Freedom Stands on the Foundation of an Independent Judiciary

The key to establishing an authoritarian regime is executive control over the judiciary.

Power corrupts. No office or institution or individual can totally and forever be trusted with unlimited power, and to impose the burden of such mindless trust upon any human or institution would constitute an unfair temptation. It follows that freedom is a plant that will wither in the political desert lacking transparency. Transparency is the bright sunlight that allows the political garden of freedom to grow. But transparency–officials acting openly so citizens can monitor their behavior–is not enough to cultivate freedom any more than plants can grow, even in sunlight, without roots to transfer nutrients, and the taproot of freedom is the independence of the judiciary.

Power is radioactive. Just as uranium is a bountiful source of electricity, so is political power a bountiful dynamo for generating social development. But just as uranium can either slowly pollute or devastating explode and destroy the physical environment, so can political power slowly pollute or suddenly devastate the social environment and the system of government.

To minimize the threat of political power turning malignant, modern societies employ both illumination from outside the government and portioning out of power within the government. The former facilitates public monitoring of the public’s chosen representatives; the latter balances different groups of power-holders off against each other. Awarding some powers to states, some to the center, those unspecified to the people; awarding some powers to the executive branch, some to the legislative; and–most importantly, ensuring that no one and no institution is above the law by protecting the independence of the judiciary from the rest of the executive branch are the control rods that enable the radioactive fuel of social development to be consumed without a political explosion.

If control over the judiciary is the key to dictatorship, then the independence of the judiciary is the key to liberty. Liberty requires much more: an informed and committed populace, a marketplace of ideas in which media and individuals may safely criticize leaders, elections not for sale and open to reform movements…but the internal ability of the government to discipline itself by protecting the judicial professionals from corruption by officials is the most crucial weapon for the defense of the people’s liberty.


Senator Jeff Flake:

A lot of people are concerned about where we’re going … the vitriol that we now see daily, the kind of behavior that the President has exhibited, saying over the weekend, or on Friday, saying the FBI should go after the President’s political adversaries….To have a President say that, that is not normal and we shouldn’t accept it as normal.

Senator Lindsay Graham:

The president of the United States is in charge of the executive branch, it’s not his job to be telling the attorney general to be prosecuting a particular individual or group. It is the attorney general’s job to do that….We have a rule of law that is independent of political influence, and when you call on your attorney general to prosecute your former opponent, that is crossing the line

Senator John McCain:

We are asleep in our echo chambers, where our views are always affirmed and information that contradicts them is always fake. We are asleep in our polarized politics, which exaggerates our differences, looks for scapegoats instead of answers, and insists we get all our way all the time from a system of government based on compromise, principled cooperation and restraint.
All the while the associations, rules, values and aspirations that comprise the international order we have superintended for three-quarters of a century are under gathering attack from regimes that desire a world less just and less free and more corrupt. And they are under attack from forces within liberal democracies themselves, parties that preach resentful nationalism rather than enlightened self-interest, nativism rather than equal justice.

Senator Elizabeth Warren:

Slurs, lies & trash talk won’t stop the FBI from doing its job. This isn’t a dictatorship. It’s our democracy. And it’s stronger than you.

Senator Bob Corker:

President Trump’s pressuring of the Justice Department and FBI to pursue cases against his adversaries and calling for punishment before trials take place are totally inappropriate and not only undermine our justice system but erode the American people’s confidence in our institutions.

Former Attorney General Sally Yates:

DOJ not a tool for POTUS to use to go after his enemies and protect his friends. Respect rule of law and DOJ professionals. This must stop.




The People Are the Enemy: Algerian Chapter

Following the standard handbook of repressive regimes, the Algerian dictatorship continues taunting the long-suffering Algerian society.
Algeria’s regime is now visibly intent upon defining pro-democracy demonstrators as “the enemy,” with the standard repression of meeting legitimate popular demands for reform with violence and warning the population not to express its opinions (unless they match the opinions of the oppressive rulers). Whatever the likelihood a week ago that Algeria would follow in the footsteps of Tunisia, the likelihood of that today is higher, and the regime has only itself to blame. 
Ironically, demonstrations in Algeria have been small and would most likely hardly have been noticed except for the heavy-handed response of an intolerant regime. But with a reported 800 protesters injured so far this month and the regime apparently in no mood to listen, intensification of popular demands is predictable. Harsh repression of minimal demands, in the age of al Jazeera and in the context of neighboring Tunisia’s increasingly bold popular challenge to misgovernment, may very well provoke intensification of demands and a rise in sympathy for the few who have so far dared openly to confront the regime.
Dynamics. The Algerian regime first tried to fix the “problem” of protests by cutting food costs in early January. This fix is probably in part responsible for the small size of subsequent protests, yet the regime has now shifted to an emphasis on violent repression, eschewing the obvious alternative of trying to co-opt the demonstrators by allowing peaceful protests and making a show of sitting down to listen to the opposition. In any case, fixing the superficial symptom of high food prices left the underlying causes of dissatisfaction–unemployment, oppression, poverty–unaddressed. In addition, its temporary cooling effect, if any, may actually have encourged the regime to take a harder line subsequently.
Washington’s Input. Meanwhile, in yet another stunningly incompetent example of bad taste and poor timing, Washington publicly lauded Algerian dictator Bouteflika’s “anti-terrorism” activities precisely when he was beating up pro-democracy demonstrators. Bouteflika is the perennial candidate of the military, which destroyed incipient democracy in Algeria after Islamic reformers won election two decades ago. He has presided over a society subjected to widespread human rights violations, undemocratic elections, and great economic stress, with real unemployment reportedly as high as 25% and 15 million of the country’s population of 36 million under 30.

Confusing “Civil Rights Activism” and “Terrorism”
Over 100,000 Algerians died during the political strife of the 1990s. Thousands more were “disappeared” by security forces or abducted by armed groups fighting the government and never found. The 2006 Law on Peace and National Reconciliation provides a legal framework for the continued impunity enjoyed by perpetrators of atrocities during the this era. The law provides amnesty to security force members for actions they took in the name of combating terrorism and to armed group members not implicated in the most heinous acts.Human Rights Watch

Bleak Future. But the Algerian military has been firmly on the side of the elite for a generation, since a vicious civil war that squeezed moderates between the Scylla of Islamic extremists and the Charybdis of military extremism; the astonishingly smooth removal of the Tunisian dictator seems an improbable outcome for Algeria.

Democracy or Dictatorship? Rating Your Government

Democracies and dictatorships have distinct preferences. Know the difference, and you can see where your government is headed.
One could…and we should…identify a set of clear distinctions between democratic and authoritarian methods. Today’s news gives an example of one of the most basic such distinctions: democracies aspire to precise legal charges, while authoritarian regimes aspire to the vaguest possible charges. Precise charges are falsifiable (i.e., the guilty get convicted, the innocent set free) and lead to respect for the law. Vague charges make it easy for the dictator to punish his political enemies. Camus called it “une anarchie bureaucratisee.” The greatest indictment of vague charges is Solzhenitsyn’s The Gulag Archipelago; for samples see the numerous Solzhenitsyn posts here.
The relevant news item today concerns the conviction on charges of “incitement” against a Palestinian civil rights worker for protesting Israel’s wall, which Israel conveniently constructed not in Israel but, when preferred, in Palestinian land. This conviction was such an outrageous example of undemocratic behavior that even the normally supine supporter of Zionism the European Union felt it necessary to protest.
The Palestinian civil rights worker was also convicted for “organizing demonstrations,” another key mark of authoritarianism. Demonstrations are a core weapon for peaceful political participation, hence the abhorrence with which they are viewed by all dictators.
It is important, by the way, to point out that this occurred in Israel; otherwise, a reader could easily become confused, for the facts seem indistinguishable from so many similar cases that have occurred in Iran over the last year.
In sum, two key distinctions between democracies and dictatorships are here identified:
  • In democracies, legal charges are precise; in dictatorships, legal charges are vague.
  • In democracies, demonstrations are encouraged; in dictatorships, demonstrations are repressed.
That is the theory. How well does your government score in practice?

Theocracy vs.Democracy: The Israeli Case

Democracy is a vision of hope that has never been well implemented in any mass society. Americans should learn the lessons inherent in the missteps of other societies struggling against internal factions that attempt to use democracy in order to destroy it.
Democracy, if civil liberties are not taken to be an inherent part, is a concept with little meaning and less value. If Stalin’s USSR were “democratic” just because the law required everyone to vote, with 100% happening to vote for him, then “democracy” would be just another political rip-off. Therefore, I take the term “democracy” to incorporate civil liberties. That said, a democracy and a theocracy can only overlap if exactly 100% of the population desires a religious state; should even one person choose another path, then either the democracy will become a dictatorship or the theocracy must be abandoned.

This conflict between democracy and theocracy is increasingly becoming the central issue in Israeli politics and, with the militarists who advocate a garrison state deepening their alliance with the theocrats, threatens to become a fight to the death for the future of Israel. [For a more theoretical discussion of a distinct but closely related perspective on the struggle against authoritarianism—democracy vs. fascism—see “Mideast Peace or Fascism,” Online Journal 3/16/10.]

    One recent piece of evidence that theocratic forces are winning this battle for control of Israel is the bill just approved by a Knesset committee to give the “orthodox rabbinate” [Alana Newhouse, “The Diaspora Need Not Apply,” New York Times, 7/15/10.]
    authority over who is legally considered a Jew in Israel, a fundamental question in a theocracy because the answer defines who is a citizen.
    Going hand-in-hand with the above example of rising Israeli theocracy is the recent Israeli cabinet approval of a law that would require illegal residents aspiring to citizenship to swear allegiance to a “Jewish democratic state.” [“Israeli ‘Loyalty Oath’ Approved” MWC 7/19/10.]
    Israeli legal affairs editor for the newspaper Yediot and retired judge Boaz Okon published on June 22 his own list:
    • A school that began segregating students on ethnic lines with the support of the community;
    • A Knesset member is humiliated by her peers for joining the Gaza flotilla;
    • Apartheid on the streets of Hebron has become institutionalized;
    • Punishment of Arabs is harsher than punishment of Israelis;
    • The extraction of false confessions from minorities by police are not investigated;
    • Illegal wiretapping by the government is not investigated.
    This is only part of the judge’s list, which he summarizes as “growing evidence of the lack of the spirit of freedom and the emergence of apartheid and fascism.” [Didi Remez, “Yediot’s Legal Affairs Editor on ‘the Emergence of Apartheid and Fascism’ in Israel,” 6/23/2010.]
    Writing in Haaretz a few months ago, Carlo Strenger, Chair of the Clinical Graduate Program at Tel Aviv University, put it this way:
    In this time of rising anxiety Israel‘s political echelon has taken a number of steps toward undermining Israel‘s sometimes flawed but always vibrant democracy. The Knesset’s shameful passing of Yisrael Beiteinu’s so-called Nakba Law in a first reading is a dangerous precedent: Once freedom of expression starts to be curtailed, a state enters a slippery slope and nobody can know where it ends. The Israel Defense Forces’ declaring Bil’in a closed military area is an active step against political freedom and a way to undercut decisions taken by Israel‘s Supreme Court. [Muzzling Israel’s Left Only Harms Its Democracy, Haaretz 4/2/10.]
    One can easily imagine where this is headed: in the future, lifelong Jewish Israeli citizens who dare to oppose government policies will find a rabbinate court stripping them of their “Jewishness” and the government stripping them of their citizenship and themselves being fined the cost of a one-way flight to somewhere else.
    When the privilege of enjoying democratic rights is reserved for a subset of the population, say, whites, or males, or the rich, then the society is already set on a slippery slope down to authoritarianism. After all, if “the poor” or those lacking blue eyes can rightfully be excluded, then why not you…or, indeed, everyone except “the leader?” Israel is now clinging to this slippery slope and losing its grip.
    All is of course not lost. The U.S., with its 18th century democracy for rich white men, managed to climb some ways up this slope but at the cost of the Civil War, which cracked open the door not just for blacks but for Indians and white women as well. So the course can be reversed, but slipping down the slope is far easier than crawling back up.
    Those Israelis so fond of talking about existential threats should think about the contradiction between democracy and theocracy before it becomes the real existential threat facing Israel. But that is the business of Israelis. For Americans, the issue is different: having been taught a lesson about the dangers of external violent fundamentalism, it is now time for Americans to learn about the dangers of internal fundamentalists who pursue their anti-democratic goals by democratic means.
    When democracy is reduced to democratic processes without a secure foundation in popular responsibility to defend civil liberties, then democracy becomes a dangerous tool in the hands of extremists subtle enough to conceal their penchant for force. The first lesson for Americans is that this danger exists in the U.S. as well, although for Americans, it may be easier to perceive it by looking overseas. In both Israel and Iran today, the contending forces are particularly clear, but Israel is the country Americans should be watching the most closely, both because it is still a relatively open society and because many Americans pursuing a special agenda are pleased to insist loudly that Israelis “share American values.” If Israel is to be taken as a model for or a reflection of American values, then we owe it to ourselves to make sure we know exactly what values Israelis today believe in.
    The second lesson is that Americans should support those who share its values, doing business cautiously with the rest, but with the clear caveat in mind that this distinction cannot be made by dividing the countries of t world into “good” countries and “bad” countries. After all, if a whole country were to be given a single classification, presumably based on the behavior of its government, then where would we classify the U.S. itself, with its recent history of unprovoked aggression and attacks on civilians? Societies can modify their beliefs very quickly, and different parts of society, as has become crystal clear to both liberals and conservatives in the U.S. over the past decade, can represent fundamentally distinct perspectives. Watching how Israelis or Americans or…Iranians behave, the distinction between those groups in each society that are worthy allies and those that are not becomes clear. It is, to cite just one example, not in the interests of the American people to support political factions that advocate or practice the violent suppression of those exercising civil rights, unless, of course, you really believe it to be in your interest to have a minimally educated but power-hungry politician deciding what you should think. In a word, it is no more in the interests of Americans to be in an alliance with a theocratic Israel than it is to be in an alliance with a theocratic Iran;  conversely, it is very much in the interest of Americans to support those circles in both the Israeli and Iranian societies that share the values that Americans, at their finest, have been struggling to realize for the last two centuries.

    The initial version of this article, entitled “Israeli Theocracy,” was published by Media With Conscience on 7/20/10.

    Why Did Helen Thomas Apologize?

    Helen Thomas had the nerve to say that Israel “should get the hell out of Palestine” and now she has apologized, blandly calling for “mutual respect and tolerance.” Why did she apologize?

    The vast majority of people everywhere except Israel probably agree with her. Probably even in the “head in the sand” provincial U.S. most people agree with her, but no one would have the courage to admit this in public.
    Israel is the last gasp of old-style European colonialism, with the British conniving with European Jews and stabbing Palestinians (whom the British had colonized) in the back every step of the way to the Jewish conquest of a small territory that was then recognized by the U.N. That recognition was nothing more than an historical blip; the Jewish forces (more precisely, Zionist forces, for all Jews did not support ethnic cleansing) continued their war of conquest and ethnic cleansing, quickly occupying all of what became the internationally recognized 1967 borders of Israel and, at the same time, with well documented (by the IDF!) massacres to drive home the point, pushing the ethnic cleansing program. Then in the 1967 and 1973 wars they continued Israeli expansion, capturing the Golan Heights, the West Bank, and Gaza, three colonial areas Israel holds and is at various stages of absorbing today. The details are complicated; the basic story is not. Think of it this way: the Israeli bandits are in the Palestinian house, living comfortably on the main floor and occupying the master bedroom upstairs; the Palestinians are penned into two bedrooms, one of which is a ghetto (Gaza) into which Israel passes just enough food to prevent absolute starvation and one of which is divided into little junks of floorspace on which the Palestinians can sit, with pathways for the Israelis to run through to spank those who “misbehave.”
    Now, someone please tell me exactly what it means in that situation to call for “mutual respect and tolerance.” Does that mean the Palestinians half starved in the Gaza bedroom should “respect” the Israelis who prevent the world from giving them food and medicine (e.g., the recent Israeli military assault on the aid)? Does that mean the Palestinians in the West Bank bedroom should “tolerate” Israeli troops marching through the bedroom on the Israeli-only pathways separating the bed from the dresser? The next time you get burglarized, go ahead and show the burglar “mutual respect:” offer him the permanent use of whatever room he happens to be in and negotiate with him for rights to share the bathroom.
    So why did Helen Thomas feel the need to apologize? What was done to her to pressure her into giving up her right to free speech? She did not call for violence; she simply said the Israelis should get out of Palestine. Indeed, they “should.” That word refers to principle, not action. No one anticipates that they actually will. In practice, a serious, sincere negotiation would be the way to proceed. That has, to my knowledge, never occurred since the founding of the state of Israel, but there is always a first time. But Israelis do not have a “right” to appropriate Palestinian land just because some co-religionists lived there two thousand years ago. Are the Angles and Saxons going to give England back to the Celts (and who, today, might they be?)? Are the French going to walk back to the German forests many of them came from? Are the Americans going to return to…uh…wherever and let the Native Americans get their land back? Are the Russians going to give their land back to the Mongols? We might, as a species, want to think before asserting such a principle.
    Jews took control of Palestine because they were Europeans with European weapons and covert backing by European powers. Those are historical facts; those facts say nothing about rights.
    Negotiation, with mutual respect and tolerance, would be a wonderful way to resolve this issue. The Palestinians might be so kind as to offer to accept the idea of Israelis living within their legally recognized 1967 borders, or any other idea might be tossed on the table. But first Israel needs to show some respect and tolerance of its own – by ending apartheid on the West Bank, by ending its policy of ethnic cleansing, by ending its policy of expansion into the West Bank, by ending its collective punishment of the 1.5 million people in Gaza. Until it takes those actions, Helen Thomas was right the first time.