Monday, June 30, 2014

A profound difference in Canadians and Americans

Last Thursday, in a unanimous 8-0 decision, the Supreme Court of Canada granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot'in First Nation, the first time the court has made such a ruling regarding aboriginal land.

Last week's decision by Canada's Supreme Court certainly surprised me; but nothing surprised me more than the public support for it among Canadians.  Just read a few of the comments to the CBC report cited above.  They are overwhelmingly in favor of the natives; many thanking the natives for standing up to the government in defense of their rights.

Canada's First Nations, our aboriginal citizens, enjoy two bodies of rights that are recognized in Canada's Constitution.  The first is called their "inherent rights", rights they have as the original inhabitants of this land; the most important inherent right (under law) is that of self-governance.  The other set of rights are "treaty rights", those result from treaties between the natives and the Crown of England.  I believe that the inherent right to self-governance grants the First Nations their right to make treaties and thus underlies the legal rights in the treaties. Those native treaties are part of Canada's Constitution; in every way, a part of that body of law that is considered the "highest law of the land."

And that is a major difference in Canada and the US.  In the US, even though the Constitution of the United States says, explicitly, that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land," treaties made with the American native peoples have all been abrogated, a gross violation of honour.

Not only do Canada and the US differ in their application of law to their respective aboriginal populations, but look at the difference in the attitudes of the people in the two countries.  Americans, by and large, are learning to accept a "tyranny of the majority" (to borrow John Adams' famous phrase). Where Canada has its vaunted "mosaic" of cultures; the US has a level of collectivism and forced conformity that is far more threatening to individual liberty than universal health-care. The American view is "Let every man live as he chooses. As long, of course, as he chooses to live like me."  The best example is probably the freedom of religious expression, which very many Americans feels applies only the the "one true religion."

What most Canadians recognize, still, is the concept of individual rights that supersede the will of the majority.  And, ironically, it just doesn't get more "American" than that.  Canadians realize that they protect the rights of every individual by defending the rights of the minority; not by enforcing the dictates of the majority.

You want to protect your own right to free speech?  Then stand for the right of another to express a view with which you strongly disagree.  Some of you can start with me.

You want to protect your right to be free from indefinite imprisonment without trial? Defend the rights of those who have been held in prison for 12 years without a single shred of evidence of any wrong-doing ever presented to a judge.

You want to protect your right to practice religious expression?  I think you know what to do.

As Ron Paul said in his 1987 book Freedom Under Siege, "Government by majority rule has replaced strict protection of the individual from government abuse."

Not necessarily so in Canada.  Not yet, anyway.

Thank you, Tsilhqot'in Nation!

Thursday, June 26, 2014

Major Supreme Court decision in Canada

The Supreme Court of Canada has granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot'in First Nation, the first time the court has made such a ruling regarding aboriginal land. 
The unanimous 8-0 decision released Thursday resolves many important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands. It will apply wherever there are outstanding land claims.

Yeh, that's huge. Canada's Constitution recognizes the inherent rights of Canada's First Nations; this decision, unanimous in Canada's highest court, affirms those rights.  If affirms the Constitution as the highest law of the land.  This is a nation of laws; not of men.

The United States wants to take a convenient approach to civil liberties and constitutional rights; the inherent rights of all, God-given rights (if you wish), inseparable rights ... except for ...

That's a level of moral relativism I don't think we should stoop to. 

Canada's Supreme Court just upheld the Constitutional rights ... not of a minority; but of ALL Canadians. My Constitutional Rights.  The rights of every Canadian.  That's how it works ... those rights are not subject to the tyranny of the majority, and certainly not to the vagaries or policies of the current government.  And you never defend your own rights by denying them to others.  You defend your own rights, first by using them and second, by defending those same rights for others.
Go Canada.

Tuesday, June 24, 2014

Ten years ago today: An important US Supreme Court decision

It has been ten years since the United States Supreme Court decided that the Bush/Cheney White House could continue to refuse to release records of Vice President Dick Cheney's meetings with energy executives three years earlier (the Energy Task Force convened only a few weeks after he took office), in the formulation of the national energy strategy.  It is quite possible that those secret meetings between the government and energy executives may have led to war with Iraq, as war with Iraq became an early focus of the Bush Administration.

That Supreme Court case came from a suit filed under Freedom of Information Act in 2001 by Judicial Watch, seeking to have the records of those secret meetings made public.  The White House asserted "executive privilege" to keep the public from seeing those records.  Judicial Watch, incidentally, is a conservative government watchdog group.  Those Freedom of Information Act requests were denied Judicial Watch.  In July 2002, a D.C. district judge ruled (against Dick Cheney) that Judicial Watch had a right to know whether "private citizens" had unduly influence federal energy policies. That judge ordered Cheney to turn over the records of what happened in those secret meetings.  Cheney refused, appealing this decision to the Court of Appeals for the D.C. That Court of Appeals also ruled against Cheney and ordered him to turn over the information. Cheney again refused, appealing the case to the US Supreme Court.

On June 24, 2004, In a 7-2 decision, the Supreme Court ruled that the lower appeals court had acted "prematurely" and sent the case back to the lower appeals court, essentially having ruled in Cheney's favor.

Actually, it didn't appear that the White House was deliberately trying to conceal the truth about those secret meetings until it was learned that while the case was being heard in the DC Appeals Court, Cheney flew one of the 9 Supreme Court justices (Antonin Scalia) on a government jet to Louisiana for a duck hunt at a private hunting club owned by an oil rig services executive. Very remote, very private ... what did Vice-President Cheney and Justice Scalia discuss there?  We will, of course, never know.  Another one for the memory hole. We just know that, in the end, of course, Justice Scalia voted in Cheney's favor.

The duck hunting trip brought a lot of press attention to the Supreme Court case, especially when Antonin Scalia refused to recuse himself from the case. Scalia filed a lengthy statement explaining why he was not recusing himself but when confronted with the question (did anything improper happen on that hunting trip?), Justice Scalia countered with the statement, "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined."

"Deep trouble" indeed.  Analyze Scalia's statement.  No one was making an accusation that the hunting trip was offered as a bribe.   He was not being asked about bribery, he was being questioned about whether his close association with the subject of a major Supreme Court case (VP Cheney) was improper, and was just cause for him to recuse himself from that case.  Scalia, himself, was the only one who mentioned "bribery", and he did it to put up a smokescreen. He tried to change the subject, offering a defense to an allegation that was never made. He was never accused of "taking a bribe."  He was being questioned about the impropriety of holding secret meetings with the subject of a very important legal case he knew he was going to hear.  He was being questioned about a possible conflict of interest ... and he side-stepped the question.

Why?  Was he hiding something?  No one knows ... maybe it just "looks like it."  We'll never know the truth.

Why was that Supreme Court decision significant? Because what the Court decided was that Americans would have a government that works behind closed doors, in secret, and not even subject to scrutiny by the elected representatives of the people in the government of the United States ... Congress.

And that is the way it is; and that is the way it will remain.

Thursday, June 5, 2014

One year ago: June 6, 2013, the world first heard of Edward Snowden

On June 6, 2013, the UK Guardian newspaper exposed a top secret court showing that the NSA had collected phone records from over 120 million Verizon subscribers. Under the order, the numbers of both parties on a call, as well as the location data, unique identifiers, time of call, and duration of call were handed over to the FBI, which turned over the records to the NSA.   That was the first media report based on the material leaked by Edward Snowden. That was just the beginning.  And at the time, Snowden's claims that the US government was spying on its own citizens, in secret, everywhere, and all the time, seemed far-fetched. Now, one year later; we know they were only the tip of the iceberg.  What was once clearly in the realm of "crazy conspiracy theory" is now proven fact.  Simply calling something a "crazy conspiracy theory" is not enough anymore to discredit it. The incredible cannot be discounted.  Edward Snowden was a game-changer.

In light of what Edward Snowden has done, and the personal sacrifice he has made, to inform Americans of what their government is doing, in secret, I wanted to learn more about Daniel Ellsberg and his release of The Pentagon Papers in 1971.  I turned 13 that year.  I wasn't the least bit interested in what was happening; and to be quite honest, I never understood why it was such a big deal.  I'd seen the thick paperback in bookstores, which became a bestseller, but couldn't imagine anyone actually buying and reading it.  I didn't understand that the case was a big deal, not because people bought and read The Pentagon Papers, but because the New York Times attempted to publish them and was enjoined from doing so buy a federal court.  America's government, in other words, tried to keep the American people from learning the truth about what it was doing.  The New York Times stated later that the Pentagon Papers demonstrated, among other things, that the Johnson Administration "systematically lied, not only to the public, but also to Congress."

Hello, and thank you, Daniel Ellsberg and Edward Snowden.

It surprised me to learn how immediately the American people, and the American press, and the American Congress, and even the Supreme Court reacted to the Pentagon Papers, and what a contrast that reaction was to the lackadaisical response to what Edward Snowden has revealed; which is no less significant, no less shocking, and touching far more of us directly.  Edward Snowden had to defect to release the information he provided us; he had to do it through foreign journalists and publications.  Americans should be shamed by that; and, indeed, it indicates just how morally apathetic Americans have become. How little they value their freedom.

The initial publication of the Pentagon Papers was by the New York Times in the Sunday edition of June 13, 1971. The reaction of the public was, as I said, immediate; it led to street protests; it led to Congressional hearings; people were outraged, and so was the American press, first when Nixon's Attorney General, John Mitchell, ordered the NY Times to cease publication, and when the Times refused, the government obtained a court injunction prohibiting the them from printing more of the Papers.  Without hesitation, the Washington Post started printing it (on the 18th of June) ... when they were also threatened with a court injunction, the Boston Globe began printing it, then the Chicago Sun-Times; all 11 Knight Newspapers and the LA Times.  In all, the Pentagon Papers (which was a 7,000 page top-secret study of the Vietnam war commissioned by Secretary of Defense Robert McNamara in 1967) was distributed to 17 national news organizations, most of whom planned to print it. On June 29th, Senator Mike Gravel (D-Alaska), who during a filibuster against the selective service draft entered 4,100 pages of the Pentagon Papers into the Congressional Record.

On June 26, 1971, less than two weeks after the initial publication of the Papers, the Supreme Court of the United States agreed to hear the government's case for prohibiting that publication; the Court returned a decision only 4 days later, on June 30, 1971. In a 6-3 decision, the Supreme Court of the United States of America upheld the 1st Amendment right of the New York Times and the Washington Post to publish the information. It was a huge blow to the government of Richard Nixon, and it was a clear victory for the American people and the American free press.  It was huge.  It marked a major change in the relationship between the government and the media. The US media declared itself independent of the government, an independence they have since largely ceded. As the authors of a college textbook on free speech in America wrote, " the journalists of America pondered with grave concern the fact that for fifteen days the 'free press' of the nation had been prevented from publishing an important document."

Daniel Ellsberg was prosecuted under the Espionage Act of 1917, and faced 115 years in prison.  His case was also heard by the Supreme Court of the United States, which threw out the case because the Nixon Administration was so badly tainted by the Watergate scandal and by the fact that it used the same set of "plumbers" to raid the offices of Ellsberg's psychiatrist, looking for something to discredit him.  Nixon was one contemptible sonavabitch, and everyone knew it by then:

"I think it is time in this country to quit making national heroes out of those who steal secrets and publish them in the newspaper."

– former US President Richard Nixon, 1971

And now we're hearing the same load of crap from people no more worthy of our respect than the vile man who spoke those words.  For exactly the same reasons; to prevent the American people from discovering the truth about their own government.  To hide the truth; to attack those who tell the truth; to destroy those who would expose the truth.

I started by reading the Wikipedia pages, but most of what I learned about Daniel Ellsberg and the Pentagon Papers came from the documentary film The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers (1h34m) produced by award-winning filmmaker Judith Ehrlich, which premiered on PBS October 5, 2010.  Much of the story is told by Ellsberg in his own words, as he describes what he went through to reach his decision to leak the Pentagon Papers; to reveal a systematic campaign of lying to the American people and to Congress from the very highest levels of government.  There's also lots of commentary from others who were involved in the publication of the Pentagon Papers, and lots of good video footage. 

I gave up my job, my career, my clearance, and I staked my freedom on a gamble: if the American people knew the truth about how they had been lied to, about the myths that had led them to endorse this butchery for 25 years, that they would choose against it. And the risk that you take when you do that is that you'll learn something, ultimately, about your fellow citizens that you won't like to hear, and that is that they hear it, they learn from it, they understand it, and they proceed to ignore it.

– Daniel Ellsberg, Radio Interview, 1972


The greatest fear that I have regarding the outcome for America of these disclosures is that nothing will change. People will see in the media all of these disclosures. They'll know the lengths that the government is going to grant themselves powers unilaterally to create greater control over American society and global society. But they won't be willing to take the risks necessary to stand up and fight to change things to force their representatives to actually take a stand in their interests.

– Edward Snowden, Hong Kong interview, June 6, 2013

Both men put theirs squarely on the line; and expressed their greatest fear:  that their fellow Americans would not have the backbone to do the same. I fear they might be right.

Monday, June 2, 2014

The interesting story of Matthew DeHart

Last Thursday, May 29, Matthew DeHart had his latest hearing before the Immigration and Refugee Board (IRB) of Canada. The hearing, at which DeHart claimed he was tortured by U.S. authorities, was cut short because Matt appeared to over-medicated while in an Ontario jail and unable to follow the proceedings.

Matthew DeHart's story of torture by the FBI sounds incredible; but last week, in a five-part series, Canada's conservative-leaning National Post told it in detail, about his fleeing to Canada and about his and his parents' pursuit of refugee status in this country.  The Post dropped this bombshell: "A months-long National Post investigation finds there may be some truth to the DeHart family's claims that the charges are a cover-up."  In other words, the editors of the paper saw enough evidence to convince them that his story had merit.

What is that story?  For the details, and they are complex, read the entire piece, but I will attempt to summarize the events that led to Matthew DeHart's decision to flee the United States and seek refugee status in Canada. Please bear with me, it is a long and hastily written summary of events.  I could not shorten it.

Matthew DeHart is the son of a retired US Air Force intelligence officer (who held a Top Secret clearance while working for the NSA at its headquarters at Ft. Meade, Maryland.  Paul DeHart (Matthew's father) retired as a major in the US Air Force in 1994, went into the ministry and became  a church pastor.  In 2004, Matthew, a tech geek who lived at home with his parents, and was into online gaming and had developed an interest in internet security and encryption (largely because of his father's work with the NSA, which his father refused to discuss) became involved with the group Anonymous.  He hosted a file sharing server for Anonymous and in 2008 he was involved in setting up YouTube accounts where Anonymous posted its threats against the Church of Scientology.  It was Anonymous' targeting of Scientology that brought the group to public notoriety.  It was his involvement with Anonymous that brought Matthew DeHart to the attention of US authorities.

2008 was also the year DeHart signed up for the military; joining the US Air National Guard.  He was cleared for a top secret clearance and was training to fly MQ-1 Predators, RQ-4 Global Hawks and other unmanned drone aircraft. He still maintained his interests in privacy and Internet freedom, and still operated a file sharing server used by Anonymous.  But now he was also a US Air Force drone pilot.

On Monday, Jan. 25, 2010 police exercised a search warrant at the DeHart home in Indiana and took every device capable of storing digital data.  They claimed to be exercising a warrant issued by the FBI in Memphis Tennessee to search for child pornography.  The charges of child pornography are still being used to pursue DeHart, though no pornography of any kind has ever been found in his possession or on any of his computers.  He says the child porn charges are being used to obscure the real purpose of their attacks on him.  Child porn is convenient, because no one stands between the law and an accused child molester.  The weakest charges of all those brought against DeHart appear to be those that he was involved in soliciting nude photos of underage girls (alleged to be two girls in Franklin, Tennessee).

This is where Matthew really screwed up ... feeling that he had no chance of avoiding prison in the US, he decided to defect, and he actually made a visit (with his father, who must have been convinced that his son had no other choice) to the Russian embassy in Washington.  The Russians were not interested in offering him asylum, but told him they might be willing to pay him for information.  He declined the offer; because he really was no expert on drones; and second, he wasn't interested in money.

And here's where the story gets interesting, I believe.  This is where the story comes to Canada.  After being denied political asylum by the Russian embassy, Matt decided (with his parents' support) to move to Canada.  In March 2010, he applied for a US passport; he received his passport in less than one month. In April, Matt started a French language course in Montreal Quebec, staying at a home with other international students.  Later that year, he decided to learn a trade, and in August, his dad drove him to Charlottetown, on Prince Edward Island (where my daughter lives now) to study welding at Holland College. He still lacked a student visa, and was told that to obtain it he had to leave Canada and make application from outside the country; he chose to do this at the nearest border crossing, which is between the towns of St. Stephen, New Brunswick and Calais Maine, the crossing where I applied for my Permanent Resident card (I also had to cross the border and make application from outside the country).  On August 5, 2010, Matt took a bus from Charlottetown to St. Stephen, NB and the following day he walked across the St. Croix River bridge which is the border between Canada and the US.

At the US border patrol office, Matt was arrested, and held until FBI agents arrived and took him into custody.  All his belongings, including his wallet, were taken from him and he was placed in a cell at the US Immigration and Customs Enforcement detention center.  His requests to call his lawyer and his parents were ignored. He says that he was administered a drug intravenously and questioned for hours. Seventeen hours after his arrest, he was taken to nearby Eastern Maine Medical Center for treatment; he had passed out apparently, and according to the doctor's report on file was showing signs consistent "with drug-induced psychosis such as secondary to amphetamines, cocaine, or other stimulant medication."  He was returned to FBI custody.

On August 9, 2010, Matt was brought before US District Court Judge Margaret Kravchuk (a habeas corpus hearing).  Judge Kravchuck says she had doubts about the case from the start; the court docket listed Matt's arrest date as August 8, two days after the actual arrest, and the criminal complaint on which he was arrested was drafted by Tennessee police after his actual arrest, but based on a case that was two years old (2008).  It seemed fishy to her, but she went ahead and ordered Matt to remain in custody and transferred to Tennessee for trial. She never learned about the espionage allegations.

In the days that followed, according to DeHart, he was kept in a cell with no sink or toilet, denied food and water, drugged, deprived of sleep, and interrogated night and day.  On August 18, 2010, he signed consent forms allowing the FBI to impersonate his online identities (he gave them his passwords to his email accounts).  That was 12 days after his arrest.

During those twelve days, during which Matt claims he was tortured, he was never allowed to talk to his parents or his lawyer.  His parents didn't know anything about it until they received a bill from the hospital in Maine.  At one point when he was told that he had been arrested on charges of child pornography, he said, "I didn't do that."  The FBI agent replied, "I know."  Matt is trying to have recordings of that interview released. Instead, he was questioned only about his connections to Anonymous and Wikileaks and about his visit to the Russian Embassy in Washington.  The child pornography charges were never discussed.

After being transferred to Tennessee, Matt spent 21 months in jail. his parents sold their Indiana home to pay for his legal defense.  In May 2012, questioning the child porn charges against him (no child porn was ever found on any machine in his possession), a Tennessee judge granted Matt bail, with a curfew and monitoring bracelet.  He was confined to his parents' home in Indiana, where his dad was a minister.  The following April (April 2013), Matt and his father drove a truck borrowed from the church to the border crossing between Minnesota and Fort Frances, Ontario.  At the border, Matt told the entire story, providing documents to support it, applied for refugee status in Canada, making a plea for political asylum in accordance with the United Nations’ convention against torture.

Instead of being granted asylum, Matt was arrested by Canadian Border Service Agency officials, and put back in jail.  The agents not only cited the unresolved porn charge but also declared him a foreign national "engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests." In August 2013, Matt was again released from jail, but ordered to remain under house arrest, where he has been since, sharing an apartment with his parents in Toronto.  He is allowed to leave his apartment only for medical and legal appointments. He had a GPS tracking device and a radio-frequency monitor locked to his ankle and is not allowed to use any computer or data device, not even a smartphone.  And that has been his life for the past nine months.  The government of Canada, and the Canadian Border Service Agency have conceded that Matt suffers from PTSD and he is being treated for it; still there has been no decision on his request for refugee status.

The case is significant because it puts Canada's avowed support for human rights and international law squarely on the line.  Canada cannot really grant Matt DeHart refugee status without stating, publicly, that the United States is guilty of torturing one of its own citizens.  In all likelihood, Canada will use the same excuse the US used to hold DeHart, the charges of child pornography (charges that are, in all likelihood, trumped up) to declare him inadmissible to the country.  If that is done, his refugee asylum claim will not have to be decided.  It will be ignored, and Matt will be deported back to the US.

None of this would really matter; it would have happened completely off our radar screens, had it not been for the National Post, and the 5-part series that ran last week, written by Adrian Humphreys, a senior reporter for the paper.  That series was a bombshell; the editors of the National Post declaring that "a months-long National Post investigation finds there may be some truth to the DeHart family's claims that the charges are a cover-up."

In other words, the editors of the National Post believe Matt DeHart's story.  And so do I.  This is yet one more opportunity for Canada to do what is right, rather than what is politically or economically advantageous.

Will Canada blow this opportunity?

Matt DeHart (age 30) leaving the Immigration and Refugee Board of Canada  on April 7, 2014, with his parents, Paul and Leann DeHart