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My latest

For my latest writing, click here to see blog posts tagged as articles. I update this page periodically to add my most recent articles but it's usually at least a few weeks out of date.

    My themes

    In addition to my work as an advocate and organizer building the movement for civil rights and civil liberties, I also write about various issues in a range of formats for publications including Huffington PostTruthout, FireDogLake, the Progressive, and the People's Blog for the Constitution. My work has also appeared in Alternet, Common Dreams, Tom Paine, and law journals including the Loyola Public Interest Law Reporter and the Virginia Journal of Social Policy & the Law.  My interests include:

    • constitutional law
    • civil liberties vs. imperial executive power (apparent in surveillance, detention, torture, and extrajudicial assassination)
    • judicial legitimacy and the Rule of Law
    • U.S. foreign policy, militarism and diplomacy
    • democracy promotion in the U.S. and abroad
    • economics, finance and distributive justice
    • ocassionally, a variety of other social and political issues implicated from time to time by the day's events.

    Some past highlights

    • I wrote about the national security state's co-optation of the Obama administration, congressional Democrats, and progressivism in 1968 in 2013, a 2-part series published in November, 2013. I explain there that "Democrats have grown co-opted by an Obama administration committed to defending, entrenching, and perpetuating the Bush administration’s legacy—despite the president’s campaign promises in 2008 to reverse it. This co-optation spells grave threats not only to partisan Democrats, but also to principled progressives....Democrats from the Bay Area and Chicago, representing safe blue seats, who were outspoken about surveillance abuses at one point....chose to resign their principles, oaths of office, and constituents’ concerns in order to support their partisan patron, the president. They’re carrying the Bush administration’s water because it’s now President Obama holding the glass."
       
    • On August 1, 2013, I published Cracks widen in the armor of the surveillance state at the People's Blog for the Constitution and on FireDogLake. I wrote that "Members of Congress sensitive to constitutional limits on executive power have introduced no fewer than a dozen bills to curtail NSA spying. Most of them would do nothing to address the most recent disclosures from journalist Glenn Greenwald. Until the full scope of NSA spying is revealed to the public, congressional remedies for constitutional violations will remain insufficient. Unfortunately, while Snowden’s disclosures may enable further facts to finally emerge about NSA abuses, transparency is generally waning despite President Obama’s rhetorical commitment to it."
       
    • "Constitutional Catastrophe: The National Defense Authorization Act vs. the Bill of Rights" appeared in the summer 2012 edition of the Public Interest Law Reporter (at page 242, or page 77 of this PDF) and was drawn from my keynote at the Loyola University School of Law symposium I addressed that spring. The piece is somewhat unique among those I've written in how far it ranges, covering issues including indefinite detention, arbitrary assassination, torture, executive secrecy, free speech,animal rights and environmental activism,  campaign finance, legal realism and the role of courts, access to justice, and the role of grassroots mobilization (and particularly law students) in constructing public policy.

    Surveillance

    • I published The press fails yet again on May 16, 2013 at the People's Blog for the Constitution, explaining why important criticism of the Justice Department’s suppression of press freedom remains inadequate. Before riffing on the need to protect federal whistleblowers and the longstanding assaults on the First Amendment rights of American dissidents, I place the issue of media freedom in a broader context: "[W]hen press outlets mouth administration talking points as news, gather news from conflict zones only when embedded in military units enabling outright censorship, fail to critically examine repeated attacks of the fundamental rights of Americans, and even defer to government officials pleading for embarrassing news to remain secret, it may be appropriate to describe media in the US as controlled by the state, rather than free." 
       
    • "Dragnet Searches on DC Transit Prompt Local Advocates to Mobilize" was published by Huffington Post on December 21, 2010. The piece compared the Fourth Amendment interests violated by random bag searches and the same interests abused by the "vast domestic intelligence apparatus to collect information about Americans" described by the Washington Post that very morning. It also noted encouraging concerns from conservatives observing that "[t]he security theater once exclusive to America's airports is now playing at a local Metro station," and highlighted local resistance mounted by the DC Bill of Rights Coalition and the Montgomery County (MD) Civil Rights Coalition
       
    • "COINTELPRO 2.0" appeared on Huffington Post on August 2, 2010, and an abridged version was published by Truthout the same day. The piece recounts the history of FBI surveillance abuses, and concludes that "The Bureau has received a free pass long enough. As a civil rights coalition argued to the Senate this week, 'Congress should not grant the FBI guidelines artificial legitimacy, nor should the Bureau be afforded credibility that it has not only failed to earn, but actively undermined....As a repeat offender, the Bureau is long overdue for intervention by Congress.' New powers demanded by the FBI should be denied, and as recently demanded by the Chair of the House Judiciary Committee, the Bureau's leadership should be replaced." In addition to this article, I also wrote the coalition letter to the Senate, which prompted some very interesting subsequent exchanges between Congress and the FBI. Finally, I helped North Start Productions compile a short video to explain the history of COINTELPRO in a visual medium:

    • "1984 in 2010: Hijacking Democracy to Spy on Americans" was published on Huffington Post and Truthout on February 17, 2010.  It noted how the Obama administration circumvented Congress to impose reauthorization of the PATRIOT Act despite concerns about domestic spying from across the ideological spectrum.
       
    • "Subsidizing Corporate Crime and Rewarding Constitutional Abuses," which ran on Huffington Post on April 22, 2008, was cross-posted by Common DreamsCommon Man News, theInformation Clearinghouse, the Iowa Peace Network, the Grassroots Networks Alliance, and Dandelion Salad. The piece suggests that  the Senate's attempt to immunize telecommunications firms from litigation over the NSA spying program constitutes corporate welfare for an industry that has long sucked at the government's teat.  The article also challenges the underlying rationale for domestic surveillance, arguing that such schemes inundate analysts and thus undermine -- rather than enhance -- legitimate counterterrorism aims.  Finally, it recalls that other reported surveillance programs remain unconfirmed, and notes the perverse incentives created by potential immunity for private firms facing future decisions about whether to comply with other secret government programs.

    Detention

    Torture

    • "Bush Boasts of Approving Torture, While Holder Declines Prosecution for Destroying Evidence" was published by Huffington Post on November 11, 2010. The piece, written to commemorate Veterans' Day, reflects on President Bush's admissions about authorizing torture, and the failure of Attorney General Eric Holder to prosecute CIA officials for destroying evidence and obstructing justice. It concludes that "While dutifully carrying out their orders, US service members continue to confront violence by enemies enraged by unanswered allegations of human rights abuses. Executive accountability could reduce conflict and save American lives, but because human rights abuses would be politically inconvenient for powerful people in Washington, it has been sacrificed -- much like the veterans themselves."
       
    • "Unhappy Anniversary: Eight Years of Continuing Lawlessness" appeared on Huffington Post on August 9, 2010. This piece marked the 8th anniversary of one of the infamous torture memos, reviewed how the Obama administration successfully (and quietly) lobbied Congress to amend the Freedom of Information Act specifically to give the Pentagon to hide evidence of its criminal trail, and contrasted mass incarceration for trivial crimes with the disturbing appointment of war criminal Jay Bybee to the federal appellate bench. It concludes that "[o]ur continuing disregard for the law undermines international law, invites further torture in the future, risks the lives of military service members who pay in sweat and blood for our nation's continuing lawlessness, resigns the legacy of WWII, and erodes the legitimacy of our criminal justice system."
       
    • "An Administration on Its Heels: Inviting Torture to Appease the Right Wing" was published by Truthout on April 16, 2010. It examined the nomination of Dawn Johnsen to lead the Office of Legal Counsel in the Department of Justice, arguing that the "withdrawal of Johnsen's nomination is galling, given the principal issue motivating her opponents: Johnsen's principled stance on executive accountability for torture." I go on to argue that "Johnsen's stance for executive accountability was not merely principled but also the only defensible position to take within the bounds of international law--which the Obama administration continues to violate by overlooking torture and sweeping voluminous evidence of it under the rug."
       
    • "Losing Wars We Already Won (Part I): Torture vs. WWII" appeared on Huffington Post on August 26, 2009. It explains that "Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama's aim to "look forward, not backward," may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world."
       
    • "Torturing the Rule of Law" was published by Huffington Post on June 27, 2009.  It examines how the reluctance to prosecute torturers betrays the precedent established by the U.S. at Nuremberg 60 years before, undermines the debate on national security policy going forward, and threatens the legitimacy of the criminal justice system given the relentless prosecution of even non-violent crimes.  Cross-posts include the Augusta Free Press and the People's Campaign for the Constitution.
       
    • "Could Gitmo Get Worse? The Policy Implications of Executive Accountability" was published on Huffington Post on January 5, 2009.  It examines the implications of President Obama's decision to close Guantanamo Bay, rejects the case for national security courts, and explains why holding Bush Administration officials accountable for war crimes -- as well as outright treason -- is necessary to shift the debate around issues such as preventive detention.

    National policy

    • "Secrecy Sacrificing National Security" was published on Huffington Post on June 10, 2009.  It discusses secrecy promoted by the Obama administration across three contexts, including (i) depictions of torture whose implications have been contorted by the mainstream discourse, (ii) secret surveillance policies, and (iii) a secret FBI policy mandating ethnic & religious profiling that I recently sought via a FOIA request following briefings with senior FBI officials late last year.  Cross-posts include USA Today, DailyKos, the Wall Street Journal, SiloBreaker, Liberty Beat, and others.
       
    • "Leaving Cards on the Counter-Terror Table: Ways to Better Wage the "War on Terror," appeared on Huffington Post on February 25, 2009, from which it was cross-posted on Alternet and alt.Muslim, as well as PoliTrix.  The article identifies several sets of corporate subsidies that inadvertently fuel terrorism at its root, including agricultural subsidies, tariffs on textile imports, the war on drugs and U.S. military support for dictators around the world.
    • "After the (Grand Old) Party: Don't Go Home Just Yet," posted on Huffington Post on November 11, 2008.  This article identifies challenges confronting the new Administration, including "the moderate Congress, the right-wing Court, and holdovers from the Bush years within his Administration and the federal bureaucracy."  It also discusses an opportunity to transform American politics by relegating the Republican Party to the national margin and shifting the center of the policy discourse, and distinguishes Newt Gingrich's similar claim in 1994 from the circumstances of 2008. 
       
    • "The Failed Bailout: A Drop in the Bucket and Abusive to Renters," appeared on Huffington Post on October 1, 2008. It reviews the financial impact of the (then-proposed) bailout versus various areas of fundamental weakness in the economy, concluding that proposals (similar to the one ultimately adopted) would ultimately be "a drop in the bucket" and could not possibly help avert an inevitable economic depression. It also investigates the bailout's distributive effects, taking specific issue with its impact on renters. Sites cross-posting it included Democracy for America, Deft Mag and Beltway Blips.
       
    • "Fire Gonzales…or the Whole Junta?," was published by CommonDreamson May 23, 2007.  AfterDowningStreet cross-posted it, as did ImpeachPAC, as well as True Blue Liberal and Progressive Democrats of America, and Consortiumblog quoted it at length.  The analysis frames the controversy over Attorney General Alberto Gonzales' tenure at the Justice Department in broad terms, placing it in the context of the Bush Administration's subversion of democratic principles. I review the administration's various civil liberties abuses, identify several violations of the separation of powers, locate a number of concerns with democratic transparency, and conclude that "[o]nly the impeachment of the Vice President and President can restore the Rule of Law to the United States."

    Constitutional law

    • "'We Need Courage': Will Obama Nominate a Justice Who Can Help Restore Justice?", appeared on on Huffington Post on April 12, 2010. Cross-posted by Stanford Law School and several online news & commentary sites, this piece reflected on "two broad sets of possibilities" raised by the retirement of Supreme Court Justice John Paul Stevens. While "the Administration [did ultimately] choose a moderate successor to appease the right wing, setting the Court back even further on a historic slide to the right that has choked our nation's jurisprudence for a generation," I argued here that "the Administration [sh]ould select a legal champion to help begin the long overdue process of bringing the Court back into the legal mainstream."
       
    • "Bush v. Gore Rears Its Head (Part IV): A New Check on the Court to Defend the Rule of Law" is the final part in a year-long series exploring the Supreme Court.  It was published on May 28, 2009 and identifies examples of inter-branch collusion with Executive officials violating not only the separation of powers doctrine, but also antitrust principles routinely applied to economic markets.  It also recommends a new structural check on the Court to prevent its future politicization: legislation to set 18-year terms for service in the Article III Judiciary to prevent the Court from being co-opted, ensure regularity in appointments, and preserve the Justices' insulation from political pressures.
       
    • "Bush v. Gore Rears Its Head (Part III): Souter's Resignation as an Invitation to Balance a Politicized Court," is the third in a series examining the Supreme Court and appeared on Huffington Post on May 12, 2009.  The article argues that "the timing of Souter's resignation appears to reflect not only a brilliant man's pursuit of a simpler life, but also an invitation to the Obama Administration to boldly reshape the Court and restore its eroded legitimacy as a guardian of neutral legal principles. At a minimum, the Administration should choose a nominee who brings vision, depth, and assertiveness to the Court...."  Cross posts inclded the National Journal's Ninth Justice blog.
       
    • "Bush v. Gore Rears Its Head (Part II): The Triumph of Politics Over Law," is the second in a series examining the political co-optation of the U.S. Supreme Court by partisan conservatives and was posted on Huffington Post on July 30, 2008. This article expands the analysis of The Politicization of Voting Rights beyond voting rights, examining other recent decisions that rewrote longstanding constitutional doctrines while perpetuating racial marginalization, restricting reproductive freedom, diminishing political equality and politically entrenching established class interests. It also explores the limited comfort offered by the Court's occasional willingness to check the Executive.
       
    • "Fourth Circuit Decision in Al-Marri 'Repudiates the Most Fundamental Element of Constitutional Liberty'" was posted on ACSBlog on July 22, 2008.  It reflects on the implications of a then-recent ruling by a federal appeals court that essentially approved the designation of even U.S. citizens as "enemy combatants" based on Congress' 2001 Authorization to Use Military Force in Afghanistan.
       
    • "Bush v. Gore Rears Its Head (Part I): The Politicization of Voting Rights" is the first in a series examining the political co-optation of the U.S. Supreme Court by partisan conservatives. This article ran on Huffington Post on May 23, 2008, and examines the Court's decision in Crawford v. Marion County Election Bd., which upheld an Indiana law imposing restrictions on the right to vote by adding new photo ID requirements -- despite their clear violation of longstanding constitutional principles prohibiting economic barriers to the ballot. In particular, I address and refute the conventional wisdom that Justice Stevens' participation in the majority renders the decision jurisprudentially defensible, rather than a naked exercise of power by a Court increasingly inclined to violate its institutional limits and decide contested political questions. Part II will place Crawford in the context of other politicized rulings by the Roberts Court while demonstrating the inadequacy of traditional checks on the Court. Finally, Part III will consider its role going forward and present a proposal to effectively balance the Court.
       
    • "A Deadly Misreading," appeared on TomPaine.com on April 30, 2007.  It was picked up by Democratic Underground, as well as the blog of the libertarian Conservative Revolutionary American Party, and it also received welcome criticism from the Lone Star Times, to which I respond here.  My op-ed discusses the Virginia Tech shootings and analyzes the Second Amendment, concluding that it has been misconstrued and co-opted by the gun lobby.  Rather than protect gun ownership, I argue that the Amendment should protect assertive acts of nonviolent protest as an independent check on tyrannical government. 
       
    • "Justices Shift with Society, but Will Justice?," appeared in April 2007 in the Contra Costa Times, as well as How Appealing and TCPalm in Palm Beach, Florida.  It discusses the increased public media presence of Supreme Court Justices under Chief Justice John Roberts, and draws out a tension with the jurisprudential methodology employed by the Court's right-wing majority.
       
    • My fears about Justice Alito joining the Supreme Court were expressed in an email which I circulated shortly before his confirmation in January 2006; it was posted by the Progressive Democrats of America and CounterHegemony blogs.

    Movement strategy

    • "Defending Liberty: How to Shift the Center", was posted on Huffington Post on December 1, 2008.  It notes the range of liberty issues disregarded by both major parties, including warrantless wiretapping, LGBT rights, and racial bias in the criminal justice system.  It also discusses the possibility of a left-right Green/Libertarian electoral alliance emerging to defend principles violated by existing policies.  The article suggests why Democrats should welcome a visible Green presence, and a strategy for Green progressives to electorally challenge Democrats without inadvertently placing conservatives at an advantage.  Finally, it identifies a promising Green candidate who (at the time) was nearing a crucial election with national implications.
       
    • "Restoring the Fourth Amendment: How We the People Can Win Over Washington" was published by Huffington Post on June 14, 2010. This piece explains that "[d]espite promises of change, the Obama administration has proven itself either unwilling--or unable--to shift the paradigm driving increasingly invasive surveillance, or increasingly pervasive profiling according to race, religion, and national origin. Nearly halfway through the Obama administration's term, the battle to banish the Bush administration's policy legacy remains largely unfought, let alone won." It goes on to present the Local Civil Rights Restoration campaign I developed for the Bill of Rights Defense Committee, which by "aligning activism seeking privacy from dragnet surveillance, on the one hand, alongside organizing in favor of limits to stop racial profiling, on the other, [helps] progressives and libertarians...find common cause--and daylight to push back on the inertia in Washington that continues to eviscerate the Constitution."

    Domestic politics

    • "America's One Party State" appeared on the People's Blog for the Constitution on July 16, 2012 and Huffington Post on July 19, as well as other outlets including FireDogLake, Progressive Global Commons, and Newzview. In this piece, I examined 2012 presidential election campaign, concluding that "Whatever choice America makes this November, our ensuing policies will reflect the continuing influence of the Bush & Cheney neoconservative revolution. For figures who will be so reviled by history, they wield a remarkably enduring legacy. It is a shame that neither of the major political parties offers We the People an alternative."
       
    • "What Do We Celebrate this July Fourth?" was published by the People's Blog for the Constitution on July 4, 2012 and Huffington Post on July 6. This piece explores why "Liberty...is a fading memory, a lyric in an anthem that few Americans today understand, even as millions sing it at sporting events and during today’s holiday." It concludes with a call to action: "This is no time to...mouth empty slogans about freedom. This is a time to take action to restore the promise of liberty our Founders attempted, by writing our Constitution, to bequeath to us. Our flag is still there.  But where is the nation it once inspired?"
       
    • "Even Bigger Than the Hype: Obama's Candidacy as World-Historical," ran on Huffington Post on June 12, 2008.  The column examines the continuing impacts of colonialism on developing countries around the globe, as well as the ongoing persistence of institutional racism in the United States.  It argues that Obama's identity as the "the first standard-bearer of colonized peoples to lead a global superpower" renders him analogous to a "colonized tail" that "wags the imperial dog."  Finally, the article observes how Obama's words and example are each reinforcing two fundamental American narratives, "America's meritocracy and our cultural inclusiveness," at a time when both are threatened and the Republic's international standing is in crisis.
       
    • "Musharraf's Playbook is the Same as the Bush Administration's," which I co-authored with Naomi Wolf, was published on Huffington Post on February 15, 2008 and was cross-posted at Common Dreams, Democratic Underground, After Downing Street, the Peninsula Peace & Justice Center, and the Muslim Discussion Forum.  We identify a number of areas in which President Bush's domestic agenda has sought the same goals, through many of the same strategies, as the Musharraf dictatorship in Pakistan supported by the White House.
       
    • "Already Stolen: The Electoral Process and Democratic Legitimacy in the US" appeared in the February / March, 2005 edition of Left Turn: Notes from the Global Intifada.

    U.S. foreign policy

    • "Decades Late and (Billions of) Dollars Short: the U.S. Begins Considering the Facts in Pakistan" appeared on Huffington Post on February 1, 2011. The piece responded to a New York Times article that "has finally chosen to pay a nod to...concerns" I'd been raising for three years, including "what close observers have decried for years: rampant lawlessness on the part of the Pakistani government, which has used national security as a pretext to detain and torture political dissidents." It also noted the crucial role played by Wikileaks and its disclosure of previously secret diplomatic cables, and how "[h]ad those cables been transparent, they could have informed the debate far sooner....[and saved us from] debating old news years after the fact...."
       
    • "Bush's Hands Bear Bhutto's Blood," my analysis of the crisis in Pakistan, was published after Benazir Bhutto's December 2007 assassination on Informed Comment.  A shorter version also ran on Alternet, as well as several blogs in the U.S. and Europe.  This article also prompted some commentary on broadcast outlets including Air America and WBAI in New York.
       
    • I visited Pakistan in the aftermath of the Provisional Constitutional Order on November 3, 2007 to investigate the imposition of martial law. While there, I joined a National Lawyers Guild delegation to compile a report recommending changes in US foriegn policy to Congress, "Defending Dictatorship: U.S. Foreign Policy and Pakistan’s Struggle for Democracy." 
       
    • "Supporting Musharraf Fuels Crisis in Pakistan," is an analysis that ran on Foreign Policy in Focus on October 15, 2007.  It also appeared on Juan Cole's Informed Comment blog.  The article examines the crisis in Pakistan and argues that "The Iranian revolution of 1979 transformed U.S. foreign policy, demonstrating the counter-productivity of claiming to promote democracy while impeding it. Today, it is in Pakistan that American support for a secular, pro-business dictator has helped precipitate a fundamentalist backlash coinciding with a secular legitimacy crisis – and this time, nuclear weapons hang in the balance."  The analysis was reinforced by a former National Security Council officer focused on Iran during the 1979 revolution, as well as prominent journalist and scholar Ahmed Rashid, who wrote that "Musharraf's declaration of emergency rule [in early November] will only encourage . . . greater territorial gains by the extremist Pakistani Taliban."
       
    • "Undermining our Own Principles—and Power—in Pakistan," appeared on TomPaine.com on April 18, 2007.  It was also picked up by Just Foreign Policy, as well as the USC Center on Public Diplomacy, independent media outlet World-News, the Information Clearing House and Begin Rambling.  This piece analyzes the history of the U.S. foreign policy establishment, discusses the ongoing constitutional crisis in Pakistan, and notes the dangerous implications of U.S. support for Dictator/President Musharraf.
       
    • "Students Reflect on Lockheed Martin Protest," was a May 2, 2003 column in The Stanford Daily that I wrote with Jessica Jenkins.

    Social commentary

    My academic scholarship and policy proposals


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