On the Political Offense

Even anarchists who concentrate on armed struggle, if they are at all intelligent, recognize the need to provide for their own community and to cultivate political and social relations outside a statist framework. The anarchists with whom I have worked focus on building or helping to build anti-authoritarian, nonexploitative, and sustainable social institutions. At the same time, they realize the importance of roundly criticizing current society, at least as much resisting the recuperative strategems and expansionist dynamic of capitalism, and fighting the violence of the state. To my mind this attitude distinguishes these anarchists from many "leftists" and "left liberals" who, when they are not waiting for the revolutionary Judgment Day or filling slots in the Party roster, are treating issues in a piecemeal and uncritical fashion, blithely unaware of the forces working against them.

Like the BPP, the American Indian Movement has considered itself at war with the U.S. government. For its members the question is not whether the United States has overstepped its legitimate authority or flagrantly abused those "rights" of its indigenous subjects enshrined in the Constitution. Rather, it is that the United States has no right to subjugate them in the first place, that they are under no reasonable obligation to subject themselves to the scrutiny and decisions of U.S. judicial and political institutions. At Wounded Knee in 1973 the Oglala declared independence from the U.S., "naturalized" whites, Chicanos and Blacks who were helping defend the encampment, and sent envoys to other indigenous nations calling for solidarity and formalization of alliances (Churchill and Vander Wall 1990). It is true that both the BPP and AIM appealed to "higher laws" in the form of international covenants and statutes. They did so not so much to claim that they were being treated unjustly or inhumanely as subjects of a state (as Bennett recommends that political prisoners do) but to claim that they had as much right to sovereignty as colonial nation-states, if not more. The final paragraph of the BPP's platform quotes the U.S. Declaration of Independence, not as a memorial of the great principles upon which that state was founded but as a reminder of the tenuousness of that its claim to legitimacy: "But, when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future society" (Foner 1970: 4).

Raymond Luc Levasseur of the Sam Melville­Jonathan Jackson Brigade (later the United Freedom Front—UFF) went underground and was involved in the bombings of military recruiting stations and a General Electric plant. He did not do so because he was lodging a complaint against the state and its deathmongering client, but because he wanted to stop them. Oscar Lopez Rivera of the Puerto Rican Fuerzas Armadas de Liberación Nacional (FALN) was involved in guerilla attacks against the U.S. government because he and his comrades considered themselves "colonized people" and did not recognize the authority of the government. Those in prison still consider themselves prisoners of war. They refuse to defend themselves at trial and have turned down parole hearings. Such defiant attitudes and actions, found in U.S. history since at least the "Great Negro Plot" of 1741, make Bennett's contention that "[e]xtralegal opposition has overwhelmingly sought reform rather than insurrection throughout history" look fatuous.

Conversely, the state has set out to destroy political organizations and broader movements. The peak of the U.S. government's Counter-Intelligence Program (COINTELPRO) against the BPP in 1969 and 1970, including the thirty-three assassinations Bennett mentions, coincided with the greatest extent of the BPP's organizing. The express goal of COINTELPRO was not only to destroy actual or presumed "leaders" but to shift the efforts of the whole movement toward costly and prolonged legal defense. Recently, the Racketeering-Influenced and Corrupt Organizations statutes, which gives the federal government broad-ranging powers to determine guilt by association, have been exploited to equal effect, committing the better part of the Puerto Rican independence movement to prison.

As important as describing the social movements that inform the activity of persons who have become political prisoners is making clear how they understand their role in these movements. Regardless of the dominant culture's fixation on individualism, for the most part political prisoners do not consider themselves daring, solitary fist-shakers. They consider themselves part of a collective endeavor, which they continue to try to support even behind bars.

The State

The preceding review of the social aspects of political dissent is not meant as a historical exercise or merely to supplement Bennett's cursory treatment of social movements. I believe it helps define the concept of political power in more concrete terms. This method creates problems for Bennett's interpretation of the state's function in his model of political dissent and state persecution.

For me the most salient character of Bennett's explanation of the attitude of the state toward political dissent is his use of personifying and psychologistic metaphors, derived in part from his study of others' theories of political repression: "… the rule of law is not immune to the infections of power"; "the government … treats disobedients vindictively" (citing Goodell); the state was "deranged by anticommunism" and the nation suffered from "Sovietphobia" right after World War 2. Quoting, and apparently concurring with, Kittrie and Wedlock, Bennett describes the U.S. thus: "'born of treason and midwived by violent revolution,' U.S. leaders have sought 'to counter the lessons' of their origins by fostering 'the dogma that all evils of the past were the result of the tyrannical monarch, that in a democratic republic obedience to the law was the unquestionable duty of all citizens, and existing political mechanisms were ample for peaceful reform'." These metaphors are impotent and unproductive.

Moreover, equating the American War of Independence with contemporary struggles misses substantive issues. The result of that war was a state founded by the gentry and the merchants, with their particular structures of bourgeois rationality and measures of value, which are reflected in the economy, the forms of political representation, the law and the courts. The political subject was carefully constituted, originally being propertied, white, male and properly cultured. It was this political subject who was to be the object of examination in the courts, before his "peers." As this category came to be applied to more and different people (women, African Americans etc.)—as a result of political struggle, I admit—it also disguised persisting class, race and gender biases. This has always been an aspect of winning recognition "within the system."

Not only are laws still constructed largely to protect and benefit the propertied, but the same "political subjects," whose mold was cast in the eighteenth century, hold most of the political and judicial offices today. It is this complex of political, cultural and class systems—which define and constitute power—that political criminals for the most part are fighting to overcome. This is why they call themselves "revolutionaries,"which they do not usually mean in a crass, coup-d'état sense.

Political Trials

While some of Bennett's premises may seem harmlessly naïve or ill-informed, others bother me, knowing the actual treatment of political defendants and prisoners around the world. One is that "[i]n a political trial, all is frighteningly reversed … leaving court and prosecution standing alone on arbitrary law before a defendant turned prosecutor standing on ancient principles of justice and liberty." This opinion is romantic but hardly conforms to the facts. Although Bobby Seale (co-founder of the BPP) may have been acquitted because Judge Hoffman miscalculated the effect on the jury of the spectacle of Seale being gagged and chained to his chair, most such efforts to render political dissenters incapable of defending themselves have been successful. Judges have used technicalities to prevent political defendants in the U.S. from using their Sixth Amendment right to self-representation. In the cases of Mumia Abu Jamal, the journalist and MOVE supporter in Pennsylvania, and Marshall Eddie Conway, BPP member in Baltimore, the judges simply told them they were in contempt of court for trying.

Although many political prisoners whom I respect support the notion of the "political exception" that Bennett calls for, I feel it is a poor strategy for a number of reasons. The argument for a "political defense," as Bennett calls it, is susceptible (not least) to criticism for reasons of feasibility. Among political prisoners who support the exception are Mutulu Shakur and Marilyn Buck, members of the Revolutionary Armed Task Force, which allegedly freed Black Liberation Army prisoner Assata Shakur and transported her to Cuba, where she still resides. Shakur, Buck and others cite in particular the 1977 Protocols to the Geneva Convention on Prisoners of War and U.N. General Assembly Resolution 3103 on the rights of colonial subjects to self-determination. The United States government, through its various juridical institutions, has consistently refused to accept arguments or appeals based on these agreements, even though they are partly codified in U.S. law. International law in itself is weak; the U.S. has flouted it whenever it was inconvenient, for example when the U.S. put mines in Nicaragua's harbors in 1984. Simply pointing out government hypocrisy has limited effect, especially in the U.S., whose populace is generally politically immobilized and has an appallingly short social memory. Appeals to the ostensible standards of other countries are about as useful. Post-war Germany, for example, is signatory of a number of international agreements on human rights and was the focus of the Nuremburg trials, yet great leniency was shown to those Nazi officials who escaped the Allies' show-trials. Some even served the new West German state. In contrast prisoners of the Red Army Faction were raped and murdered in their cells at Stammheim for being rebels and "terrorists." (Ryan 1989).

When defendants are not gagged by judges, and sometimes when they are, they are often explicitly persecuted for their political persuasion and activity. As Bennett himself points out, quite the opposite of permitting defendants to frame their activity in the context of international standards, thereby legitimating their political beliefs and movements they support, courts have often allowed the prosecution to use defendants' real or alleged political convictions to bolster its argument that the they pose an extraordinary threat to society. Bennett blames this on "vindictiveness," without noticing the bias with which it is directed. Defendants who represent fundamental challenges to inadequate political representation, colonization, capitalism, racism and patriarchy (among other forms of oppression) are generally treated as greater threats than those who do not. In North Carolina the Greensboro Klansmen and neo-Nazis were hardly punished for their mass murder at an anti-racist demonstration in 1978. Although Abu Jamal's prosecutors were permitted to refer to his BPP affiliation in his trial, thereby successfully obtaining a death sentence, a similarly obtained sentence involving members of the white, racist Aryan Brotherhood in Delaware was overturned. Furthermore, the sectors of society that are the poorest and most oppressed and have the most to gain from radical social change are the ones that have the greatest numbers in prison and suffer the harshest penalties. The chances of obtaining a political exception (or any leniency at all) are virtually nil in this era of rabid "law-and-order" politics with its obsession with counter-terrorism and the extension of the harsher sentences, including the death penalty, to more and different crimes.

Beside these special measures and incidents of bias, there is the fact that Bennett's "remedy" of a political defense does not take into account the alienating structure of the courts, for both political and nonpolitical defendants. Defendants are separated from their families and support groups, individuals isolated before the scrutiny of the court, which claims to represent the the best judgement society. The law itself, and its archaisms, technical definitions and complex of precedents, baffles most defendants. Insisting that "ignorance of the law is no excuse" becomes a vicious ploy against the poor and uneducated. Defense lawyers, public and private, are notorious for siding with the court and telling their clients to keep quiet, lest the they get themselves into more trouble, while a "plea" or sentence is negotiated. Judges are vassals of the government, reigning over their courts. Given the adversity facing political defendants in the courtroom, even attempting to argue a political defense seems unlikely. It should not be thought of as a reliable solution. If of any use in deterring political persecution, it should be a tactic in a strategic retreat (Morris 1995).

Futhermore, the court is not just a forum for determining the facts of a case, but a place where sentence is passed and punishment meted out. If it were such a forum, Bennett's contention that a political trial would be a frightening reversal of prosecution and defense would have some merit. But if "equality before the law" is the "great leveller," it also the "great palliative," for reasons mentioned above. The court is a normative, or "normatizing," institution. Even if it were operating in a vacuum, it would still, acting on behalf of "society," eliminate those individuals who do not fit the legal mold and do not show the signs of being a proper political subject. It helps shape the citizen in a liberal state: an individual acting politically through institutions of representation—but always an individual before the law. The judicial system has no place for social struggle or movements. As I have tried to show, there is hardly room for individuals.

Therefore, political trials are neither a remedy to political persecution nor do they do justice to organized political dissent. While I feel it would be unwise the throw out centuries of accumulated jurisprudence in protest, it seems to me that anarchists, concerned as they have been with universal and equal participation in all aspects of social life, should give careful consideration to more democratic and less normative forms of conflict resolution. That the titles of court cases often take the form of People of State X v. Jane Doe should at least seem to us a paradox.

Relying on Bennett's recommendation would also threaten to make a travesty of social struggle. A hypothetical superliberal government could accept the "political exception" and still stifle rebellion. If defendants were allowed a political defense and more lenient sentences, the allowance could be at the price of their physical freedom and achievement of their desires, perhaps even of the extensive persecution and disbanding of their movements, under the auspices of such statutes as RICO and counter-terrorism acts. Juries are no insurance in such cases, since they are supposed to make decisions based on the "letter and spirit of the law," which is interpreted by presiding judges. Juries can be rigged and manipulated by prosecutors and judges—and often are. This is especially true in a country as depoliticized as the U.S. Depoliticized it will remain, if people are encouraged to try political dissidents rather than engage or support their movements. Juries are even culled of potential critics of the judicial and penal systems, especially those who see them as fundamentally political institutions. In many states juries in capital cases have to be "death qualified": no member can object on principle to the death sentence. Bennett suggests that political trials would result in a "better informed" nation. I can envision the "political defense" being used to co-opt social struggles by turning them into a courtroom spectacle. The proceedings could be broadcast after Cops or America's Most Wanted.

I am not suggesting that courtroom efforts never should be made. I have considered obtaining my law degree in order be able to defend political cases or defendants who might end up with an overworked public defender. But I think of it as a weapon—a rather third-rate one—in an arsenal for social change. The strongest "weapon" is organizing. In no circumstance would I recommend political courtroom defense as a general solution to the problem of political persecution and imprisonment.