Saturday, December 8, 2007

HI Superferry: Recap of Events

For those who have not been following it closely, here is a pretty good recap of events by Lanny Sinkin:

Those of us participating in this university without walls are privileged to have access to information and dialogue with people who are actively seeking to understand what is happening. From that dialogue, an understanding can emerge that produces an informed plan addressing the current situation in a creative way. With that plan, we can direct our actions toward achieving the world we would like to see for ourselves and those coming after us.
This paper examines some of the specific sources of information available to us in greater detail to broaden our understanding and perceptions. There will even be some homework that participants can undertake on their own time.
The Superferry is offering an opportunity for the general community in Hawai’i to examine and learn about their current form of government at both the national and local level.
Let’s review a key part of the history. While most of you are familiar with the events discussed in this section, a review of those events is a useful to highlight the issues of concern.
Those who entered the water in August to block the entrance of the Superferry into Nawiliwili Harbor on Kaua′i acted to enforce the law (Hawaii Revised Statutes Section 343) and the Hawai′i Supreme Court’s decision in the Sierra Club case. \\
The law and the decision required the State of Hawai′i to prepare an environmental assessment (EA) for the harbor improvements made to facilitate the operation of the Superferry and for the operation of the Superferry. The law is explicit that such a requirement meant that the EA had to be completed and accepted by an appropriate state official prior to any further implementation of the Superferry project – the now well known “condition precedent” provision.
There is no ambiguity in the law. The Supreme Court had earlier ruled that the “mandate [to first prepare the environmental documentation] is clear” and expressed in “plain language.”
Contrary to the law, the Supreme Court ruling, and the Supreme Court’s prior rulings, the Governor, the Attorney General, and the Director of the Department of Transportation took the position that the Superferry could begin operation while the state prepared the EA. There was absolutely no basis in the law for such a legal position.
The state officials knew the meaning of “condition precedent. For example, the same officials objected to a law proposed prior to the Sierra Club decision that would have required the preparation of an environmental impact statement (EIS) for Superferry operations. The basis of the objection was that such a requirement would be a condition precedent to any operations of the Superferry and, therefore, prevent Superferry from operating until the EIS was completed and accepted. Those same state officials then claimed not to understand the Supreme Court ruling.
On August 26 and 27, when the Superferry came to the Kaua′i Harbor, those who understood what the Supreme Court had ruled greeted the ship with signs saying “EIS First.” Those who jumped into the water acted on the basis that the Superferry had no legal right to come into their home.
The citizen law enforcers experienced arrests, seizures of property, and other law enforcement actions that were in fact illegal in themselves.
By following the lead of state officials acting illegally, these law enforcement personnel exposed themselves to legal liability for false arrest, theft, robbery, assault, battery, and other charges stemming from the illegal nature of the Superferry operation.
Frustrated by the citizen law enforcers, the Governor organized a Unified Command composed of federal, state, and local law enforcement prepared to force entry in the Nawiliwili Harbor for the Superferry.
The Unified Command then proceeded to engage in threatening the citizen law enforcers with further arrests, imprisonment, and fines backed by the threat of force. Those actions violated the state prohibition on terroristic threatening.
The Unified Command announced its intention to implement the forced entry plan on September 26. The Governor came to Kaua′i to further pursue the Unified Command’s efforts to intimidate the citizen law enforcers.
The explosion of outrage from the citizens that greeted the Governor led to the cancellation of the September 26 plan.
On October 9, the Second Circuit Court in Maui entered an injunction preventing any further operation of the Superferry in Maui harbor until the EA was completed. That injunction enforced the Supreme Court’s decision. The judge found that there was no possible interpretation of the law (343) other than that the “condition precedent” provision meant precisely what the citizen law enforcers understood the provision to mean – no EA, no operation.
Important to note here is that the Superferry and/or the state could have come into the Maui court and taken the position that they understood the law and that Superferry had no intention of operating until the EA was completed. Had they stipulated to that position before the court, there would have been no need for an injunction.
Instead, the State and Superferry tried to reargue the Supreme Court case before the Circuit Court. Such an effort violated the legal structure of the judiciary, where the Supreme Court is the highest court and lower courts are bound by the rulings of the highest court. Lower courts are not empowered to reconsider or reverse a decision of the highest court.
A Deputy Attorney General gave an interview in which he stated that he had contacted all the judges involved in Superferry cases to encourage them to take a broad view of their discretion to allow Superferry to continue operating. Such contact is forbidden under the disciplinary rules.
While, for whatever reason, the Circuit Court judge permitted the State to make their arguments for reconsidering the Supreme Court decision, ultimately the Circuit Court judge found he was “compelled” to follow that decision and entered the injunction.
The effect of that ruling was to confirm that the actions taken to facilitate the operation of the Superferry in the period between August 23 and October 9 constituted illegal acts. In making the ruling, the judge also found that the operation of Superferry could inflict irreparable damage on “natural resources, protected species, increased introduction of invasive species, and causing social and cultural impacts.”
During this period, the highest government officials and Superferry engaged in a propaganda campaign designed to deflect public attention from the illegal operations and portray Superferry as the victim of a delayed Supreme Court ruling and environmentalist obstruction.
The attack on the Supreme Court led to a highly unusual issuance from the Court of an explanation regarding all the other cases decided in the time period at issue. Even more unusual, a Court officer issued a statement directly challenging the Governor’s attack on the Court as an attempt to undermine confidence in the judiciary.
With the entry of the injunction in Maui, the Unified Command abandoned any further attempts to force entry into Nawiliwili Harbor.
Of importance to note here is that at that point the Governor was already disqualified from holding office by her participation in an illegal conspiracy to violate a Supreme Court ruling and the law. This disqualification was particularly called for by the fact that her actions had led to the commission of numerous offences against the people on Kaua′i.
Of even greater importance is that the Governor was not being held accountable for that action.
While the media reported the conspirators position that the Superferry could operate while preparing an EA and reported the views of people arguing that the Superferry should not be operating, not one media outlet ever confronted the Governor, the Attorney General, or the Director of the Department of Transportation with a simple question: What is your legal authority for stating that Superferry can operate while preparing an EA? Asking that simple question and persisting in seeking an answer would have revealed the absence of any legal basis for the position, put a stop to the entire illegal operation, and called attention to the need for corrective action against the government officials involved.
This stark failure on the part of the media is an indicator of greater issues we face at this particular point in the history of the United States and Hawai′i.
With the Attorney General participating actively in misrepresenting the law and facilitating the conspiracy to violate the law, there was no law enforcement body in the State acting to enforce the law.
The Attorney General’s deliberate misrepresentation of the law constituted a violation of the Hawai′i Rules of Professional Conduct governing attorneys. The Attorney General’s participation in the Unified Command’s efforts to intimidate the people of Kaua′i constituted terroristic threatening, which is a felony. The failure of the Attorney General to prosecute those violating the law constituted obstruction of justice.
The highest law enforcement officer of the state willingly engaging in such acts is an indicator of larger issues we face.
Numerous law enforcement agencies blindly followed the lead of the conspirators and committed numerous civil torts and criminal acts as noted above.
This stark failure on the part of law enforcement agencies and their willingness to act against people trying to enforce the law, whom they should have been protecting, is another indicator of greater issues we face.
The Governor then turned her attention to the Legislature. She called a special session to overturn the Supreme Court decision and allow Superferry to operate while preparing an EA. The Attorney General wrote a law to achieve the Governor’s purpose.
The propaganda campaign had convinced many citizens, particularly on O′ahu, that the Superferry was simply a wonderful convenience to go visit ′ohana on other islands. The concerns about environmental damage the Superferry would cause were relegated to environmentalist obstructors. O’ahu had been divided against the outer islands. The propaganda techniques used to achieve these ends are a subject worthy of a separate study.
The Legislature showed no interest in examining the actions taken by state officials and the Superferry in the period between August 23 and October 9. A proposed impeachment resolution based on those actions did not find a single legislative sponsor.
The failure of the Legislature to examine the illegal conduct of Executive Branch officials and take corrective action is an indicator of another larger issue we face.
The Legislature passed the Superferry Law.
The Attorney General rushed to the Circuit Court in Maui and convinced the judge to find the Superferry Law constitutional, lift the injunction, and allow Superferry to operate without preparing an EA.
So given that context and background, let’s examine some recent developments in greater detail.
Jim Albertini and I wrote a letter addressed to those who might be considering reentering the waters to block Superferry. The intent of the letter was to be sure that such a decision would be made with a clear view of the potential consequences. Considering the consequences is an obligation of those engaged in non-violent civil disobedience. Based on the changed legal situation, those entering the water would no longer be enforcing the law. Given the Unified Command still existed and now had legal authority to act on behalf of Superferry, the potential for a serious confrontation existed.
The letter basically stated: If you are not prepared to die, through accident or excessive force by law enforcement; not prepared to go to prison for a long period of time; not prepared to pay a high economic price for being arrested; and other wise not prepared for the many serious consequences that could result from entering the water, then don’t go in the water. The letter presented those consequences in stark and even dramatic wording to drive the point home.
The propaganda machine went into high gear to portray the letter as encouraging people to break the law and engage in violence. The outlaw Attorney General jumped in to register his concern that Jim and I were promoting breaking the law. This example of the big lie technique is another indicator of greater issues we face.
The controversy created by the letter brought greater illumination to the current state of affairs.
One television anchor called the letter “radical” and “inflammatory.”
In a later exchange of views, he clarified his use of the term by the following statement: “’Radical’ implies that the [Albertini/Sinkin] letter is outside the mainstream and critical of the current political situation."
Look closely at how the “radical” label, intended to be pejorative and stigmatize those to whom the label is applied, is defined as including everyone that is outside what the media defines as the mainstream and critical of the actions being taken by established authority. How easily the party line becomes the only acceptable truth and anyone refusing to accept that truth becomes an enemy of the state.
This simple definition and application of a term illuminates another serious issue we face.
A lawyer within the Coast Guard legal team, perhaps assisted by psychological warfare specialists, provided us with one of the best teaching tools to date – the publication in the Federal Register of the new security zone for Maui.
Let’s examine in some detail the passages below from the Maui Security Zone Rule adopted on November 21 and published on November 28 in the Federal Register.
The main obstruction tactic employed by waterborne protesters in Kauai in August 2007 was to physically place themselves directly in the path of the HSF as it attempted to enter the harbor. Several obstructers ashore threw rocks and bottles at U.S. Coast Guard personnel. These actions are dangerous not only to the obstructers themselves--some of whom used or incited children and juveniles in support of their obstruction efforts--but also to the HSF, its passengers and crew, and law enforcement personnel working to ensure the vessel's safe passage.
The essential missing element in this description of the events in August is the illegal nature of the Superferry operation at that time. Once that fact is acknowledged, the false nature of the passage is revealed. A rewrite demonstrates the change.
Operating illegally, the Superferry and its Coast Guard escort created a confrontation in Nawiliwili Harbor with citizens attempting to enforce the law. The main tactic citizen law enforcers used to enforce the law was to physically place themselves directly in the path of the HSF as it attempted to enter the harbor. The law enforcers made no attempt to directly contact the vessel; they only placed themselves peacefully in the path of the vessel. Several overzealous people on land threw rocks and bottles [exaggeration] at the outlaws. The citizen law enforcers placed themselves in physical danger in their attempt to enforce the law. In the spontaneous response to the outlaws, children joined in the law enforcement effort. The actions of the citizen law enforcers forced the Superferry to withdraw.
Then the Albertini/Sinkin letter is brought into play.
Groups opposing the lawful operation of the HSF continue to vow to impede its transit utilizing these same dangerous tactics. These opposition groups have started several internet forums to encourage and coordinate support for their efforts. The danger such obstruction tactics pose is illustrated by an article posted on November 5, 2007, on, a popular Web site for Hawaiian surfers. In this article, two prominent opposition members urge those who oppose the operation of the Superferry to take ``the last step of non-violent resistance,'' and prepare themselves for the possibility of ``physical injury or death'' that may result from obstructing the Superferry. These preparations include making the ``proper arrangements,'' preparing a ``last will and testament'' and engaging in a ``cleansing ceremony to prepare your body, mind, and spirit to greet the Spiritual Hierarchy that awaits your return.'' The letter goes on to say that, ``[t]here is also the possibility of accident in the turmoil of numerous boats, swimmers, and surfers in an ocean environment. In that sense you have to be prepared at the level of the Native American who decided when it was `a good day to die.' ''
The Coast Guard cannot disregard such adamant safety and security threats.
After Jim and I sent out our letter, I went to Kaua′i and visited with many of those who participated in the August blockade. Even before receiving the letter, every one of them had already reached a conclusion that the changed legal situation made returning to the water an inappropriate tactic. They understood and appreciated the letter as calling upon them to take a hard look at potential consequences in making their decision.
In the hearing on the lifting of the injunction, Isaac Hall did say that he was concerned that people might respond to the lifting of the injunction by returning to the water. He made that statement based on his concern for the well being of the people, not on plans he knew to be underway.
So what we have is the creation of an “enemy” by the propaganda machine in order to justify the declaration of limited martial law in Kahului Harbor. The nature of the “enemy” becomes more clear in the following passage:
Notwithstanding the fact that the HSF [Hawaii Superferry] did not face waterborne obstructers in Kahului Harbor during any of its commercial voyages there, recent intelligence and assessments by the Maui Police Department indicate a substantial likelihood that certain elements in Maui, disaffected by the process that led to adoption of Act 2 and vacation of the injunction, plan to adopt the dangerous tactics used by the obstructers in Kauai in an effort to prevent the HSF from safely arriving in Maui. Individuals and groups have organized rallies and started several internet forums to encourage and coordinate support for their efforts. The dangerous and unlawful intent of these individuals and groups is clear, as is their resolve.
First of all, the November 24 Honolulu Star Bulletin reported the following:
Federal, state and county officials are talking about whether to expand the security zone around the Hawaii Superferry when the ship returns to Kahului Harbor next Saturday, the U.S. Coast Guard said.
But any security measures will be different from those established on Kauai after protests turned the ferry around in August, said Coast Guard Lt. John Titchen.
'It's not fair to compare the situation in Kahului to Nawiliwili,' Titchen added. 'I think you're looking at two very different situations.'"
Yet the security zone adopted for Maui is more extensive than the security zone adopted for Kaua′i. The Coast Guard’s public relations representative misrepresented the truth of the situation through the media to the public.
Now look closely at that passage from the rule.
The security zone is justified by "[r]ecent intelligence and assessment by the Maui Police Department. Basing action on “intelligence" claimed, unpublished, beyond public review or discussion is a useful way to manufacture legitimacy.
Then that "intelligence" determined that "dangerous tactics" will be used. Of course, the only real danger in Kaua'i was to those who risked their physical well being to enforce the law against the outlaws entering the harbor. Peaceful, non-violent disobedience is characterized as a “dangerous tactic” to further manufacture legitimacy for any counter measures the state decides to take.
Now we get really interesting. "Individuals and groups have organized rallies and started several internet forums to encourage and coordinate support for their efforts.” So the rallies and internet discussions are all merely support for the mythical people entering the water. As we all know, the rallies are precisely alternatives to entering the water and organized to provide some legal expression of the opposition to Superferry. As we also know, those activities are protected under the First Amendment to the United States Constitution.
And then the final propaganda twist is that those mythical people who might peacefully place themselves in harms way, the people planning to peacefully hold signs at rallies, and the people openly discussing how best to proceed in the face of an embarrassingly anti-democratic government are lumped together as having "dangerous and unlawful intent." All forms of dissent from the party line are now characterized as representing a threat that justifies a law enforcement response.
For anyone who has studied the history of totalitarian regimes, particularly those that suborn and seize democratic states, these techniques are familiar.
Almost everywhere you turn now in the United States this type of intimidation and demonization of any opposition is rampant. Citizens who value the Constitution, a government of checks and balances, and democratic dialogue are called upon to step up, counter the closing down of democracy by exercising their democratic rights more frequently, and reverse the slide towards totalitarian government.
To recap some of what we have seen in the Superferry episode:
Official lawlessness goes uncorrected.
Government officials openly and notoriously engaged in a conspiracy to violate the law.
Means for democratic transition of ideas are transformed into organs of government propaganda, excluding or demonizing dissenting views.
The media studiously ignored the illegal nature of the government actions.
The media characterized those trying to stop the conspiracy as engaging in mob rule, radicals, paranoid, or otherwise people not warranting respect in the community.
The media studiously ignored the harm done to the people on Kaua′i through false arrests, seizure of property, assault, battery, and all the other violations.
The media repeatedly broadcast a single episode in which people, trying to stop a car about to run over protestors lying down in the road, banged on the car and tried to let the air out of the tires. The media never explained why people were responding to that particular car.
The media characterized people trying to ensure a sober and thorough examination of consequences for violating the law as inciting people to break the law.
The media, with two exceptions on the Island of Hawai′i, refused to publish the call for Lingle’s impeachment.
The media, with an exception on the Island of Hawai′i, refused to cover the Order to Cease and Desist issued by the King.
The media refused to cover the Petition for Quo Warranto Writ filed by the King at the Supreme Court.
The media refused to cover the Petition for Writ of Mandamus filed at the Supreme Court by plaintiffs in the federal suit seeking an order to put the Superferry injunction back in place.
The media refused to cover the Petition for an Order to Show Cause filed at the Supreme Court asking for the disqualification of the Attorney General’s Office from any further involvement in Superferry cases.
The media refused to cover the complaint filed against the Attorney General’s Office at the Office of Disciplinary Counsel.
Law enforcement and military are transformed from protecting and serving the public into tools of oppression.
Numerous law enforcement agencies followed orders without examining the legality of the actions they were being asked to facilitate.
The same law enforcement agencies made no attempt to understand the position of the citizens protesting the government’s actions and made plans to repeat their illegal actions.
Legislative bodies are transformed from serving the ideals and aspirations of the nation into rubber stamps for Executive Branch excesses.
The Legislature ignored the open and notorious conspiracy to violate the law engaged in by the highest Executive Branch officials.
The Legislature passed a law to further the goals of that conspiracy.
The Judiciary is transformed from an impartial arbiter of disputes into a tool for validation of governmental abuse.
After ex parte contact from a Deputy Attorney General, a Circuit Court judge held a hearing to reconsider a Supreme Court ruling.
The same Circuit Court judge held an evidentiary hearing on environmental effects of the Superferry with the burden on those opposing the project to prove such effects, as opposed to the legal requirement for those proposing the project to provide their studies of impacts first.
A Circuit Court judge on Kaua′i dismissed an attempt by 1000 Friends of Kaua′i and their lawyers, Dan Hempey and Greg Meyers, to enforce a Supreme Court decision because the judge found that the plaintiffs had not challenged the original decision to exempt the Superferry from environmental review, as if a party has to have participated in the original case in order to enforce a ruling of the Supreme Court.
The only institution that still stands in the rubble of state government institutions destroyed by the Superferry is the State Supreme Court. Next week we will learn whether they are still there or not, when they decide whether to issue a Writ of Mandamus to the Maui court putting the injunction back in place until the federal plaintiffs’ motion to intervene can be heard.

Aloha, Brad

No comments: