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June 19, 2013

Former CIA Employee, Snowden, Blows Whistle on NSA’s Dragnet Surveillance

Just as Bradley Manning’s court-martial was getting underway, another brave whistleblower dropped a bombshell into the media: The Obama administration is collecting data on every telephone call we make. Nearly 64 years to the day after George Orwell published his prescient book 1984, we have learned that the “Thought Police” are indeed watching every one of us. “They quite literally can watch your ideas form as you type,” Edward Snowden told the Washington Post.

A former undercover CIA employee who has worked at the National Security Agency (NSA) for four years, Snowden provided a secret order of the Foreign Intelligence Surveillance Court to the Guardian. The order requires Verizon on an “ongoing daily basis” to provide the NSA information about all phone calls in its system both in the United States and other countries. Glenn Greenwald wrote that it “shows for the first time that under the Obama administration the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.” That secret order is scheduled for declassification on April 12, 2038.

The order, issued under Section 215 of the Patriot Act, mandates that Verizon provide daily phone records for all “communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” The government is collecting “metadata” on our phone communications. That is, the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. Administration officials defending the program claim they are not reading the content of our calls.

But, as ACLU’s Ben Wizner and Jay Stanley note, “Even without intercepting the content of communications, the government can use metadata to learn our most intimate secrets – anything from whether we have a drinking problem to whether we’re gay or straight … The ‘who,’ ‘when’ and ‘how frequently’ of communications are often more revealing than what is said or written.” For example, “Repeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics or a gambling bookie may tell you all you need to know about a person’s problem.” And, they add, “URLs often contain content – such as search terms embedded within them,” so that “the very fact that we’ve visited a page with a URL such as ‘www.webmd.com/depression’ can be every bit as revealing as the content of an email message.”

“Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA,” Greenwald wrote, “but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama.” He added, “The unlimited nature of the records being handed over to the NSA is extremely unusual. FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.”

Ron Wyden and Mark Udall, members of the Senate select committee on intelligence, have been reviewing secret intelligence collections operations for a long time. “We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act,” they wrote in a letter to Attorney General Eric Holder last year.

“After years of review,” Wyden and Udall wrote after Snowden’s revelations, “we believe statements that this very broad Patriot Act collection has been ‘a critical tool in protecting the nation’ do not appear to hold up under close scrutiny. We remain unconvinced that the secret Patriot Act collection has actually provided any uniquely valuable intelligence.” They added, “As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does.”

According to Wyden and Udall, “When Americans call their friends and family, whom they call, when they call, and where they call from is private information. We believe the large-scale collection of this information by the government has a very significant impact on Americans’ privacy, whether senior government officials recognize that fact or not.”

In addition, Greenwald, and the Washington Post, reported on the existence of PRISM, the NSA’s Internet surveillance system that collects data from Google, Yahoo, Microsoft, Facebook, PalTalk, AOL, Skype, YouTube and Apple. Established pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the 2008 FISA Amendments Act, PRISM allows national security officials to collect material including search history, the content of emails, file transfers and live chats, if targeted at foreigners “reasonably believed” to be abroad, even if the surveillance takes place on US soil. The law forbids intentionally targeting data collection at American citizens or anyone in the United States. But, according to Greenwald, “The law allows for the targeting of any customers of participating firms who live outside the US, or those Americans whose communications include people outside the US.”

According to materials obtained by the Post, “NSA reporting increasingly relies on PRISM” as its primary source of raw material, and accounts for one in seven intelligence reports.

After the surveillance became public, a senior intelligence official who spoke anonymously to the New York Times claimed that PRISM thwarted a 2009 plot by Najibullah Zazi to bomb the New York City subway system. But public legal documents reveal that “old-fashioned police work, not data mining, was the tool that led counterterrorism agents to arrest Zazi,” according to Ben Smith at BuzzFeed.

Snowden revealed the secret information because, he said, “What they’re doing” poses “an existential threat to democracy.” He leaked the documents at great risk to himself. “I’m willing to sacrifice [his home and family] because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

Snowden said, “Everyone, everywhere now understands how bad things have gotten – and they’re talking about it. They have the power to decide for themselves whether they are willing to sacrifice their privacy to the surveillance state.”

The contrast between liberty and security is not a new one. Benjamin Franklin warned, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor security.” Throughout our history, we have grappled with this apparent tension. Unfortunately, all too often, we have lost our liberties – with no tangible benefit.

Senator Dianne Feinstein, chairwoman of the Senate Intelligence Committee, defended the massive intelligence-gathering program, while admitting she did not know how the collected data was being used. The New York Times called her defense “absurd.” Greenwald tweeted, “The reason there are leakers is precisely because the govt is filled with people like Dianne Feinstein who do horrendous things in secret.”

When Obama ran for president in 2008, he promised change – change from the policies of the Bush administration. The only change he has made in the Bush surveillance policy is to increase it to dragnet-like proportions.

Both Congress – by dutifully rubber-stamping the executive’s requests for almost unlimited snooping powers – and the courts – by affirming those policies – have acquiesced in the unprecedented surveillance of us all. It thus remains for We the People to pressure the government to heed Benjamin Franklin’s chilling admonition. As Snowden said, “It’s important to send a message to government that people will not be intimidated.” If we don’t, we will live in nothing less than a police state.

This first appeared on Truthout.

Guantanamo Prisoner Al-Nashiri’s Case Demonstrates Unfairness of Military Commissions

The issue of terrorism has been front and center in the national discourse since 9/11. Guantánamo has become a symbol of US hypocrisy on human rights.

Lawyers handling the criminal case of Guantánamo prisoner Abd al-Rahim al-Nashiri argued several pre-trial motions last week. But just as they raised some fascinating legal issues, the hearings revealed the basic unfairness of the military commissions for adjudicating criminal cases. People can be put to death after a trial that affords a reduced level of due process.

Defense motions raised issues of whether the Sixth Amendment’s Confrontation Clause applies in military commissions; whether a military commission can legally try defendants for the crimes of conspiracy and terrorism; whether the government has been eavesdropping on confidential attorney-client communications; whether the accused can be excluded from pre-trial sessions in which classified information is discussed; whether the defense is entitled to parity with the prosecution in subpoenaing witnesses; and how much discovery the prosecution must turn over to the defense. Judge James Pohl took the motions under advisement. That means he postponed ruling on them until later.

In 2006, in Hamdan v. Rumsfeld, the Supreme Court struck down the military commissions President Bush established in 2001 because their procedures did not comply with the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. The Court ruled that members of al-Qaeda are entitled to the protections of Geneva’s Common Article 3, which includes being protected from the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

The Hamdan Court also said the commissions must follow procedural rules that basically parallel courts-martial proceedings under the UCMJ. Yet the Military Commissions Act of 2009 (MCA) [sec. 948b] says the UCMJ “does not, by its terms, apply to trial by military commissions except as specifically provided in this chapter.” It declares that this chapter is “based upon the procedures for trial by general courts-martial under [the UCMJ], ” but it also provides that “[j]udicial construction and application of [the UCMJ], while instructive, is therefore not of its own force binding on military commissions.” It remains to be seen whether the new, improved military commissions will pass constitutional muster if and when they get to the Supreme Court.

The Defendant’s Right to Confront Witnesses Against Him

The defense sought a ruling from the judge that the Confrontation Clause of the Sixth Amendment to the Constitution applies in this military commission in which the accused can get the death penalty. In Boumediene v. Bush, the Supreme Court ruled that Guantánamo detainees have a constitutional right to habeas corpus, since, although Guantánamo is on Cuban soil, the United States exercises complete jurisdiction and control over the US base there. Thus, the al-Nashiri defense argued, other constitutional rights, including the right to confrontation, apply in military commissions held at Guantánamo.

The Confrontation Clause gives the accused in a criminal case the right to confront and cross-examine witnesses against him. When the prosecution presents hearsay statements of unavailable witnesses, the accused is denied the right of cross-examination. As Justice Scalia wrote in the leading Confrontation Clause case, Crawford v. Washington, the Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”

Hearsay is a statement that was made out of court but later offered at a hearing to prove the truth of the matter asserted in the statement. Although hearsay is presumed inadmissible unless it fits one of the exceptions in federal courts, the Military Commission Act (MCA) makes it easier to secure the admission of hearsay in military commission trials.

The Federal Rules of Evidence contain several exceptions to the ban on hearsay evidence, and many of them require that the person who made the hearsay statement be unavailable to testify at the present hearing. But when the proponent of the hearsay statement wrongfully procures the unavailability of the absent witness, the exception won’t be available as a vehicle to admit hearsay statement. This is called forfeiture by wrongdoing.

The prosecution wants to use the testimony of Fahd al-Quso against al-Nashiri. Al-Quso is unavailable to attend the trial because the US government killed him in a drone strike last year in Yemen. Thus it could be argued that the prosecution (the government) wrongly procured al-Quso’s unavailability by killing him.

In Giles v. California, the Supreme Court held that in order for forfeiture by wrongdoing to prevent the admission of a hearsay statement, the proponent of the statement must have killed the witness to prevent him from testifying. Thus, the defense will have to prove that the government killed al-Quso to prevent him from testifying against al-Nashiri.

The defense argued that the prosecution’s evidence will seemingly be full of unreliable double- and triple-hearsay (for example, “he said she said that he said X”). FBI reports in these cases typically contain hearsay statements of witnesses from Yemen, Afghanistan or Pakistan who are not available for trial.

The Constitution governs courts-martial and the evidentiary rules courts-martial use largely follow the Federal Rules of Evidence. Thus, it should be a no-brainer that the Constitution’s Confrontation Clause would apply in military commissions. Nevertheless, Judge Pohl seemed inclined to decide on a case-by-case basis.

The Crimes of Conspiracy and Terrorism Are Not Triable Under the Law of War

The defense asked the judge to dismiss the conspiracy and terrorism charges against al-Nashiri. Military commissions were established to try war crimes. The commissions are bound by Congress’ power to “define and punish … Offenses against the Law of Nations.” In order to vest a military commission with jurisdiction over an offense, it must be an established offense of that subset of the law of nations known as the law of war.

Conspiracy is not part of the law of war. A plurality of the Supreme Court stated in Hamdan that conspiracy is not a war crime under the traditional law of war. Terrorism is also absent from the law of war. In Tel-Oren v. Libyan Arab Republic, the DC Circuit Court of Appeals affirmed that terrorism itself is not an offense against the law of nations. The Second Circuit reaffirmed the lasting force of Tel-Oren in United States v. Yousef.

Salim Hamdan was tried under the Military Commissions Act of 2006. He was acquitted of conspiracy but convicted of providing material support for terrorism for acts done between 1996 and 2001. He appealed and, in 2012, in Hamdan II, a three-judge panel of the DC Circuit Court of Appeals reversed his material support conviction, holding that the 2006 MCA did not intend to criminalize pre-2006 conduct that was not considered a violation of the international laws of war. The panel concluded that material support was not a violation of the international law of war.

Ali Hamza Ahmad Suliman al-Bahlul was convicted of conspiracy by military commission. A three-judge panel of the DC Circuit reversed his conviction but the entire DC Circuit decided to hear the appeal. So this issue is currently pending in the Court of Appeals in Al-Bahlul.

These issues may well get to the Supreme Court. If prosecutors are foreclosed from charging conspiracy and terrorism in the military commissions, they may only be able to try high-level terrorism suspects in the commissions, for crimes such as murder, attacking civilians and hijacking. It is the “smaller fish” who have been charged with conspiracy and terrorism.

The prosecution asked the judge to dismiss the conspiracy charge against al-Nashiri but then tried to “bargain” with the defense and the judge to allow jury instructions on vicarious liability. That would mean that al-Nashiri could be convicted even if he didn’t personally carry out the crimes charged. The defense was adamantly opposed to the prosecutor’s proposed bargain.

Eavesdropping on Confidential Attorney-Client Communications

In February, it was revealed that the rooms in which attorneys meet with their clients at Guantánamo were equipped with listening devices made to look like smoke detectors (even though smoking is not allowed there). The attorney-client privilege is part of federal law, and the Supreme Court has interpreted the right to counsel under the Sixth Amendment to include the right to effective counsel. It is well established that an accused does not enjoy the effective aid of counsel if he is denied the right of private consultation with him. Yet there is no provision in the MCA that addresses the monitoring of communications between the accused and his attorney.

At the hearing last week, the defense asked Judge Pohl to temporarily suspend the proceedings until the defense could be fully informed of the extent of any third party monitoring of defense communications during legal visits with their clients. The defense also asked that necessary precautions be taken to ensure that such monitoring not take place in the future.

Neither of the two witnesses who testified at the hearing had knowledge of any eavesdropping on defense communications. But Navy Capt. Thomas Welsh, the Staff Judge Advocate for the Joint Task Force Guantanamo Bay (JTF-GTMO) testified that guards denied to defense counsel that any monitoring occurred because they feared they “could end up in court.” The defense raised dangers of such an “insecure” system.

Right of Accused to Be Present at All Hearings

A classified defense motion was heard in a secret session. The motion asked the judge to order the government to reveal information “related to the arrest, detention and interrogation” of al-Nashiri. Evidence obtained by torture or cruel, inhuman or degrading treatment is inadmissible in military commissions. Although al-Nashiri was tortured for several years while in custody at the CIA black sites, the judge said that al-Nashiri was not himself the source of the classified material at issue.

The defense sought to prevent al-Nashiri from being removed from the courtroom during closed sessions. If the accused is not allowed to hear the evidence, he could not assist his counsel in objecting to legally objectionable material. Richard Kammen, al-Nashiri’s lead attorney, said: “Let’s say in a hearing the government presents something in good faith that is simply untrue. Let’s say some agency gives them incorrect information. He will never be in a position to say to us, ‘That’s not true.’ And waiting til trial is way, way, way too late in a capital case.”

The UCMJ gives the accused the right to be present during all proceedings except jury deliberations. The MCA does not provide for the exclusion of the accused from any part of the trial unless he is disruptive, and classified information cannot be presented to the jury unless it is disclosed to the accused.

The Right of the Accused to Subpoena Witnesses

The defense requested that it be permitted to subpoena witnesses without requiring that the prosecution preview them. In the alternative, the defense asked for the right to see the prosecution’s witness list. The MCA provides, “The opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States.” The defense is seeking parity with the prosecution to protect the defendant’s right to a fair trial.

Providing Defense Counsel With Discovery Provided to Habeas Counsel

There are about 3,000-4,000 documents that the government turned over to al-Nashiri’s lawyer in his habeas corpus (civil) proceeding. The documents are currently under a protective order. In Boumediene, the Supreme Court held that a habeas court must have the authority to admit and consider relevant exculpatory evidence. Defense counsel in al-Nashiri’s military commission want discovery of those documents because they may contain potentially exculpatory information. The prosecution’s burden to produce discovery information in a capital case is greater than that in a civil proceeding. Moreover, the MCA says the accused is entitled to exculpatory and mitigating information known to the prosecution.

Scope of Exculpatory Evidence Provided in Discovery

The prosecution sent out to government agencies Prudential Search Requests requesting “information or documents potentially material to the preparation of the defense,” yet the prosecution refuses to provide the defense with all of the material it received. The prosecution says that in death penalty cases, mitigation evidence is “limited to evidence of an accused’s character, background, and the circumstances of the offense.” But the Supreme Court has defined mitigating evidence as “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Thus, a State cannot bar the consideration of … evidence if the sentence could reasonably find that it warrants a sentence less than death.” The prosecution is demanding the defense demonstrate that discovery is necessary, but the defense argues that the law provides for liberal discovery in order to protect the right to a fair trial.

Military Commissions Provide a Reduced Level of Due Process

Since Bush established the first military commissions in 2001, they have been controversial, so much so that the Supreme Court struck them down and Congress re-enacted them twice – once in 2006 and again in 2009 – providing slightly more due process each time. But the level of justice military commissions furnish remains inferior to that afforded in federal courts and military courts-martial. President Obama suspended the military commissions upon taking office in January 2009 in order to review whether to continue using them. In July of that year, he decided that military commissions were an appropriate forum for trying some cases involving alleged violations of the laws of war, even though he preferred federal criminal courts for detainee trials. Obama apparently chose political expediency over considerations of justice.

This article first appeared on Truthout

June 13, 2013

The Turkish Spring: Lawyers Rounded Up

For nearly three weeks, thousands of protestors have gathered peacefully at Occupy Gezi in Taksim Square in Istanbul. Turkish police have unleashed a brutal crackdown, resulting in three confirmed deaths and nearly 5,000 injured. According to Turkish lawyer Kerem Gulay, a Fulbright Scholar and doctoral student at Cornell Law School, police tactics include excessive beatings with police batons and rifle handles, and the use of pepper spray and other chemicals, rubber bullets, and, allegedly, real bullets.

In order to provide a pretext for police aggression against peaceful protestors, undercover police officers, acting as agents provocateurs, threw Molotov cocktails Tuesday at police, after which police launched a vicious attack on protestors.

A broad coalition of groups courageously gathered in Taksim Square is protesting neoliberal governmental policies, including economic, agricultural and environmental policies, human rights abuses, mass detentions, privatization of water resources, attacks on freedom of the press and on freedom of religion, and the treatment of Kurdish citizens of Turkey. The protestors’ politics range from moderate to center right to nationalist to left liberal to extreme leftist. “All these people have in common,” Gulay told me, “is they are critical of government policies.”

When lawyers were issuing a press statement decrying the mass detentions of their clients, some 50 lawyers were arrested and dragged on the ground by riot police. Many lawyers were injured before they were released 10 hours later. Nearly 3,000 lawyers gathered at the courthouse Tuesday to protest these detentions.

There is an ongoing and dangerous process of criminalization of lawyers in Turkey. Nine of fifteen lawyers arrested on January 18, 2013, for representing unpopular clients, remain in custody without charges or access to legal papers about their cases. On that date, police raided the Istanbul and Ankara offices of the Progressive Lawyers Association (CHD), a member organization of the International Association of Democratic Lawyers (IADL). Twelve CHD officers or members were violently detained under vague terrorism-related allegations. They were interrogated about their representation of clients. They were denied water and the use of a bathroom.

These arrests, detentions, and seizure of property—including confidential client files—violate the International Covenant on Civil and Political Rights. The cases are pending in the Special Heavy Penal Courts, which have jurisdiction over “terrorism” proceedings. Their use of secret evidence and repressive procedures have been condemned by several international and regional human rights monitoring bodies and mechanisms. The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, who recently visited Turkey, strongly criticized [PDF] the Special Heavy Penal Courts, saying their “special authority” does not comply with human rights standards on fair trial, and they should therefore be abolished.

A group of 500 lawyers who went to the courthouse to protest the lawyers’ detention in January were assaulted by police. The Istanbul Bar Associationlambasted the unlawful raids as an “explicit attack towards the legal profession and its honor, as well as the people’s right to legal remedies.”

When I visited Istanbul as a representative of IADL in April, I met with officers of the Istanbul Bar Association, and I spoke with lawyers who had been arrested and released after the January raid. Some are members of CHD. Many specialize in defending victims of torture, arbitrary detention, extrajudicial executions, police brutality and other human rights violations. They also provide free legal assistance in terrorism-related cases, and those involving freedom of expression or protection of the environment. Because of their work in defending clients who challenge government policies, CHD lawyers have been targeted by the government and the police.

Knual also reaffirmed the principle that a government should not identify lawyers with the causes of their clients. The United Nations Basic Principles on the Role of Lawyers mandate that governments ensure lawyers are able to perform their professional functions without intimidation, hindrance, harassment or improper interference. They also provide that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.

The president of the Istanbul Bar Association has been accused of contempt of court for protesting the January detentions of lawyers. According to the 2010 US State Department country report on Turkey, there are more than 10,000 people suspected of “terrorism” in Turkey (one-third of the world’s terrorism suspects). Several hundred students, as well as army officials, journalists, lawyers, academics, Kurdish activists, nationalist activists, soldiers and members of the Turkish parliament are in prison, Gulay said.

Frequent and systematic repression against political and human rights activists in Turkey, particularly lawyers and journalists, has been well documented. This year alone, representatives of IADL witnessed evidence of the Turkish state’s enforcement of broad and oppressive laws to suppress political dissent from journalists, lawyers, trade unionists and citizens.

The Turkish government must immediately halt all police repression against Turkey’s protestors, including police beatings, the use of tear gas and other chemicals; release all detained protesters who were expressing their fundamental right to freedom of expression; and launch an immediate investigation into the human rights abuses committed against the Turkish people since the beginning of the protests, including an investigation into the unlawful use of tear gas and other chemicals.

Taksim Solidarity, the group that was organized before the recent demonstrations to stop the notorious Taksim project of the government, and which has become the voice of the resistance, has declared June 13 International Day of Solidarity with the resisting people in Turkey. Taksim Solidarity invites progressive people around the world to condemn the police violence carried out by the direct order of the government and to show their solidarity. CHD has also issued a call for international solidarity and asks lawyers organizations and human rights organizations to express their concerns to the Turkish government and state bodies. IADL calls upon people throughout the world to join us in demanding an end to the violence against Turkish protestors and accountability.

June 8, 2013

Bradley Manning’s Legal Duty to Expose War Crimes

The court-martial of Bradley Manning, the most significant whistleblower case since Daniel Ellsberg leaked the Pentagon Papers, has begun. Although Manning pled guilty earlier this year to 10 offenses that will garner him 20 years in custody, military prosecutors insist on pursuing charges of aiding the enemy and violation of the Espionage Act, that carry life in prison. The Obama administration, which has prosecuted more whistleblowers under the Espionage Act than all prior presidencies combined, seeks to send a strong message to would-be whistleblowers to keep their mouths shut.

A legal duty to report war crimes

Manning is charged with crimes for sending hundreds of thousands of classified files, documents and videos, including the “Collateral Murder” video, the “Iraq War Logs,” the “Afghan War Logs,” and State Department cables, to Wikileaks. Many of the things he transmitted contain evidence of war crimes.

The Collateral Murder video depicts a US Apache attack helicopter killing 12 civilians and wounding two children on the ground in Baghdad in 2007. The helicopter then fired upon and killed the people trying to rescue the wounded. Finally, a US jeep drove over one of the bodies, cutting the man in half. These acts constitute three separate war crimes.

Manning fulfilled his legal duty to report war crimes. He complied with his legal duty to obey lawful orders but also his legal duty to disobey unlawful orders.

Section 499 of the Army Field Manual states, “Every violation of the law of war is a war crime.” The law of war is contained in the Geneva Conventions.

Article 85 of the First Protocol to the Geneva Conventions describes making the civilian population or individual civilians the object of attack as a grave breach. The firing on and killing of civilians shown in the Collateral Murder video violated this provision of Geneva.

Common Article 3 of the Geneva Conventions requires that the wounded be collected and cared for. Article 17 of the First Protocol states that the civilian population “shall be permitted, even on their own initiative, to collect and care for the wounded.” That article also says, “No one shall be harmed . . . for such humanitarian acts.” The firing on rescuers portrayed in the Collateral Murder video violates these provisions of Geneva.

Finally, Section 27-10 of the Army Field Manual states that “maltreatment of dead bodies” is a war crime. When the Army jeep drove over the dead body, it violated this provision.

Enshrined in the US Army Subject Schedule No. 27-1 is “the obligation to report all violations of the law of war.” At his guilty plea hearing, Manning explained that he had gone to his chain of command and asked them to investigate the Collateral Murder video and other “war porn,” but his superiors refused. “I was disturbed by the response to injured children,” Manning stated. He was also bothered by the soldiers depicted in the video who “seemed to not value human life by referring to [their targets] as ‘dead bastards.'”

The Uniform Code of Military Justice sets forth the duty of a service member to obey lawful orders. But that duty includes the concomitant duty to disobey unlawful orders. An order not to reveal classified information that contains evidence of war crimes would be an unlawful order. Manning had a legal duty to reveal the commission of war crimes.

No reason to believe leak could harm US or aid foreign power

In order to prove Manning violated the Espionage Act, prosecutors must prove beyond a reasonable doubt that he had “reason to believe” the files could be used to harm the United States or aid a foreign power. When he pled guilty, Manning stated, “I believed if the public, particularly the American public, could see this it could spark a debate on the military and our foreign policy in general as it applied to Iraq and Afghanistan.” He added, “It might cause society to reconsider the need to engage in counter terrorism while ignoring the situation of the people we engaged with every day.” These are hardly the words of a man who thought his actions could harm the United States or help a foreign power. To the contrary. Manning will be permitted to introduce evidence about his belief that certain documents would not cause harm to national security if publicly released. It was after Wikileaks published evidence of the commission of war crimes against the Iraqi people that Iraq refused to grant criminal and civil immunity to US troops if their stay in Iraq was prolonged, causing Obama to withdraw them from Iraq. This saved myriad American and Iraqi lives.

Making an Example of Manning: cruel, inhuman and degrading treatment

Manning was 22 years old when he courageously committed the acts for which he stands criminally accused. For the first 11 months of his confinement, he was held in solitary confinement and subjected to humiliating forced nudity during inspection. In fact, Juan Mendez, UN special rapporteur on torture, characterized the treatment of Manning as cruel, inhuman and degrading. He said, “I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to his regime by the prison authorities) constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the Convention against Torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.” Mendez could not conclusively say Manning’s treatment amounted to torture because he was denied permission to visit Manning under acceptable circumstances. Mendez also concluded that, “imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”

Obama himself has also violated Manning’s presumption of innocence, saying two years ago that Manning “broke the law.” But although the Constitution requires the President to enforce the laws, Obama refuses to allow the officials and lawyers from the Bush administration who sanctioned and carried out a regime of torture – which constitutes a war crime under Geneva – to be held legally accountable. Apparently if Bradley Manning had committed war crimes, instead of exposing them, he would be a free man, instead of facing life in prison for his heroic deeds.

This article first appeared on Truthout.

May 25, 2013

Guantanamo, Drone Strikes and the Non-War Terror War: Obama Speaks

As one of the 1,200-plus signatories to the full-page ad that appeared in The New York Times, calling for the closure of Guantanamo, I was disappointed in President Barack Obama’s speech Thursday on counterterrorism, drones and Guantanamo.

Torture and Indefinite Detention at Guantanamo

In a carefully crafted – at times defensive, discourse, Obama said, “In some cases, I believe we compromised our basic values – by using torture to interrogate our enemies and detaining individuals in a way that ran counter to the rule of law,” adding, “We unequivocally banned torture.” But Obama failed to note that the United Nations Human Rights Commission determined in 2006 that the violent force-feeding of detainees at Guantanamo amounted to torture and that he has continued that policy. More than half the remaining detainees are refusing food to protest their treatment and indefinite detention, many having been held for more than a decade with no criminal charges. In only a brief, but telling, mention of his administration’s violent force-feeding of hunger strikers at Guantanamo, Obama asked, “Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.”

One would hope that Obama’s sense of justice would prevent him from allowing the tortuous force-feeding of people like Nabil Nadjarab, who has said, “To be force-fed is unnatural, and it feels like my body is not real. They put you on a chair – it reminds me of an execution chair. Your legs, arms and shoulders are tied with belts. If you refuse to let them put the tube in, they force your head back . . . [it is very risky] because if the tube goes in the wrong way, the liquid might get into your lungs. I know some who have developed infections in the nose. They now have to keep tubes in their noses permanently.” British resident Shaker Aamer reported being subjected to sleep deprivation and being dragged around like an animal at Guantanamo. David Remes, who represents two detainees, reported “shocking” genital searches “designed to deter” detainees from meeting with their lawyers. The “new military policy,” said Remes, “is to sexually abuse them in searches.”

And Obama asks, “Is that who we are?”

Obama did not say he would close Guantanamo. He criticized Congress for placing restrictions on transferring detainees who have been cleared for release, although he signed the legislation Congress passed. To his credit, Obama lifted the moratorium on detainee transfers to Yemen and appointed a new senior envoy at the State Department and Department of Defense to oversee detainee transfers to third countries. But Obama did not pledge to use the waiver provision contained in Section 1028(d) of the 2013 National Defense Authorization Act that would allow the Secretary of Defense to authorize transfers when it is in the national security interest of the United States. Nor did he promise to stop blocking the release of detainees cleared by habeas corpus proceedings.

The Non-War Terror War

Obama explained how he plans to continue his war on terror without calling it a war on terror. He stated, “Under domestic law and international law, the United States is at war with al Qaeda, the Taliban and their associated forces.”

While also saying, “Beyond Afghanistan, we must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America,” Obama listed Pakistan, Yemen, Somalia and Mali as places the United States is involved in fighting terror. Because, he said, “we are at war with an organization that right now would kill as many Americans as they could if we did not stop them first,” Obama concluded, “This is a just war – a war waged proportionally, in last resort and in self-defense.”

Obama understands that not all wars are just wars. He was referring to, but misapplied, three principles of international law that govern the use of military force. Proportionality means that an attack cannot be excessive in relation to the anticipated military advantage. Yet when drones are used to take out convoys, large numbers of civilians will be, and have been, killed. Last resort means that a country may resort to war only if it has exhausted all peaceful alternatives to resolving the conflict. By assassinating rather than capturing suspected terrorists and bringing them to trial, Obama has not used military force as a last resort. And self-defense is defined by the leading Caroline Case of 1837, which said that the “necessity for self-defense must be instant, overwhelming, leaving no choice of means and no moment for deliberation.” The Obama administration has provided no evidence that the people it targeted were about to launch an imminent attack on the United States.

New Rules for Drone Strikes?

Although he defended the use of drones and targeted killing, Obama proclaimed, “America does not take strikes when we have the ability to capture individual terrorists – our preference is always to detain, interrogate and prosecute them.” Yet, 4,700 people have been killed by drone strikes, only two percent of whom were high-level terrorist suspects. And Obama has added only one person to the detention rolls at Guantanamo since he took office. “This [Obama] government has decided that instead of detaining members of al-Qaida [at Guatanamo] they are going to kill him,” according to John Bellinger, who formulated the Bush administration drone policy.

Obama referred to the killing of Osama bin Laden as exceptional because “capture, although our preference, was remote.” Yet it was clear when the US soldiers arrived at bin Laden’s compound that the people there were unarmed and bin Laden could have been captured. Obama admitted, “The cost to our relationship with Pakistan – and the backlash among the Pakistani public over encroachment on their territory – was so severe that we are now just beginning to rebuild this important partnership.” Indeed, in light of Pakistan’s considerable arsenal of nuclear weapons, Obama took a substantial risk to our national security in breaching Pakistan’s sovereignty by his assassination operation.

Ben Emmerson, UN special rapporteur on counterterrorism and human rights, said the drone strikes in Pakistan violate international law. “As a matter of international law, the US drone campaign in Pakistan . . . is being conducted without the consent of the elected representatives of the people or the legitimate government of the state,” he noted. Obama said we are “narrowly targeting our action against those who want to kill us.” He did not address his administration’s policy of using drone strikes to kill rescuers and attendees at funerals after the original strike killings.

The day before his speech, Obama signed a Presidential Policy Guidance, which he said, provides “clear guidelines, oversight and accountability.” As Obama delivered his speech, the White House issued a Fact Sheet regarding policies and procedures for counterterrorism operations, but did not release the policy guidance itself. That Fact Sheet says, “The policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect.” It provides that “lethal force will be used outside areas of active hostilities” only when certain preconditions are met. But it does not define “areas of active hostilities.”

Preconditions for using lethal force include:

1. The requirement of a “legal basis” for the use of lethal force. It does not define whether “legal basis” means complying with ratified treaties, including the UN Charter, which prohibits the use of military force except in self-defense or when approved by the Security Council.

2. The target must pose a “continuing, imminent threat to US persons.” The Fact Sheet does not define “continuing” or “imminent.” The recently leaked Department of Justice White Paper says that a US citizen can be killed even when there is no “clear evidence that a specific attack on US persons and interests will take place in the immediate future.”

3. There must be “near certainty” that the terrorist target is present. Neither the Fact Sheet nor Obama in his speech addressed whether the administration will continue “signature strikes” (known as crowd killings), which don’t target individuals but rather areas of suspicious activity.

4. There must be “near certainty” that noncombatants will not be injured or killed. This is apparently a departure from present practice, as numerous noncombatants have been killed in US drone strikes. The Fact Sheet changes the current policy of defining noncombatants as all men of military age in a strike zone “unless there is explicit intelligence posthumously proving them innocent.”

5. There must be an assessment that “capture is not feasible” at the time of the operation. It is unclear what feasibility means. The White Paper appears to indicate that “infeasible” means inconvenient.

6. There must be an assessment that relevant governmental authorities in the country where the attack is contemplated cannot or will not effectively address the “threat to US persons,” which is left undefined.

7. There must be an assessment that no other reasonable alternatives exist to address the “threat to US persons,” also left undefined.

Finally, the Fact Sheet would excuse these preconditions when the president takes action “in extraordinary circumstances” which are “both lawful and necessary to protect the United States or its allies.” There is no definition of “extraordinary circumstances.”

A few days before Obama’s speech, Attorney General Eric Holder publicly acknowledged the killing of four US citizens, only one of which – Anwar Awlaki – was actually targeted, in 2011. That means 75 percent were “collateral damage,” including Awlaki’s 16-year-old son, Abdulrahman. In his speech, after affirming that a US citizen cannot be targeted and killed without due process (arrest and trial), Obama claimed that Awlaki was involved in terrorist plots in 2009 and 2010; this is long before Obama ordered that he be killed by drone strike in 2011, which would appear to violate the “imminence” requirement. Indeed, Lt. Col. Tony Schaefer, a former Army Intelligence officer, said on MSNBC that Awlaki could have been captured but the administration made a decision to kill instead of capture him.

The use of drones and targeted assassination and the continuing existence of Guantanamo engender hatred against the United States. Farea al-Muslimi, a Yemeni man who testified before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, spoke about how his friends and neighbors reacted to a recent drone strike in his neighborhood. “Now, however, when they think of America, they think of the fear they feel at the drones over their heads. What the violent militants had failed to achieve, one drone strike accomplished in an instant.”

The Unanswered Questions

During Obama’s speech, Code Pink’s Medea Benjamin yelled out several questions before being escorted out of the room.

She asked the President:

* What about the indefinite detention?

* What about the 102 hunger strikers?

* What about the killing of 16-year-old Abdulrahman al-Awlaki? Why was he killed?

* Can you tell the Muslim people their lives are as precious as our lives?

* Can you stop the signature strikes that are killing people on the basis of suspicious activities?

* Will you apologize to the thousands of Muslims that you have killed?

* Will you compensate the innocent family victims? That will make us safer here at home.

* Can you take the drones out of the hands of the CIA?

* You are commander-in-chief. You can close Guantanamo today! You can release those 86 prisoners [cleared for release]. It’s been 11 years.

* I love my country. I love the rule of law.

* Abide by the rule of law. You’re a constitutional lawyer.

Obama responded, “I’m willing to cut the young lady who interrupted me some slack because it’s worth being passionate about. . . . The voice of that woman is worth paying attention to.” But he went on to say he obviously doesn’t agree with much of what she said. One wonders what parts he does agree with.

This article first appeared on Truthout.

May 9, 2013

Death is Preferable to Life at Obama’s Guantanamo

More than 100 of the 166 detainees at Guantanamo are starving themselves to death. Twenty-three of them are being force-fed. “They strap you to a chair, tie up your wrists, your legs, your forehead and tightly around the waist,” Fayiz Al-Kandari told his lawyer, Lt. Col. Barry Wingard. Al-Kandari, a Kuwaiti held at Guantanamo for 11 years, has never been charged with a crime.

“The tube makes his eyes water excessively and blood begins to trickle from the nose. Once the tube passes his throat the gag reflex kicks in. Warm liquid is poured into the body for 45 minutes to two hours. He feels like his body is going to convulse and often vomits,” Wingard added.

The United Nations Human Rights Council concluded that force-feeding amounts to torture. The American Medical Association says that force-feeding violates medical ethics. “Every competent patient has the right to refuse medical intervention, including life-sustaining interventions,” AMA President Jeremy Lazarus wrote to Defense Secretary Chuck Hagel. Yet President Barack Obama continues the tortuous Bush policy of force-feeding hunger strikers.

Although a few days after his first inauguration, Obama promised to shutter Guantanamo, it remains open. “I continue to believe that we’ve got to close Guantanamo,” Obama declared in his April 30 press conference. But, he added, “Congress determined that they would not let us close it.” Obama signed a bill that Congress passed which erected barriers to closure. According to a Los Angeles Times editorial, “Obama has refused to expend political capital on closing Guantanamo. Rather than veto the defense authorization bills that have limited his ability to transfer inmates, he has signed them while raising questions about whether they intruded on his constitutional authority.”

“I don’t want these individuals to die,” Obama told reporters. In fact, Obama has the power to save the hunger strikers’ lives without torturing them. Eighty-six – more than half – of the detainees remaining at Guantanamo have been cleared for release for the past three years. Section 1028(d) of the 2013 National Defense Authorization Act empowers the Secretary of Defense to approve transfers of detainees when it is in the national security interest of the United States. Fifty-six of the 86 cleared detainees are from Yemen. Yet Obama imposed a ban on releasing any of them following the foiled 2009 Christmas bomb plot by a Nigerian man who was recruited in Yemen. Obama must begin signing these certifications and waivers at once.

Indeed, Obama said in his press conference, “I think – well, you know, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe . . . It hurts us in terms of our international standing . . . It is a recruitment tool for extremists. It needs to be closed.”

In addition, Obama’s March 7, 2011 Executive Order 13567 provides for additional administrative review of detainees’ cases. The Periodic Review Board (PRB) would provide an opportunity for a detainee to challenge his continued detention. Yet Obama has delayed by more than a year PRB hearings at which other detainees could be cleared for release. Despite a requirement that the PRB begin review within one year, no PRB has yet been created. Obama should appoint an official to oversee the closure of Guantanamo and commence periodic reviews immediately so that detainees can challenge their designations and additional detainees can be approved for transfer.

Moreover, as suggested by Lt. Col. David Frakt, who represented Guantanamo detainees before the military commissions and in federal habeas corpus proceedings, Obama should direct the attorney general to inform the D.C. Circuit Court of Appeals that the Department of Justice no longer considers the cleared detainees to be detainable. Obama has blocked the release of eight cleared detainees by opposing their habeas corpus petitions. “[W]hen the Obama administration really wants to transfer a detainee, they are quite capable of doing so,” Frakt wrote in JURIST.

The Constitution Project’s Task Force on Detainee Treatment, which includes two former senior U.S. generals, and a Republican former congressman and lawyer, Asa Hutchinson, issued a report that concluded the treatment and indefinite detention of the Guantanamo detainees is “abhorrent and intolerable.” It called for the closure of the prison camp by next year.

Twenty-five former Guantanamo detainees issued a statement recommending that the American medical profession stop its complicity with abuse force-feeding techniques; conditions on confinement for detainees be improved immediately; all detainees who have not been charged be released; and the military commissions process be ended and all those be charged tried in line with the Geneva Conventions.

The detainees who are refusing food have been stripped of all possessions, including a sleeping mat and soap, and are made to sleep on concrete floors in freezing solitary cells. “It is possible that I may die in here,” said Shaker Aamer through his lawyer, Clive Stafford Smith. “I hope not, but if I do die, please tell my children that I loved them above all else, but that I had to stand up for the principle that they cannot just keep holding people without a trial, especially when they have been cleared for release.” Aamer, a British father of four, was approved for release more than five years ago.

Col. Morris Davis, who served as Chief Prosecutor for the Terrorism Trials at Guantanamo, personally charged Osama bin Laden’s driver Salim Hamdan, Australian David Hicks, and Canadian teen Omar Khadr. All three were convicted and have been released from Guantanamo. “There is something fundamentally wrong with a system where not being charged with a war crime keeps you locked away indefinitely and a war crime conviction is your ticket home,” Davis wrote to Obama.

March 19, 2013

A War of Aggression, From “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law” (2007)

According to sources inside the administration, George W. Bush was planning to invade Iraq and remove its government well before the terrorist attacks of September 11, 2001. Such an invasion violates the UN Charter, which the United States signed in 1945 after the bloodiest conflict in history. The Charter permits countries to use military force against another country only in self-defense or with Security Council permission. But the evidence indicates that the U.S.-led invasion satisfied neither condition and is therefore a war of aggression, which constitutes a Crime Against Peace – exactly the kind of war the Charter was meant to prevent.

Although Bush marketed the war in Iraq as necessary to protect us from Saddam Hussein’s weapons of mass destruction (WMD), his decisions had less to do with self-defense than with dominating the oil-rich Middle East. Some evidence for this conclusion can be found in a September 2000 report prepared by the neoconservative Project for a New American Century (PNAC). The report, commissioned by Dick Cheney, outlines a plan “to maintain American military preeminence that is consistent with the requirements of a strategy of American global leadership.” It notes that while “the unresolved conflict with Iraq provides the immediate justification, the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein.” Another document produced for Vice President Cheney’s secret Energy Task Force included a map of Iraqi oilfields, pipelines, refineries and terminals as well as charts detailing Iraqi oil and gas projects and “Foreign Suitors for Iraqi Oilfield Contracts.” That document was dated March 2001, six months before 9/11 and two years before Bush invaded Iraq.

After 9/11, the Bush administration attacked Afghanistan and removed the Taliban from power. But the primary target all along was Iraq. To sell the war to the American people, the administration made two claims and repeated them like a mantra. First, Iraq had weapons of mass destruction. Second, it had ties with al-Qaeda and was thus complicit in the 9/11 attacks. Although the administration argued that both reasons justified the use of force against Iraq, it was advised repeatedly that neither claim was valid.

No Weapons of Mass Destruction

An August 2006 report prepared at the direction of Rep. John Conyers, Jr. found that “members of the Bush Administration misstated, overstated, and manipulated intelligence with regards to linkages between Iraq and Al Qaeda; the acquisition of nuclear weapons by Iraq; the acquisition of aluminum tubes to be used as uranium centrifuges; and the acquisition of uranium from Niger.” The report also noted that “[b]eyond making false and misleading statements about Iraq’s attempt to acquire nuclear weapons, the record shows the Bush Administration must have known these statements conflicted with known international and domestic intelligence at the time.” Finding that the administration had also misstated or overstated intelligence information regarding chemical and biological weapons, the report concluded that “these misstatements were in contradiction of known countervailing intelligence information, and were the result of political pressure and manipulation.” In short, the Bush gang misrepresented the WMD threat to justify its planned invasion of Iraq.

No Connection Between Iraq and al Qaeda

On September 21, 2001, Bush was told in the President’s Daily Brief that the intelligence community had no evidence connecting Saddam Hussein’s regime to the 9/11 attacks. Furthermore, there was scant credible evidence that Iraq had any significant collaborative ties with al Qaeda. This was no surprise. Al Qaeda is a consortium of intensely religious Islamic fundamentalists, whereas Hussein ran a secular government that repressed religious activity in Iraq.

Undeterred, Bush and his people continued to tout the connection. Although the Defense Intelligence Agency (DIA) determined in February 2002 that “Iraq is unlikely to have provided bin Laden any useful [chemical or biological weapons] knowledge or assistance,” Bush proclaimed one year later, “Iraq has also provided al-Qaeda with chemical and biological weapons training.” And although the CIA concluded in a classified January 2003 report that Hussein “viewed Islamic extremists operating inside Iraq as a threat,” Cheney claimed the next day that the Iraqi government “aids and protects terrorists, including members of al-Qaeda.”

To support their claims that Iraq was training al-Qaeda members, Bush, Cheney, and Colin Powell repeatedly cited information provided by Ibn al-Shaykh al-Libi, an al-Qaeda prisoner captured shortly after 9/11. An ex-FBI official told Newsweek that the CIA “duct-taped [al-Libi’s] mouth, cinched him up and sent him to Cairo” for some “more-fearsome Egyptian interrogations” in violation of U.S. law prohibiting extraordinary rendition. Al-Libi’s account proved worthless. The February 2002 DIA memo reveals al-Libi provided his American interrogators with false material suggesting Iraq had trained al-Qaeda to use weapons of mass destruction. Even though U.S. intelligence thought the information was untrue as early as 2002 because it was obtained by torture, al-Libi’s information provided the centerpiece of Colin Powell’s now thoroughly discredited February 2003 claim before the United Nations that Iraq had developed WMD programs.

The March to War

Unable to find any WMD or connection between Iraq and the 9/11 attacks, Bush never wavered in his march toward war. “From the very beginning,” former Treasury Secretary Paul O’Neill said on 60 Minutes, “there was a conviction that Saddam Hussein was a bad person and that he needed to go. It was all about finding a way to do it. That was the tone of it. The president saying, ‘Go find me a way to do this.'”

On September 15, 2001, in a meeting at Camp David, Defense Secretary Donald Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of “good targets in Afghanistan.” Former Deputy Defense Secretary Paul Wolfowitz argued that war against Iraq might be “easier than against Afghanistan.” The 9-11 Commission Report noted that as early as September 20, 2001, Undersecretary of Defense for Policy Douglas Feith suggested attacking Iraq in response to the 9/11 attacks. In late November 2001, Bush instructed Rumsfeld to develop an Iraq war plan. “What have you got in terms of plans for Iraq?,” Bush asked. “What is the status of the war plan? I want you to get on it. I want you to keep it secret.”

In his January 2002 State of the Union Address, Bush declared that countries like Iraq, Iran, and North Korea “constitute an axis of evil . . . These regimes pose a grave and growing danger . . . I will not wait on events, while dangers gather.” As early as February 2002, the Bush administration took concrete steps to deploy military troops and assets into Iraq without advising Congress or seeking its approval. By late March, Dick Cheney told his fellow Republicans that a decision had been made to invade Iraq. The same month, Bush poked his head into Condoleezza Rice’s office and said, “Fuck Saddam. We’re taking him out.”

In July 2002, a highly classified document titled CentCom Courses of Action was leaked to the New York Times. Prepared two months earlier, it contained what the Pentagon labeled a “war plan” for invading Iraq. The document, which indicated an advanced stage of planning, called for tens of thousands of marines and soldiers to attack Iraq from the air, land, and sea to topple Saddam Hussein.

In August 2002, Cheney cautioned that Saddam Hussein could try to dominate “the entire Middle East and subject the United States to nuclear blackmail.” He added, “There is no doubt that Saddam Hussein now has weapons of mass destruction.” The same month, the Bush administration quietly established the White House Iraq Group (WHIG) to lead a propaganda campaign to bolster public support for war with Iraq.

A week before WHIG began its work in earnest, the Sunday Times of London broke the story of the “Downing Street Memo,” which contained the secret minutes of a July 2002 meeting with Tony Blair and Sir Richard Dearlove, chief of British intelligence. Dearlove reported that Bush had already decided to go to war and was making sure “the intelligence and facts” about Iraq and WMD “were being fixed around the policy” of war on Iraq.

Shortly after WHIG convened, White House officials told the New York Times there was a meticulously planned strategy to sell a war against Iraq to the American people. But the White House decided to wait until after Labor Day to kick off the plan. The reason, as explained by White House chief of staff Andrew Card, seemed straight from the pages of George Orwell’s 1984: “From a marketing point of view,” Card said, “you don’t introduce new products in August.” The new product was introduced the following month by National Security Adviser Condoleezza Rice, who warned, “We don’t want the smoking gun to be a mushroom cloud.” The same week, on the anniversary of 9/11, Bush declared the United States would “not allow any terrorist or tyrant to threaten civilization with weapons of mass murder.” The next day, in an address to the United Nations, Bush reiterated that Iraq was a “grave and gathering danger.”

Three weeks before the midterm elections, Congress gave Bush the “Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq.” The White House wanted to pass the resolution while many in Congress were facing reelection; those who opposed Bush’s war on Iraq would be painted as soft on terror. The resolution said Iraq posed a “continuing threat to the national security of the United States” by “continuing to possess and develop a significant chemical and biological weapons capability” and “actively seeking a nuclear weapons capability.” It authorized the President to use the Armed Forces to “defend the national security of the United States against the continuing threat posed by Iraq” and to “enforce all relevant United Nations Security Council Resolutions regarding Iraq.” Iraq didn’t pose a threat to the United States, and only the Security Council has the power to enforce its resolutions. But Congress capitulated to the Bush gang’s hyperbole and intense pressure. Some legislators later said they were duped by the Bush administration into voting for this resolution.

In his 2003 State of the Union address, Bush famously claimed, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” It was pure fiction. “The White House kept saying that no decision had been made about Iraq, but only the blind or the deaf could fail to see that a decision had long ago been made,” Frank Rich wrote in The Greatest Story Ever Sold.

The Real Motive

Why was Bush so determined to invade Iraq? Wolfowitz admitted that the WMD rationale was a “bureaucratic” excuse for war that everyone could agree on. When no WMD turned up, Wolfowitz revealed a new raison d’etre: the invasion of Iraq was a way to redraw the Middle East to reduce the terrorist threat to the United States.

In November 2002, Rumsfeld sought to decouple oil access from regime change in Iraq when he claimed that the U.S. beef with Iraq had “nothing to do with oil, literally nothing to do with oil.” A year later, Bush announced in his State of the Union Address, “We have no desire to dominate, no ambitions of empire.” But the denials were unconvincing, and a great deal of evidence suggests that oil and domination had everything to do with the decision to invade.

In February 2001, a month after Bush’s inauguration, White House officials discussed a memo called “Plan for Post-Saddam Iraq,” which described troop requirements, establishing war crimes tribunals, and dividing up Iraq’s oil wealth.” Meanwhile, Treasury Secretary Paul O’Neill was astonished to discover that actual plans “were already being discussed to take over Iraq and occupy it – complete with disposition of oil fields, peacekeeping forces, and war crimes tribunals – carrying forward an unspoken doctrine of preemptive war.” According to O’Neill, a preemptive attack on Iraq and the prospect of dividing the world’s second largest oil reserve among the world’s contractors “made for an irresistible combination.”

The Self-Defense Argument

Returning to the legality of the Iraq invasion and occupation, we find that the UN Charter requires all members to settle their international disputes by peaceful means. No nation can use military force against the territorial integrity or political independence of any other country. As noted earlier, the only two exceptions to this prohibition are when a nation acts in self-defense or when the Security Council authorizes the use of force. A country may use military force in individual or collective self-defense “if an armed attack occurs” against a U.N. member country or in response to an imminent attack. It is well established that the need for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

Iraq had not attacked any other nation for 11 years. It lacked both the capacity and the will to lodge an imminent attack on any country. Its military capability had been severely weakened by the Gulf War, years of punishing sanctions and intrusive inspections, and almost daily bombing raids by the United States and Britain over the “no-fly zones.”

Bush made little pretense that Iraq constituted an imminent threat. Rather, he invoked his own doctrine of “preemptive war” to justify his attack. He unveiled that doctrine in a speech at West Point in June 2002. “We must take the battle to the enemy,” Bush said, “disrupt his plans, and confront the worst threats before they emerge.” The international community was unmoved. Quite simply, the U.S. invasion of Iraq wasn’t self-defense because it didn’t respond to an armed or imminent attack.

The Security Council Never Authorized War

The UN Charter declares that no member has the right to enforce any Security Council resolution with military action unless the Council decides there has been a material breach of its resolution and all non-military means of enforcement have been exhausted. Then the Council may authorize the use of military force. The use of armed force for preemptive or retaliatory purposes is prohibited by the Charter.

Bush was never interested in achieving a diplomatic solution in Iraq. Bush tried mightily to arrange a Security Council resolution that would authorize his war, but the Council refused. Bush then cobbled together prior resolutions to rationalize his invasion. None of them, however, individually or collectively, constituted authorization for his use of force against Iraq.

Faced with Iraq’s increasing cooperation with weapons inspectors in the weeks leading up to the invasion, Bush’s rationale for disarming Iraq morphed into “regime change” to bring democracy to the Iraqi people. But forcible regime change violates the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States and therefore part of our domestic law under the Supremacy Clause of the Constitution.

Shock and Awe—and the Consequences

Despite the absence of Security Council authorization, a quarter million troops from the United States and the United Kingdom invaded Iraq in March 2003. Delivering on their promise to “shock and awe,” the “coalition forces” dropped several 2,000-pound bombs on Baghdad in rapid succession, in what the New York Times dubbed “almost biblical power.”

Since then, the use of cluster bombs, depleted uranium, and white phosphorous gas by U.S. forces in Iraq has been documented. These are weapons of mass destruction. Cluster bomb cannisters contain tiny bomblets which can spread over a vast area. Unexploded cluster bombs are frequently picked up by children and explode, resulting in serious injury or death. Depleted uranium weapons spread high levels of radiation over vast areas of land. White phosphorous gas melts the skin and burns to the bone. The Geneva Convention Relative to the Protection of Civilian Persons in time of War (Geneva IV) classifies “willfully causing great suffering or serious injury to body or health” as a grave breach. The US War Crimes Act punishes grave breaches of Geneva as war crimes. The Bush administration is committing war crimes with its use of these weapons.

“Operation Iraqi Freedom” unleashed a tragedy of immense proportion. More than 3,000 American soldiers and tens of thousands of Iraqis have been killed. Close to 7,000 Iraqi civilians were killed in July and August 2006 alone. In October 2006, the British medical journal the Lancet published a study conducted by Iraqi physicians with oversight by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health. The study estimated that 655,000 Iraqi civilians had died since Bush invaded Iraq in March 2003.

Loss of life isn’t the only shocking and awful consequence of “Operation Iraqi Freedom.” The United Nations concluded in its July-August 2006 report that bodies found “often bear signs of severe torture, including acid-induced injuries and burns caused by chemical substances, missing skin, broken bones (back, hands and legs), missing eyes, missing teeth and wounds caused by power drills or nails.”

Furthermore, “Operation Iraqi Freedom” has led to anti-American sentiment elsewhere. According to a declassified portion of the April 2006 National Intelligence Estimate, which represents the consensus of the 16 U.S. intelligence agencies, “The Iraq conflict has become the ’cause celebre’ for jihadists, breeding a deep resentment of U.S. involvement in the Muslim world and cultivating supporters for the global jihadist movement.” The report concludes, “The Iraq jihad is shaping a new generation of terrorist leaders and operatives.”

The Greatest Menace of Our Times

The Nuremberg Charter defines “Crimes Against Peace” as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” Bush’s war on Iraq is a war of aggression, and thus constitutes a Crime Against Peace.

U.S. Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. In his opening statement in 1945, Justice Jackson wrote, “No political, military, economic, or other considerations shall serve as an excuse or justification” for a war 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 be unwilling to have invoked against us.”

Following the Holocaust, the International Military Tribunal at Nuremberg 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.” Justice Jackson labeled the crime of aggression “the greatest menace of our times.” Over 50 years later, his words still ring true in Iraq.

March 1, 2013

The Uncommon Courage of Bradley Manning

Bradley Manning has pleaded guilty to 10 charges including possessing and willfully communicating to an unauthorized person all the main elements of the WikiLeaks disclosure. The charges carry a total of 20 years in prison. For the first time, Bradley spoke publicly about what he did and why. His actions, now confirmed by his own words, reveal Bradley to be a very brave young man.

When he was 22 years old, Pfc. Bradley Manning gave classified documents to WikiLeaks. They included the “Collateral Murder” video, which depicts U.S. forces in an Apache helicopter killing 12 unarmed civilians, including two Reuters journalists, and wounding two children.

“I believed if the public, particularly the American public, could see this it could spark a debate on the military and our foreign policy in general as it applied to Iraq and Afghanistan,” Bradley told the military tribunal during his guilty plea proceeding. “It might cause society to reconsider the need to engage in counter terrorism while ignoring the human situation of the people we engaged with every day.”

Bradley said he was frustrated by his inability to convince his chain of command to investigate the Collateral Murder video and other “war porn” documented in the files he provided to WikiLeaks. “I was disturbed by the response to injured children.” Bradley was bothered by the soldiers depicted in the video who “seemed to not value human life by referring to [their targets] as ‘dead bastards.’” People trying to rescue the wounded were also fired upon and killed. A U.S. tank drove over one body, cutting the man in half. The actions of American soldiers shown in that video amount to war crimes under the Geneva Conventions, which prohibit targeting civilians, preventing the rescue of the wounded, and defacing dead bodies.

No one at WikiLeaks asked or encouraged Bradley to give them the documents, Bradley said. “No one associated with the WLO [WikiLeaks Organization] pressured me to give them more information. The decision to give documents to WikiLeaks [was] mine alone.”

Before contacting WikiLeaks, Bradley tried to interest the Washington Post in publishing the documents but the newspaper was unresponsive. He tried unsuccessfully to contact the New York Times.

During his first nine months in custody, Bradley was kept in solitary confinement, which is considered torture as it can lead to hallucinations, catatonia and suicide.

Bradley maintained his not guilty pleas to 12 additional charges, including aiding the enemy and espionage, for which he could get life imprisonment.

Bradley’s actions are not unlike those of Daniel Ellsberg, whose release of the Pentagon Papers helped to expose the government’s lies and end the Vietnam War.

Marjorie Cohn is co-author of “Rules of Disengagement: The Politics and Honor of Military Dissent” (with Kathleen Gilberd). She testifies at courts-martial and military hearings about the illegality of the wars, the duty to obey lawful orders, and the duty to disobey unlawful orders.

February 19, 2013

An Interview with Marjorie Cohn about Targeted Killings

By Dennis Bernstein, Flashpoints, Pacifica Radio

DB: We continue our discussion of the revelations around a memo coming out of the Justice Department that the administration plans to keep up these assassinations and expand the program. Joining us to take a legal look at this is Marjorie Cohn, Professor at Thomas Jefferson School of Law and former President of the National Lawyers Guild. She is also the editor of “The United States and Torture: Interrogation, Incarceration, and Abuse.” Welcome back to Flashpoints, Marjorie. You say the White Paper runs afoul of international and US law. Please explain.

January 11, 2013

Zero Dark Thirty: Torturing the Facts

On January 11, eleven years to the day after George W. Bush sent the first detainees to Guantanamo, the Oscar-nominated film Zero Dark Thirty is making its national debut. Zero Dark Thirty is disturbing for two reasons. First and foremost, it leaves the viewer with the erroneous impression that torture helped the CIA find bin Laden’s hiding place in Pakistan. Secondarily, it ignores both the illegality and immorality of using torture as an interrogation tool.

The thriller opens with the words “based on first-hand accounts of actual events.” After showing footage of the horrific 9/11 attacks, it moves into a graphic and lengthy depiction of torture. The detainee “Ammar” is subjected to waterboarding, stress positions, sleep deprivation, and confined in a small box. Responding to the torture, he divulges the name of the courier who ultimately leads the CIA to bin Laden’s location and assassination. It may be good theater, but it is inaccurate and misleading.

The statement “based on first-hand accounts of actual events” is deceptive because it causes the viewer think the story is accurate. All it really means, however, is that the CIA provided Hollywood with information about events depicted in the movie. Acting CIA Director Michael Morrell wrote a letter to the Senate Select Committee on Intelligence in which he admitted the CIA engaged extensively with the filmmakers. After receiving his letter, Senators John McCain, Dianne Feinstein and Carl Levin requested information and documents related to the CIA’s cooperation.

The senators sent a letter to Morrell saying they were “concerned by the film’s clear implication that information obtained during or after the use of the CIA’s coercive interrogation techniques played a critical role in locating Usama Bin Laden (UBL).” They noted, “the film depicts CIA officers repeatedly torturing detainees. The film then credits CIA detainees subjected to coercive interrogation techniques as providing critical lead information on the courier that led to the UBL compound.” They state categorically: “this information is incorrect.”

The letter explains that after a review of more than six million pages of CIA records, Feinstein and Levin made the following determination: “The CIA did not first learn about the existence of the UBL courier from CIA detainees subjected to coercive interrogation techniques. Nor did the CIA discover the courier’s identity from CIA detainees subjected to coercive techniques. No CIA detainee reported on the courier’s full name or specific whereabouts, and no detainee identified the compound in which UBL was hidden. Instead, the CIA learned of the existence of the courier, his true name, and location through means unrelated to the CIA detention and interrogation program.”

In a speech on the Senate floor, McCain declared, “It was not torture, or cruel, inhuman, and degrading treatment of detainees that got us the major leads that ultimately enabled our intelligence community to find Osama bin Laden.” McCain added: “In fact, not only did the use of ‘enhanced interrogation techniques’ on Khalid Sheik Mohammed not provide us with the key leads on bin Laden’s courier, Abu Ahmed; it actually produced false and misleading information.”

Many high-level interrogators, including Glenn L. Carle, Ali Soufan and Matthew Alexander, report that torture is actually ineffective and often interferes with the securing of actual intelligence. A 2006 study by the National Defense Intelligence College concluded that traditional, rapport-building interrogation techniques are very effective even with the most recalcitrant detainees, but coercive tactics create resistance.

Moreover, torture is counter-productive. An interrogator serving in Afghanistan told Forbes, “I cannot even count the amount of times that I personally have come face to face with detainees, who told me they were primarily motivated to do what they did, because of hearing that we committed torture . . . Torture committed by Americans in the past continues to kill Americans today.”

Torture is also illegal and immoral – important points that are ignored in Zero Dark Thirty. After witnessing the savage beating of a detainee at the beginning of the film, the beautiful heroine “Maya” says “I’m fine.” As he’s leaving Pakistan, Maya’s colleague Dan tells her, “You gotta be real careful with the detainees now. Politics are changing and you don’t want to be the last one holding the dog collar when the oversight committee comes.”

Torture is illegal in all circumstances. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty the United States ratified which makes it part of U.S. law, states unequivocally: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The prohibition of torture is absolute and unequivocal. Torture is never lawful.

Yet despite copious evidence of widespread torture and abuse during the Bush administration, and the Constitution’s mandate that the President enforce the laws, Obama refuses to hold the Bush officials and lawyers accountable for their law breaking.

Granting impunity to the torturers combined with propaganda films like Zero Dark Thirty, which may well win multiple Oscars, dilutes any meaningful public opposition to our government’s cruel interrogation techniques. Armed with full and accurate information, we must engage in an honest discourse about torture and abuse, and hold those who commit those illegal acts fully accountable.

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Zero Dark Thirty: Torturing the Facts

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