Sunday, June 18, 2006

AMERICA NEEDS SERHILDAN

“I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” ~ Thomas Jefferson,
3rd President of the United States and author of the Declaration of Independence.


Late last night I noticed that the Washington Post had come out with an article on the Harrisonburg Kurds. Previously, a report on the Harrisonburg Kurds was featured on BBC's The World program (run time: 7 mins)--thanks to a heval for that information; you know who you are.

There have also been a couple of blog posts about the article today, one at Max Speak, You Listen! and one at Instapundit. Let's note that Max has been the one on this story since the beginning, so he deserves many thanks from the American Kurdish community, Kurds worldwide and all lovers of freedom, wherever they happen to be. Gelek sipas, bijît û serkeftin, Max!

The people of Harrisonburg, Virginia, also deserve great thanks for their support of Rashid Qambari, Fadhil Noroly, Ahmed Abdullah and Amir Rashid, as well as their families and the rest of the Kurdish community in their midst. At least these Americans are able to use common sense to see that their Kurdish neighbors are anything but a threat; the fact is that the Kurds of Harrisonburg have been an asset to their community. Isn't this what immigration to the United States is supposed to be about, so that the tired, the poor, the huddled masses yearning to breathe free--especially these Kurds who suffered so much under the evil Saddam regime--can have the opportunity to live in, and contribute to, a wider community, another country, whose foundational values were created for this very end?

There is a great inconsistency here, between those very foundational American values and the infamous law which has trapped innocent men and their families, both here and in Kurdistan, in a web of fascism. The same inconsistency exists between the people of Harrisonburg and those who wrote and established the same infamous law. Is this not an indication that there is a growing divide between those who would remove the basic freedoms, the very liberty, guaranteed by the Constitution and the people themselves? Who are these fascists in government who have the temerity to attempt to enforce this Patriot Act, an act which is more in accordance with dictatorships such as Nazi Germany or Stalinist Russia, and therefore erodes the foundational values of the Declaration of Independence and the Constitution?

How is it that anyone can permit a law like the Patriot Act to exist, a law in which intent of an act is totally disregarded? The case of the Harrisonburg Kurds proves that intent is crucial in determining the justice of this law. The act of sending money to someone is not, by its nature, a crime (as contrasted to crimes such as murder, which most people will agree is always wrong). Since the act of sending money can be a completely innocent act, intent must be taken into consideration.

Let us take an example from the Washington Post article to illustrate the faulty fascist reasoning behind disregard for intent, an example given to us by the great legal brain at the Immigration and Customs Enforcement (ICE) agency, Dean Boyd:


Through spokesmen, the U.S. attorney for the Western District of Virginia and the FBI, which led the investigations, declined to comment. But Dean Boyd, a spokesman for the U.S. Immigration and Customs Enforcement agency, said it does not matter whether unlicensed transmitters help criminals -- they are soft targets all the same.

"Yes, many of them are used by immigrants to send money home to relatives," Boyd said. "But we found that a lot of the criminal element will go to those that operate underground. It's a backdoor way to get your money into the financial system."



What Mr. Boyd is advocating is the punishment of the majority, a majority who are innocent of any criminal activity, because a minority of criminals can also use the act in question--money transfer--for criminal purposes. By this reasoning, we can also declare all car owners or users in the United States must be tried and convicted for owning or using a car, because although the vast majority of car owners or users in the US do not commit any crimes with their vehicles, a tiny minority, the "criminal element" does own or use cars while committing crimes. It does not matter what the intent of car ownership or use is, because, after all, we wouldn't want a guilty person to get away with a crime, would we? Better that milliions of innocent are punished than one guilty should evade the grasp of the law!

Did anyone check item 7 (Obsession with national security) or item 12 (Obsession with crime and punishment) on our list of characteristics of a fascist state?

The entire basis of law in the US has traditionally been that of the presumption of innocence, the legal reasoning being that it is better to allow a guilty party to go free than to commit the injustice of prosecuting an innocent. In other words, the rights of the innocent have been of much higher value than the punishment of the guilty. Not so anymore. The Patriot Act was supposed to assist law enforcement in apprehending terrorists but it hasn't worked that way at all. In fact, all convictions to date under the Patriot Act have been for ordinary crimes, and that is its problem: The Patriot Act permits the state to wield too much power, power that comes down like a hammer on innocent people and it looks like this trend will continue, as it did this week against the 4th Amendment's protection of the innocent from unreasonable searches and seizures. The Supreme Court has begun to favor the power of the state over the people, from the Boston Globe:


"Rights do not grow smaller or larger," Scalia said last year at Texas A&M University. But Scalia was abridging rights when he wrote last week that police professionalism no longer means they have to knock. Had the ruling come last year, he might have been in the minority, but the replacement of Sandra Day O'Connor with Samuel Alito has shifted the court away from the protection of defendants' rights, just what the country doesn't need when the War on Terror has loosened restrictions on law enforcement agencies.



Fadhil Noroly is still trying to think through his dilemma:


Noroly, who faces trial in July, is still mulling a plea. He sat on a recent day in the muffler factory where he works, its machines clanking around him, and shook his head in bewilderment.

"I cannot say guilty," said Noroly, who worked for an American medical team in Kurdistan. "At the same time, it's better to say guilty."



Fadhil must make his own decision, with advice from his legal counsel, and taking into consideration his family. However, personally, I sincerely hope that he will be able to stand in the courtroom with head held high, and say, "I am not guilty." To do so will mean a fight, something Kurds have never shied away from in the face of fascist oppression. Besides, this fight will not be for Fadhil, or Kurds, alone; it will be for all Americans.

It is clear that it is time for an American serhildan, and to that end, I direct your attention to that old revolutionary, Thomas Jefferson, who wrote: " What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance?"

Serkeftin!

6 comments:

philip said...

Mizgin, you're too polite to use the REAL Thomas Jefferson quote our nation needs, but I'm not:

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

Us civil-rights attorneys knew the PatAct was a bad joke from the beginning, but no-one listened. Once Americans (as opposed to immigrants) start getting victimized, it'll be scrapped, or at least drastically amended.

heftirik said...

i hope it will happen just the way you say philip...but until then how many non-americans, lets say immgrants like in this case harrisonbug kurds will have to face those difficulties and unjust trials and maybe convictions? thats the problem, i think


hevala mizgîn destên te xweş bin. i defintely agree with you on the fact that us need a "serhildan"..so that it can return to its old free days, hopefully :)

serkeftin hevala min a hêja

Mizgîn said...

Well, you must know that we are both quoting from the same larger quote, Philip:

"God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty.... And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure."

But, do you think that if this is forced through the judiciary, it will gain more unconsitutional judgements against it? And what would happen if it reached the Supreme Court?

I figure that the judge instructed the jury as to the law, and the parameters within which they had to make a finding. With the "intent clause" the way it is, would it be possible for a jury to find that the law itself was wrong? Would jury nullification work on this law?

In this regard, again, Jefferson:

"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add “within the limits of the law,” because law is often but the tyrant’s will, and always so when it violates the right of an individual."

What these men did harmed no one, violated no equal rights of others. Couldn't something like this thought be used to nullify the law by jury, because what Jefferson says is common sense for a law like this.

The whole question of unjust trials and convictions is my point, Xelef. Should the justice system engage in injustice? Doesn't that defeat the purpose of a justice system? Even though the prosecutor and the ICE guy in this article admit that the Kurds in question are not the bad guys, they continue with the prosecutions anyway.

There is also the fact that the punishment far outweighs the crime, because the four Kurds in question will not be able to obtain citizenship, they may be deported, and all of this will affect their families as well. What do the families do? Do they undergo voluntary deportation to keep the family together?

This is wrong. VERY wrong.

philip said...

Very well said, Mizgin.

Anonymous said...

Wonderful post. I'm writing from the Harrisonburg area. A local monthly magazine called eightyone (after the local interstate) ran a long piece about this as the cover story to the June edition. It wasn't online, but it was recently posted, apparently because demand grew with the later stories by the BBC and Washington Post. It's at: http://www.eightyone.info/june06stuff/junecoverstory.pdf

Mizgîn said...

Thanks for the article, Anonymous. I will put it out on a post so it can be seen.