Military Hides Cause of Women Soldiers' Deaths

In a startling revelation, the former commander of Abu Ghraib prison testified that Lt. Gen. Ricardo Sanchez, former senior US military commander in Iraq, gave orders to cover up the cause of death for some female American soldiers serving in Iraq.

Last week, Col. Janis Karpinski told a panel of judges at the Commission of Inquiry for Crimes against Humanity Committed by the Bush Administration in New York that several women had died of dehydration because they refused to drink liquids late in the day. They were afraid of being assaulted or even raped by male soldiers if they had to use the women's latrine after dark.

The latrine for female soldiers at Camp Victory wasn't located near their barracks, so they had to go outside if they needed to use the bathroom. "There were no lights near any of their facilities, so women were doubly easy targets in the dark of the night," Karpinski told retired US Army Col. David Hackworth in a September 2004 interview. It was there that male soldiers assaulted and raped women soldiers. So the women took matters into their own hands. They didn't drink in the late afternoon so they wouldn't have to urinate at night. They didn't get raped. But some died of dehydration in the desert heat, Karpinski said.

Karpinski testified that a surgeon for the coalition's joint task force said in a briefing that "women in fear of getting up in the hours of darkness to go out to the port-a-lets or the latrines were not drinking liquids after 3 or 4 in the afternoon, and in 120 degree heat or warmer, because there was no air-conditioning at most of the facilities, they were dying from dehydration in their sleep."

"And rather than make everybody aware of that - because that's shocking, and as a leader if that's not shocking to you then you're not much of a leader - what they told the surgeon to do is don't brief those details anymore. And don't say specifically that they're women. You can provide that in a written report but don't brief it in the open anymore."

For example, Maj. Gen. Walter Wojdakowski, Sanchez's top deputy in Iraq, saw "dehydration" listed as the cause of death on the death certificate of a female master sergeant in September 2003. Under orders from Sanchez, he directed that the cause of death no longer be listed, Karpinski stated. The official explanation for this was to protect the women's privacy rights.

Sanchez's attitude was: "The women asked to be here, so now let them take what comes with the territory," Karpinski quoted him as saying. Karpinski told me that Sanchez, who was her boss, was very sensitive to the political ramifications of everything he did. She thinks it likely that when the information about the cause of these women's deaths was passed to the Pentagon, Donald Rumsfeld ordered that the details not be released. "That's how Rumsfeld works," she said.

"It was out of control," Karpinski told a group of students at Thomas Jefferson School of Law last October. There was an 800 number women could use to report sexual assaults. But no one had a phone, she added. And no one answered that number, which was based in the United States. Any woman who successfully connected to it would get a recording. Even after more than 83 incidents were reported during a six-month period in Iraq and Kuwait, the 24-hour rape hot line was still answered by a machine that told callers to leave a message.

"There were countless such situations all over the theater of operations - Iraq and Kuwait - because female soldiers didn't have a voice, individually or collectively," Karpinski told Hackworth. "Even as a general I didn't have a voice with Sanchez, so I know what the soldiers were facing. Sanchez did not want to hear about female soldier requirements and/or issues."

Karpinski was the highest officer reprimanded for the Abu Ghraib torture scandal, although the details of interrogations were carefully hidden from her. Demoted from Brigadier General to Colonel, Karpinski feels she was chosen as a scapegoat because she was a female.

Sexual assault in the US military has become a hot topic in the last few years, "not just because of the high number of rapes and other assaults, but also because of the tendency to cover up assaults and to harass or retaliate against women who report assaults," according to Kathy Gilberd, co-chair of the National Lawyers Guild's Military Law Task Force.

This problem has become so acute that the Army has set up its own sexual assault web site.

In February 2004, Rumsfeld directed the Under Secretary of Defense for Personnel and Readiness to undertake a 90-day review of sexual assault policies. "Sexual assault will not be tolerated in the Department of Defense," Rumsfeld declared.

The 99-page report was issued in April 2004. It affirmed, "The chain of command is responsible for ensuring that policies and practices regarding crime prevention and security are in place for the safety of service members." The rates of reported alleged sexual assault were 69.1 and 70.0 per 100,000 uniformed service members in 2002 and 2003. Yet those rates were not directly comparable to rates reported by the Department of Justice, due to substantial differences in the definition of sexual assault.

Notably, the report found that low sociocultural power (i.e., age, education, race/ethnicity, marital status) and low organizational power (i.e., pay grade and years of active duty service) were associated with an increased likelihood of both sexual assault and sexual harassment.

The Department of Defense announced a new policy on sexual assault prevention and response on January 3, 2005. It was a reaction to media reports and public outrage about sexual assaults against women in the US military in Iraq and Afghanistan, and ongoing sexual assaults and cover-ups at the Air Force Academy in Colorado, Gilberd said. As a result, Congress demanded that the military review the problem, and the Defense Authorization Act of 2005 required a new policy be put in place by January 1.

The policy is a series of very brief "directive-type memoranda" for the Secretaries of the military services from the Under Secretary of Defense for Personnel and Readiness. "Overall, the policy emphasizes that sexual assault harms military readiness, that education about sexual assault policy needs to be increased and repeated, and that improvements in response to sexual assaults are necessary to make victims more willing to report assaults," Gilberd notes. "Unfortunately," she added "analysis of the issues is shallow, and the plans for addressing them are limited."

Commands can reject the complaints if they decide they aren't credible, and there is limited protection against retaliation against the women who come forward, according to Gilberd. "People who report assaults still face command disbelief, illegal efforts to protect the assaulters, informal harassment from assaulters, their friends or the command itself," she said.

But most shameful is Sanchez's cover-up of the dehydration deaths of women that occurred in Iraq. Sanchez is no stranger to outrageous military orders. He was heavily involved in the torture scandal that surfaced at Abu Ghraib. Sanchez approved the use of unmuzzled dogs and the insertion of prisoners head-first into sleeping bags after which they are tied with an electrical cord and their are mouths covered. At least one person died as the result of the sleeping bag technique. Karpinski charges that Sanchez attempted to hide the torture after the hideous photographs became public.

Sanchez reportedly plans to retire soon, according to an article in the International Herald Tribune earlier this month. But Rumsfeld recently considered elevating the 3-star general to a 4-star. The Tribune also reported that Brig. Gen. Vincent Brooks, the Army's chief spokesman, said in an email message, "The Army leaders do have confidence in LTG Sanchez."

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Bush on Trial for Crimes against Humanity

The International Commission of Inquiry on Crimes against Humanity Committed by the Bush Administration convened last weekend in New York City's Riverside Church. Martin Luther King Jr.'s portrait hangs in the foyer. Dr. King delivered his historic 1967 speech, "Beyond Vietnam: A Place to Break the Silence," opposing the war and calling for the removal of all foreign troops from Vietnam, in that same church.

Center for Constitutional Rights President Michael Ratner, who delivered a keynote address to the commission of inquiry, invoked Dr. King's words from 1967: "A time comes when silence is betrayal." The following year, the Bertrand Russell War Crimes Tribunal put the US government on trial for "crimes without precedent" it was committing in Vietnam. In the tradition of the Russell tribunal, the panel of judges at the commission of inquiry heard evidence of George W. Bush's war crimes and crimes against humanity committed in Iraq, Afghanistan, Guantánamo Bay, and elsewhere.

Ratner said that Bush openly and notoriously "laid the plan for coup d'état in America" with a small paragraph in his "signing statement" attached to the McCain anti-torture amendment. Bush wrote that his commander in chief power allows him to do anything he thinks is necessary, including torture, notwithstanding the amendment passed by Congress. Ratner called that a "historic, unprecedented grab for power" that spells the end of checks and balances in our government. Bush, according to Ratner, has declared that George Bush is the law.

Harry Belafonte gave the other keynote address. "When a government fails to protect justice," Belafonte declared, "it is the responsibility of the people to rise up and change the guard, change the regime." In a hoarse voice, the legendary singer charged, "Those who fail to answer that call should be charged with patriotic treason."

T r u t h o u t writer Ray McGovern, a CIA analyst from 1961 to 1990, took the testimony of Scott Ritter, a senior United Nations weapons inspector in Iraq from 1991 to 1998. The allegation that Iraq possessed weapons of mass destruction was the only justification on which George W. Bush's war in Iraq was based, McGovern said. He cited statements by Colin Powell and Condoleezza Rice before September 11, 2001, that Saddam Hussein had no WMDs and was unable to pose even a conventional threat to his neighbors. After September 11, however, Donald Rumsfeld expressed "no doubt" that Hussein had WMDs. "A trained ape knows that," Rumsfeld said.

Ritter noted that Rumsfeld knew Iraq had disarmed and had no ongoing weapons program. By 1998, the weapons inspectors had accounted for 95 to 98 percent of Iraq's WMDs, Ritter said. "No nation had hard factual data that Iraq retained or was reconstituting WMDs," Ritter added. "No nation had those facts."

The Bush administration willfully misled the American people about Iraq's weapons programs, Ritter charged. When Dick Cheney said that Iraq was constituting its nuclear program, he "was lying," Ritter said.

From 1991 to 2003, the United States policy in Iraq was regime change, according to Ritter. The US and the United Kingdom sought to maintain the public perception that Iraq was not complying with its obligations to disarm, in order to justify regime change. The US never intended to disarm Iraq; it would have had to lift the sanctions, which were aimed at undermining Iraq's welfare, weakening the government, and facilitating regime change.

"Intelligence" in the George W. Bush administration "was being fixed around the policy of regime change," Ritter maintained. "What passes for intelligence is nothing more than politically motivated propaganda." He said, "There was no intelligence failure because the policy wasn't disarmament; it was regime change."

Another witness, David Swanson, from www.afterdowningstreet.org, detailed the Downing Street Minutes, which were prepared in March 2002 and July 2002, but were leaked to the public last spring. They disclosed that Bush was determined to go to war and was building a case to accomplish that goal. "Intelligence was being fixed around the policy," the minutes reveal. "Going to the UN was an attempt to legalize a war that had already been decided upon," Swanson testified.

Dahr Jamal, who spent 8 months in occupied Iraq as an independent journalist, also testified at the commission. He charged that the US military carried out collective punishment in Fallujah in violation of international law. Snipers engaged in targeted killings, and troops prevented ambulances from reaching the wounded and prevented the wounded from receiving medical attention, violations of the Geneva Conventions.

The United States decided that the entire city of Fallujah, with more than 350,000 civilians, was "a free-fire-zone," Jamal said. In the attack on Fallujah in November 2004, between 4,000 and 6,000 civilians were killed. The US military employed illegal weapons, including cluster bombs, depleted uranium, and white phosphorous.

Jamal accused the media, including CNN, Fox, Judith Miller, Thomas Friedman, Bill O'Reilly, and Rush Limbaugh, of aiding and abetting the Bush administration's war crimes and crimes against humanity in their coverage of the US assault on Fallujah.

Another eyewitness to the occupation, journalist Jeremy Scahill, testified about the targeted killing of independent journalists by the US military. He cited the killing of an Al Jazeera reporter and the bombing of the Palestine Hotel in Baghdad, both on April 8, 2004. More than 100 unembedded journalists were in that hotel, and the US knew it, Scahill contended. The attack killed two cameramen.

Scahill said the Pentagon warned unembedded journalists, "Baghdad is not a safe place. You should not be there."

The Bush administration has consistently attempted to link Iraq with the September 11 attacks. Scahill observed, "There is a connection between Saddam Hussein and Al Qaeda. It's called Washington," he said.

Challenging the Democrats to end the war, Scahill alleged: "We can't be vegetarians between meals. A loyal opposition is not going to end this war."

Craig Murray, former UK ambassador to Uzbekistan, testified before the commission. Murray charged that Uzbekistan practices torture on an industrial scale. He cited a UN investigation that concluded torture was widespread and systemic in that country. Thousands of people are tortured every year, Murray said. This includes rape with objects like broken bottles, smashing of limbs, pulling out of fingernails, and immersing people into boiling liquid.

Uzbekistan, Murray said, is a US ally in the war on terror, a member of the coalition of the willing. Murray displayed a letter on the big screen. It was from Ken Lay, former chairman of Enron, to then Texas Governor George W. Bush in April 1997. It began, "Dear George" ["Look who's boss," Murray noted], and continued, "You will be meeting with" the Uzbek ambassador to the United States to discuss Enron's $2 billion oil and gas contract.

The real reason underlying the war in Iraq, Murray testified, was oil and gas. So "they needed false intelligence from torture chambers," he said, in order to justify the war on terror. Sir Michael Wood informed Murray that the official position was that it's not illegal to get information from torture provided they do not themselves torture or direct that a specific individual be tortured.

"You can't build security on evil," Murray said. "I don't believe torture works," he concluded. "But even it if did work, I'd rather die than have anyone tortured to save my life."

I presented the testimony of Janis Karpinski, a brigadier general who was assigned to Iraq in July 2003 to oversee 17 prison facilities, including Abu Ghraib. Karpinski described how General Geoffrey Miller transferred the interrogation techniques he had instituted at the US prison at Guantánamo Bay to Abu Ghraib.

Miller was specially selected by Rumsfeld and sent to Iraq to run the interrogations operation, to work with the military intelligence personnel and teach them new and improved interrogation techniques to obtain more actionable intelligence from their interrogations.

When Miller arrived at Abu Ghraib, he said, "It's my opinion that you're treating the prisoners too well. At Guantánamo, the prisoners know that we are in charge, and they know that from the very beginning." He said, "You have to treat the prisoners like dogs, and if you think or feel differently, you've lost control."

Miller declared, "We're going to Gitmo-ize the operation" (referring to the techniques they used at Guantánamo Bay).

Karpinski thought Miller came with the authority of Rumsfeld because General Ricardo Sanchez, who was a 3-star, deferred to Miller, although he was only a 2-star. Even though Miller told Congress he was sent to Abu Ghraib merely in an assisting capacity, Colonel Thomas Pappas furnished Miller with a daily report detailing the results of interrogations at Abu Ghraib.

Sanchez himself signed an 8-page memorandum with a laundry list of harsher interrogation techniques, including the specific use of unmuzzled dogs, Karpinski said.

Control of cellblocks 1-A and 1-B, "the hard sites," was transferred to military intelligence. Karpinski didn't learn of the torture and abuse until January 12, 2004. In fact, she never attended any of the meetings in which the progress of interrogations was discussed. Sanchez said, "We scheduled them specifically when she would not be available to attend."

When Karpinski was told about the photographs and the abuse, she prepared to hold a press conference and tell the Iraqis in Arabic that there would be a full investigation. But Sanchez warned her off. "He looked me dead in the eye and said, 'absolutely not. You are not to discuss this with anyone. And that's an order.'"

Karpinski discovered that all personnel and documents relating to the scandal had been removed from Abu Ghraib. The only thing that remained was a memorandum signed by Rumsfeld. It was called, "Approval of Harsher Interrogation Techniques," and listed sleep deprivation, stress positions, playing loud music, insulting religious beliefs. In the margin, there was a note in Rumsfeld's handwriting. It said, "Make sure this happens."

Sanchez would not have implemented the techniques without the approval of Rumsfeld, and Rumsfeld would not have authorized them without the approval of the vice president, Karpinski testified. "And so it filtered down, and it never filtered down to me because I wasn't even responsible for interrogations."

Ultimately, however, Karpinski and 7 low-ranking soldiers were made the scapegoats. Karpinski was demoted to colonel. "I believe the Pentagon wanted to put this into a nice little package, 7 so-called bad apples, out of control on the night shift, and a female officer. They wanted to put that in a package, tie it up in a bow, and sink it forever, to make people believe we got it under control, we solved the problem."

Karpinski also testified that American female soldiers in Iraq were assaulted or raped by male soldiers in the women's latrines, and an alarming number committed suicide. "Because the women were in fear of getting up in the darkness [to go to the latrine], they were not drinking liquids after 3 or 4 in the afternoon," Karpinski said. "In the 100 degree heat, they were dying of dehydration in their sleep. Rather than making everyone aware - it was shocking - they told the surgeon not to brief on the details, and don't say specifically that they were women." Karpinski identified the commander who ordered that the cause of death of the women not be listed on the death certificates. It was General Sanchez, she said.

The commission heard testimony about the Bush administration's criminal responsibility for indefinite detention, rendition for torture, destruction of the global environment, attacks on global public health and reproductive rights, and actions and inactions leading up to and following Hurricane Katrina. The panel of judges will consider the testimony and release its findings.

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Friendly Fire Ambush

Sergeant Patrick R. McCaffrey, Sr. and First Lieutenant Andre D. Tyson died on this day two years ago in Balad, Iraq. Back then, military officials reported that enemy insurgents ambushed them. The Army subsequently conducted an investigation and learned the men were targeted and killed by Iraqi troops they were training.

Although the Army completed its investigation on September 30, 2005, it failed to clarify the initial notification to the families for nine months. It took a May 22 letter from Senator Barbara Boxer's office to force the Army to finally come clean.

A month before he died, Patrick told his father that Iraqi forces they were training had attacked his unit. When he filed a complaint with his chain of command, Patrick "was told to keep his mouth shut," his mother said.

After Patrick died, his parents conducted their own investigations. The Army denied requests to see autopsy reports. The McCaffreys persisted. They talked to soldiers in their son’s unit and managed to learn what really happened.

Bob McCaffrey was informed by members of his son's company that insurgents were offering Iraqi soldiers about $100 for each American they could kill. "Iraqi troops are turning on their American counterparts," Bob said. "That puts a knock in the spin that the White House is trying to put on this story — how the Iraqis are being well trained and are getting ready to take over."

Nadia McCaffrey learned that after her son was shot, a US truck arrived. It picked up Lt. Tyson, who was dead, but did not take her son who was still alive. The truck returned later and took him to the base, where he bled to death.

Yesterday, Brig. Gen. Oscar Hilman and three other officers visited Patrick's mother to deliver the official report. "It was overwhelming," Nadia told me. "I had to live through the whole thing again."

The officers "tried to patronize me as a good Mom," she added. "I said I won't stand for that. I want the truth!"
When Nadia talked to Army officers yesterday she asked them, "How could you possibly let this happen"? They sat silent.

An Army official cited the "complexity" of the case as an excuse for the delay in telling the families how their sons really died, according to the Los Angeles Times.

"They never tell the family the truth," said Ophelia Tyson, grandmother of Andre Tyson. "You know how politics is."

"I really want this story to come out; I want people to know what happened to my son," Nadia said. "There is no doubt to me that this is still happening to soldiers today, but our chain of command is awfully reckless; they don't seem to give a damn about what's happening to soldiers."

The father of two children, Patrick joined the National Guard the day after the Sept. 11, 2001 attacks. He was the first combat death in the 58 year history of California's 579 Engineer Battalion, based in Petaluma, Ca. Patrick was listed as "Casualty number 848." That was 1652 deaths ago.

"He was killed by the Iraqis that he was training," Nadia said. "People in this country need to know that."

"It's god-awful," said Bob, himself an Army veteran. "It underlies the lie of this whole situation in Iraq. It's all to me a pack of lies."

Boxer noted, "You have to ask yourself, 'What are we doing there with a blank check and a blind eye, when our soldiers are risking their lives for the Iraqi people and the Iraqis are turning around and killing our soldiers? "We need an exit strategy."

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Honoring Clinton Jencks, Legendary Labor Organizer

Legendary labor organizer Clinton Jencks, who led mineworkers in New Mexico in a strike depicted in the classic 1953 movie "Salt of the Earth," died Dec. 15, 2005 in San Diego of natural causes. He was 87.

An international representative of the Amalgamated Bayard District Union of Mine, Mill, and Smelter Workers in New Mexico, Jencks was convicted of falsely swearing a non-Communist affidavit required of officials under the Taft-Hartley Act during the McCarthy era. His five-year prison sentence was reversed by the Supreme Court in the landmark 1957 case, Jencks v. United States. The government had refused to turn over to the defense statements made by prosecution witnesses, including Harvey Matusow, a former Communist who went to work for Senator Joseph McCarthy. Matusow later recanted his testimony against Jencks in the book "False Witness."

The Supreme Court ordered the government to give Jencks full access to its records. After the FBI refused, the prosecution was forced to dismiss the case against Jencks. Thanks to the Jencks case, the government is now required to provide the defense with prosecution witness statements. This hurdle was cited by the Department of Justice as a reason for abandoning prosecutions under the Smith Act, the centerpiece of federal anti-Communist legislation in the 1940's and 1950's.

Three months after the Jencks case was decided, Congress enacted the Jencks Act, in order to blunt the effects of the high court's decision. The statute provides that no statement of a government witness shall be turned over to the defense until after the witness has first testified on direct examination.

Jencks raised the ire of the government with his successful organizing efforts. He was beaten up, thrown into jail, and his car was shot full of holes. "Why was I singled out?", Jencks asked. "I was a very good organizer. I was dangerous in that sense." Jencks said his work "concentrated at an intersection of several important struggles" - the proliferation of union organization after the Great Depression and World War II, and the new struggles of Mexican-American workers and of women.

Unusually democratic in his sensibility to all people, Jencks respected everyone, cultivating leadership within the rank and file. Dolores Huerta, co-founder of the United Farm Workers Union, said, "His life was one of extraordinary bravery. He was a pioneer, such a leader in an organization of mostly Spanish-speaking people. He earned everyone's respect."

Jencks, whom the Latino workers affectionately dubbed "El Palomino," said, "If you believe in freedom, it's freedom for everybody. And the only way you can test another's devotion to freedom is in the crucible of struggle."

Jencks led the primarily Latino union in a 15-month strike against Empire Zinc Co. beginning in 1950. They demanded equal pay with white workers, better safety conditions and healthcare. When the men were enjoined from walking the picket line, the women took over, and the men tended house, a radical notion in the 1950's. The strike was ultimately successful.

"Salt of the Earth" chronicled that strike. Made by blacklisted filmmakers, it was produced on a shoestring with few professional actors. The strikers, including Jencks, portrayed themselves in the film. Theaters nationwide succumbed to pressure from the House Committee on Un-American Activities (HUAC), the Screen Actors Guild and the International Alliance of Theater and Stage Employees, and refused to show the film.

One of only 100 films selected by the Library of Congress for the National Film Registry, "Salt of the Earth" is one of the most widely viewed films in the world.

Lorenzo Torres was a fellow striker; his wife, Anita, walked the picket line. The couple, who also worked with Jencks on the film, said, "Clinton's contribution has not been matched since then. The coalition work which resulted from his leadership was a phenomenal improvement from the past and still is present. It will resonate among the miners."

Jencks, a highly decorated war veteran, was blacklisted, unable to find work for many years. He moved to San Francisco, a union town, and finally got a job. But, he said, "The FBI is very powerful and far-reaching." Once again, he was out of work, leading a California State Employment counselor to tell him, "We need a new unemployment classification for you. I think you may be politically unemployable."

In 1959, Jencks was awarded the prestigious Woodrow Wilson Fellowship for training university professors. He was then ordered to appear before HUAC. In spite of intense pressure from the FBI, the foundation affirmed his fellowship and Jencks received a Ph.D. in economics from U.C. Berkeley and later taught for 22 years at San Diego State University. When Jencks began teaching, the university withstood intense pressure to fire him; it had succumbed to red baiting of prior faculty members and was determined to stand firm behind Jencks.

Frank Wilkinson was another target of the government's red-baiting during this period. In the heyday of McCarthyism, Wilkinson formed the The National Committee to Abolish HUAC which ultimately succeeded in its goal. Wilkinson, who went to jail for a year for refusing to testify before HUAC, said of Jencks, "Clint's heartfelt contributions to building a better world are forever enshrined in the history of people fighting for peace and justice."

Jencks loved the National Lawyers Guild. His lawyer, John McTernan, a prominent Guild member, uncovered the actual frame-up of Jencks by the FBI. At a 1999 Guild meeting at Thomas Jefferson School of Law, Jencks said, "I thank the Guild members very much for their courage in times of stress. The Guild was attacked for being a Communist front, when what the Guild was trying to do was to be something more than the ABA; it had a little bigger vision, a little bigger challenge for you and me."

Clinton Jencks remained committed to the fight for economic and social justice. Three days before he died, Clint told me he saw parallels between the repression he and others endured during the McCarthy period and the Bush administration's current policies. "It gives me pause to think what would happen if I were going to court today," he said. "The government, right up to the Supreme Court, refused to come clean."

A true egalitarian, Clint maintained, "We can have individual dignity only if all have dignity. Life is a choice, and we have to choose to make a difference - a better life for everyone without exception."

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Alito Sounds Death Knell for Individual Rights

Yesterday, the Senate Judiciary Committee began its confirmation hearings on the nomination of Samuel Alito for Associate Justice of the Supreme Court.

Alito is no John Roberts. Whereas Roberts had barely been a judge for two years when Bush nominated him for the Supreme Court, Alito has authored 361 opinions during his 15-year tenure on the federal court bench. Whereas Roberts is photogenic, with a winning smile, Alito is stiff and awkward before the cameras. Most significantly, whereas Roberts replaced Chief Justice William Rehnquist, who had a similar judicial philosophy, Alito would take the place of Justice Sandra Day O'Connor, who provided the swing vote 77 percent of the time.

If confirmed, Alito would tip the high court's delicate balance radically to the right. Nearly always favoring the government, corporations and universities, Alito has ruled against individual rights in 84 percent of his dissents.

In a 196-page report released last week, the Alliance for Justice (AFJ) determined that in split decisions - the "difficult cases" - "the reasoning Judge Alito employs and the results he reaches are not balanced. Rather," the report found, "they track the staunchly conservative political and legal views he expressed in his 1985 application to be Deputy Assistant Attorney General for the Office of Legal Counsel in President Reagan's Justice Department."

Alito's 1985 application stresses his commitment to federalism (states' rights), his view that "the Constitution does not protect a right to an abortion," and his disagreement with the criminal procedure, reapportionment (one-man, one-vote), and Establishment Clause (church-state separation) decisions of the Warren Court.

The members of the Senate Judiciary Committee drew clear lines in yesterday's session. Although abortion was a significant concern for three senators from each party, the limitation on executive power was a much more prominent theme during the opening statements.

Six Democratic senators, as well as committee chairman Sen. Arlen Specter (R-Pa.), expressed alarm at the recent revelation that Bush has been secretly spying on Americans since 2002. Five Democrats made reference to O'Connor's opinion for the Court in Hamdi v. Rumsfeld: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Alito's record reveals that he "has been extraordinarily deferential to the exercise of government power, especially executive branch power, except in cases involving alleged infringements on religious expression," according to the AFJ. His "judicial record strongly suggests that he will ... interpret the Constitution as giving the president greater authority to evade Congressional statutes and constitutional limitations whenever deemed essential to national security."

Indeed, in a memorandum he wrote as a lawyer in the Reagan Justice Department, Alito argued that the attorney general should receive absolute immunity from lawsuits when he illegally wiretaps Americans. The Supreme Court rejected Alito's view in a 1985 decision.

Alito also advocated that the president make a "signing statement" indicating what he thinks the law means when he signs a bill. Even though the Constitution grants the lawmaking power only to Congress, and thus courts look to congressional intent to interpret statutes, Alito hoped that the president could divert the courts' focus away from congressional intent in favor of what he called "the President's intent."

George W. Bush has issued at least 108 such "signing statements," according to the Washington Post. Most recently, Bush qualified his concurrence with the McCain amendment that outlaws torture and cruel, inhuman or degrading treatment, implying that he would be free to torture if he felt it was necessary for national security.

In 2000, Alito told a Federalist Society meeting that he was a strong proponent of the "unitary executive," which means that all federal executive power resides in the president. This theory would reject discretionary executive power of independent agencies Congress has created since the New Deal, such as the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Reserve Board.

Alito argued in other memoranda that the Federal Bureau of Investigation should have broad latitude to investigate federal employees, and that an American Bar Association opinion prohibiting lawyers from secretly taping conversations should not prevent IRS lawyers from secretly taping as part of a federal criminal investigation.

Although the senators only touched on Alito's alarming civil rights record in yesterday's session, one would hope they would fully inquire into this area during the questioning.

In split decisions on claims involving violations of the civil rights of women, racial minorities, seniors and the disabled, Alito almost uniformly ruled against the claimants.

As America mourns the deaths of the 12 miners in West Virginia, we are reminded of the importance of mine safety regulations. Yet Alito disagreed with the Department of Labor and would not have applied mine safety rules to an area of a defunct Pennsylvania mine from which the company was still extracting materials to process into energy.

Sen. Edward Kennedy (D-Mass.) has raised the issue of Alito's credibility. Although he promised the Senate Judiciary Committee in his 1990 confirmation hearing for the Court of Appeals that he would recuse himself from cases involving Vanguard companies, in which he had substantial financial investments, Alito subsequently proceeded to sit on a Vanguard case. And on his 1985 job application, Alito boasted of his membership in the ultraconservative Concerned Alumni of Princeton, which opposed co-education and affirmative action. Yet he now denies any memory of being in that group.

In his opening statement, Alito told the senators, "A judge can't have any agenda. A judge can't have any preferred outcome in any particular case."

Yet Sen. Chuck Schumer (D-NY) advised Alito, "We need to know that presidents and paupers will receive equal justice in your courtroom. If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair." Schumer observed, "The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions."

Sen. Patrick Leahy (D-Vt.) said, "It's important to know whether [Alito] would serve with judicial independence or as a surrogate for the president nominating him." Sen. Russ Feingold (D-Wis.) declared, "We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect. And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach."

We will see during the questioning whether the senators will indeed hold Samuel Alito's feet to the fire, and demand that he forthrightly state his beliefs on the critical issues. Sen. Dianne Feinstein (D-Calif.) correctly noted that Alito's nomination is a "pivotal" one in the history of this country.

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First Officer Publicly Resists War

Yesterday, US Army First Lieutenant Ehren Watada became the first officer to publicly state his refusal to obey an order to deploy to Iraq. Lieutenant Watada said at a press conference in Tacoma, Washington, "The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war." He stated, "An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq."

Citing "deception and manipulation … and willful misconduct by the highest levels of my chain of command," Lt. Watada declared there is "no greater betrayal to the American people" than the Iraq war.

The "turning point" for Lt. Watada came when he "saw the pain and suffering of so many soldiers and their families, and innocent Iraqis." He said, "I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable." Lt. Watada felt he "had the obligation to step up and do whatever it takes," even if that means facing court-martial and imprisonment.

Lt. Watada asked me to speak about the legality of the war at his press conference.

The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war. An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq.
US Army First Lieutenant Ehren Watada

I cited the Nuremberg Charter, which set forth the three most serious crimes: crimes against the peace, war crimes, and crimes against humanity. The US Army Field Manual 27-10, art. 28, incorporates the prohibition against these three crimes. The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.

The United States Is Committing a Crime Against the Peace in Iraq

The Nuremberg Tribunal called the waging of aggressive war "essentially an evil thing ... to initiate a war of aggression ... is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.

Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US, or any other country, for 12 years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones."

Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused to give its stamp of approval. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.

Moreover, the Constitution gives only Congress, not the President, the authority to declare war. Congress cannot delegate that authority to the President. Even if Congress could delegate the war power to the President, it cannot authorize the President to execute an aggressive war.

The United States Is Committing War Crimes in Iraq

All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment.

Violations of the laws of war, memorialized in the Hague and Geneva Conventions, constitute war crimes.
All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment. These prohibitions are memorialized in the Army Field Manual 27-10, art. 506. The Pentagon is trying to remove Article 3 Common from the newly revised instructions that go with the Manual. The implication is that the Defense Department intends to treat prisoners inhumanely.

Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture or inhuman treatment, and willfully causing great suffering or great bodily harm are grave breaches.

The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians at Haditha and in other Iraqi cities are war crimes.

Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their inferiors were committing war crimes and failed to stop or prevent them. However, it is unlikely that Attorney General Alberto Gonzales will charge Bush, Cheney or Rumseld with war crimes.

The United States Is Committing Crimes Against Humanity in Iraq

Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.

No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.
Supreme Court Justice Robert Jackson

The dropping of 2,000-pound bombs in residential areas of Baghdad during "Shock and Awe" were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a "weapons-free" zone, with orders to shoot anything that moved, was a crime against humanity.

Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: "No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

The Uniform Code of Military Justice, in articles 90-92, sets forth the duty of military personnel to obey lawful commands. The Nuremberg Principles, which are part of US law, provide that all military personnel have the obligation not to obey illegal orders. The Army Field Manual 27-10, sec. 609 and UCMJ, art. 92, incorporate this principle. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States …"

The Bush administration is committing crimes against the peace, war crimes and crimes against humanity in Iraq. Lieutenant Ehren Watada is correct when he says this is an illegal war. I salute his courage.

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