Final Remarks - Istanbul 7th Gathering on Freedom of Speech

The title of one of our earlier sessions was Cogito, "I think." That may serve as a useful reminder that even more fundamental than the right of free expression is the right to think. And that has not gone unchallenged. Right here for example. I suppose the most famous case is that of Ismail Besikci, who has endured many years in prison on the charge of having committed "thought crimes." And even worse, for having dared to put his thoughts into words, in his documentation of crimes against the Kurds in Syria, Iran, Iraq - and finally Turkey, the unpardonable offense.

I am sure you know the facts better than I do, so I will not review them. If this brave and honorable man had been suffering this ordeal in Russia, or Iran after the overthrow of the Shah, or some other enemy state, he would be internationally known and honored, and outrage about the savagery of his tormentors would know no bounds. But not in this case. One reason is that among his crimes is to have refused a $10,000 prize by the U.S. Fund for Free Expression in protest against Washington's support for Turkish repression. Respectable people understand that this is a topic that "it wouldn't do" to mention, to borrow from Orwell's unpublished introduction to Animal Farm, which I mentioned yesterday. It certainly wouldn't do to mention the fact that Clinton was supplying 80% of the arms as Turkish state terror in the southeast reached shocking levels through the 1990s, the flow increasing as the atrocities increased, peaking in 1997 when the US sent more arms to Turkey than throughout the entire Cold War period combined up to the onset of the insurgency. It particularly wouldn't do to mention that in the same year, 1997, Clinton's foreign policy entered a "noble phase" with a "saintly glow" according to a distinguished correspondent in the New York Times, his contribution to a chorus of self-glorification on the part of Western intellectuals that may well have no parallel in history. This disgraceful episode was a post-cold war contribution by the intellectual classes of the West to provide justification for expansion of NATO, and to provide some new pretext for intervention with the collapse of the traditional claim that the Russians are coming. Under the newly declared mandate, the self-designated "enlightened states," directed by their noble leaders in Washington, must now discard the misguided "old anti-interventionist structure" instituted after World War n. They must be ready to act when they believe the cause to be just, and should not be "daunted by fears of destroying some lofty, imagined temple of law enshrined in the U.N. Charter's anti-interventionist proscriptions."

I am quoting a distinguished liberal professor of international law at the prestigious Fletcher School of Diplomacy, but he was only one of a grand chorus, including many of the most famous and revered figures in the western Pantheon. Clearly, such a mission could not be tainted by mere facts, of which Clinton's massive support for terrible Turkish atrocities was not even close to the most horrendous.

But even unacceptable thought without the added crime of expression has not gone unchallenged. The tortures of the Inquisition of the Catholic Church, the ordeals of English common law, and similar devices of medieval and early modem Europe were designed to

unearth and punish unexpressed thoughts, hidden heresies. And in some respects that remains true of contemporary torture, including the practices of the enlightened states: the torture that has been taking place in Guantanamo, Bagram, and other US bases, and in the countries selected by Bush and Obama for rendition - meaning torture - to be sure, with the soothing words that the torture states to which they are being sent have given assurances that the prisoners will be treated with the utmost humanity. The official claim is that the harsh interrogation procedures - torture, to be honest - are an effort to elicit information, that is, thoughts that are in people's minds, even if unexpressed. It may be worth nothing that the most respected and successful interrogators, like Matthew Alexander, view these procedures with contempt, charging that they elicit no useful information and in fact create terrorists, and recommending that the US adopt the much more successful practices of more civilized societies like Indonesia.

But the leadership of the enlightened states prefers torture to expose thought crimes. In Guantanamo, so we have learned, the worst torture was demanded by the highest level of the government, by Dick Cheney and Donald Rumsfeld, in their fanatic pursuit of evidence that would link Saddam Hussein and Osama bin Laden, and thus provide some shred of justification for their criminal invasion of Iraq.

The same is true of less brutal state actions, such as the significant increase in wiretapping in much of the world. That includes an intensive campaign in the past several years in the Eastern provinces of Turkey, particularly targeting the Democratic Society Party (DTP), the party that is "considered the legal representation of the Kurds in the process for the solution of the Kurdish question," in the words of Emin Aktar, the head of the Diyarbakir Bar Association. The information collected was the basis for the wave of arrests and severe charges against non­violent activists of the Party shortly after it won a stunning victory in the municipal elections of March 2009. These actions have "destroyed hopes of a peaceful solution" to this long and bitter conflict, Aktar commented.

One outcome is the trial scheduled for next week of 151 of the activists who have been detained, some for long periods. Among them is Muharrem Erbey, vice-chairperson of the Human Rights Association of Turkey, who has been in prison on accusations of "membership of a terrorist organisation" for almost a year, charged with such crimes as speaking on the US government channel Voice of America about abuses against the Kurdish population. In the words of the official indictment, by describing these well-documented abuses he aimed "to put our country in a difficult position in international platforms by asserting that the state ignores the supposed maltreatment of Kurdish people carried out by police and soldiers in eastern provinces" - hardly a well-guarded secret. The charges include as well work that Mr. Erbey has carried out with the Dutch embassy and the Olof Palme International Centre in Sweden. He is also charged with seeking to find doctors to treat people who were wounded during demonstrations. Also coming up for trial is Osman Baydemir, re-elected by a large majority as mayor of Diyarbakir in the elections which seem to have triggered the current wave of repression, which some analysts see as revenge for the DKP electoral victory, a conclusion that seems all too plausible. Baydemir faces 33 years in prison for speech and symbolic actions. The sentence might be considered rather light in comparison, say, to that of Vedat Kursun, the former editor of Turkey's only Kurdish-language daily newspaper, sentenced to 166 years in prison for "doing propaganda for a terrorist organization ." Even that could be taken as a sign of the leniency of the courts; a 2

Prosecutor of the High Criminal Court in Diyarbakir had demanded a 525 year prison sentence, on the charge of "aiding and abetting" an illegal organization and "glorifying crimes and criminals." His successor as editor has been sentenced to 21 years for similar crimes. Of special significance to me personally, and to my MIT colleague John Tirman, director of the Center for International Studies at MIT, are the many trials of the owner of Aram publishing House, Fatih Tas, for "insulting Turkish identity" by publishing translations of our documentation of the massive US support for Turkish crimes against the Kurds, crimes that I am sure I need not review here - 21 court cases as of July 2006, the latest information I have.

Wiretapping and other forms of surveillance are of course not limited to Turkey. They are prevalent in the enlightened West. Many of the constraints imposed in the US years ago have been lifted by presidents Bush and Obama, though the courts have struck down some of their efforts, most recently the attempt of the Obama Justice Department to justify illegal wiretapping by appeal to the need to protect "state secrets" - in this case to protect crimes of the Bush administration from exposure. In this and in other cases Obama is going even beyond Bush in violation of civil rights by illegal means, as several civil libertarians have rightly charged.

In my opening remarks, and again in the Quo Vadis session, I mentioned that rights are won by struggle, not as gifts from above, and must be defended the same way. As the framer of the US Constitution, James Madison, warned, a parchment barrier offers no protection against tyranny. Words on paper are not enough, as history most eloquently informs us. I also suggested that the US and Turkey serve as good illustrations. Perhaps it may be useful to expand on these comments.

The observation that words do not suffice, and that even when rights are won on paper they must be vigilantly defended, applies not only to freedom of speech, but much more generally. One might think, for example, that the basic rights of Americans are guaranteed by the 14^th amendment to the US Constitution, passed in 1868 with the primary goal of granting rights to freed slaves, though virtually never used for that purpose. Its wording is quite straightforward. It declares that no state action may "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Clear and unambiguous, but unacceptable. The powerful and privileged at once considered its scope to be both too narrow and too broad. The problem was that the phrase "any person" might be understood to refer to any person, and that is unacceptable. The issues remain very much alive today.

The Courts decided long ago to extend the concept "person" to include collective legal fictions created and supported by state power: corporations, which now dominate the economy and the society, and increasingly the political system. Last January the Bush Supreme Court appointees overturned a century of precedents and sharply extended the right of corporations to buy elections. The grounds for the verdict are that money is speech, and corporations are persons, so to deprive them of the right to buy elections would deprive these fictional persons of their constitutional rights of freedom of speech. These expanded rights of unaccountable state-backed private tyrannies are being quite effectively exercised in the congressional campaigns that are

underway right now, in a concerted effort to ensure that Congress is taken over by an extreme wing of business representatives.

The phrase "any person" in the Constitution is considered to be not only too narrow, but also too broad. Taken literally, it includes undocumented aliens, clearly persons, the naive might think. To remedy this defect of the Constitution, the courts have been restricting the notion of person to safeguard the domain of rights from these creatures of human shape and form. Not being persons, thanks to the wisdom of the law, they do not enjoy the rights of persons. All of this is having much more severe effects today with the anti-immigrant hysteria that is sweeping the Western world, a very ominous development with painful consequences for those excluded from the category of persons by judicial decision.

The same principles apply to the First Amendment to the US Constitution, which on superficial reading seems to protect freedom of speech. Until the 20^th century, protection of freedom of speech rarely received authorization from the courts. After the first World War, there were some famous expressions of support for freedom of speech by Supreme Court justices, but these were in dissents to Court rulings, and the dissents were quite weak. Severe violations persisted, backed by the courts, among them the notorious Smith Act, which banned teaching, advocacy, or association that might encourage overthrow of the government, in the judgment of the courts - not unlike the reasoning that the Turkish government is employing today in its repressive actions.

It was only 50 years ago that the Supreme Court began to reach decisions that carried the US over the threshold of serious protection of freedom of speech, in fact to a level beyond anywhere else in the world to my knowledge. From 1959 to 1974 the Supreme Court dealt with more freedom of speech cases than in its entire previous history, a reflection of this new concern for essential human rights. The context was the rising civil rights movement. The first major victory for free speech was in 1964, when the Court struck down a law passed in 1798 that ruled that criticism of the government is a crime, the doctrine of seditious libel. It should be noted that the doctrine remains in force in other Western countries, including Britain and Canada, where it has recently been invoked. The 1964 US Supreme Court decision set a very high standard for the charge of libel. It overturned a libel suit that charged the New York Times with defaming the State of Alabama by publishing an advertisement by Martin Luther King and civil rights leaders that protested the brutality of racist law officers. Again, that should be familiar here.

Under the impact of the activism of the 1960s, the Court later reached an even higher standard, one that I believe is unique in the world. This 1969 decision bars only speech that incites imminent criminal action. So if you and I intend to rob a store, you are carrying a gun, and I say "shoot," that is not protected speech. But short of that circumstance, speech is protected. The doctrine is controversial, but at least in my opinion, it sets a proper standard. Adopting that standard would be one mark of true enlightenment.

In a review of "the history and reality of free speech in the United States," legal historian David Kairys points out that "no right of free speech, either in law or practice, existed until the transformations of law" between the two great 20^th century wars. "Before that time, one spoke publicly only at the discretion of local, and sometimes federal, authorities, who often prohibited what they, the local business establishment, or other powerful segments of the community did

not want to hear." He stresses the important point that "the periods of stringent protection and enlargement of civil rights and civil liberties correspond to the periods in which mass movements posing a credible challenge to the existing order have demanded such rights," including the right of free expression. The major agents of defense of civil rights have been the left, labor, and other popular movements, forcefully in the 1960s.

More generally, to quote the anarchist writer Rudolf Rocker in a classic study 80 years ago, "Political rights do not originate in parliaments; they are rather forced upon them from without. And even their enactment into law has for a long time been no guarantee of their security. They do not exist because they have been legally set down on a piece of paper, but only when they have become the ingrown habit of a people, and when any attempt to impair them will meet with the violent resistance of the populace." A stronger and sharper version of Madison's principle.

In conformity with these principles, the highest level of protection for freedom of speech in the US was achieved at the peak of activism, 40 years ago. As activism declined, the courts began to chip away at these protections. The most extreme attack on freedom of speech was just this year, under Obama, the case that Judith Chomsky discussed yesterday: Holder v. Humanitarian Law Project. Supporting the Obama administration, the far-right Court justices granted the government rights of repression that carry us back many decades. The decisions criminalize speech, or any other action, which the government claims may lend support and encouragement to organizations on the government's terrorist list, a legal doctrine quite familiar here. By the lax standards on which Obama insisted, even former president Jimmy Carter could be charged. Certainly Judith and I could be, along with many others. I was rather surprised that the defense did not even ask the Court to consider the strong rulings of the 1960s, which are apparently taken to be too extreme by now. The case passed with little notice, apart from a few civil libertarians who condemned it.

But even their criticisms were for the most part too narrow. They rarely addressed the validity of the terrorist list itself. The list is proclaimed by the government, virtually without independent review or any need for supporting argument. As should be expected under such circumstances, the list is quite arbitrary, reflecting current political demands. Just to take one illustration, in 1982 the Reagan administration decided to provide direct support for Saddam Hussein's invasion of Iran. In order to do so, they had to remove Iraq from the list of states supporting terror. Then followed Donald Rumsfeld's visit to Baghdad to arrange badly needed aid to the murderous tyrant, who, as you know, went on to use weapons of mass destruction, slaughtering 100s of thousands of Iranians, then turning the weapons against Iraqi Kurds with lethal effect, always with the support of Washington; the Reagan administration barred protests, and even sought to blame the crimes on Iran. The US finally entered the war directly, compelling Iran to capitulate. That did not end the love affair with Saddam. In 1989, President George Bush #1 not only expanded the aid, but also invited Iraqi nuclear engineers to the US for advanced training in nuclear weapons development. In April 1990, Bush sent a high-level senatorial delegation to Iraq, headed by Senator Robert Dole, Republican candidate for president six years later. Their mission was to convey the President's warm regards to his good friend Saddam, and to assure him that he should disregard critical comments by some US journalists, who cannot be silenced because of the annoying protections for freedom of speech. A few months later, Saddam made

his first mistake, disobeying orders, or perhaps misunderstanding them, and invaded Kuwait. Instantly he made the sharp transition from favored friend and ally to the new Hitler. There is no need to carry the story forward from there.

When Saddam was tried and convicted under US military occupation, his major crimes were completely ignored, perhaps because too many doors would have opened. He was charged with indirect involvement in killings that were quite minor by his standards, in 1982, the year in which Washington adopted him as a favored friend, removing him from the terrorist list.

When Saddam was removed from the list in 1982, there was a gap to be filled. The Reagan administration added Cuba to the list, perhaps in recognition of the fact that the large-scale state terrorist operations that the Kennedy administration had launched against Cuba were again peaking, including the shooting down of a Cuban airliner, killing 76 people. The perpetrator is now living happily in Florida, along with other leading terrorists.

All of this is politely suppressed in the media and commentary, in the West generally as far as I can determine, confirming Orwell's judgment about the suppression of unpopular ideas in free societies, by voluntary subordination to power.

Such "intentional ignorance," as it is sometimes called, is routine, a matter that bears quite directly on the practical meaning of freedom of speech. Crimes of one's own state are typically suppressed or ignored, while those of enemies arouse a great show of anguish, and wonder that humans can be so evil. This appears to be close to a universal principle of intellectual history, though there are some exceptions. Turkey is perhaps the most striking recent exception, as I mentioned yesterday. The pathology is rampant in the free democratic western societies, as has been documented to the skies. And the moral burden is clearly far higher when there is virtually no punishment for telling the truth, certainly nothing like what is faced by honest people in much more repressive societies.

It is misleading to give illustrations, because the pattern is so close to uniform. But I will mention just one to illustrate standard practice. For many years, economist and media critic Edward Herman has been investigating media coverage of what he calls "worthy" and "unworthy" victims, the former those abused by enemies, the latter our victims, therefore unworthy of concern. As he and others have demonstrated to a level of confidence rarely found outside the hard sciences, the worthy victims elicit enormous coverage and a great show of anguish, and their suffering is used as justification for increasing our own resort to violence. The unworthy ones, in contrast, are unnoticed and quietly forgotten. Ismail Besikci is one of innumerable examples of an unworthy victim. The Czech dissident Vaclav Havel is a worthy victim, famous almost to the level of reverence because of his courageous defense of freedom of expression under Communist rule, for which he suffered several years of imprisonment. Among the many unworthy victims at the same time are six leading Latin American intellectuals, Jesuit priests, whose heads were blown off by a elite battalion in El Salvador, fresh from renewed training at the John F. Kennedy special warfare school. The assassinations were authorized by the high command, which was in very close contact with the US Embassy. The facts were at first denied by the Embassy, then quickly forgotten. With some justice, one might say, because this was only one short chapter in Reagan's murderous terrorist wars in the 1980s.

In a forthcoming study, Herman continues this work, providing such examples as the following recent pair: Neda Agha-Soltan, aged 27, shot dead while participating in a peaceful street demonstration in Tehran last June; and Isis Obed Murillo, aged 19, shot dead while participating in a peaceful demonstration in Honduras shortly after. Agha-Soltan was the victim of an enemy state. She merited 736 newspaper articles and 231 reports on TV, radio, and other sources. Murrillo was the victim of a government installed by a military coup and recognized by the Obama administration, though few others. She merited 8 newspaper articles and one other report. The 100-1 ratio is not in the least unusual.

In further support of the distinction between worthy and unworthy victims, exposure of standard practice, however massive, however grotesque, has almost no impact. It is consigned to that category of things that "it wouldn't do to say" - or even to think. Such measures of voluntary suppression operate with quite impressive effectiveness. They cast a bright light on how far we have to go in the self-declared enlightened states for true realization of the right of freedom of thought and of speech. Even in these states, which have indeed registered considerable progress over the past centuries, much more is needed than formal laws and court decisions. What is needed is a culture of freedom and intellectual independence, a culture of functioning democracy.

One might think that this should not be a problem in Western countries, notably the United States, where political leaders and commentators passionately proclaim Washington's dedication to extending the blessings of democracy worldwide. So the official story holds. But again, it useful to remember Orwell's warnings. Does the story have any validity? Has US policy really been guided by the dedication to advance a democratic culture in which freedom of speech and other rights can thrive?

There has been serious scholarly study of the matter. The most extensive scholarly work is by Thomas Carothers, former head of the Law and Democracy Project of the Carnegie Endowment for International Peace. Carothers describes himself as a neo-Reaganite and is a very strong advocate of democracy promotion. He served in the Reagan State Department, working on democracy promotion. He regards these programs as "sincere," though a "failure," and a systematic failure. He explains that where US influence was least, in the southern cone of Latin America, progress towards democracy was greatest, despite Reagan's attempts to impede it by embracing right-wing dictators. Where US influence was strongest, in the regions nearby, progress was least. The reason, Carothers explains, is that Washington sought to maintain "the basic order of what, historically at least, are quite undemocratic societies" and to avoid "populist- based change in Latin America - with all its implications for upsetting economic and political orders and heading off in a leftist direction." Therefore the US would tolerate only "limited, top- down forms of democratic change that did not risk upsetting the traditional structures of power with which the United States has long been allied."

In broader studies, Carothers shows that the conclusions generalize. The US consistently supports democracy when doing so conforms to strategic and economic objectives, typically in enemy domains; and the US consistently opposes democracy when it would conflict with such overriding interests, typically within its own domains, where the opposition can be extremely brutal. Carothers regards this as a kind of strange pathology: leaders are "schizophrenic." Other commentators take this to show that leaders are acting inconsistently, observing a double standard. Another way to describe the facts is that they are acting quite consistently, observing the single standard of protecting power and privilege. But that conclusion passes beyond legitimate bounds.

All of this should be quite familiar in Turkey. You will recall, no doubt, that when the US was planning to invade Iraq, it sought to mobilize support among its allies. Some agreed, some refused. That led Donald Rumsfeld to enunciate his famous distinction between "old Europe," the bad guys, and "New Europe," the hope for democracy. Old Europe included Germany and France, where the governments demonstrated their contempt for democracy by adopting the position of the large majority of the population. Washington was so incensed that in the Senate Cafeteria, fried potatoes were no longer called "French fries"; rather "freedom fries." The most stellar representatives of New Europe were Italy's Berlusconi and Spain's Aznar, who demonstrated their love for democracy by overruling an even larger majority of the population. Berlusconi was invited to the White House and Aznar was invited to join the summit where Bush and Blair declared war. At the time he enjoyed the support of 2% of the population.

The most dramatic example was Turkey, where the government adopted the position of 95% of the population and rejected Washington's demands. Turkey was bitterly condemned in the national press for lacking "democratic credentials." Colin Powell, the official moderate of the Bush administration, announced harsh punishment for this act of disobedience. Paul Wolfowitz took the most extreme position. He denounced the Turkish military for not compelling the government to follow Washington's orders, and demanded that military leaders apologize, and say "We made a mistake" by overruling virtually unanimous public opinion. "Let's figure out how we can be as helpful as possible to the Americans," they should say, thus demonstrating their understanding of democracy. The most prominent liberal commentator for the Washington Post, former editor of the International Herald Tribune, declared Wolfowitz to be the "idealist in chief' of the Bush administration, whose sole flaw might be that he is "too idealistic - that his passion for the noble goals of the Iraq war might overwhelm the prudence and pragmatism that normally guide war planners." The rest of the elite press in the US and Britain chimed in as well, declaring that his "passion is the advance of democracy," that "promotion of democracy has been one of the most consistent themes of his career." They scrupulously avoided reviewing his career, which is one of brutal contempt for democracy, much as he revealed in the case of Turkey's democratic deviation.

Bush and Blair went to war because Saddam had not ended his non-existent programs of developing WMD. That was the "single question," both leaders forcefully reiterated. When the "single question" was answered the wrong way, the state propaganda systems instantly devised a new reason: the goal was to promote democracy. With very rare exceptions, the media and scholarship instantly adopted the new Party Line, hailing Bush for his Reaganite dedication to democracy. Enthusiasm was not entirely uniform, however. In Iraq, 1% of the population accepted the claim, 5% felt that the US intended to help Iraqis, and most of the rest believed the unspeakable obvious: that the US invaded for economic and strategic reasons, as was finally conceded, quietly but clearly, after years of violence and destruction.

From such events as these, we learn again that the task of achieving authentic freedom of - expression remains a very difficult one, despite many gains. I have spoken of the US and Turkey, but to keep to them is misleading. In free and democratic Europe there are many serious barriers to freedom of speech. To illustrate with a recent example, I had an interview a few months ago with the New Statesman in England, an old and respected journal of the left. I was asked what I thought about Obama's winning the Nobel Prize for peace. I responded that it was not the worst choice: the prize had been given to outright war criminals, like Henry Kissinger. The editors informed me that the reference to Kissinger must be deleted, in fear of England's onerous libel laws, which are an international scandal. In the US, if you accuse me of libeling you, you have to demonstrate my malicious intent. In Britain the burden is reversed: I have to prove that I had no malicious intent, an almost impossible burden. I refused to withdraw the statement and instead suggested that they include some of the obvious evidence, for example, Kissinger's orders to the US military calling for "a massive bombing of Cambodia; anything that flies on anything that moves." It would be hard to find a comparable call for genocide in the archival record. The orders were carried out. Rural Cambodia was subjected to more bombing than the entire Pacific theater during World War n, with consequences that we do not know, because we do not investigate our own crimes, though one consequence is known: the bombing changed the Khmer Rouge from a marginal force to a huge army of enraged peasants, bent on taking revenge. Adding that evidence was not enough to satisfy the editors, and on the advice of their lawyers, the statements were eliminated. That is far from the worst case. Britain's disgraceful laws have even been used to put a small newspaper out of business for daring to challenge the claims of major media. Lacking the resources to confront the power of a great corporation, the small journal capitulated. All of this proceeded with to the applause of the left- liberal press.

France is much worse. It has laws on the books that effectively grant the state the right to determine Historical Truth and to punish deviation from it, laws that Stalin and Goebbels would have admired. These laws are used regularly, though selectively. Primarily they are used, with much cynical posturing, to punish questioning of the Nazi Holocaust. The term "cynical" is entirely appropriate. Right at the same time the intellectual classes remain silent about France's own participation in monstrous slaughters, which we would certainly call genocide if perpetrated by enemies. We are, in fact, witnessing the cynicism right at this moment. Far worse than denying the Holocaust would be punishing the victims, exactly what France is now doing, by illegally expelling Roma - Gypsies - to misery in Romania. They too were victims of the Holocaust, much in the manner of Jews. This too passes without comment.

I have only skimmed the surface. It is unfortunately all too easy to continue. The lesson is stark and clear. Everywhere in the world there are serious impediments to freedom of expression, and they often lead to severe punishment. And even where substantial victories have been won by popular struggle, constant vigilance and dedication is needed to defend them. Beyond that, we are very far from having reached the stage of a genuine democratic culture in which thought and expression are truly free. That remains a major task for the future, one with tremendous implications.