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More Judicial Interference on Guantánamo
by Andy Worthington, April 18, 2011

Originally published by the Future of Freedom Foundation

Last week, in my article, “How the Supreme Court Gave Up on Guantánamo,” I explained how, given the option of addressing complaints made by prisoners in Guantánamo regarding the basis of their ongoing detention, the Supreme Court chose not to, leaving the final decisions regarding the prisoners not in the hands of the District Court in Washington, D.C., which has recommended, in 38 of the 59 cases decided, that the prisoners should be released, but in the hands of the D.C. Circuit Court.

This is alarming, because the Circuit Court has made a point of issuing rulings defending unfettered executive power, and, most importantly, of redefining the detention standard required to justify the ongoing imprisonment of the Guantánamo prisoners in the government’s favor, ruling that evidence of some sort of involvement in the “command structure” of al-Qaeda and/or the Taliban is far too strict, and that all the government should be required to do is to present any information that even remotely suggests that the prisoners in question were involved, in any way, with al-Qaeda and/or the Taliban.

In addition, the most notorious judge in the Circuit, Judge A. Raymond Randolph, who approved every measure relating to Guantánamo under President Bush that was subsequently overturned by the Supreme Court, and who, outrageously, is now effectively in charge of detainee policy, has made a point of criticizing the Supreme Court for its decision in June 2008, in Boumediene v. Bush, to recognize constitutionally guaranteed habeas corpus rights for the prisoners. As the New York Times reported in February:

In a speech called “The Guantánamo Mess” last fall [delivered to the right-wing Heritage Foundation], he said that the justices were wrong to [recognize habeas rights for the prisoners] and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”

Alarmingly, Judge Randolph is not the only judge in the Circuit to openly criticize the Supreme Court for creating a law that the Circuit Court judges are obliged to follow, but which, it appears, they are deliberately subverting for political reasons.

On Friday, April 8, when the Circuit Court, predictably, turned down an appeal by a Yemeni prisoner, Yasein Esmail, who had lost his habeas petition last April, one of the judges, Senior Judge Laurence H. Silberman, “one of the most conservative jurists in the federal system,” according to SCOTUSblog, filed a two-page concurring opinion (PDF, pp. 6-7), in which he criticized the Supreme Court and the Justice Department and sounded a klaxon of alarm about the perceived dangerousness of the prisoners at Guantánamo, which was a perfect fit with the right-wing hysteria of the last nine years, even though it has no grounding whatsoever in reality.

In his extraordinary legal outburst, Judge Silberman — after declaring that he found Esmail’s story “phonier than a $4 bill” — issued the following alarming declaration about the perceived difference between dangerous people being released in the criminal justice system (because proof of guilt cannot be established) and prisoners from Guantánamo being released:

In the typical criminal case, a good judge will vote to overturn a conviction if the prosecutor lacked sufficient evidence, even when the judge is virtually certain that the defendant committed the crime. That can mean that a thoroughly bad person is released onto our streets, but I need not explain why our criminal justice system treats that risk as one we all believe, or should believe, is justified.

When we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism.

What is particularly depressing about these passages is that, while Judge Silberman is correct to defend the criminal justice system’s adherence to the law, he thoroughly betrays those principles by treating the Guantánamo prisoners as some kind of exceptional beings beyond the law, super-terrorists who would wreak havoc on America in an instant, when, to be honest, someone like Yasein Ismael, a foot soldier for the Taliban, is not someone “likely to return to terrorism,” as he was never involved in terrorism in the first place.

Instead, he is one of many men at Guantánamo — including the majority of those who have lost their habeas petitions — who continue to suffer what should be slanderous or libelous comments about them because the Bush administration’s “war on terror” was founded on the absurd notion that the international terrorists of al-Qaeda were the same as the Taliban, the government of Afghanistan at the time of the U.S.-led invasion in October 2001. It is true that the Taliban’s military included foreign foot soldiers trained in camps associated with al-Qaeda, but it is absurd to regard these men as terrorists, when they were clearly soldiers, and should, all along, have been held as prisoners of war, protected by the Geneva Conventions, while the handful of men accused of involvement with acts of terrorism should have been tried in federal court.

Such is the hysteria regarding Guantánamo, however, that judges like Judge Silberman regard it as legitimate to let it infect their very notions of justice.

After this outburst, Judge Silberman proceeded to criticize the Justice Department, stating that the opinions described above mean that “there are powerful reasons for the government to rely on our opinion in Al-Adahi v. Obama [the case of a Yemeni judged to be an al-Qaeda sympathizer because he took his sister to Afghanistan to marry someone allegedly connected to terrorism], which persuasively explains that in a habeas corpus proceeding the preponderance of evidence standard that the government assumes binds it, is unnecessary — and moreover, unrealistic.”

Reinforcing this notion that very little evidence should be required to detain the terrorists of his imagination, Judge Silberman added that he doubted that any of his colleagues would grant a petition if it even appeared to be “somewhat likely” that the prisoner in question was “an al-Qaeda adherent or an active supporter.”

Judge Silberman then criticized the Supreme Court, snidely noting that the decisions made by him and his colleagues on this “somewhat likely” basis would stand “[u]nless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do — taking a case might obligate it to assume direct responsibility for the consequences of Boumediene v. Bush).”

This was a specific attack on the Supreme Court’s refusal to establish the detention standards required, leaving those decisions to the lower courts, and Judge Silberman clearly identified with the “mess” alluded to by Judge Randolph in his speech to the Heritage Foundation last fall.

The only salvation in this otherwise persistent assault on the executive, the Justice Department, the District Court and the Supreme Court, fueled by right-wing paranoia about the dangers posed by every single Guantánamo prisoner, came in Judge Silberman’s final words, when, suddenly, he shone a light on the overall failure of the habeas system to secure justice, writing:

Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States, then the whole process leads to virtual advisory opinions. It becomes a charade prompted by the Supreme Court’s defiant — if only theoretical — assertion of judicial supremacy, sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar.

Again, this was a savage attack on the Supreme Court, but it was also a sound analysis of all the roadblocks in the litigation — including the opposition by the executive, the Circuit Court, and Congress to the release into the Unite States of the Uighurs (Muslims from China, seized by mistake and cleared for release under President Bush, but unable to return home because of the risk of torture). As such it was so unexpected, after all the venom that had come before, that it took a while for observers to realize that, in this description of the charade maintained by all parties — including the executive branch and the Justice Department — was an unusual opportunity to strengthen the Uighurs’ ongoing appeal to the Supreme Court to allow them to live on the U.S. mainland.

This, ironically, was in spite of the fact that it was the Circuit Court that hadprevented them from coming to the United States in February 2009, ruling that it was an immigration matter that was not for judges to decide, and handing responsibility to the executive branch, with depressing results for the Uighurs, whenPresident Obama threw out a plan by White House counsel Greg Craig to bring a handful of the Uighurs to live in the United States.

Last Tuesday, lawyers for the Uighurs duly filed a new plea to the Supreme Court (PDF), incorporating Judge Silberman’s comments, and arguing that they show that “the habeas jurisdiction recognized by this Court in Boumediene has essentially been nullified.”

I wish them success, and am glad that there was some hope to be extracted from Judge Silberman’s outburst, but in general it remains profoundly depressing that judges in the Circuit Court are approaching the Guantánamo litigation through a prism of paranoia and distortion, in which the lies and deceptions of the “war on terror” are intact, and insignificant foot soldiers remain slandered as terrorist masterminds, and are used as an excuse to pretend that the normal rules of the law do not apply.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at:www.andyworthington.co.uk.

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Is GE Paying Its Fair Share?
by Laurence M. Vance, April 14, 2011

Originally published by the Future of Freedom Foundation

Chances are you have used a GE appliance, turned on a GE light bulb, flown on a plane powered by a GE aircraft engine, seen a GE locomotive or wind turbine, taken out a loan from GE Capital (its lending division), or watched a program on NBC (partly owned by GE).

General Electric Company (GE) is a multinational conglomerate corporation with 287,000 employees. It is one of America’s oldest and largest companies. GE was one of the original twelve companies listed on the Dow Jones Industrial Average and is consistently ranked near the top on the Forbes Global 2000 and Fortune 500 lists. GE is also one of the best-known global brands. The company has been ranked first in Fortune magazine’s “Global Most Admired Companies” and “America’s Most Admired Companies” lists.

But GE has a major public-relations problem. It has been widely reported, including in the New York Times, that GE earned $14.2 billion in worldwide profits last year, including $5.1 billion in the United States, and paid nothing in federal corporate income tax.

This has upset both conservatives and liberals.

Conservatives charge that the leadership of GE is in the pocket of the Democrat Party and stands to benefit from its green agenda. After all, is not GE CEO Jeffrey Immelt the head of President Obama’s Council on Jobs and Competitiveness? Although liberals many times deserve it, conservatives have a bad habit of blaming liberals for everything bad about government without checking the facts. For example: “As soon as Democrats took over Congress that’s exactly what they did: they criminalized incandescent light bulbs and made GE’s mercury-laden CFL bulbs the ‘Big Brother’ alternative.” But the legislation that criminalized incandescent bulbs is the Energy Independence and Security Act of 2007 that was signed into law by a Republican president, passed with the votes of ninety-five Republicans in the House, and only opposed by seven Republicans in the Senate.

Liberals are predictably up in arms that GE is shirking its responsibilities and not paying its fair share of taxes. They complain that GE lobbies Congress for special tax treatment and moves its profits to offshore tax havens. But, of course, the same liberals that condemn GE for seeking corporate welfare are aghast that anyone would think of cutting federal funds for the Corporation for Public Broadcasting, which receives all of its yearly $430 million budget from the federal government.

Libertarians oppose the taxing of corporations for the same reason they oppose the taxing of individuals: taxation is theft. And even worse, as the nineteenth-century classical-liberal political philosopher Lysander Spooner it: “If the government can take a man’s money without his consent, there is no limit to the additional tyranny it may practise upon him; for, with his money, it can hire soldiers to stand over him, keep him in subjection, plunder him at discretion, and kill him if he resists.”

But aside from the onerous nature of taxes in general, there are other problems with the corporate income tax as well.

First, corporations are more properly tax collectors rather than tax payers. Taxes paid by corporations merely add to their cost of doing business. It is consumers and employees that ultimately pay corporate taxes as they are embedded in the prices paid for products and reduce wages paid. The corporate tax is just another of the government’s vehicles by which it masks Americans’ true tax burden.

The state masks taxation in many different ways. Other than businesses and self-employed individuals that submit quarterly income tax payments, few Americans pay taxes directly to the government thanks to the withholding tax. The curse of the withholding tax is that it allows the U.S. government to confiscate the wealth of its citizens systematically, effortlessly, painlessly, and benevolently. This latter point is especially insidious because interest-free loans to the government known as tax refunds are generally viewed as gifts from the government instead of the return of stolen property. Other forms of government tax masking include the Social Security and Medicare taxes taken out of paychecks, the employer portion of these taxes, unemployment taxes paid by employers, excise taxes on things like alcohol and gasoline, corporate taxes, and, of course, the estate tax, since you don’t pay it until after you’re dead.

Second, after corporations pay taxes on their income, individuals pay taxes on this same income when it is distributed in the form of dividends. This “double taxation” is nothing new, for the federal government does the same thing when it taxes individuals on their income in the form of income tax, Social Security tax, and Medicare tax and then on top of that taxes the taxpayer’s employer on the same income.

From an economic perspective, the double taxation of corporate income, as explained by economist Murray Rothbard, “penalizes corporate income as opposed to income from other market forms (single ownership, partnerships, etc.), thereby penalizing efficient forms of enterprise and encouraging the inefficient,” “encourages a further distortion of market investment and organization” by leaving “a greater proportion of earnings undistributed” than would occur in a free market, and “hampers the adjustment of the economy to dynamic changes in conditions.”

Third, U.S. corporate tax rates are among the highest in the world. They are also among the most convoluted, with marginal tax rates of 15, 25, 34, 39, 34, 35, 38, and 35 percent. In a recent edition of the Heritage Foundation’s Index of Economic Freedom, 124 countries had a lower corporate tax rate than the United States. And we wonder why some corporations prefer to operate in a lower-tax environment overseas?

And then there is corporate tax on the state level. Only the states of Nevada, South Dakota, and Wyoming have no state corporate tax. Michigan, Ohio, Texas, and Washington have no corporate tax, but assess a gross receipts tax. The rest of the states have a corporate tax and some of them have in addition a gross receipts tax, a franchise tax, and/or an alternative minimum tax.

And fourth, corporate income taxes account for a relatively small portion of the federal budget. According to the IRS, in fiscal year 2010 the corporate income tax brought in about $180 billion. This was dwarfed by the $814 billion from the individual income tax and the $820 from Social Security and Medicare taxes. By anyone’s estimate, the U.S. government is spending over $10 billion a month on the wars in Iraq and Afghanistan. That is $120 billion a year — two thirds of the yearly corporate tax revenue. And once you add in the billions that the United States will spend this year warring in Pakistan, Yemen, Somalia, and Libya, it is clear that the corporate income tax could easily be eliminated just by ending our senseless military adventures. The result would be unprecedented economic growth, innovation, capital investment, foreign direct investment, and a much more favorable business climate.

But since we do have a corporate income tax, and since it is not likely to be eliminated anytime soon, we need to take a brief look at whether GE is paying its fair share.

First of all, what is GE’s fair share? And furthermore, what is any company’s fair share? And on the individual level, what is your fair share and my fair share? Obviously, whether GE or any corporation or individual is paying their fair share is highly subjective. Even a supporter of the corporate income tax might be willing to give GE and other large corporations a free pass since they employ so many Americans.

Second, GE did pay taxes in the United States last year, even if the company paid no corporate income tax. GE paid state and local taxes. GE paid the employer’s share of its employees Social Security and Medicare taxes. GE paid unemployment taxes on behalf of all its workers. And look at all the income and social insurance taxes that were paid by employees of GE. The more GE is able to prosper and hire more employees the more individuals there will be that are paying federal income taxes.

Third, according to GE’s Director of Financial Communications, Anne Eisele, GE “paid almost $23 billion in taxes to governments around the world from 2000 to 2009.” And last year GE filed over 7,000 tax returns in more than 250 jurisdictions around the world. And according to GE’s Vice President for Communications and Public Affairs, Gary Sheffer, “It was significant losses at GE Capital in the financial crisis, not ‘tax avoidance’ strategies, that reduced General Electric’s 2010 overall tax rate below historic levels.”

And fourth, even if one does not view taxation as theft, there is nothing wrong with “tax avoidance” strategies — for an individual or a corporation. Any and all deductions, loopholes, shelters, exemptions, and credits that can be used the better. And the more that Congress can be lobbied to come up with the merrier.

The libertarian approach differs markedly from the approach of the statists on the left and the right who want to simplify the tax code by eliminating these things to ensure that every individual and corporation pays some arbitrary fair share. Since the federal government is unlikely to eliminate the income tax in one fell swoop, instead of complaining about the unfairness of deductions, loopholes, shelters, exemptions, and credits, proponents of a free society should work toward expanding them and applying them to as many individuals and corporations as possible. As Murray Rothbard pointed out in “The Myth of Tax ‘Reform’”: “Every economic activity that escapes taxes and controls is not only a blow for freedom and property rights; it is also one more instance of a free flow of productive energy getting out from under parasitic repression.”

Laurence M. Vance is a free-lance writer in central Florida. He is the author of The Revolution That Wasn’t. Visit his website:www.vancepublications.com. Send him  This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

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