Biden’s Plan to Sell Off Seized Russian Assets Violates the Constitution and International Law

Paul B. Stephan

The Biden administration wants to sell off the yachts, homes and other luxury assets it has seized from Russian oligarchs and use those proceeds to support reparations for Ukraine.

As part of his proposal for the latest aid package to Ukraine, President Joe Biden is asking lawmakers for the authority to formally confiscate the assets of sanctioned oligarchs to pay to “remedy the harm Russia caused … and help build Ukraine.” The House has already passed a bill urging Biden to sell the assets, but it didn’t specifically give him the authority to do so.

Others have encouraged the administration to sell off the tens of billions of dollars in Russian central bank assets it has frozen. It’s not clear from the White House statement whether Biden plans to go after state-owned assets too.

That he has gone to Congress to get permission indicates that his lawyers believe, as do I, that current law permits only freezing, and not selling, foreign property in the course of an international crisis.

I’ve studied and practiced international law for several decades and advised the departments of State and Defense on issues like this one. The idea of forcing Russia to pay reparations for the harm to Ukraine has obvious appeal. But the U.S. needs to comply with constitutional and international law when it does so.

Freezing vs. confiscating

You might ask what the difference is between seizing or freezing property – forbidding anyone to dispose of or use an asset or take income from it – and confiscating it.

Freezing destroys the economic benefits of ownership. But the owner at least retains the hope that, when the conflict is over and the freeze order ends, the property – or its equivalent in money – will return. Confiscation means selling off the property and giving the proceeds, along with any cash seized, to a designated beneficiary – in this case, people acting on behalf of Ukraine.

The International Economic Emergency Powers Act of 1977permits only freezing, and not selling, foreign property in the course of an international crisis. Congress adopted this law to replace the Trading With the Enemy Act of 1917, which gave the president much broader power to take action against U.S. adversaries in and out of war.

Since then, the U.S. has frequently used the power to seize assets belonging to foreign individuals or nations as an economic sanction to punish what it considers bad behavior. For example, after Iran stormed and seized the American embassy in Tehran, the U.S. government seized billions of dollars in Iranian assets in the U.S, including cash and property. The U.S. has also frozen assets of Venezuela and the Taliban over ties to terrorism and Russian individuals considered responsible for human rights violations, thanks to the Magnitsky Act.

In all these cases, the United States held on to the foreign property rather than sell it off. In some cases, it used the seized property as a bargaining chip toward a future settlement. In 2016, the Obama administration famously returned US$400 million to Iran that the U.S. had seized after the embassy siege in 1979 – delivering stacks of Swiss francs stuffed inside a Boeing 737. In other cases, the assets remain under government control, administered by an office of the U.S. Treasury, in hope that eventually some compromise can be reached.

The Patriot Act, adopted in the wake of 9/11, created a limited exception to the confiscation ban in instances in which the United States is at war. The U.S. never has used this authority. And despite the increasingly heated rhetoric, stepped-up sanctions and growing aid for Ukraine, the U.S. is not at war with Russia.

Redressing gross violations

A fundamental principle of justice says those who cause harm while breaking the law should pay.

In international law, we call this “reparations.” As the United Nations puts it, “Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law.”

In recent history, victors have often forced reparations on the losers of war – as was the case following both World War I and World War II – especially when they are deemed responsible for massive death and ruin.

Russia has wrought terrible destruction in Ukraine. Several cities, including Mariupol, are all but destroyed, and evidence of war crimes in places like Bucha is mounting.

So it makes sense that so many scholars, lawmakers and others would argue that the regime of Vladimir Putin and those who benefit from his rule should help pay for it.

Some, such as Harvard legal scholar Laurence Tribe, argue U.S. law already allows the president to use any seized or frozen asset as reparations. But, as other experts have pointed out, doing so has serious problems. The legal issues noted above are one major hurdle and open this up to being challenged in court.

Another is political. Confiscating assets takes away important bargaining chips in any future negotiations, as they have been with Iran and other countries.

Specialists in sanctions law – including me – agree with Biden that Congress needs to pass a new law.

Punishing Russia while preserving the rule of law

The question then becomes what that legislation should look like to avoid running afoul of international law and the U.S. Constitution. There still seem to be several limitations on what Congress can do.

For example, the Constitution’s Fifth Amendment guarantees due process before the government can confiscate a private citizen’s property. But does this apply to property in the U.S. that belongs to a foreign citizen? The answer seems to be yes, at least according to two Supreme Court cases.

Selling off Russian state property such as central bank assets, creates other problems. International law provides a certain degree of immunity from confiscation to foreign nations and their assets overseas. Outside of wartime, confiscation of state property, including U.S. deposits of Russia’s central bank, runs up against these challenges.

A case currently before the International Court of Justice will decide whether the United States violated this rule when it used funds from frozen Iranian central bank deposits to compensate people who had won a default judgment from Iran for supporting terrorists.

So, yes, I believe that Russia’s invasion of Ukraine is outrageous and demands a response. But that doesn’t mean the U.S. and other countries should ride roughshod over international law and the U.S. Constitution to do so. Congress should be able to craft a law that allows some assets to be confiscated without violating due process or international law.

I predict that disregarding these issues will likely produce embarrassing judicial setbacks that will make it harder to help Ukraine down the road.

North Korea’s Real Threat: Radical Isolation

John Feffer

A recent military parade in Pyongyang showcased the country’s intercontinental ballistic missile. Kim Jong Un used the opportunity of the spectacle to promise that he would push the country’s nuclear program forward at maximum speed. To top it off, North Korea has been improving its tactical nuclear weapons, which means that it may soon be able to threaten South Korea with a nuclear strike as well.

North Korea’s nuclear program has been the perennial threat that concerns South Korea, East Asia, and the United States. Some pundits are even suggesting that the nature of this threat has recently changed—that North Korea is no longer just interested in possessing nuclear weapons in order to deter attacks by other countries. Instead, as Washington Post columnist Josh Rogin argues, North Korea is now seriously considering using nuclear weapons for offensive purposes as part of an effort to take over the Korean peninsula.

This seems far-fetched. Pyongyang has difficulty even maintaining control of its own territory. Having seen Russia’s embarrassing failure to take over Ukraine, a considerably weaker country, the North Korean government can’t seriously believe that it could invade and control South Korea, a considerably stronger country.

True, Russia’s nuclear weapons have made the United States and NATO reluctant to confront Russian forces directly in Ukraine, but they haven’t provided the Kremlin with any practical advantage over Ukraine on the battlefield. Given the size of North Korea’s nuclear arsenal and U.S. security guarantees to South Korea, Pyongyang wouldn’t be able to use nuclear blackmail to aid in some hare-brained effort to seize the entire peninsula.

After all, Pyongyang knows that any use of nuclear weapons, be they against its southern neighbor or the United States, will result in massive retaliation. The North Korean leadership would be committing suicide if it launched an ICBM or tactical nuke.

No, in fact, nuclear weapons are not the biggest threat that North Korea poses to the world. North Korea’s greatest liability is something that it currently views as an asset: its radical isolation.

To protect itself against COVID-19, North Korea has closed its borders. During the pandemic, it even shut down trade with its principal economic partner, China, only resuming trade in January. Virtually all diplomatic staff have left the country, and so have humanitarian aid workers.

Fine, you might say, isolation befits North Korea. It doesn’t produce anything that the world particularly wants, unlike Russia and its oil, gas, and military exports. If it doesn’t want to play with others, it should be left undisturbed in its own sandbox.

But such isolation is actually dangerous—and not just for North Koreans.

As part of its radical isolationism, North Korea has refused any COVID vaccines. It has so far turned down offers of three million doses of Sinovac and two million of the AstraZeneca-Oxford University vaccine.

The country’s population of 25 million unvaccinated people offers COVID an extraordinary opportunity not only to spread but also to mutate. A powerful new Pyongyang variant would not stay within the borders of North Korea. Even those who have little empathy for the plight of North Koreans have to understand that a new COVID variant could potentially kill hundreds of thousands if not millions of people all over the world.

Providing North Korea with tens of millions of doses of the Pfizer or Moderna vaccines— the more effective drugs that the North Korean government reportedly prefers—would neutralize the country’s inadvertent biological weapon.

But North Korea’s isolation is dangerous for other reasons.

Economic isolation has pushed Pyongyang to pursue black market strategies to make money in global markets. It has been involved in the production of narcotics, particularly crystal meth. It has long been rumored to have produced counterfeit $100 bills. And it has unleashed its world-class hackers to extort money through various cyber-blackmail schemes and cryptocurrency manipulations.

The cultural isolation of the population has made it easier for the government to maintain its control over society. True, North Koreans manage to get some information from the outside, including South Korean TV dramas. But isolation increases the atomization of the population, making it all the more difficult to develop a civil society apart from the government sphere.

And the geopolitical isolation of the country—North Korea doesn’t belong to any regional organizations and, aside from the United Nations, few international organizations—makes it difficult to embed the country into the system of global laws and norms.

The North Korean government is certainly ambivalent about its isolation. On the one hand, Pyongyang doesn’t want to expose itself to what it considers to be various political and economic viruses—democracy, an unregulated free market—circulating in the outside world. On the other hand, the North Korean leadership recognizes that it cannot achieve its goal of a “strong and prosperous nation” behind high, impregnable walls. It has, for instance, consistently relied on China to sustain its economy. But the North Korean leadership views its current dependency on Chinese trade to be unacceptable, both because of the perceived inferior quality of Chinese goods and because of the risk of China using its advantage to put pressure on Pyongyang.

The bottom line is that North Korea wants to engage the outside world on its own terms.

Generally, the outside world has not been willing to meet North Korea halfway. Sanctions impede any serious economic engagement with the country. Hostile rhetoric prevents most political engagement. Even cultural engagement has been largely off the table, particularly during the pandemic.

These efforts to reinforce North Korea’s isolation are counter-productive. They only push the country into engaging in more of the behaviors that the outside world finds so noxious. And, in the case of COVID vaccines and humanitarian assistance, the outside world may well be creating the conditions for a catastrophe of massive proportions that will inevitably have negative consequences far beyond North Korea’s borders.

The World Health Organization says the COVID pandemic has killed nearly 15 million across the globe

Benjamin Mateus

The World Health Organization (WHO) released Thursday its much-awaited and anticipated report on global excess deaths associated with COVID-19 for the period from January 2020 to December 2021.

The bodies of COVID-19 victims placed on hospital stretchers in Sri Lanka (Source: Facebook)

By the end of last December, officially reported global deaths had reached 5.42 million. However, the WHO study found that almost 15 million more people perished in the same period than usual, 2.75 times higher than the official total of COVID-19 deaths. The estimate of excess deaths gives a range from 13.3 million to 16.6 million.

The WHO defined excess death/mortality as “the difference between the total number of deaths and the number of deaths that would have been expected in the absence of the [COVID-19] pandemic.”

Dr. Tedros Adhanom Ghebreyesus, WHO director-general, remarked, “These sobering data not only point to the impact of the pandemic but also to the need for all countries to invest in more resilient health systems that can sustain essential health services during crises, including stronger health information systems.”

A regional comparison of excess deaths to official COVID-19 deaths underscores the seriousness of these warnings. But more than recognizing the disparities, without understanding why these exist, little can be expected to bring about the changes advocated by the WHO. The disparities are ultimately a byproduct of global capitalism and its criminal policies that allowed the virus free rein to infect the most vulnerable and the disenfranchised.

In this sense, the New York Times attempts to cover the criminal policies perfected in 2021, precisely the vaccine-only strategy that forced the piecemeal and systematic return to normalcy. They wrote yesterday, “Much of the loss of life from the pandemic was concentrated in 2021 when new and more contagious variants drove surges of the virus even in countries that had fended off earlier outbreaks.”

Rather than making a straight year-to-year comparison, the Times only notes that roughly 18 percent, an extra 10 million people, died in 2021 than “would have been without the pandemic.” It is worth noting that when the 2020 excess death report was published, there were 3 million excess deaths and 1.8 million official COVID-19 deaths. The Economist’s estimate placed those figures at 5.6 million excess deaths and 1.8 million COVID-19 deaths.

In other words, the number of excess deaths for 2021 is far more than twice the number that perished in 2020, despite having confirmed the efficacy of several COVID-19 vaccines and the recognition of the airborne nature of the virus, and the importance of respirators and high-efficiency ventilation to stem the tides of infection. It also became clear that the virus could mutate to forms with more virulent and contagious characteristics.

Instead, the de facto capitalist policy of vaccine nationalism and a vaccine-only strategy was used to begin the lifting of mask mandates and loosening of social restrictions and returning to “economic” normalcy that has cost the lives of millions more when every means to eliminate COVID-19 was available. That the scale of death doubled or tripled in 2021 only confirms that all remaining inhibitions for the social murder of the population had evaporated.

Twenty countries accounting for half of the global population saw more than 80 percent (11.9 million) of the estimated global excess mortality—Brazil, Colombia, Egypt, Germany, India, Indonesia, Iran, Italy, Mexico, Nigeria, Pakistan, Peru, the Philippines, Poland, the Russian Federation, South Africa, the United Kingdom of Great Britain and Northern Ireland, Turkey, Ukraine and the United States of America.

Ten countries accounted for 68 percent (10.1 million) of excess deaths—Brazil, Egypt, India, Indonesia, Mexico, Russia, South Africa, Turkey and the United States.

When these are sorted according to the World Bank income groups, lower-middle-income regions had the highest estimate of excess deaths with 7.87 million (52 percent) and the highest excess deaths per capita at 236 per 100,000 people. These regions also account for approximately 3.3 billion people and have a per capita GDP of only $2,217.

By comparison, upper-middle income regions saw 4.24 million excess deaths and high-income areas 2.16 million. But when compared on a per capita basis, they had similar excess death rates at 168 and 177 per 100,000, respectively. Low-income regions had only 0.64 million excess deaths, but the uncertainty bounds of the estimates are the largest because of poor registration systems for vital statistics.

Dr. Samira Asma, assistant director-general for data, analytics, and delivery at WHO, noted, “measurement of excess mortality is an essential component to understand the impact of the pandemic. Shifts in mortality trends provide decision-makers with information to guide policies to reduce mortality and effectively prevent future crises. Because of limited investments in data systems in many countries, the true extent of excess mortality often remains hidden.”

WHO experts told the New York Times, “About half of countries globally do not regularly report the number of deaths from all causes. Others supply only partial data. In the WHO African region, for example, the experts said that they had data from only six of 47 countries.”

By the WHO region categories, the population of Southeast Asia, which includes the Indian subcontinent, suffered the most significant number of excess deaths, with close to 6 million. With 4.7 million excess deaths, India accounted for nearly one-third of global excess deaths. The figure is almost 10 times higher than official COVID-19 deaths reported by Indian health officials. Most of these occurred during the explosive Delta wave that produced horrific scenes of burning piles of corpses across the country.

The delay in bringing out the report when it was completed in January was in large part due to objections raised by India on the methodology for estimating the excess deaths. According to several media reports, the complaints appear to be politically motivated to stall the release of the damning results until after elections in key Indian states were concluded in early March.

It also placed the WHO leadership in a precarious position. Many of the independent scientists working as technical advisors for the WHO and contributing extensively to the findings criticized the international agency for acquiescing to India’s delaying tactics. Though the report results are significant and now finally published, the delay underscores the politically explosive nature of the inconvenient truth.

The other country in Southeast Asia with a significant undercounting of COVID-19 deaths was Indonesia. More than 1 million people perished during the pandemic though official COVID-19 deaths stand at 156,000, a six-fold undercounting.

The case in Peru exemplifies that a robust vital registration system is not a substitute for investment in health systems and public health infrastructure. With a population of nearly 33 million, the excess deaths of 290,000 were only 1.4 times above the reported COVID-19 deaths. But on a per capita basis of 437 excess deaths for every 100,000 people, Peru is among the highest globally.

Dr. Elmer Huerta, an oncologist and public health expert in Peru, said, “When a health care system isn’t prepared to receive patients who are seriously ill with pneumonia when it can’t provide the oxygen they need to live, or even provide beds for them to lay in so they can have some peace, you get what you’ve gotten.”

In conjunction with the release of the WHO report on excess deaths, the mainstream press is acknowledging that the United States has reached the harrowing mark of 1 million COVID deaths. Though on an excess death per capita basis, the US stands in 40th place with 140 deaths per 100,000, the grim milestone is both substantively and symbolically a stain on the criminal policies that have been shaped initially by Trump and further carried out in the most criminal form by Biden.

Yesterday, new COVID-19 cases in the United States exceeded 100,000 again. Deaths sharply increased, with 1,929 deaths reported on May 4, 2022. Hospitalizations have also turned up sharply. And no preparations are underway to stem the seventh wave of infections.

United States seeks to provoke Russia into escalation in Ukraine

Andre Damon

The New York Times and NBC News have published reports, based on the statements of US officials, that amount to an attempt to deliberately escalate the conflict over Ukraine into a direct confrontation between NATO and Russia.

In its report published online Wednesday evening, the Times cited White House officials confirming that the US has provided intelligence to the Ukrainian military used to target and kill Russian generals, about 12 of whom have been killed during the war. 

Ukrainian tanks move down a street in Irpin, on the outskirts of Kyiv, Ukraine, Monday, April 11, 2022. (AP Photo/Evgeniy Maloletka)

“The United States has focused on providing the location and other details about the Russian military’s mobile headquarters, which relocate frequently,” the Times wrote. This has allowed Ukrainian forces “to conduct artillery strikes and other attacks that have killed Russian officers.” 

The intervention by the US has had a “decisive effect on the battlefield.” It added that the scale of “actionable intelligence on the movement of Russian troops that America has given Ukraine has few precedents.”

The next day, NBC News reported that the US was critically involved in coordinating the sinking of the cruiser Moskva, the flagship of the Russian Black Sea fleet, in the greatest Russian military disaster in decades.

With increasing frequency, attacks are being directed inside Russian territory, with US assistance. The Wall Street Journal pointed to “a series of attacks inside Russian territory and unexplained explosions at Russian targets.”

The article cites Rob Lee, a senior fellow at the Foreign Policy Research Institute, saying the strikes “could be a result of increased intelligence sharing between the West and Ukraine.”

Any notion that the NATO powers, above all the United States, are not direct participants in the conflict over Ukraine lies in tatters. The declaration by US President Joe Biden that it is “not true” the US is engaged in a war, or even a proxy war, is a bald-faced lie. The US-NATO are providing tens of billions of dollars in military equipment and, as these reports document, direct intelligence used by the Ukrainian military and far-right militia forces.

The reports in the US media have been clearly orchestrated by the White House.

The Times writes, “The administration has sought to keep much of the battlefield intelligence secret, out of fear it will be seen as an escalation and provoke President Vladimir V. Putin of Russia into a wider war.”

If that is the case, why is the administration now publicizing its direct involvement in the war?

The release of this information to the Times and NBC, based on off-the-record statements by multiple administration officials, is a deliberate effort on the part of the Biden administration to increase pressure on the Russian government to retaliate against NATO forces. This would create the context for further US escalation, up to and including the direct engagement of US troops or the invocation of Article 5 of NATO.

Just as the United States succeeded in provoking Russia into invading Ukraine by turning the country into an armed camp on its borders and refusing to negotiate over Ukraine’s relationship with NATO, so too it is seeking to place the “burden of escalation” onto Russia by carrying out attacks on the Russian military through Ukrainian forces under its effective control.

Evelyn Farkas, the former top Defense Department official for Russia and Ukraine in the Obama administration, is quoted by the Times as saying, “Clearly, we want the Russians to know on some level that we are helping the Ukrainians to this extent, and we will continue to do so.”

In other words, the US-backed attacks on Russian generals, on the Moskva, and attacks on Russian territory are designed to be maximally provocative, while remaining, in the words of the Times, “deniable.” The goal of the United States is exactly to “provoke President Vladimir V. Putin of Russia into a wider war.”

As the United States expands the goals and scope of the war, it is seeking to goad Russia into a response that would allow the propagandists of US imperialism to claim the United States’ offensive actions are defensive in nature.

While Russia has sought to carry out negotiations to conclude the war, the United States has made clear its opposition to any resolution to the conflict short of the total military defeat of Russia and the re-occupation of Crimea and the Donbas.

This is further demonstrated by an earlier article in the Times, which is co-authored by one of the same individuals who wrote the article posted Wednesday, which pondered why Putin was not being more aggressive. 

The article “Why Isn’t Putin Hitting Harder on the Battlefield?” noted, “American and European officials also say that President Vladimir Putin’s tactics in recent weeks have appeared to be remarkably cautious, marked by a slow-moving offensive in eastern Ukraine, a restrained approach to taking out Ukrainian infrastructure and an avoidance of actions that could escalate the conflict with NATO.”

While Washington has publicly denounced Russia’s “total war,” privately US officials have been puzzled by Putin’s “remarkable caution.” Washington’s eyes are on May 9, the day that commemorates the Soviet Union’s victory over Nazi Germany, and it hopes to provoke Putin into escalatory measures in his speech and declarations.

The ultimate aim of the United States, as Biden made clear in March with his declaration that Putin “cannot remain in power,” is regime change in Russia and its total subordination to US imperialism.

But domestic pressures play an equal if not greater role. The United States is seeking to provoke a major escalation of the war in order to divert massive internal tensions outward. The cost of living is soaring. In order to head off a wages push by workers, the Federal Reserve is massively increasing interest rates, likely leading to a recession. And the COVID-19 pandemic remains out of control.

The desperate efforts by the White House to escalate the war are the actions of a ruling class that sees itself as besieged and encircled by mass opposition. It seeks through war and its accompanying attacks on democratic rights to delegitimize domestic political opposition.

Bavarian constitutional protection law ruled largely unconstitutional

Justus Leicht

The German Supreme Court ruled on April 26 that the Bavarian Constitutional Protection Law of 2016 is largely unconstitutional, almost five years after a constitutional complaint was filed against the law.

The Supreme Court in Karlsruhe

The Bavarian Constitutional Protection Law (BayVSG) was considered the state law with the most far-reaching surveillance powers. As such, it was the model for similar regulations in other states.

The ruling will not significantly restrict the work of the Secret Service. Nevertheless, it is politically damning: the agency that is supposed to protect the Constitution is itself a danger to it and tramples elementary fundamental rights underfoot in its work.

The constitutional complaint had been initiated by the Society for Freedom Rights (Gesellschaft für Freiheitrechte, GFF) in 2017 and was directed against a number of regulations contained in the BayVSG. The case was heard orally in Karlsruhe on December 14, 2021.

The GGF filed the constitutional complaint on behalf of three plaintiffs, all of whom are members of the Association of Victims of the Nazi Regime (Vereinigung der Verfolgten des Naziregimes, VVN-BdA), an association that was placed under surveillance by the Bavarian Verfassungsschutz (Office for the Protection of the Constitution, Secret Service) for a long time. The decision by a Berlin tax office to strip the VVN-BdA of its non-profit status, which threatened the organisation’s financial existence, was based upon this surveillance.

Among the powers in the Bavarian Constitutional Protection Law which the GFF declared disproportionate and therefore unjustifiable under constitutional law are the collection of telecommunications data (Article 15(3)), large-scale eavesdropping (Article 9), online searches (Article 10) and the use of undercover agents and informants (Articles 18 and 19).

The Bavarian Verfassungsschutz was the only state intelligence agency allowed to access data retention records, which are reserved for investigating police authorities. The Supreme Court declared this regulation not only unconstitutional, but also null and void with immediate effect. The norm violated “Article 10 (1) of the Constitution [secrecy of correspondence, post and telecommunications] because it authorises data retrieval without the service providers concerned being obliged or entitled under federal law to transmit this data to the state office.”

The regulation on widespread snooping attacks (“acoustic and optical surveillance of living quarters”) was also not compatible with the Constitution. According to the judges in Karlsruhe, Article 13 (4) of the Constitution (restrictions on the inviolability of the home) only allows acoustic or optical surveillance of living quarters to avert urgent dangers. The measure had to be definitively aimed at “averting” the danger. The BayVSG did not contain such a limitation. Moreover, the constitutional requirements for the “protection of the core area of private life” were not fully met in the case of home surveillance.

An online search may only be permitted to “avert” a danger that is at least concrete in a police sense. However, the measures permitted by the BayVSG were not limited to this purpose.

The regulations on “undercover agents” and “confidential informants” are unconstitutional because there were no sufficient thresholds for intervention and there was no provision limiting the circle of permissible surveillance addressees, provided that the use is specifically directed against certain persons. In other words, it is up to the discretion of the Secret Service to determine when and against whom it uses informants and provocateurs. In addition, there was a lack of the “necessary independent prior control.”

The regulation on “surveillance outside the home,” which allows the state office to observe a person covertly for longer than 48 hours or on more than three days within a week, also using technical means, violated the fundamental right to informational self-determination. The regulation also “does not contain sufficient thresholds for intervention.”

Finally, the Supreme Court judges criticised the fact that according to Article 25, the Secret Service is allowed to pass on the information it obtains to other state agencies, including police authorities, practically without limit. This largely abolished the separation of police and the secret services, a lesson learned from the Nazi regime with its powerful Secret State Police (Gestapo).

When the new law on the Bavarian Verfassungsschutz was enacted in 2016, the World Socialist Web Site had warned:

This same authority has now been freed from further parliamentary scrutiny and is receiving expanded powers. It is clear that the issue is not about the protection of the population, but rather the build-up of an apparatus with close ties to the far-right terrorist scene which can be used against future social opposition.

It would be illusory to expect the judges in Karlsruhe to provide fundamental protection against the Secret Service. The restrictions imposed on the Verfassunschutz are not critical. Rather, the court declared that it should work more systematically, in a more targeted manner and more effectively. In addition, the agency, which has been deeply discredited by the NSU scandal, is to receive a renewed basis of legitimacy.

Karlsruhe has not banned surveillance of living quarters, online searches, observations, mobile phone tracking, the use of undercover agents and informants or the passing on of intelligence, but only stipulated when and how. The Legal Tribune Online commented:

For the work of the intelligence authorities, the Karlsruhe ruling brings further legalisation in an area that has so far been characterised by loopholes, internal guidelines, and case-by-case examinations.

The Bavarian State Interior Minister, Joachim Herrmann, who had campaigned in 2016 for the then most far-reaching powers of “his” Verfassungsschutz, was pleased that the ruling strengthened the Secret Service in Germany overall. It made clear that the court considers the activities of the intelligence authorities “fundamentally important and correct and necessary.”

In addition, the Police Tasks Law (PAG), which was amended in 2018, contains similarly far-reaching powers for the Bavarian police. Lawyers describe it as the toughest German police law since 1945. Four years ago, 40,000 people took to the streets against it in Munich. The Society for Civil Liberties and the #noPAG alliance have also filed a constitutional complaint against it.

Century-Old Racist US Supreme Court Cases Still Rule Over Millions of Americans

Eric Bellone

The 4 million inhabitants of five U.S. territories – Puerto Rico, American Samoa, Northern Marianas Islands, Guam and the U.S. Virgin Islands – do not have the full protection of the Constitution, because of a series of Supreme Court cases dating back to 1901 that are based on archaic, often racist language and reasoning.

A call from Supreme Court Justice Neil Gorsuch to overturn more than a century of precedent has been joined by advocates for equal citizenship for everyone born in those U.S. territories. If the court decides to take up the question, it would review a long-standing status quo.

Now, no U.S. citizen living in any of those places can vote for president. They don’t have a voting representative in Congress, either.

But this inferiority is inconsistent. Puerto Ricans are American citizens and can vote in federal elections if they reside in a U.S. state, but not if they live in Puerto Rico or one of the other territories.

However, American Samoans are not U.S. citizens, so they can’t vote for president even if they live in the 50 states. That is being challenged in federal courts.

It’s all a result of a political and legal mindset that is more than 100 years old, but is still in force.

Superiority complex

Up until the end of the 19th century, everyone assumed that all U.S. territories would, eventually, become full-fledged states, whose residents would become U.S. citizens with rights fully protected by the Constitution. The Northwest Ordinance of 1787 outlined the process: As new lands opened to Americans, Congress would initially appoint a governor and judges for the territory and establish a rule of law. When the territorial population exceeded 5,000 adult men, voters would elect a legislature and send a nonvoting delegate to Congress. When the territory reached a population of 60,000, the territory would petition for statehood and be admitted to the union.

That process assumed the territories would be in North America and that most of the territorial population would be people of European descent. Those assumptions changed when the United States claimed Puerto Rico, the Philippines and Guam in 1898 as spoils of war at the end of the Spanish-American War. Puerto Rico and Guam are still U.S. territories.

That expansion gave Americans a clear sense of the nation’s purpose and power in the world, summarized effectively by U.S. Sen. Albert Beveridge of Indiana in a congressional speech on Jan. 9, 1900: “[God] has made us the master organizers of the world to establish system where chaos reigns. He has made us adept in government that we may administer government among the savage and servile peoples.”

A new type of territory

Starting in 1901, a set of court cases, collectively called the “Insular Cases,” created new constitutional law regarding the United States’ relation with its territories. They began when import companies challenged tariffs imposed on goods transported from the newly acquired territories into the U.S. The companies claimed there should not be tariffs, because the goods were moving from one part of the U.S. to another.

The Supreme Court ultimately ruled that the companies were correct, that transport within the U.S. was not subject to tariffs, but created an exception in which the new lands were neither foreign countries nor part of the U.S.

Those territories, the Supreme Court would rule in the first of the Insular Cases, Downes v. Bidwell in 1901, were “foreign in a domestic sense,” “inhabited by alien races,” and therefore governing them “according to Anglo-Saxon principles may for a time be impossible.”

The ruling included other prejudice-revealing statements, too, such as, “It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians.”

As a result, the court created a new distinction: “Incorporated” territories of the U.S. were expected to one day become states. “Unincorporated” territories, by contrast, were not – and, therefore, their inhabitants were, and still are, denied some of their constitutional rights.

A 2020 referendum vote in Puerto Rico favored statehood; Guam officials have called for statehood; and Stacey Plaskett, who represents the people of the U.S. Virgin Islands in Congress, says her constituents deserve the full rights of citizenship, including the right to vote.

The cases and context

Both at the time and since, the Downes decision has been described as meaning “the Constitution does not follow the flag.” The territories might be ruled by Congress, but not necessarily by the Constitution.

What that meant for the people of those territories was unclear. And despite five other cases in 1901, and others in the subsequent 20 years, the Supreme Court has never truly clarified which constitutional protections were available to whom and which weren’t. It left open questions about whether key elements of the Constitution, like trial by jury, or even the Bill of Rights, were available in the unincorporated territories.

Hawaii was also acquired in 1898, but was treated differently and ultimately became a state. The differences were probably for reasons to do with partisan politics and a Republican-Democratic balance in Congress.

Supreme Court interpretation over the years

Since the mid-20th century, the court has made incremental changes to the Insular Cases’ effects, tweaking technical definitions concerning taxes, trade and governmental benefits such as Social Security, Medicaid and the Supplemental Nutrition Assistance Program. But the court has not addressed the overall inferior constitutional status of the territories and the people who live there.

It wasn’t until 1957, for instance, in Reid v. Covert, that the Supreme Court ruled that defendants in the territories had a right to trial by jury – a right that citizens have because of Article III of the Constitution. Several justices made clear that “neither the cases nor their reasoning should be given any further expansion.” That statement was widely viewed as a signal that the influence of the Insular Cases was declining.

In Torres v. Puerto Rico (1979), the court further weakened the Insular Cases. Although narrowly applied to the territory at hand, the Supreme Court made clear that the Bill of Rights actually did apply in a U.S. territory.

In its 2008 ruling in Boumediene v. Bush, the court held that detainees at the U.S. naval base in Guantánamo Bay, Cuba, had the constitutional right of habeas corpus to challenge the validity of their detention. Justice Anthony Kennedy’s opinion said, “It may well be that over time the ties between the United States and any of its territories strengthen in ways that are of constitutional significance,” and said the federal government did not “have the power to switch the Constitution on or off at will.”

But in its 2020 ruling in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, the court pulled back from its trend of extending constitutional protections to the unincorporated territories. It ruled that President Barack Obama’s appointments to the board, a government body focused on helping Puerto Rico return to financial stability, were local officials, not “officers of the United States,” and therefore did not require Senate confirmation.

Into the future

Many legal scholars view the court’s mention of U.S. territorial connections strengthening “over time” as a possible key to overturning the Insular Cases. The original distinctions assumed that the U.S. would “govern temporarily territories with wholly dissimilar traditions and institutions.” Most acknowledge those perceived distinctions clearly no longer exist.

These territories have established institutions and principles grounded in American traditions. The internal governments of these territories have established laws, governmental institutions and legal traditions that are indistinguishable from any state in the union. They hold elections, have residents serving in the U.S. military, and play a role in building the nation.

But without equal voting rights and congressional representation, the Americans living in these territories cannot remedy their status at the ballot box.

Miners force ANC President Ramaphosa to abandon May Day speech

Jean Shaoul & Chris Marsden

In extraordinary scenes, striking gold miners booed and barracked South Africa’s President Cyril Ramaphosa, overwhelmed the police and stormed the stage, forcing him to abandon his speech at a Workers’ Day rally on Sunday and flee the stadium in his limousine.

Having completely underestimated the miners’ hatred of Ramaphosa and the African National Congress (ANC) government, the Congress of South African Trade Unions (COSATU) had invited the president to address their flagship rally in the northwestern city of Rustenburg, the centre of the country’s mining region. Their other guest speaker, general secretary of the South African Communist Party (SACP) Blade Nzimande, was likewise unable to take the floor.

President Cyril Ramaphosa addresses nation on South Africa's response to Coronavirus COVID-19 pandemic (Credit: GCIS/Flickr)

Workers at Sibanye-Stillwater’s mines have been on strike since February in support of their demand for a wage increase of 1,000 rands ($63) per month in a labour contract set to last three years, having rejected the company’s offer of 850 rands ($54).

Ramaphosa started his address with a call for the striking workers and other members of COSATU to calm down and listen to what he had to say, telling them, “We have heard that you want your 1,000 rands. We will deal with that matter.” The miners would have none of it and forced him to quit.

They were furious when they found out that Neal Froneman, the company’s CEO, had an eye-watering R300 million-plus pay package in 2021, including a R12.42 million salary, R7.8 million bonus and R246 million share scheme. It comes courtesy of a year with record-high prices for gold, platinum and other base metals, even as the company refused a paltry increase for the workers who generated its profits.

The company’s super-exploitative practices have led to such terrible fatality rates (20 of the country’s 45 mining deaths in 2018 took place in Sibanye-Stillwater’s mines) that rival unions the Association of Mineworkers and Construction Union (AMCU), the National Union of Mineworkers (NUM), Solidarity and UASA The Union all called for its closure until safety compliances were met. This demand was rejected by Mineral Resources and Energy Minister Gwede Mantashe, who derided the unions as “populists” and praised Sibanye-Stillwater for making a great contribution to South Africa’s economy.

Ramaphosa is a particularly hated figure in Rustenburg, where his demand for a police clampdown precipitated the Marikana massacre of 34 striking miners, shot dead in 2012 at a mine owned by the Lonmin group. Having headed South Africa’s largest trade union, the National Union of Mineworkers, during the struggle against Apartheid, Ramaphosa had in the following years become a multimillionaire through exploiting the structures of Black Economic Empowerment established by the ANC’s leadership to feather their own nests at the direct expense of the workers. He was a non-executive director of Lonmin in his role as its “BEE partner”.

It was in the aftermath of this murderous action, carried out with the full backing of the COSATU-affiliated NUM, that “the butcher of Marikana” was elected as the ANC’s general secretary. In June 2019, Sibanye-Stillwater took over Lonmin, making it the world’s largest primary producer of platinum and rhodium.

No less significant than Ramaphosa being booted off the May Day Rally was COSATU’s desperate warning to the ANC, with which it has for decades formed a triple alliance along with the Stalinist South African Communist Party (SACP). Together, they suppressed workers’ struggles and prevented them taking a revolutionary approach to ending Apartheid, thereby ensuring the survival of South African capitalism.

Official COSATU spokesperson Sizwe Pamla said in a statement issued Monday that while Ramaphosa being howled off the stage by workers on May Day was “regrettable” and “unacceptable,” it was an understandable expression of workers’ frustration with the ANC government. The ANC, he wrote, was “threatening the coherence and the legitimacy of the Alliance [with the SACP and COSATU] in the eyes of the working class.”

This was followed by the extraordinary statement, “Historically Worker’s Day is a day where workers reflect on their struggles and push for change. This is a message that the ANC cannot claim to misunderstand and that cannot be ignored anymore. The Marxist revolutionary and political theorist Leon Trotsky once said: ‘The party that leans upon the workers but serves the bourgeoisie, in the period of the greatest sharpening of the class struggle, cannot but sense the smells wafted from the waiting grave’.”

To cite such a passage from Trotsky in a milieu schooled for decades in the counter-revolutionary politics of Stalinism by the SACP is the equivalent to a slap in the face for the ANC leadership.

But it was done on behalf of the bureaucrats responsible for policing the working class as a warning to their ANC partners, who move in the more rarified circles of corporate boardrooms and government officialdom, that they have massively underestimated the anger building among miners and the entire working class.

The COSATU statement continues, “The fact that we are the most unequal country in the world is a sign that South Africa is slowly sinking in the abyss. A 46 percent real unemployment rate, stagnant wages, and budget cuts have all exhausted the patience of South African workers.” Pamla added that workers have reason to be livid when 2.2 million people have lost their jobs in the last two years, a reference to the government’s inadequate response to the pandemic that has led to more than 100,000 people losing their lives and millions being driven into poverty.

Pamla was forced to admit that COSATU had in 2017 backed Ramaphosa as the successor to Jacob Zuma, who was forced to resign amid mounting allegations of corruption. And whatever belated measures are taken by the union bureaucracy to distance themselves from the ANC, no one is likely to forget this record. As Pamla himself stated, “We are in no position to predict what will happen at future labour gatherings…”

Leading analyst and former head of the South African Institute of Race Relations, Professor Sipho Seepe, told Cape News, “Cosatu failed to see this coming, which suggests its disconnect with its own constituency. At the same time, workers are saying they are gatvol [totally fed up] with Ramaphosa, his administration and the ANC. They see him as a stooge of white capital and anti-worker… In him they see a person who has sold his soul.”