Newsletter: Using Courts To Build The Movement
The courts are a tool usually used by the status quo to protect their interests.
The US Constitution is a property rights constitution, with human rights a secondary thought. Laws have followed the lead of the Constitution and have strengthened property rights. The worst crimes of US history have been protected by law – slavery, taking of Indigenous lands, attacks on unions, denying women the vote and money as speech in elections. As a result, when politicians say we are a nation of laws, it often means the courts will be used to protect corporate interests in making a profit even if doing so destroys communities, people and the environment.
But, courts do not always side with the corporations and government. There are times when an enlightenment comes to the judiciary and some begin to rule for the people or their communities. This happens because even courts reflect the political moment – or zeitgeist – when the culture takes a turn thanks to people organizing to express their interests wherever they can.
We may be at the beginning of such a moment, perhaps too soon to say and perhaps we are being optimistic. It shows the importance of the movement building national consensus because such consensus impacts everything.
The Climate Movement National Consensus Being Reached
One front of struggle, certainly not the only one, that is achieving national consensus is the climate movement. Scientific consensus was achieved years ago, despite ExxonMobil, the Kochs and other carbon profiteers trying to undermine it; and now the public is joining the consensus. A critical part of the consensus is that people are willing to take action. Half the public will take some kind of action in support of confronting global warming – that is more than 100 million people; and one in six Americans would personally engage in nonviolent civil disobedience against corporate or government activities against global warming.
From May 4-15, 350.org, Greenpeace and many other organizations — notably grassroots movement organizations from every continent — will hold a global week of action called Break Free From Fossil Fuels. This movement flips the narrative by defining itself “as law-enforcers trying to enforce legal rights and halt governments and corporations from committing the greatest crime in human history.”
At the end of last year, a court recognized the claim of Our Children’s Trust that they have a right to a healthy environment. The court wrote that the “state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.” Property rights were turned on their head to protect people and the planet rather than corporate profits.
This week there was another move toward prosecution. ExxonMobil is being prosecuted for its effort to hide the reality of climate change in order to protect their oil profiteering. The Department of Justice ordered the FBI to investigate the corporation. This follows the actions of Attorney Generals in New York, California and Maryland who are also investigating. Will the rule of law be applied to one of the most powerful corporations in the world for what is among the greatest corporate crimes in history?
This week Aubrey McClendon, the former CEO of Chesapeake Energy, was indicted for rigging bids on oil and gas leases. McClendon crashed his car into a wall without braking, killing himself, within 24 hours of the indictment.
There is widespread corruption in the oil and gas industry. One of the more overtly corrupt federal agencies is the Federal Energy Regulatory Commission (FERC) which is funded by the oil and gas industry rather than through taxes and has a rapid revolving door from the industry to FERC and back to the industry. The FERC always grants permits to the industry without considering climate change, the cumulative impacts of pipelines and other infrastructure or the impact on the community (communicide). This week the Delaware River Keepers turned to the courts to expose this broad corruption filing suit in the US District Court in Washington, DC alleging a flawed process because of a conflict of interest since FERC’s funding comes from approving projects. They seek a declaration that FERC deprives the group of due process and causes irreparable harm, wants its funding structure declared unconstitutional and to prohibit the exercise of eminent domain for FERC projects.
Regarding eminent domain, the conflict between the Holleran family in Pennsylvania and Williams Partners over the destruction of their maple trees, which they tap for syrup, to build the Constitution Pipeline ended up in federal court. An inspiring protest by a family joined by protesters who came to protect the trees from being cut by the company held the tree cutters off for weeks. The company went to federal court and got approval to cut the trees even though they have not received all of the permits for their project. This week, tree cutters came to the property under the protection of armed federal Marshals enforcing eminent domain. The last trees to be cut were painted with red, white and blue freedom flags. While the court ruled against the property rights of the family, this may be a hollow victory, as Ted Glick described it, that will foment more opposition to pipeline building.
We are in the midst of another important fracking case this week where the Ely and Hubert families are putting Cabot Oil & Gas on trial for polluting water in Pennsylvania by fracking. The judge in the case has been reportedly overly siding with the corporation and limiting the evidence that the families can present. The evidence is strong that fracking pollutes groundwater but will the court allow the truth to be told? We may know this week how the case turns out. If the court goes against the family, it may be another hollow victory that spurs the movement on.
This is what happens when national consensus is reached on an issue and the courts do not reflect it. The litigation becomes a win-win for the movement. Either the court reflects reality and protects the people from corporate abuse, or the court sides with the corporation and the movement grows. The legitimacy of the courts and government is undermined further and people become even more assertive and confident in their actions.
A Global Movement
We are in a moment of global action, with people pushing for a new direction toward clean energy, a fair economy, responsive government and resolution of disputes without violence.
In Japan this week, three Ex-TEPCO executives were indicted for allegedly failing to take measures to prevent the disaster at the Fukushima. Prosecutors initially refused the case, but were compelled to take it up by an independent panel of citizens. The CEOs were indicted on charges of professional negligence resulting in death and injury.
The indictment comes in the same week when TEPCO admitted it knew within hours following the 2011 tsunami that a full-scale, multi-reactor nuclear meltdown was underway but waited nearly two months to inform the public. This lie will have significant adverse impacts as people should have left the area more quickly.
Will TEPCO be held responsible for the damage? Harvery Wasserman writes: “39 months after the multiple explosions at Fukushima, thyroid cancer rates among nearby children have skyrocketed to more than forty times (40x) normal. More than 48 percent of some 375,000 young people—nearly 200,000 kids—tested by the Fukushima Medical University near the smoldering reactors now suffer from pre-cancerous thyroid abnormalities, primarily nodules and cysts.”
Another mass popular protest movement in Japan had a victory this week when the military base in Okinawa was halted. The base has been protested on a daily basis in often aggressive protests. It has been protested in Tokyo and has impacted elections in Okinawa where an anti-base governor was elected in a landslide. The conflict has resulted in three law suits and this week Prime Minister Abe made an abrupt about face and stopped the construction of the base in the face of litigation.
Another court case worth noting, that has not gotten any attention in the United States, was in a French court which summoned retired U.S. General Geoffrey Miller, the former Guantánamo prison chief. The court is investigating claims of U.S. torture at the Guantánamo prison. This week Miller did not show up in court. The Center for Constitutional Rights and the European Center for Constitutional and Human Rights, which has provided documents and reports to the court said:
“Miller’s absence speaks volumes about the Obama administration’s continued unwillingness to confront America’s torture legacy. The administration not only refuses to investigate U.S. officials like Miller for torture, it apparently remains unwilling to cooperate with international torture investigations like the one in France. Geoffrey Miller has much to answer for regarding the treatment of detainees during his tenure. The Convention Against Torture obligates both France and the U.S. to the prevent and punish torture, including through the exercise of universal jurisdiction, but only one country is upholding its obligations in this case.”
Essentially, the United States under President Obama is ignoring the rule of law, despite the President claiming we are a nation of laws.
In another French court decision, GMO foods lost a libel case. The court ruled that French Professor Gilles-Eric Séralini was correct when he concluded that GMO food, when fed to rats, caused serious health problems including tumors. The biotech industry tried to discredit him calling the research a scientific fraud, but a defamation suit resulted in a victory for the researchers.
The Movement is Bigger than the Courts
While the movement will sometimes use the courts as a terrain for our campaign against injustice, we must remember the movement is bigger than the courts. No matter whether we win or lose in court, the struggle continues. If we win we build on that victory, if we lose we point the lack of legitimacy of the courts and government; we highlight the corruption of corporate-government. Our goal is to always build the movement and to create national consensus for transformational change.
This week the Zapatistas showed how to build on a victory when charges against Subcomandante Marcos for alleged terrorism were dropped. In response the Zapatistas put out the following statement:
“To the Federal Judiciary Council of Mexico:
“The whole time the only terrorists have been those who for more than 80 years have so badly governed this country. You are simply the sink where the genocidaires go to wash their hands and together you have converted the judicial system into a poorly built and clogged latrine, the national flag in a reusable roll of toilet paper, and the national shield into a logo made of undigested fast food. Everything else is pure theater in order to simulate justice where there is only impunity and shamelessness, feigning “institutional government” where there is nothing more than dispossession and repression.”
Many recognize that the courts “simulate justice” in a system that is in reality often unjust. So, while we applaud the decisions in history like Brown v. Board of Education that led to the end of segregation, we recognize that more often than not movements must build on the failure of courts to do justice.
We saw this in the abolition movement where in 1857 the infamous Dred Scott decision ruled that people who were enslaved were mere property with no human rights. This did not end the abolition movement but grew it. Indeed, the Emancipation Proclamation occurred a mere six years later. An abolition movement that had begun before the United States was created won the end of slavery a brief time after the US Supreme Court completely ruled against it.
Indeed, the founding of the United States is rooted in a defeat in court. In 1761 in one of the great moments in court history the legality of writs of assistance was litigated. James Otis vigorously argued against general search warrants that granted arbitrary power to British officials to search the homes of colonists. When the court ruled in favor of this abusive power of the crown, John Adams, the sixth president, who was a very young court reporter at the time, wrote: “Then and there the child Independence was born.” The decision did not end the revolution but built consensus in favor of breaking from England; in 15 years the colonies declared their independence.
The lesson from history is the movement is bigger than the courts. If we keep building on court decisions whether they are with the movement or against it, we will prevail. Justice is on the side of ending corporate rule and courts that see it will be on the right side of history, but whether a court sees it or not, we will be on the right side of history.