Antonin Scalia: a Bundle of Contradictions

Steven Jonas, MD, MPH
Special to The Greanville Post | Commentary No. 33: “Antonin Scalia: a Bundle of Contradictions”

Michael Parenti was quoted by The Greanville Post on the matter of Scalia, shortly after his death (from, at the time of writing, unknown causes. Since there may well never be an autopsy, we will likely never know for sure what the cause(s) were.)

“Supreme Court Justice Scalia just died an hour or so ago. He will not be missed by everyone. Many of the wimpy Democrats are of course already hailing him as “brilliant.” Brilliant, bullshit. He served the powerful corporations and the conniving plutocracy. He pretended to abide by his empty inflated “Originalist” constitutionalism. He battered the weak, stomped on the defenseless, and strutted around dwelling on his judicial contrivances. He died while hunting in West Texas. He died the way he lived, destroying the weak and the innocent.” (Antonin Scalia: No R.I.P. for this piece of scum. See you in hell, Antonino.)

In the process, Scalia worked very hard to destroy the Constitution and (to the extent that it still exists) Constitutional Democracy in the United States, too. And it is Scalia’s most at-the-margins concept of the Constitution that is the subject of the column.

[dropcap]S[/dropcap]calia claimed that he was an “originalist,” that is that the Constitution should be interpreted by judges on the literal meaning of the text, as it was written in the 1780s, and that “modern” interpretations, updatings, and applications were not to be permitted. A full critique of Scalia’s version of Constitutionalism would be very long, and indeed they have extended to book length. But it is the fundamental contradiction of “Scalia Thought” that has always impressed me. Scalia claims that the Constitution is an absolutist document and that therefore there is only one way to interpret it (his, of course). But there is a fundamental problem with this approach: the Constitution itself is filled with ambiguity, and Scalia’s approach to it is filled with inconsistencies and self-contradiction.

Take for example, the Preamble:

“We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

What could be more ambiguous than that? Except of course for the introductory phrase, “We the people of the United States.” Scalia and his right-wing supporters have always interpreted that phrase to mean something like “We the people of the separate states, getting together on policy and program now and again, and then pulling back and going our separate ways whenever we are inclined to do so [otherwise known as the “Doctrine of States’ Right] do declare that . . .” But as for the rest, one can say “surely open to interpretation, n’est-ce pas?”

And then in Article I, Section 8, we come to the famous interstate commerce clause: “To regulate commerce with foreign nations, and among the several States, and with the Indian tribes;” Many Republicans over time, and presumably Justice Scalia too, seem to have interpreted that power of Congress to cover only such things as trade carried out between the governments of the states.

Turning to the Bill of Rights, how about the Ninth, the one that Scalia’s soul-mate Robert Bork, termed “an ink-blot on the Constitution:” “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Pretty ambiguous, no? So ambiguous in fact that it could be used to guarantee the right to choose in matters of abortion and also the right to marry, within the other provisions of state law, whom one wants to, regardless of sex. How inconvenient for Scalia.

And then there is the 10^th, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” For the Rightists, this is the “States’ Rights” amendment, except that once again it is quite ambiguous, beginning with, just how does one interpret the clause: “The powers not delegated to the United States by the Constitution?” Absolutist, unambiguous, hardly. On the other hand, there are certainly quite clear provisions of the Constitution, like the provision in Article Six that makes ratified treaties part of the “supreme law” of the land (and thus prohibits the use of torture). But the Right has never paid any attention to that one, and I don’t know of any of the many speeches that Scalia made in which he said that they should because it is so unambiguous.

On the other hand, it just so happens that Scalia takes parts of the Constitution he doesn’t like and interprets them in a way contrary to that of many (including, it would seem, “the framers” to whom he likes to make you think he is so devoted). Take the first clause of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” It would seem that it guarantees the separation of church and state. However, Scalia saw it entirely differently when he talked about “God’s Justice and Ours.” Ooops!

As for the “equal protection” clause of the 14^th amendment (for some reason, Scalia allows that amendments, although not part of the original text, should be “strictly interpreted”), well it just doesn’t apply to people that Scalia doesn’t like (or thinks are “sinful,” oops, there’s religion creeping into his thinking again). And then there is the “corporations are people” dictum (which does go back to the 1880s when a right-wing Court made that one up out of whole cloth), nowhere to be found in the Constitution. It is also nowhere to be found in any of Scalia’s condemnations of how the Court carries out its business. In fact, he is a strong supporter of the “Corporations are people” doctrine.

But, I must say that there is one area in which I am entirely in agreement with Scalia: the whole matter of judicial review of the Constitutionality of actions of the legislative and executive branches. It is nowhere to be found in the Constitution. Then Chief Justice John Marshall made it up starting with his famous decision in Marbury v. Madison (followed up by a series of decisions that broadened the doctrine and its applications). In chapter 5 of my book The 15% Solution I had a fictional then-future Supreme Court led by a Chief Justice Steps (Scalia, get it?), hold that under the Doctrine of Originalism to which it had bound itself, those powers were nowhere to be found in the Constitution. It then overturned Marbury v. Madison and all the subsequent related decisions, thus removing the courts from carrying out the function of judicial review. If Scalia were consistent, that of course is a doctrine that he would have been espousing. Btu Scalia just loved undertaking judicial review, as when in Heller he reversed a history of Supreme Court decisions on the Second Amendment and just severed the “well-regulated militia” clause from it.

Don’t bother us with minutiae.

And this review barely scratches the surface of the inconsistency of this most political justice in the service of his far right-wing politics. (If, as is rumored, along with his soul-mate Clarence Thomas, he is a member of the right-wing secret Catholic society, Opus Dei, that religious affiliation, to which members pledge first allegiance, would strongly influence his behavior on the Bench.) And by the way, if you think that the Repubs. are going to give in on even considering the Obama nominee to fill the seat, you’ve got another think coming. Hopefully, Obama will make the rumored nomination of Loretta Lynch to the High Court. Whatever you think of Obama (and I am hardly a big fan of his), such a choice would be brilliant, starting with its political implications. But that is for another time.

In sum, the only thing Scalia was consistent with was his consistent pursuit of his far-right-wing goals. He was an “originalist” when it suited his politics; not one when it didn’t. Or one can more kindly say, please do think of Scalia as an originalist — that is except when he wasn’t.

ABOUT THE AUTHOR

Senior Editor, Politics, Steven Jonas, MD, MPH is a Professor Emeritus of Preventive Medicine at Stony Brook University (NY) and author/co-author/editor/co-editor of over 30 books. In addition to being Senior Editor, Politics, for The Greanville Post, he is: a Contributor for American Politics to The Planetary Movement; a “Trusted Author” for Op-Ed News.com; a contributor to the “Writing for Godot” section of Reader Supported News; and a contributor to From The G-Man. He is the Editorial Director and a Contributing Author for TPJmagazine.us. Further, he is an occasional Contributor to TheHarderStuff newsletter, BuzzFlash Commentary, and Dandelion Salad.

Dr. Jonas’ latest book is The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022: A Futuristic Novel, Brewster, NY, Trepper & Katz Impact Books, Punto Press Publishing, 2013, and available on Amazon.

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John Oliver tackles Harsh Drug Sentences: Mandatory Minimums

Last Week Tonight with John Oliver: Mandatory Minimums (HBO)

A neglected issue that embodies an enormous injustice.

FACT TO REMEMBER:
IF THE WESTERN MEDIA HAD ITS PRIORITIES IN ORDER AND ACTUALLY INFORMED, EDUCATED AND UPLIFTED THE MASSES INSTEAD OF SHILLING FOR A GLOBAL EMPIRE OF ENDLESS WARS, OUTRAGEOUS ECONOMIC INEQUALITY, AND DEEPENING DEVASTATION OF NATURE AND THE ANIMAL WORLD, HORRORS LIKE THESE WOULD HAVE BEEN ELIMINATED MANY YEARS, PERHAPS DECADES AGO. EVERY SINGLE DAY SOCIAL BACKWARDNESS COLLECTS ITS OWN INNUMERABLE VICTIMS.

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Missouri AG Confirms Michael Brown Grand Jury Misled by St. Louis DA

WEEKEND EDITION

[dropcap]S[/dropcap]ubsequent to a previous report from Lawrence O’Donnell the Missouri Attorney General has confirmed with Last Word that they instructions given the Michael Brown Grand Jury describing the Police “use of force” laws was incorrect and misleading.Video from Program

The background of this situation is that Lawrence O’Donnell reported that after reviewing the transcripts of the Darren Wilson Grand Jury, his analyst discovered that Assistant District Attorney’s working for Bob McCullough gave the Jurors an outdated copy of Missouri Lawthat all that was required for an Officer to use deadly force is their “reasonable belief” that there was a threat.

directly before Darren Wilson’s testimony giving the impression that all that was required under the law for Wilson to kill Michael Brown was his belief that he was in danger, without the additional requirement of probable cause for such a belief.

The Missouri AG now proclaims that was wrong and the Missouri Law needs to be changed and updated to reflect the Supreme Court’s ruling.

Continue over the fold to read more.

O’Donnell: The Missouri Attorney General says “The Police Use of Deadly Force Law in Missouri must be changed.” in response to my question to the Attorney General he said:”Among the problems tha Ferguson has brought to light is the need to update Missouri’s use of deadly force statute. This statute is inconsistent with the Supreme Court’s holding in Tennessee v. Garner. Consequently, it is important this statutue be amended by the Missouri legislature to incorporate the Garner decision to avoid confusion in the criminal justice system”

Chris Koster
Missouri Attorney General

O’Donnell: As I have stated on this program there should be no confusion in the criminal justice system because the United States Supreme Court clarified the proper, and legal, and constitutional use of deadly force by police, 29 years ago.

There are two clear possibilities here. Either the St. Louis County District Attorney’s Office was aware of this conflict and deliberately attempted to give the Grand Jury a false impression of the law, only to slip in a unclear, unexplained “correction” at the last minute which would be far too weak to override the prevailing impression gained from weeks of testimony which had been reviewed through a jaundiced lens…Or…

The St. Louis County and other DA’s throughout the state have been regularly misleading juries and grand juries with the mistaken and wrong impression that probable cause is not required for law enforcement before deliberate deadly force can be deployed legally because they just don’t know any better.

And worse even still, are Officers walking the streets of Missouri – or other states – also under this incorrect impression that all they need to use deadly force is to “feel threatened”?

This of course begs the question of what happens then when you get people like Rudy Giulianior Joe Scarborough or Bill O’Reilly or Ted Nugent or -pick a conservative, any conservative- telling everyone that Young Black Men are, by definition, A Threat? (see video below)

I think we can see what you get from that, even when controlling for demographics young black men are about seven times more like to be killed by law enforcement than just about any other group.

Considering the fact that Darren Wilson has made public statements that he actually went through the thought process: “Can I Legally Kill This Guy?” and then in about 3.5 seconds decided for himself that he could when his judgement on what was truly legal in that situation, like that of the DA, may have been factually and constitutionally wrong – it begs yet another critical question, has this statute been updated in New York?

Could that, or a similar issue, be a factor in the decision by the New York Grand Jury not to indict Officers involved in what the NY Medical Examiner’s Office called “A homicide”?

Naturally since New York’s Grand Jury law’s don’t allow their testimony or deliberations to be revealed to the public we don’t know what they were told, or what they weren’t told.

What the New York Daily News Reports is this:

Under New York State law, police officers can use force to affect arrests, prevent escapes and to protect themselves and others from physical harm. New York law further provides that citizens may not physically resist. Arrests are to be challenged in court, not on the street….

As a practical matter — on the basis of past cases — the grand jury would likely indict only if it found malice or some intention to hurt Mr. Garner or that a gross disregard for Mr. Garner’s well-being is what created the tragic ending during this routine arrest. Finding that the officer was careless or that the arrest was bungled will not rise to the level of a crime.

So if the office doesn’t “intend” harm, they can’t be charged – which essentially means they can’t get away with Murder, but they still can potentially get away with Manslaughter.It’s “Ok”, if they didn’t really mean it and all that really requires is not getting caught bragging about it afterward, right? Sure.

Unlike the Wilson case, Officers in New York clearly didn’t make the deliberate decision that the subject was “a threat” and chose to use deadly force, they were – as best we can tell from the Snuff Film we’ve all seen by now – just trying to make an arrest with a difficult subject and in the process violated NYPD Policy in using a choke-hold and piling onto him while ignoring the subjects repeated signs respiratory of distress.

I can’t breath. I can’t breath. I can’t breath…

But they didn’t “mean” it – so, whatever.The National Institute of Justice states that:

Police officers should use only the amount of force necessary to control an incident, effect an arrest, or protect themselves or others from harm or death.Police should also:
Ensure that those injured receive medical aid.
Ensure that the family of any injured person is notified.

So, no – not Murder, but someone was definitely slaughtered, yet no one has been held accountable for it.Again.

What I additional found was the actual New York Statute of Police Use of Force to Effect an arrest, and the quick answer to the question of whether it reflects the Constitutional Case Law, just as Missouri’s law did not, is IMO… “No!”

1. A police officer or a peace officer, in the course of effecting or
attempting to effect an arrest, or of preventing or attempting to
prevent the escape from custody, of a person whom he or she reasonably
believes to have committed an offense, may use physical force when and
to the extent he or she reasonably believes such to be necessary to
effect the arrest, or to prevent the escape from custody, or in
self-defense or to defend a third person from what he or she reasonably
believes to be the use or imminent use of physical force; except that
deadly physical force may be used for such purposes only when he or she
reasonably believes that:
(a) The offense committed by such person was:
(i) a felony or an attempt to commit a felony involving the use or
attempted use or threatened imminent use of physical force against a person; or
(ii) kidnapping, arson, escape in the first degree, burglary in the
first degree or any attempt to commit such a crime; or
(b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; or
(c) Regardless of the particular offense which is the subject of the
arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.

IANAL, but I don’t see any mention that the Officers need probable cause for their “reasonable belief” that deadly force is necessary. Would that have made a definite difference to the St. Louis or New York Grand Juries? I honestly don’t know, but having the law be incorrect in two states where this has happened doesn’t make me all that confident about Justice being reached fairly in Ohio [Jonathan Crawford, Tamir Rice], Utah [Darrien Hunt] or other states.This may not be the last case – even in the last 12 months – where people feel compelled to take to the streets in protest because the police and the DA and the courts and various legislatures have grossly failed in their duty to protect all of our citizens equally.

But… and there is a big butt… the NY statute also says this.

2. The fact that a police officer or a peace officer is justified in
using deadly physical force under circumstances prescribed in paragraphs
(a) and (b) of subdivision one does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody.

[Having re-read that last section I realize the “reckless conduct” limitation only applies to “innocent persons…who aren’t being arrested”. So what happens when the reckless conduct is against people they are trying to arrest? This right here, could be the loophole Officer Pantaleo and others escaped through.]What both of these cases, as well as others, have shown is that the Constitution we think we are governed by, and the laws that are supposed to be put in place in consistency with that Constitution – aren’t being followed by our legislatures, aren’t being correctly implemented by our police and aren’t being enforced by our DA’s and Grand Juries.

And that, Ladies and Gentlemen, is a problem. A big problem.

2:37 PM PT: Lawrence mentioned this during the full segment and I don’t want to leave it out:

This is not usually a problem as the relevant case law is often attached to the statute when it’s provided to juries or grand juries. This is partly why legislatures don’t constantly revise all their laws everytime the SCOTUS makes a decision, the courts and DA’s are supposed to keep up to date and handle it.

Less so the Officers on the street.

The point here is that St. Louis County DA, either by accident or by design, didn’t provide the case law until 6 weeks later after all the testimony and exhibits were done.

2:58 PM PT: Officer Pantaleo stated to GJ, due to some partial releases, that he was trained at the academy to use that particular choke maneuver. The first problem with that is that choke-holds were supposedly banned as part of NYPD policy after the choke-hold death of Anthony Baez in 1994, which led to Officer Francis Livoti being prosecuted Federally – after being indicted twice then acquitted in State Court – and was ultimately sentenced to 7 years in prison. Pantaleo is only 29 years old, so since the entire time that he’s been on the Force, and when he went through the Academy, the choke hold has been banned by NYPD.

The second issue is that he’s doing it wrong. The point of the carotid choke hold is to restrict blood flow to the brain and render the subject unconscious by compressing the arteries, It’s not to put pressure on the windpipe which can be crushed in the process. From the video Pantaleo is putting his full weight directly on Garner’s windpipe, not on his carotid arteries which are on the sides of the neck. This mistake a major reason by many PD have banned the practice for decades. What Pantaleo, and the other officers who piled on top of Garner thus further compressing his chest and helping to asphyxiate him, was a public hanging without the rope.

3:11 PM PT: Not to pile on, but Police took seven minutes to give Garner CPR after they took him down.

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Loretta Lynch for AG: Holder 2.0?

Stephen Lendman

[dropcap]O[/dropcap]n November 7, a White House press release announced her appointment for Attorney General. Succeding Eric Holder. Calling her a “strong, independent prosecutor who twice led one of the most important US Attorney’s Offices in the country.” Obama called her perhaps “the only lawyer in America who battles mobsters and drug lords and terrorists and still has the reputation for being a charming people person.”

Holder: A corporate whore, and a complete and shameless disgrace to the office of Attorney General, a typical Obamite.

Holder disgraced the office he held. Francis Boyle called him “a total disaster for the United States Constitution, the Bill of Rights, Human Rights and the Rule of Law.”

White House press secretary Josh Earnest lied. Saying his “tenure (was) marked by historic gains in the areas of criminal justice reform and civil rights enforcement.”

Obama ludicrously called him another Ramsey Clark. His departure won’t change things. Expect business as usual to continue. Nothing suggests otherwise. Before Lynch’s nomination, Boyle said he expects no positive change. It remains to be seen if he’s right.

Holder served monied interests. Subservient to wealth, power and privilege. Let Washington’s criminal class run things. Complicit with Wall Street and other corporate crooks. Permitted unprecedented grand theft. Let corporate criminals escape accountability. Not a single culpable executive did prison time. Authorized out-of-control Big Brother surveillance. Waged war on privacy rights. Due process. Press freedom. Whistleblowers exposing government wrongdoing.

He’s what Beltway insiders call a “sin eater,” said Law Professor Jonathan Turley. Shielding presidents and other top officials from accountability. Nixon had Halderman and Ehrlichman. Oliver North and Bud McFarlane served Reagan. Bush had Cheney. The “ultimate sin eater,” said Turley.

Obama had “no better sin eater than Holder.” Absolving CIA torturers from prosecution. Supporting secretive/lawless/expanded warrantless surveillance. Rubber-stamping Obama’s Murder, Inc. agenda. His kill list policy. His war on dissidents. Anti-war protesters. Muslims. Latino immigrants. Lawyers defending clients Holder wanted convicted. Investigative journalists. Truth-tellers more aggressively than ever. According to Turley:

His tenure was “one of the most damaging periods in our history with a comprehensive attack on various constitutional rights and principles from free speech to the free press to international law.”

He “fought aggressively to expand the powers of the presidency and national security laws over countervailing individual rights and separation of powers principles.” He “personifie(d) an administration of unrivaled ambitions colliding with inescapable realities.”

“(I)t didn’t take long for (his) ‘Mr. Smith comes to Washington’ story to become ‘all the king’s men.’ ” He was involved in militarizing state and local police forces. Wrongfully used the long outdated 1917 Espionage Act against Edward Snowden, Julian Assange, and Chelsea (aka Bradley) Manning.

Holder supported Obama’s right to attack other countries without Security Council or congressional authorization. War-profiteers thrived on his watch. Enforced a litany of police state laws. Shamelessly. Violating core rule of law principles. He defended entrapment. Occurring when law enforcement officials or agents induce, influence, or provoke crimes that otherwise wouldn’t be committed.

Holder approved the practice publicly. Defending the indefensible. Calling entrapment an “essential law enforcement tool in uncovering and preventing terror attacks.”
CLICK TO EXPAND IMAGE

None occurred on US soil in recent memory. Repeat: None. 9/11 was state-sponsored terrorism. So-called homegrown terrorist plots virtually don’t exist. Alleged ones are hatched. Fake. Big Lies.

Targeting numerous innocent victims. Falsely accusing them of crimes never committed. Railroading them on bogus charges. Imprisoning them unjustly. Generating fear. Washington’s fake war on terror needs public support. Orchestrated FBI stings entrap innocent victims. Familiar schemes repeat. Law and order don’t matter. Police state justice replaced them. Ends justify means. Expect business as usual under Lynch. Nothing suggests otherwise.

She’s currently US Attorney for the Eastern District of New York. Appointed in May 2010. Overseeing federal prosecutions in Brooklyn, Queens, Staten Island and Long Island. Her mother was a school librarian. Her father a Baptist minister. She’s a Harvard College and Law School grad.

Is a Neo-Con Cesspool

After Deans Clark and Kagan

I would not send my dog (there)

I like my dog

Nor my kids

Nor others’ kids

I like them too

To learn torture

And become torturers

To learn war crimes

And become war criminals

To learn kangaroo courts

And become kangaroos

To learn drones

And become droners

To learn murder

And become murderers

To learn assassinations

And become assassins

To trash the Constitution

And International Law

Human Rights too

This is not the HLS

I entered

In 1971

A Pox upon their House

– 98, she was Long Island Office Chief. After serving as District Deputy Head of General Crimes as well as Intake and Arraignments. She prosecuted white collar crimes and corruption cases. Was lead prosecutor in trials involving public corruption allegations in Brookhaven, Long Island.

Was a United States v. Volpe trial team member. Involving New York police sexually assaulting Haitian immigrant Abner Louima. Clinton appointed her US Attorney for the Eastern District of New York. Serving from 1999 to 2001.

She was a member of his Attorney General’s Advisory Committee. Served as White House Crime Subcommittee Co-Chair. Was a Criminal Trial Advocacy Program DOJ instructor. Served as St. John’s University School of Law Adjunct Professor.

From 2003 – 2005, she was a Wall Street controlled New York Federal Reserve Bank of New York board member. The mother bank most complicit with its member bank crooks. Before becoming US Attorney for the Eastern District of New York in May 2010, she was a Hogan & Hartson LLP partner.

New York based. A member of its litigation group. Focusing on commercial litigation, white collar criminal defense, and corporate compliance issues. At the time, serving as Special Counsel for the Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR).

It defined propaganda and other forms of incitement to commit genocidal mass killing as follows:

“Directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters or through any other means of audiovisual communication.”

Like US-led NATO written or verbal communications. Justifying naked aggression. Mischaracterized as humanitarian intervention. Or responsibility to protect. Regurgitated by supportive scoundrel media propaganda. Misinformation. Other forms of deception.

ABOUT THE AUTHOR

http://www.claritypress.com/LendmanIII.html

Visit his blog site at sjlendman.blogspot.com.

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The legacy of US Attorney General Eric Holder

Tom Carter, WSWS.ORG

Eric Holder: Easily one of the most compromised and ineffective Attorney Generals in history.

[O]n Thursday, US Attorney General Eric Holder announced that he would resign from his post in the Obama administration after six years in office. His departure was greeted with a chorus of praise in the establishment media, in which he was acclaimed as a “defender of civil rights.”

Announcing Holder’s resignation, Obama said, “Through it all he’s shown a deep and abiding fidelity to one of our cherished ideals as a people, and that is equal justice under the law.” At a joint press conference to announce the resignation, Obama and Holder made repeated reference to the country’s founding documents, civil rights, equal justice and so forth.

The New York Times editorial board, which was likely notified in advance, immediately issued a statement praising “Eric Holder’s Legacy.” The newspaper wrote: “As the first African-American to serve as the nation’s top law enforcement official, Mr. Holder broke ground the moment he took office… Mr. Holder has continued to stake out strong and laudable legal positions on many of the most contested issues of our time.”

While conceding that Holder’s legacy was “marred” by the targeted killing of civilians, the failure to prosecute Wall Street criminals and other “failures to act,” the Times waxed lyrical about Holder’s accomplishments in the field of same-sex marriage, voting rights and criminal justice.

Similar praise for Holder echoed throughout the Democratic Party establishment and its supporters in the “civil rights” milieu. Al Sharpton declared, “No attorney general has demonstrated a civil rights record that is similar to Eric Holder’s.”

Calling Holder a “defender of civil rights” is like calling a rampaging bull a “defender of fine china.” During his six-year term, Holder, as the head of the Obama administration’s Department of Justice, has presided over the most comprehensive and aggressive trampling of democratic rights in US history, as well as the buildup of the infrastructure of a police state.

Holder’s real legacy includes, without making a complete list: providing pseudo-legal sanction for assassination of US citizens, military commissions, and incommunicado detention; shielding war criminals, corporate criminals, and Bush-era officials from prosecution; persecuting whistleblowers and journalists; targeting protesters and antiwar activists under antiterror laws; asserting unlimited executive powers; justifying government secrecy; deporting immigrants en masse; abetting the expansion of illegal domestic spying; slashing wages and benefits for workers; and infiltrating authoritarian and fascistic legal doctrines into American jurisprudence.

Calling Holder a “defender of civil rights” is like calling a rampaging bull a “defender of fine china.”

Holder’s first significant act in office was to make clear that the Bush-era criminals, including those that had conspired to carry out illegal torture and surveillance, would not be investigated or prosecuted under President Obama’s mantra of “looking forward not backward.” Holder declared in 2009 that “it would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”

In addition to shielding Bush-era war criminals, Holder also worked to provide de facto immunity to all the individuals and institutions that crashed the economy in 2008. Instead, the corrupt flow of “bailout” funds from the public treasury into the hands of select banks and individual billionaires continued unabated. To date, under Holder’s watch, not a single prominent figure has been prosecuted.

Justifying the decision to let banks get off scot-free in Congressional testimony in 2013, Holder said that he was “concerned that the size of some of these institutions becomes so large that…if we do prosecute—if we do bring a criminal charge—it will have a negative impact on the national economy, perhaps even the world economy.”

Holder will perhaps be best remembered for his role as the chief legal theorist in developing the pseudo-legal justifications for presidential dictatorship, particularly in relationship to the assassination of American citizens without due process. Holder memorably and menacingly asserted on March 4, 2013 that the president “has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without a trial.” That is, American citizens can be assassinated within the United States on the say-so of the president.

In 2010-11, as the US government expanded its “targeted killing program,” Holder was the go-to man for cobbling together half-serious arguments to justify what was, in fact, expressly prohibited by the US Constitution. In crafting these theories, Holder and his staff took as their starting point the authoritarian doctrines introduced under the Bush administration, and then expanded them dramatically.

Holder’s name, for example, will forever be linked in American jurisprudence with his claim that “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.” This theory renders the Fifth Amendment’s guarantee of due process—“No person. .. shall be deprived of life, liberty or property, without due process of law”—into a meaningless nullity. According to Holder, a secret meeting between the president and his intelligence chiefs satisfies “due process.” (See: “Military tribunals and assassination”)

Holder’s six years in office witnessed exposures of widespread government criminality by figures such as Julian Assange, Bradley (Chelsea) Manning and Edward Snowden. The Obama administration responded to these exposures not by prosecuting the criminals who were exposed, but by persecuting those who had told the public the truth. Under Holder, the US government prosecuted more whistleblowers under the Espionage Act than all previous administrations combined. Today, Manning is in prison, Assange is still trapped in the Ecuadorian embassy in London and Snowden has been forced into exile in Russia.

When Director of National Security James R. Clapper was caught committing perjury before Congress in 2013 about the extent of domestic surveillance, however, Holder did not prosecute.

This year, a major constitutional scandal erupted over revelations that the Central Intelligence Agency had conspired to cover up its record of torture, and that it had actually spied on the very congressional committee charged with overseeing it. The matter was referred to Holder, who announced that nobody would be prosecuted. (See: “The CIA spying scandal and the disintegration of American democracy”)

During the recent military-police crackdown on protests in Ferguson, Holder personally intervened to help bring the situation back under control, touting his identity as a “black man.” This has been touted by the Times and other publications as one of his great “civil rights” accomplishments. (See: “Attorney General Holder backs police-military siege in visit to Ferguson, Missouri”)

Holder’s other significant “accomplishments” include a record numbers of deportations of immigrants; helping to prevent significant consequences for BP after it caused a massive ecological disaster in the Gulf of Mexico; assisting in the restructuring of the auto industry by slashing wages for workers; shielding GM in the wake of its ignition defect scandal; delivering slaps on the wrist to other corporate criminals or letting them off scot-free; personally approving search warrants for journalists; asserting the president’s power to launch wars of aggression without Congressional approval in Libya and Syria; working to codify military commissions as permanent features of the American judicial system; and intervening repeatedly in the Supreme Court to take the side of big business, the police and the intelligence agencies. The Department of Justice under Holder also intervened to facilitate the bankruptcy of Detroit.

To the extent that Holder presided over token measures, for example, to address America’s outrageously large prison population, the results have been meager at best. According to the International Centre for Prison Studies, the United States still has the highest percentage of prisoners in the world. America’s prisons are filthy, dangerous and overcrowded, with murders, beatings and every form of degradation a matter of routine.

One’s mouth hangs open when reading descriptions of Holder as a “defender of civil rights.” But in the final analysis, the praise for Holder issuing from certain quarters speaks volumes about the attitudes of the upper-middle-class and pseudo-left layers who provide the social base for identity politics. For these layers, issues such as war, the destruction of democratic rights and the drive to dictatorship take a back seat to their own far narrower concerns. If Holder announces that he favors same-sex marriage, for example, then these layers are more than willing to forgive him for the rest.

In his actions, he has been a faithful representative of the Obama administration, a government of, by and for the corporate and financial aristocracy and the military-intelligence apparatus. He should be remembered as the most right-wing attorney general in US history thus far, a crusader for dictatorship and an enemy of the working class. For his role in the numerous conspiracies to subvert democratic rights, including with respect to the illegal assassinations of civilians, he deserves to be arrested, indicted and prosecuted.

SELECT COMMENT

Mirek • 12 hours ago

C`mon, he deserves praise, as a most faithful servant of the ruling class ever since the Dulles brothers! WSWS complains that now Obama Administration has the power to assassinate American citizens without due process, but he, Holder, should be lauded for making the process thoroughly democratic: now everybody in the world can be killed on a wink from the President, in total equality! And how about his, arguably, greatest achievement: same sex marriage: this is directed principally at the upper/middle classes, and protects the parties property rights, not quite a revolution.

Too early for a statue to be erected in his honour, one has to be deceased for that, pity!