as there is prejudice against any American buying or renting a home.

And we can be proud that our party stands plainly and publicly and persistently for the ratification of the Equal Rights Amendment.

Women hold their rightful place at our convention, and women must have their rightful place in the Constitution of the United States. On this issue we will not yield, we will not equivocate, we will not rationalize, explain or excuse. We will stand for E.R.A. and for the recognition at long last that our nation was made up of founding mothers as well as founding fathers.

A fair prosperity and a just society are within our vision and our grasp, and we do not have every answer. There are questions not yet asked, waiting for us in the recesses of the future, but of this much we can be certain because it is the lesson of all our history: Together a president and the people can make a difference. I have found that faith still alive wherever I have traveled across this land. So let us reject the counsel of retreat and the call to reaction. Let us go forward in the knowledge that history only helps those who help themselves.

There will be setbacks and sacrifices in the years ahead but I am convinced that we as a people are ready to give something back to our country in return for all it has given to us.

Let this be our commitment: Whatever sacrifices must be made will be shared and shared fairly. And let this be our confidence: At the end of our journey and always before us shines that ideal of liberty and justice for all.

In closing, let me say a few words to all those that I have met and to all those who have supported me, at this convention and across the country. There were hard hours on our journey, and often we sailed against the wind. But always we kept our rudder true, and there were so many of you who stayed the course and shared our hope. You gave your help, but even more, you gave your hearts.

Because of you, this has been a happy campaign. You welcomed Joan, me and our family into your homes and neighborhoods, your churches, your campuses, your union halls. When I think back of all the miles and all the months and all the memories, I think of you. I recall the poet's words, and I say: What golden friends I have.

Among you, my golden friends across this land, I have listened and learned.

I have listened to Kenny Dubois, a glassblower in Charleston, West Virginia, who has ten children to support but has lost his job after 35 years, just three years short of qualifying for his pension.

I have listened to the Trachta family who farm in Iowa and who wonder whether they can pass the good life and the good earth on to their children.

I have listened to the grandmother in East Oakland who no longer has a phone to call her grandchildren because she gave it up to pay the rent on her small apartment.

I have listened to young workers out of work, to students without the tuition for college, and to families without the chance to own a home. I have seen the closed factories and the stalled assembly lines of Anderson, Indiana and South Gate, California, and I have seen too many, far too many idle men and women desperate to work. I have seen too many, far too many working families desperate to protect the value of their wages from the ravages of inflation.

Yet I have also sensed a yearning for new hope among the people in every state where I have been. And I have felt it in their handshakes, I saw it in their faces, and I shall never forget the mothers who carried children to our rallies. I shall always remember the elderly who have lived in an America of high purpose and who believe that it can all happen again.

Tonight, in their name, I have come here to speak for them. And for their sake, I ask you to stand with them. On their behalf I ask you to restate and reaffirm the timeless truth of our party.

I congratulate President Carter on his victory here.

I am confident that the Democratic Party will reunite on the basis of Democratic principles, and that together we will march towards a Democratic victory in 1980.

And someday, long after this convention, long after the signs come down, and the crowds stop cheering, and the bands stop playing, may it be said of our campaign that we kept the faith. May it be said of our Party in 1980 that we found our faith again.

And may it be said of us, both in dark passages and in bright days, in the words of Tennyson that my brothers quoted and loved, and that have special meaning for me now:
"I am a part of all that I have met....
Tho much is taken, much abides....
That which we are, we are--
One equal temper of heroic hearts,
...strong in will
To strive, to seek, to find, and not to yield."

For me, a few hours ago, this campaign came to an end. For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.

Ted Kennedy, August 12, 1980

Well said...

The right to walk the streets, or to meet publicly with one’s friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society… This right is rooted in the First Amendment’s protection of freedom of expression and association, as well as… the Fifth Amendment’s protection of fundamental liberty interests under the doctrine of substantive due process.

Waters v. Barry (D.D.C.1989) 711 F. Supp. 1125.

The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct... The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right to assembly because its exercise may be 'annoying' to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is 'annoying' because their ideas, their lifestyle, or their physical appearance is resented by the majority of the fellow citizens.

Coates v. City of Cincinnati (1971) 402 U.S. 611.

[Those who] can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

Benjamin Franklin

In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.

James Madison

Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation.
James Madison

First Amendment rights, continued

Justice Brennan (Roberts v. Jaycees, 468 U.S. 609):

Our decisions have referred to constitutionally protected "freedom of association" in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty (italics mine). In another set of decisions, the Court has recognized the right to associate for the purpose of engaging in those activities protected by the First Amendment-- speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties (italics mine).

The intrinsic and instrumental features of constitutionally protected association may, of course, coincide.

This distinction is much forgotten in constitutional analysis today. It is because the so-called instrumental features are tied to much recognized rights enunciated in the letter of the First Amendment itself. But I think, the intrinsic and fundamental right to freedom of association is of much substantive and deeper value...

First Amendment rights and criminal defendant

I was appointed to handle several cases involving charges of alleged violation of a court order. In these cases the superior court issued a permanent injunction against a specific gang and its members, ordering it to refrain from certain activities within a specific circumscribed zone in Los Angeles. Under the umbrella of abating a public nuisance-- gang's activities constituting a substantial nuisance to the public [sic utere tuo ut alienum non laedes: one must so use his rights as not to infringe on the rights of others]-- the court ordered among other things the following:

1. Defendant [name of the gang], its members, agents, servants, employees, and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with them or any of them, are enjoined and restrained from engaging in or performing directly or indirectly, any of the following activities in the
Safety Zone:
a. Do Not Associate: Driving, standing, sitting, walking, gathering or appearing, anywhere in public view or any place accessible to the public, with any known member of the gang, but not including: 1) when all individuals are inside a school attending class or on school business, 2) when all individuals are inside a church, and 3) when all individuals are inside a vehicle in transit on the 10 Freeway; provided however that this prohibition against associating shall apply to all claims of travel to or from any of those locations.

Most of my clients charged with violation of this court order were arrested for this provision, allegedly walking in the Safety Zone with allegedly known gang members. Moreover, they were also served with this injunction at some point in time in the streets as part of the enforcement of this order.

Immediate questions that arise for the concerned are the following: 1) whether this injunction on its face is constitutional and 2) whether as it is applied to my clients on the facts of each case is constitutional.

1) Is this a facially constitutional order?
The California Supreme Court has held in People v. Acuna, et al. (1997) 14 Cal.4th 1090 with respect to another similar gang injunction that a) gang activity constitutes a public nuisance as it is defined by legislature b) gang conduct is not protected by the First Amendment c) overbreadth and vagueness challenges are determined in the context of the prohibited activity.

A very badly written case with poor reasoning. The entire case is driven by the evidence of what are the horrors of gang activity in a neighborhood. As a general proposition most would agree that criminal activity in gross violation of other people's human rights is not protected by the First Amendment. But that is a serious generality. The more important and thoughful task is to look at the order on its face and ask, 'Does this order hypothetically infringe upon someone's Constitutional rights?' Sure it does. It is overbroad because it may be applied to those who are not engaged in gang activity and it may infringe upon someone's right to peaceful assembly and freedom of speech. Remember, the First Amendment protects not only speech/words, but also expressive and associational activity. It is also vague because an individual would have to take Herculean efforts to decipher what is allowed and what is prohibited. Where is the Safety Zone? How knowledge of gang membership is imputed to an individual? Walking in the neighborhood where one lives entails associating with neighbors, saying hello and gathering for an evening retreat and passtime.

An important problem with this decision is the following. Basically it implies that a criminal defendant should not be protected by the First Amendment. If gang activity is a criminal offense then gang membership does not and should not receive First Amendment protection. But that goes against the very fundamentals of our U.S. Constitution. The accused enjoys all of the rights that others enjoy, because 1) he is innocent until proven guilty, 2) often a crime in the eyes of the legislature is civil disobedience in the eyes of another. That is the reason that enemy combatants at Guantanamo should have had the protection of the First Amendment. Unless speech gets to the level of fighting words or incites imminent lawless action by its very utterance, it is protected by the First Amendment. Even there the jurisprudence should be revisited.

In this case, a blanket statement that gangs do not get the protections of the First Amendment is so much against the substance of the U.S. Constitution that it really horrifies one. Someone who is in a gang does not have the right to peacefully assemble with his neighbors for expressive activity? That is basically what the case does. Upholding the constitutionality of this injunction has that effect. Obviously, a gang member robbing, burglarizing, murdering or selling drugs is not involved in protected First Amendment activity. But this injunction has a different goal. It is preventative and goes out of its way to enjoin any sort of activity by known gang members. But in that effort, it infringes upon serious constitutionally-protected activity, not only of known gang members but also of others who are not in this gang.

2) Related question is whether it is unconstitutional as applied to my clients. Answering the first question above helps to answer the second. But it is important to note the dangers of injunctions. As it was noted in Madsen v. Women's Health Center, 512 U.S. 753 by the U.S. Supreme Court:
"Injunctions... are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. Injunctions also carry greater risks of censorship and discriminatory application than do general ordinances."

In that case, the Court used intermediate level of scrutiny to uphold parts and strike some parts of an injunction prohibiting activity of anti-abortion protesters around an abortion clinic. The Court said that using the lower level of scrutiny (time,place,manner regulations to be narrowly tailored to serve a significant governmental interest) was not going to be appropriate for an injunction in light of the constituent dangers. The court instead said, "when evaluating a content-neutral injunction, we think that our standard time, place, manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." 512 U.S. 753.

But this was a case where under constitutional analysis it was admitted that 1) the government was regulating not the content of the speech but conduct 2) as a result of regulation of conduct protected speech was also curcimscribed. The threshold question is always whether the activity is protected by the First Amendment. In the Madsen it was.

In Acuna, the California Supreme Court has decided that gang association in public has no protected First Amendment ingredients in the first place. That is the fundamental problem that I see with these injunctions and how they are applied. Depriving the gang member of the First Amendment protection without a specific case-by-case analysis is simply unacceptable to me. What if the gang member is gathering with his associates and says 'Fuck the police', 'let us burn the flag', 'let us go to the City Hall and sit on the stairs' etc. etc. etc. What if their activity falls short of any 'criminal' action against either the public or police. It is simply expressive in nature. That is definitely and absolutely protected by the First Amendment.

As far as the application to several of my clients: this injunction gives absolute discretion to the gang unit of the LAPD in deciding who is subject to it, who should be served with it, and who is in violation of it. My clients have been arrested for innocuous behavior that cannot even come close to criminal activity. For example, driving to El Polo Loco eat, or walking home with friends after a basketball game, or having a ride home with a friend.

The injunction permits the police to arrest anyone who is associating with known to police gang members. Its wording does not even contemplate any sort of criminal behavior.

My question is this: does the societal interest in abating gang activity/nuisance on balance warrant such flagrant violation of one's Constitutional liberties?! Isn't this a slippery slope leading us towards the 'police state' and diminution/dissolution of the U.S. Constitution to prerogatives of the law enforcement?!

Not enough said!

Prof. Gates' arrest did not come as a huge surprise to me (unfortunately)... 99% of my clients (criminal defendants) are either black or Hispanic. I know very well how so many white police officers treat my clients out in the streets. But somehow Obama's disappointed remark about how 'stupid' the police were, raised furor, forcing him to explain his comment away... One more example of how racially divided our country is... Is racial profiling just an expression or reality?! I am quite upset that they even dare to force Obama to take back what he says when he does not even say enough, in light of his own race and political posture... As much as he tries to unify this country-- an awesome and courageous promise-- I doubt if some people even appreciate it or want to embrace. Believe me, they are intransigent.. It is a wall that you can break yourself on before trying to break it.

As a side note, this incident also shows how fragile and insecure is Obama's position at this time. Did Bush ever have to explain away his comments, as stupid and outrageous as they were, or even apologize for anything? Why would Obama, the first African-American President, be treated differently?!

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Eternal antagonists?

President Obama, in his recent trip to Russia, had some interesting and straightforward statements with respect to U.S.-Russia relations... (here) It is kind of interesting when he called Russia not to view America as an enemy. It would be very appreciated if he said the same here to Americans-- to stop viewing Russia as an enemy. It must be reciprocal, don't you think? If Russia takes a step forward, but does not receive the same treatment from America, how long can the 'goodwill' last? Instead Russia is constanty demonized in Georgia, Ukraine, neighboring countries. Would America tolerate Russia's presence and influence, for example, in Mexico, or Latin America. In fact, remember, when Russia tried to get to Cuba, we had the world on the verge of nuclear war (Cuban missile crisis), because America did not tolerate any type of Russian influence in Western Hemisphere.

True, Russia does not have the same democratic principles that the United States has had the fortune of harboring and developing.
Part of this is due to history, part of this is due to culture... But Putinism is not any worse than 'Bushism'... In the last 8 years the United States has suffered a grandiose setback and degradation as a democracy under Bush-Cheney 'organization'. I think, Bushism has been even worse than Putinism, because it is more tragic when a working democracy is set to demolition than when a fledgling one is retarded... Russia never had a democracy in the first place, at least the way we imagine democracy here. It jumped from Tsarism and monarchy to Communism, then went from Communism to China-style free market quasi-Communism, quasi-socialism, with some linings of fledgling democracy. So, criticism of Putin is really not taking into context the development of Russian history and country. But what Bush did to this entire democratic structure, was simply outrageous and people forget that...

Unfortunately, even if Bush and Cheney are gone, Bushism is still persistent and will constantly eat up the democratic vigor and strength of the United States... It does in fact contribute very heavily towards antagonistic relations between Russia and United States. Bushism was not born with Bush or Cheney, it has been there since mid-20th century in America (it only found its heightened expression under their 'rule').

I am a little bit disappointed with Obama who has not made any big change yet in U.S. foreign policy framework. He was the one who wrote in his book 'Audacity of Hope' that the United States is in great need for a completely new and fresh foreign policy design. Perhaps it takes time... Change does not come at once... I only hope that he can manage to set a basic footprint for it as President. I think, he will in light of the appointments he is making for foreign policy posts.

At this point though his speech in Russia was not very different from many speeches by many other American Presidents of the 20th century.

This antagonism affects me in a very personal way. A person who grew up imbued with Russian literature and cultural heritage, who learned to love some of it, I have also lived a bulk of my life in the Unites States, learning to value its high democratic principles, cultural diversity and freedoms... I have both Russia and the United States in my heart and have always wanted the two to peacefully co-exist in this world without constant agony and antagonism. Unfortunately, I have also been a victim of constant discrimination by some Americans who have mistreated me because of my Russian accent and connection to Russia, without even understanding how much I love and appreciate America... I was misunderstood, mistreated and constantly agonized... I always wondered, how could even the most liberal Americans have discriminated me?!

When the war broke out between Russia and Georgia last year, I was in Bakersfield and someone said to me, 'Your brother invaded Georgia'. My first impulse was complete retreat to this half-joke. Then I thought, I should have said, 'Who is my brother? Do you have any idea that Georgians are my brothers as much as Russians?' But when I get angry, I cannot formulate good responses to attacks.
Someone also said to me, 'You come from this culture of KGB and you think people are conspiring against you...' Another one said to me, 'The world is not against you.'

I have tried not to victimize myself-- I have been fortunate and successful in the United States-- yet I have personally seen the dark face of discrimination... I have pledged to fight it in all its forms and shapes, to the end!

Why California is insolvent?

Yesterday I received an email on a listserve I am on, with the following attachment, titled 'Now you know why California is so close to insolvency':

Now you know why California is so close to insolvency.

1. 40% of all workers in L. A. County ( L. A. County has 10.2 million people)are working for cash and not paying taxes. This is because they are predominantly illegal immigrants working without a green card.

2. 95% of warrants for murder in Los Angeles are for il legal aliens.

3. 75% of people on the most wanted list in Los Angeles are illegal aliens.

4. Over 2/3 of all births in Los Angeles County are to illegal alien Mexicans on Medi-Cal , whose births were paid for by taxpayers.

5. Nearly 35% of all inmates in California detention centers are Mexican nationals here illegally

6. Over 300,000 illegal aliens in Los Angeles County are living in garages.

7. The FBI reports half of all gang members in Los Angeles are most likely illegal aliens from south of the border.

8. Nearly 60%&nbs p;of all occupants of HUD properties are illegal.


9. 21 radio stations in L. A. Are Spanish speaking.

10. In L. A. County 5.1 million people speak English, 3.9 million speak Spanish
(There are 10.2 million people in L. A. County )

(All 10 of the above are from the Los Angeles Times)

Less than 2% of illegal aliens are picking our crops, but 29% are on welfare. Over 70% of the United States ' annual population growth (and over 90% of California , Florida , and New York ) results from immigrati on. 29% of inmates in federal prisons are illegal aliens.

We are a bunch of fools for letting this continue& nbsp;

HOW CAN YOU HELP ?

Send copies of this letter to at least two other people. 100 would be even better.

This is only one State...............

If this doesn't open your eyes nothing will !

My response to this was quick and pretty short from a blackberry:

This is complete nonsense. It is chauvinism. Scapegoating immigrants. What about figuring out how much of California resources have been used for Iraq and the level of state government corruption. How many high officials should have been indicted for pocketing taxpayers money. When it is bad times, it is easy to blame it on the weak and disadvantaged. The rate of immigration was the same during Clinton. At that time it seemed so many immigrants did not cause problems. All of a sudden when Bush screwed this country up, people remembered aliens. This is quite disturbing.

This was the quickest I could come up with, but I had a lot more to say against this openly anti-immigrant and racist 'article'. An attorney I was talking to the other day (with whom I won't be talking again), spoke to me about another attorney and in conversation said 'He is black but a good one.' I hardly believed my ears. I thought I did not hear him well. But that was what he said and I gasped for air. The implication was somehow that black attorneys are not as good as others, or perhaps black people cannot become good attorneys... I always hope and with Obama's election thought that perhaps racism, chauvinism, nationalism, and xenophobia are in decrease in our society. But all these things really first outrage me to compulsive anger. Then upon reflection I simply become bitter and skeptical. Watching those who came to pay a tribute to Michael Jackson at Staples Center and who later gave concerts in his honor, I cannot believe how deeply segregated still our society is.

Now, the attack against immigrants, especially illegal aliens. These are people living on the very margins of our society, partaking only of 1% of the benefits of this country. Do you expect them to contribute to this country more than we do? Of course, they are going to receive government aid (I doubt they even do because they do not have documents) to get basic sustenance: food and shelter. You and I, no one among the higher levels of this society, would live in the same conditions as these people live. They live in the poorest of poor ghetoes, barely making ends meet, barely getting food to survive for the next day. All they have is the hope that some day, one day they will have the chance to partake of the American dream in the land of opportunity, where they were forced to flee to escape famine, unemployment, political oppression, persecution, and violence. Most of them are from Mexico, and increasingly from other Latin American countries. I know these people very well and know countries they come from. These are my clients who are constantly getting into trouble with the law because of 1) racial profiling 2) culture, 3) lack of education 4) difficult living conditions... Poverty breeds crime and yes they are targets by law enforcement because they are confined to ghettoes where there is no escape.

These are people who are here for nothing more but humanitarian relief, escaping from corrupt governments, that do not and are not capable to take care of their people. If we claim to be a civilized nation, a nation that holds United Nations headquarters within its borders, a nation who claims moral superiority over the rest of the world by virtue of its leadership role as a world policeman, we should then also take up the burden of humanitarian relief, which entails giving food and shelter to these unfortunate human beings who by virtue of destiny found home here. We cannot shut our borders against 'foreigners' and those seeking simple humanitarian treatment, and also simultaneously claim world leadership. That is not a logical and intrinsically consistent proposition. Ultimately, it is self-serving and immoral.

Therefore, this whole anti-immigration sentiment is first of all, a progeny of racism in the United States and is second of all, xenophobia. It has to end or else the moral capabilities of the United States as a world leader will end as well!

News flash

The European Court of Human Rights has decided that the case of Georgia v. Russia is admissible to be heard in that Court. Press release.

This was a very important step forward because the ECHR declares many applications inadmissible. Of course, this was only a threshold to cross and as the press release indicates, in no way pre-judges the merits of the case. But the Court basically disagreed with the Russian Government's arguments that these allegations were unsubstantiated.

I do not have in my hands the documents and materials submitted by the Georgian side, but when I heard the hearing in April (personally), my instincts said to me that the case could be found inadmissible. The Georgian side was not convincing at this hearing and the Russian side made some very compelling arguments.

Politics aside, it is going to be very interesting to see how legally the Court will decide this case on the merits. But before it even gets to the legal issues, there must be strong evidence presented by the Georgian side because their claims are pretty serious. International law and especially human rights law should not be held hostage to politics. That is the hope.

Stay tuned.

On your knees! He is coming!

My goal in life is to give to the world what I was lucky to receive... the ecstasy of divine union through my music and my dance. [Michael Jackson]

Who is responsible?

Startled with the death of legendary star, Michael Jackson, I can barely think straight and recall the nightmare that he lived through years ago in connection with bogus charges of child molestation. They, the society of hypocrites and envious, little people with no talent, drove him to this. They tried to mar his reputation and ensure that his popularity suffered. I knew it and had a lot of pain for him. Such a star but had to endure the disgusting envy of enemies, who manufactured his fall and finally physical death. A sensitive and fragile person he could not have overcome all that. But they could not succeed in one thing: his star will always shine, very bright in the dark sky... He has just joined the heavens and immortality! He was not from this world and blessed us with his presence here, only for a short time...

A victim (and witness) of virulent racism in the 80s, he had the surgery that was going to affect his longevity. In his quest for perfection, which was at that time not seen compatible with the black skin, he courageously crossed paths never yet crossed by any other human being! A superman, indeed! And a victim of his times, century, society.


I am so disappointed with this world that could not cherish and protect this person! So disappointed! We love you, Michael!

In mourning... Tribute to Michael Jackson!

Green [R]evolution in Iran

As I was watching the images captured by camera and listening to Amanpour's reflections on the recent elections on Iran, the idea came about of a Green Revolution and its parallel to the Orange Revolution in Ukraine... Similarities were pretty stark. Interestingly, while I felt this independently, I was not the only one. Other commentators had the same feeling and parallel visions... see here

It came as a big surprise to many in the West that Iran is not united, as it seemed from afar. But that is a mistake we have always made in our assumptions, miscalculations and fears. That was the mistake we made after the 9/11, viewing all Arabs united, all Islamists united: against the United States. The naivete of that view was to dissolve pretty quickly in the ensuing years. And now it is with Iran. Iran like many other Islamic countries is far from united. This division only now came to the surface with greater force. Obviously, the elections are a perfect opportunity to express disenchantment with Ahmadinejad's extremist policies, views and statements. But I really do not know if political commentators are correct that there is political maturity in Iran currently. While there is grassroots movement and some political culture geared towards democratic principles, the existence of violence suggests lack of maturity. Disobedience and protests that result in violence and shedding of blood that are not necessarily caused by the militia, but simply by people getting angry with each other, is not the modern democratic way as we envision it here. In the United States the last elections were pretty emotional and dramatic, but there was no blood shed and the whole atmosphere was not dangerous. Watching the images on the screen from Iran, my blood chilled in my veins: people yelling and screaming, walking with rocks, angry...

Is this because of the fear on part of Moussavi's supporters that there will be a violent crackdown by the government that has bestowed victory (fraudulently or otherwise) on Ahmadinejad? Is there any expectation that the government backed by Khomeini will endure this opposition? Will the opposition get more organised and more level-handed? It remains only to be seen. At this point there is a lot of support for Ahmadinejad. There was a lot of support in Ukraine for Yanukovich. But it is quite reassuring to see Muslim women walking in the streets, demanding rights, respect and opportunity to be heard! If nothing else, this development will prepare a stage for something else... The very fact that people dare to express their discontent and voice against the current government is quite a big step forward.


Democracy gets developed through stages, oftentimes unseen to the ordinary eye. It all begins from the bottom, in the mindsets of the people, and slowly stage by stage, step by step, it develops from theory into real practice... Obstacles to it make the urge stronger and greater... That is why, it occurred to me, that this movement in Iran is rather evolutionary, than revolutionary. On the surface, this change seems revolutionary. But fundamentally the process of democratic growth is never revolutionary and more slow and evolutionary. Think about it, how many years did it take for the United States to become what it is?

The Iranian government will not be able to contain these forces for long... Either it will have to adjust and finetune itself to these demands, or else it will collapse, just like the Soviet Union.

Somalia in rage

The radical Islamists in trouble-ridden Somalia have undertaken to further agonize and terrorize more moderate religious groups. Beginning from heinous desecration of graves, they are now bombing mosques where the opposing groups are gathering for prayer. Violence has been the story of the day for already many years in Somalia, a country separated into many tribes, groups, and 'states', whose interests do not coincide. Unfortunately, most of these interests are not based on any rational thinking. Much of it is simply violence for the sake of violence. Many causes have been pointed out by scholars for this crisis: lack of centralized government, economic backwardness and poverty, secessionism, radical Islam. It seems, solutions have been identified and there have been some efforts made towards them. But there is no political will and/or political culture to sustain any progress towards these solutions. Stability in these types of countries unfortunately has been associated with dictatorship. For example, Somalia did much better under Siad Barre and Iraq was more stable under Saddam Hussein... Of course, 'better' is a very relative term. Peace under fear does not last long.

At least 13 people died in a shooting at a mosque on Wednesday. Today BBC reported that in another suicide car bomb attack Somalia's minister died along with at least 10 others. here

For a story

photo credit here

News flash

One more example of how the Obama Administration is not any different from Bush's. The Administration has rejected the release of Chinese Uighurs, already cleared of charges but still detained at Guantanamo Bay, on the U.S. soil. Reminder, that these people are already cleared and are innocent of charges of plotting against the U.S. government. Yet, justice does not extend to aliens.

See here

Facts about Memorial Day

It is important to note that the Memorial Day holiday was celebrated first by women in response to the Civil War bloodiness and in memory of the soldiers who died...

"In 1864, women from Boalsburg, Pennsylvania, put flowers on the graves of their dead from the just-fought Battle of Gettysburg. The next year, a group of women decorated the graves of soldiers buried in a Vicksburg, Mississippi, cemetery.

• In April 1866, women from Columbus, Mississippi, laid flowers on the graves of both Union and Confederate soldiers. It was recognized at the time as an act of healing regional wounds. In the same month, up in Carbondale, Illinois, 219 Civil War veterans marched through town in memory of the fallen to Woodlawn Cemetery, where Union hero Maj. Gen. John A. Logan delivered the principal address. The ceremony gave Carbondale its claim to the first organized, community-wide Memorial Day observance."

See here

Change is on the way?...

Promises for fundamental change in the United States policies and practice, specifically from those of Bush Administration, filled our hearts and minds not long ago... Inspired and excited we went to the polls...

The wisdom of the saying "Do not promise if you cannot deliver," has come back to haunt. President Obama has reneged on his promise to uphold long-held principles of human rights and has refused even to call the Armenian genocide by its name. (see here)

Has also not stood firm in his pledge to close the Guantanamo. By the very fact that he is supporting military commissions, he is following deeply-flawed policies of Bush. (see here)

Does change come half-way?