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September 3, 2012

No Accountability for Torturers

The Obama administration has closed the books on prosecutions of those who violated our laws by authorizing and conducting the torture and abuse of prisoners in U.S. custody. Last year, Attorney General Eric Holder decided that his office would investigate only two incidents, in which CIA interrogations ended in deaths. He said the Justice Department “has determined that an expanded criminal investigation of the remaining matters is not warranted.” With that decision, Holder conferred amnesty on countless Bush officials, lawyers and interrogators who set and carried out a policy of cruel treatment. 

Now the attorney general has given a free pass to those responsible for the deaths of Gul Rahman and Manadel al-Jamadi. Rahman froze to death in 2002 after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. Al-Jamadi died after he was suspended from the ceiling by his wrists which were bound behind his back. MP Tony Diaz, who witnessed al-Jamadi’s torture, said that blood gushed from his mouth like “a faucet had turned on” when he was lowered to the ground. A military autopsy concluded that al-Jamadi’s death was a homicide.

Nevertheless, Holder announced that “based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

Amnesty for torturers is unacceptable. General Barry McCaffrey declared, “We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the CIA.” Major General Anthony Taguba, who directed the Abu Ghraib investigation, wrote that “there is no longer any doubt as to whether the [Bush] administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.” Holder has answered Taguba’s question with a resounding “no.”

Some have suggested that Holder’s decisions have been motivated by political considerations. For example, Kenneth Roth, director of Human Rights Watch, wrote that “dredging up the crimes of the previous administration was seen as too distracting and too antagonistic an enterprise when Republican votes were needed.” And closing the books on legal accountability for Bush officials may remove one more Republican attack on Obama in the next two months before the presidential election.

But the Obama administration’s decision to allow the lawbreakers to go free is itself a violation of the law. The Constitution says that the president “shall take Care that the Laws be faithfully executed.” When the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, we promised to extradite or prosecute those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.

There are two federal criminal statutes for torture prosecutions—the U.S. Torture Statute and the War Crimes Act; the latter punishes torture as a war crime. The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.

By letting American officials, lawyers and interrogators get away with torture – and indeed, murder – the United States sacrifices any right to scold or punish other countries for their human rights violations.

August 2, 2012

AUGUST 10, 2012, AT NOON: 51 YEARS AFTER THE CHEMICAL WAR BEGAN IN VIETNAM, WE SHOULD BE SILENT IN MEMORY, THEN TAKE ACTION TO REMEDY

By Jeanne Mirer and Marjorie Cohn

To take action go to http://www.vn-agentorange.org/

There are images from the U.S. War against Vietnam that have been indelibly imprinted on the minds of Americans who lived through it. One is the naked napalm-burned girl running from her village with flesh hanging off her body. Another is a photo of the piles of bodies from the My Lai massacre, where U.S. troops executed 504 civilians in a small village. Then there is the photograph of the silent scream of a woman student leaning over the body of her dead friend at Kent State University whose only crime was protesting the bombing of Cambodia in 1970. Finally, there is the memory of decorated members of Vietnam Veterans Against the War testifying at the Winter Soldier Hearings, often in tears, to atrocities in which they had participated during the war.

These pictures are heartbreaking. They expose the horrors of war. The U.S. War against Vietnam was televised, while images of the wars in Afghanistan and Iraq have intentionally been hidden from us. But what was not televised was the relentless ten years (1961-1971) of spraying millions of gallons of toxic herbicides over vast areas of South Vietnam. These chemicals exposed almost 5 million people, mostly civilians, to deadly consequences. The toxic herbicides, most notably Agent Orange, contained dioxin, one of the most dangerous chemicals known to man. It has been recognized by the World Health Organization as a carcinogen (causes cancer) and by the American Academy of Medicine as a teratogen (causes birth defects).

From the beginning of the spraying 51 years ago, until today, millions of Vietnamese have died from, or been completely incapacitated by, diseases which the U. S. government recognizes are related to Agent Orange for purposes of granting compensation to Vietnam Veterans in the United States. The Vietnamese, who were the intended victims of this spraying, experienced the most intense, horrible impact on human health and environmental devastation. Second and third generations of children, born to parents exposed during the war and in areas of heavy spraying — un-remediated “hot spots” of dioxin contamination, — suffer unspeakable deformities that medical authorities attribute to the dioxin in Agent Orange.

The Vietnamese exposed to the chemical suffer from cancer, liver damage, pulmonary and heart diseases, defects to reproductive capacity, and skin and nervous disorders. Their children and grandchildren have severe physical deformities, mental and physical disabilities, diseases, and shortened life spans. The forests and jungles in large parts of southern Vietnam were devastated and denuded. Centuries-old habitat was destroyed, and will not regenerate with the same diversity for hundreds of years. Animals that inhabited the forests and jungles are threatened with extinction, disrupting the communities that depended on them. The rivers and underground water in some areas have also been contaminated. Erosion and desertification will change the environment, causing dislocation of crop and animal life.

For the past 51 years, the Vietnamese people have been attempting to address this legacy of war by trying to get the United States and the chemical companies to accept responsibility for this ongoing nightmare. An unsuccessful legal action by Vietnamese victims of Agent Orange against the chemical companies in U.S. federal court, begun in 2004, has nonetheless spawned a movement to hold the United States accountable for using such dangerous chemicals on civilian populations. The movement has resulted in pending legislation HR 2634 – The Victims of Agent Orange Relief Act of 2011, which attempts to provide medical, rehabilitative and social service compensation to the Vietnamese victims of Agent Orange, remediation of dioxin-contaminated “hot spots,” and medical services for the children and grandchildren of U. S. Vietnam veterans and Vietnamese-Americans who have been born with the same diseases and deformities.

Using weapons of war on civilian populations violates the laws of war, which recognize the principle of distinction between military and civilian objects, requiring armies to avoid civilian targets. These laws of war are enshrined in the Hague Convention and the Nuremberg principles, and are codified in the Geneva Conventions of 1949 and the Optional Protocol of 1977, as well as the International Criminal Court statute. The aerial bombardments of civilian population centers in World Wars I and II violated the principle of distinction, as did the detonation of nuclear weapons at Hiroshima and Nagasaki on August 6 and August 9 of 1945. Hundreds of thousands of Japanese people were killed in an instant, even though Japan was already negotiating the terms of surrender.

The use of Agent Orange on civilian populations violated the laws of war and yet no one has been held to account. Taxpayers pick up the tab of the Agent Orange Compensation Fund for the U. S. Veterans at a cost of 1.52 billion dollars a year. The chemical companies, most specifically Dow and Monsanto, which profited from the manufacture of Agent Orange, paid a pittance to settle the veterans’ lawsuit to compensate them, as the unintended victims, for their Agent Orange related illnesses. But the Vietnamese continue to suffer from these violations with almost no recognition, as do the offspring of Agent Orange-exposed U.S. veterans and Vietnamese-Americans.

What is the difference between super powers like the United States violating the laws of war with impunity and the reports of killing of Syrian civilians by both sides in the current civil war? Does the United States have any credibility to demand governments and non-state actors end the killings of civilians, when through wars and drones and its refusal to acknowledge responsibility for the use of Agent Orange, the United States has and is engaging in the very conduct it publicly deplores?

In 1945, at the founding conference of the United Nations, the countries of the world determined:

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom.

If we are to avoid sinking once again into the scourge of war, we must reaffirm the principles of the Charter and establish conditions under which countries take actions that promote rather than undermine justice and respect for our international legal obligations. The alternative is the law of the jungle, where only might makes right. It is time that right makes might.

August 10th marks 51 years since the beginning of the spraying of Agent Orange in Vietnam. In commemoration, the Vietnam Agent Orange Relief and Responsibility Campaign urges you to observe 51 seconds of silence at 12 noon, to think about the horrors of wars which have occurred. We ask you to take action so as not to see future images of naked children running from napalm, or young soldiers wiping out the population of an entire village, or other atrocities associated with war, poverty, and violence around the world. We urge you to take at least 51 seconds for your action. In the United States, you can sign an orange post card to the U.S. Congress asking it to pass HR 2634. This would be a good start to assist the Vietnamese victims of Agent Orange as well as the next generations of those exposed to these dangerous chemicals in both Vietnam and the United States.

Jeanne Mirer, a New York attorney, is president of the International Association of Democratic Lawyers. Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild. They are both on the board of the Vietnam Agent Orange Relief and Responsibility Campaign.

To sign the petition, go to http://www.vn-agentorange.org/

July 18, 2012

Immigration, Racism, and the Supreme Court

The issue of immigration has been tossed about like a political football for some time. Democrats argue that migrants who have spent many years in the United States should be permitted to apply for lawful status. Republicans criticize these proposals as “amnesty.” But Congress has been unable to agree on comprehensive immigration reform.

Three and one-half years into his term, President Obama announced on June 15 a policy to halt deportations for many undocumented immigrants who came to the United States as children. They must be under age 30, have come to the United States when they were under age 16, have lived in the U.S. for at least five years, be either an honorably discharged veteran or a high school graduate, and have suffered no felony or “significant” misdemeanor convictions.

Ten days after Obama revealed his new program, the Supreme Court issued its long-awaited decision on Arizona’s SB 1070. Arizona had enacted a repressive law aimed at “attrition [of undocumented immigrants] through enforcement.” Five other states followed suit and waited as the high court considered the constitutionality of Arizona’s law.

In a victory for those who support a humane immigration policy, the Court overturned three sections of SB 1070: Arizona cannot criminalize unlawful presence in the United States, or working without papers; and the decision to arrest someone for unlawful presence in the U.S. is solely a federal issue. The Court made clear that the enforcement of immigration law is reserved to the federal government.

But unfortunately, the Court unanimously upheld the most controversial provision of SB 1070, at least for the time being. Section 2(b) requires state officers to determine the immigration status of anyone they stop, detain or arrest if they have “reasonable suspicion” the person is an undocumented immigrant. Although the Court didn’t address racial profiling in its opinion, how can this statute possibly be enforced without considering skin color, language and clothing?

Section 2(b) says that Arizona officers “may not solely consider race, color or national origin” in the enforcement of this section. But 2(b) effectively requires the consideration of race, color and national origin because it is unfathomable how a law enforcement official could avoid considering those factors in deciding whom to investigate under the new law. Even the most well-meaning officer cannot possibly determine whether an individual may be undocumented without making judgments based on apparent race, color and national origin. As Tucson Police Chief Roberto A. Villasenor noted, “It says you can’t use race and ethnicity. If you’re not paying attention to race and ethnicity, what other elements are there? . . . If it’s 95 percent based on race and ethnicity, what’s the other 5 percent? No one knows.”

The Supreme Court’s decision was apparently a compromise, leaving open the possibility of additional constitutional challenges. A majority of the Court was not prepared to rule at this point that section 2(b) will interfere with federal immigration enforcement. Future lawsuits will argue that 2(b) in practice is preempted by the federal government’s exclusive jurisdiction over immigration, and that it invariably leads to racial profiling which violates the Due Process and Equal Protection Clauses of the Constitution.

One justice who refused to compromise with his fellow justices jumped inappropriately into the political battle in his dissenting opinion. Antonin Scalia personally attacked Obama’s new policy, writing:

The president said at a news conference that the new program is “the right thing to do” in light of Congress’ failure to pass the administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing application of the Immigration Act that the president declines to enforce boggles the mind.

Aside from the impropriety of this cheap shot – which led one Washington Post columnist to call for Scalia’s resignation – the justice is wrong about Obama refusing to enforce the immigration law. There have been more deportations during the Obama presidency than in any other administration.

But to its credit, Immigration and Customs Enforcement (ICE) has directed its officials to use particular care in considering the cases of veterans, members of the armed forces, long-time lawful permanent residents, minors and elderly individuals, those present in the United States since childhood, pregnant or nursing women, victims of domestic violence and trafficking, individuals who suffer from a serious mental or physical disability, and those with serious health concerns.

After the Court issued its opinion, the Department of Homeland Security (DHS) said it will send a directive to federal agents in Arizona that they must continue to enforce the immigration law consistent with the administration’s priorities, and should not initiate deportation of those who have not committed serious crimes or are not repeat offenders.

DHS also announced it was suspending 287g joint agreements in Arizona. Under these pacts, the federal government had deputized state and local law enforcement officials to detain undocumented immigrants. The program had led to serious civil rights abuses.

Several civil rights and immigrants rights organizations have signed a letter to Janet Napolitano, Secretary of Homeland Security, urging her to terminate the 287g agreements in Alabama, Georgia, Indiana, South Carolina and Utah, the five states that have enacted laws like SB 1070. The letter also requests that DHS collect data to determine whether state and local police in all six states (including Arizona) are engaged in racial profiling and illegal detentions. This data could be helpful for future lawsuits.

In its opinion, the Court made clear that Arizona police who request an immigration status check from the federal authorities may not extend a detention longer than would normally occur merely because they have not received a response from the federal authorities.

Although the Court struck down three provisions of SB 1070, section 2(b) remains on the books. Instead of gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that leads to the targeting of non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a “states rights” approach where each state is free to enact its own racist law.

There is a hopeful sign in California, however, where the legislature recently approved a bill that prevents state police officers from turning over a detained person to federal immigration authorities unless the detainee has been convicted of a felony.

Migrants, no less than U.S. citizens, are entitled to dignity, respect, and human rights. Let us join the voices of compassion and oppose the mean-spirited actions that aim to legalize racial profiling and scapegoat immigrants. Laws like SB 1070 demean us all.

June 26, 2012

Killer Drone Attacks Illegal, Counter-Productive

By Marjorie Cohn and Jeanne Mirer

The Bush administration detained and tortured suspected militants; the Obama administration assassinates them. Both practices not only visit more hatred upon the United States; they are also illegal. Our laws and treaties prohibit torture. The Constitution forbids the government from depriving any person of life without due process of law; that is, arrest and fair trial. Yet President Obama has approved the killing of people, many of whom were not even identified before the kill order was given.

Jo Becker and Scott Shane reported in the New York Times that Obama maintains a “kill list.” After consulting with his counterterrorism adviser John O. Brennan, Obama personally makes the decision to have individuals executed. Brennan was closely identified with torture, secret prisons, and extraordinary rendition during the Bush administration. The Times story, based on interviews with three dozen current and former Obama advisers, reports that “Mr. Obama has avoided the complications of detention by deciding, in effect, to take no prisoners alive. While scores of suspects have been killed under Mr. Obama, only one has been taken into U.S. custody” because he doesn’t want to add new prisoners to Guantanamo.

The leak of the kill list angered Republicans, evidently because they believe it demonstrates Obama’s “strength” in foreign policy. Some progressives who do not fully understand the profound illegality of drone attacks find them preferable to the United States’ all out invasions of more countries. We all need to understand that the unlawful precedent the United States is setting with its use of killer drones not only undermines the rule of law; it also will prevent the United States from reasonably objecting when other countries that obtain drone technology develop “kill lists” of persons those countries believe represent threats to them.

On June 15, for the first time, Obama publicly acknowledged that his administration is engaging in “direct action” in Yemen and Somalia. Although the United States is not at war with either country, George W. Bush’s “War on Terror” has morphed into Obama’s “War on Al Qaeda.” Obama’s “war” has been used as an excuse to assassinate anyone anywhere in the world whenever the President gives the order.

But “there is not a distinct entity called Al Qaeda that provides a sound basis for defining and delimiting an authorized use of force,” according to Paul P. Pillar, deputy director of the CIA’s Counterterrorist Center from 1997 to 1999. The United States is not at war with Yemen and Somalia. Even if Obama identifies certain people living in Yemen or Somalia as members of Al-Qaeda who are desirous of committing acts of terror against the people of the United States, there is no basis in law for our government to declare war on individuals it considers a threat. The United States has legal means to indict and extradite, both under U.S. and international law.

Since 2004, some 300 drone strikes have been launched in Pakistan. Twenty percent of the resulting deaths are believed to have been civilians. The Pakistan Human Rights Commission says U.S. drone strikes were responsible for at least 957 deaths in Pakistan in 2010.

In the three and one-half years since Obama took office, between 282 and 585 civilians have been killed, including more than 60 children. “The CIA’s drone campaign has killed dozens of civilians who had gone to rescue victims or who were attending funerals,” a new report by the London-based Bureau of Investigative Journalism found.

But, according to the Times article, Obama has developed a creative way to count civilian casualties. All military-age men killed in a drone strike zone are considered to be combatants, “unless there is explicit intelligence posthumously proving them innocent.” As a result, Brennan reported last year that not one civilian had been killed during one year of strikes. An administration official recently claimed that the number of civilians killed by drone strikes in Pakistan was in the “single digits.” Three former senior intelligence officials told the Times that they couldn’t believe the number could be so low.

Obama, who has been targeting “suspected militants” (called “personality strikes”) in Pakistan, Yemen and Somalia, even killing U.S. citizens, has authorized expanded drone attacks – whenever there are suspicious “patterns of behavior” at sites controlled by a terrorist group. These are known as “signature strikes.” That means bombs are being dropped on un-identified people who are in an area where suspicious activity has taken place. This goes beyond the illegal practice of “targeted killing.” People are being killed without even being an identified target.

The administration justifies its use of armed drones with reference to the Authorization for the Use of Military Force that Congress passed just days after the September 11 attacks. In the AUMF, Congress authorized force against groups and countries that had supported the terrorist strikes. But Congress rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” Deterrence and preemption are exactly what Obama is trying to accomplish by sending robots to kill “suspected militants” or those who happen to be present in an area where suspicious activity has taken place.

Moreover, in the National Defense Authorization Act of 2012, Congress specifically declared, “Nothing in this section is intended to . . . expand the authority of the President or the scope of the Authorization for the Use of Military Force [of September 2001].”

Drone attacks also violate well-established principles of international law. A targeted killing is defined as the “intentional, premeditated, and deliberate use of lethal force . . . against a specific individual who is not in the physical custody of the perpetrator,” according to Philip Alston, former UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions. Targeted or political assassinations – sometimes known as extra-judicial executions – run afoul of the Geneva Conventions, which include willful killing as a grave breach. Grave breaches of Geneva are punishable as war crimes under the U.S. War Crimes Act.

Christof Heyns, the current UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, expressed grave concern about the targeted killings, saying they may constitute war crimes. He called on the Obama administration to explain how its drone strikes comport with international law, specify the bases for decisions to kill rather than capture particular individuals, and whether the State in which the killing takes place has given consent. Heyns further asked for specification of the procedural safeguards in place, if any, to ensure in advance of drone killings that they comply with international law. He also wanted to know what measures the U.S. government takes after any such killing to ensure that its legal and factual analysis was accurate and, if not, the remedial measures it would take, including justice and reparations for victims and their families. Although Heyns’ predecessor made similar requests, Heyns said the United States has not provided a satisfactory response.

Heyns also called on the U.S. government to make public the number of civilians collaterally killed as a result of drone attacks, and the measures in place to prevent such casualties. Once again, Heyns said the United States has not satisfactorily responded to a prior query for such information.

Likewise, UN High Commissioner for Human Rights Navi Pillay recently declared that U.S. drone attacks in Pakistan violate the international law principles of proportionality and distinction. Proportionality means that an attack cannot be excessive in relation to the anticipated military advantage sought. Distinction requires that the attack be directed only at a legitimate military target.

The United States has ratified the International Covenant on Civil and Political Rights. The ICCPR states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The Covenant also guarantees those accused of a crime the right to be presumed innocent and to a fair trial by an impartial tribunal. Targeted killings abrogate these rights.

Self defense under Article 51 of the United Nations Charter is a narrow exception to the Charter’s prohibition of the use of force or the threat of force to settle international disputes. Countries may engage in individual or collective self-defense only in the face of an armed attack. To the extent the United States claims the right to kill suspected terrorists or their allies before they act, there must exist “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case. Obama’s drone attacks do not meet this standard.

The United States’ resort to ever increasing targeted killings is a direct result of the “War on Terror” the Bush administration declared after 9/11. Bush declared a perpetual war on a tactic and claimed all Al-Qaeda and Taliban are terrorists who may be preemptively killed as a form of self defense, rather than being arrested and tried for criminal acts. Although he does not use the phrase “War on Terror,” Obama has continued and even extended this policy. It is the product of a powerful military industrial complex in the United States which sees the use of force as the first step to resolving disputes rather than a last resort, notwithstanding the strictures of the UN Charter.

This practice sets a dangerous precedent. Heyns opined that “any Government could, under the cover of counter-terrorism imperatives, decide to target and kill an individual on the territory of any State if it considers that said individual constitutes a threat.” Heyns also cited information that indicates “the attacks increasingly fuel protests among the population.” Heyns said the “lack of transparency” and “dangerous precedent” that drone attacks represent “remain of grave concern.”

Drone strikes are also counterproductive. They breed increased resentment against the United States and lead to the recruitment of more terrorists. “Drones have replaced Guantanamo as the recruiting tool of choice for militants,” Becker and Shane wrote in the Times article. They quoted Faisal Shahzad, who, while pleading guilty to trying to detonate a bomb in Times Square, told the judge, “When the drones hit, they don’t see children.” Pakistani ambassador Zamir Akram told the Geneva Forum last week that the drone attacks are illegal and violate the sovereignty of Pakistan, “not to mention being counter-productive.” He added, “thousands of innocent people, including women and children, have been murdered in these indiscriminate attacks.”

Becker and Shane noted, “[Obama’s] focus on strikes has made it impossible to forge, for now, the new relationship with the Muslim world that he had envisioned. Both Pakistan and Yemen are arguably less stable and more hostile to the United States than when Mr. Obama became president. Justly or not, drones have become a provocative symbol of American power, running roughshod over national sovereignty and killing innocents.”

Ibrahim Mothana, who wrote an op-ed in the Times titled “How Drones Help Al Qaeda,” agrees. “Drone strikes are causing more and more Yemenis to hate America and join radical militants; they are not driven by ideology but rather by a sense of revenge and despair,” Mothana observed.

It is time to halt this dangerous and illegal practice.  

Jeanne Mirer, a contributor to “The United States and Torture:Interrogation, Incarceration, and Abuse,” is an attorney in New YorkCity and president of the International Association of Democratic Lawyers.

June 25, 2012

Hope Dies at Guantánamo

The tragic case of Adnan Farhan Abdul Latif hit a dead end when the US Supreme Court issued an order refusing to hear his case last week. Latif, a Yemeni man, has been imprisoned at Guantanamo Bay since January 2002, after being detained while traveling to seek medical treatment.

Latif had suffered serious head injuries as the result of a car accident in 1994, and the Yemeni government paid for him to receive treatment in Jordan at that time. But his medical problems persisted, and in 1999 Yemen’s Ministry of Public Health recommended that Latif undergo tests, therapy and surgical procedures at his own expense. Unable to afford it, Latif said he left Yemen in 2001 with the help of a charitable worker to seek free medical treatment in Pakistan. When he was picked up in Afghanistan — on his way to Pakistan — and transferred to US custody in December 2001, Latif had his medical records with him.

After a kangaroo court proceeding, a Combatant Status Review Tribunal at Guantanamo declared Latif to be an “enemy combatant.” He was not allowed to attend the hearing, nor was he permitted to see the evidence against him. Instead of a lawyer, he was given a “Personal Representative” — a military officer who did not represent Latif’s interests.

Four years ago, the Supreme Court rejected the Bush administration’s argument that the detainees at Guantanamo had no right to contest the legality of their confinement in US courts. In Boumediene v. Bush, the Court upheld the habeas corpus rights of the detainees, saying they must be given “a meaningful opportunity” to challenge their detention.

Latif petitioned a federal district court for a writ of habeas corpus. The Obama administration opposed the petition, relying on information from an interrogation report. Large sections of the report were blacked out, so it is difficult to know exactly what the report says. But we do know that, according to the report, Latif admitted to being recruited for jihad, receiving weapons training from the Taliban and serving on the front line with other Taliban troops. Latif said his interrogators garbled his words so that their summary bears no relation to what he actually said.

In the US District Court for the District of Columbia, Judge Henry Kennedy granted Latif’s habeas petition, concluding that it could not “credit the information [in the Report] because there is serious question as to whether the [Report] accurately reflects Latif’s words, the incriminating facts in the [Report] are not corroborated, and Latif has presented a plausible alternative story to explain his travel.” It troubled Judge Kennedy that, “[n]o other detainee saw Latif at a training camp or in battle. No other detainee told interrogators that he fled from Afghanistan to Pakistan, from Tora Bora or any other location, with Latif. No other type of evidence links Latif to Al Qaeda, the Taliban, a guest house, or a training camp.”

Particularly significant to Judge Kennedy was that the “fundamentals [of Latif’s story] have remained the same.” More than a dozen interrogation summaries and statements contained “[Latif’s] adamant denials of any involvement with al Qaida [sic] or the Taliban; his serious head injury from a car accident in Yemen; his inability to pay for the necessary medical treatment; and his expectation and hope that [the charitable worker] would get him free medical care.”

Judge Kennedy also reasoned that errors in the report support “an inference that poor translation, sloppy note taking . . . [blacked out] . . . or some combination of those factors resulted in an incorrect summary of Latif’s words.” The fact that Latif was found in possession of his medical papers when seized, according to the judge, “corroborat[ed]” Latif’s “plausible” story.

The government appealed the district court ruling to the conservative US Court of Appeals for the District of Columbia Circuit, which reversed the grant of habeas corpus. The appellate court admitted that the interrogation report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted [parts blacked out] for national security purposes.” But for the first time, the DC Circuit held that government reports must be accorded a “presumption of regularity.” That means they will be presumed to be true unless the detainee can rebut that
presumption.

Judge Janice Rogers Brown, who wrote the opinion for the two judges in the majority on the three-judge appellate panel, twisted Boumediene’s statement that “innovation” could be used in habeas corpusproceedings into a “presumption of regularity” in government reports. Judge Brown criticized “Boumediene’s airy suppositions.”

The dissenting appellate judge, David S. Tatel, noted that, in practice, the presumption of regularity will compel courts to rubber-stamp government detentions because “it suggest[s] that whatever the government says must be true.” He concluded that the report in Latif’s case was inherently unreliable because “it contain[s] multiple layers of hearsay.” Judge Tatel accused the majority of denying Latif the “meaningful opportunity” to contest the lawfulness of his detention that Boumediene guarantees.

When seven detainees whose petitions had been denied by the DC Circuit, including Latif, took their cases to the Supreme Court, they hoped the high court would do justice. During the Bush administration, the Court had struck down illegal and unjust executive policies. These included the denial of habeas corpus rights to Guantanamo detainees, the refusal to afford due process to US citizens caught in the “war on terror” and theholding of military commissions because they violated the Uniform Code of Military Justice and theGeneva Conventions.

But hope for justice died last week when the Court refused to even consider the propriety of the appellate court’s denial of habeas corpus to those seven detainees. Henceforth, detainees who lose in the DC Circuit cannot expect the Supreme Court to give them relief. Their last stop will be at one of the most right-wing circuits in the country, which overturns or delays all release orders by federal judges if the government objects.

The Supreme Court’s refusal to review the appellate court decisions in these cases has rendered Boumedienea dead letter. Since 2008, two-thirds of detainees who have filed habeas corpus petitions have won at the district court level, yet not one of them has been released by judicial order. Judge Tatel wrote that “it is hard to see what is left of the Supreme Court’s command in Boumediene that habeas review be ‘meaningful.'”

Like many men at Guantanamo, Latif went on a hunger strike to assert the only power he had in the face of utter hopelessness — the power to refuse food. He was force-fed for three months, which, he says, “is like having a dagger shoved down your throat.” As attorney Marc D. Falkoff writes in his chapter about Latif inThe United States and Torture: Interrogation, Incarceration, and Abuse, “[t]he United Nations Commission on Human Rights calls this torture.”

Of the 800 men and boys held at Guantanamo since 2002, 169 remain. Of those prisoners, 87 have had their release approved by military review boards established during the Bush administration, and later by the Guantanamo Review Task Force established by President Obama in 2009. Yet they continue to languish in the prison camp.

In her opinion, Judge Brown wrote, “Luckily, this is a shrinking category of cases. The ranks of Guantanamo detainees will not be replenished.” Indeed, Obama has sent only one new prisoner to Guantanamo. His strategy is to assassinate “suspected militants” or people present in “suspicious areas” with drones, obviating the necessity of incarcerating them and dealing with their detention in court. As Judge Brown ominously observed, “Boumediene’s logic is compelling: take no prisoners. Point taken.”

This piece first appeared on Jurist.

May 21, 2012

Romney the Bully

Last week, I was invited to speak to 40 high school freshman about human rights. When we discussed the right to be free from torture, I asked the students if they could think of an example of torture. They said, “bullying.” A major problem among teens, bullying can lead to depression, and even suicide. When most people list the qualities they want to see in their President, “bully” is not one of them.

Yet evidence continues to emerge that Mitt Romney is a bully. When he was a high school senior at the prestigious Cranbrook School, Romney orchestrated and played the primary role in forcibly pinning fellow student John Lauber to the ground and clipping the terrified Lauber’s hair. The soft-spoken Lauber, it seemed, had returned from spring break with bleached-blond hair draped over one eye. Romney, infuriated, declared, “He can’t look like that. That’s wrong. Just look at him!” Lauber eyes filled with tears as he screamed for help. One of the other students in the dorm at the time, said, “It was a hack job . . . It was vicious.”

But instead of owning up to his stupidity and expressing regret at his bullying attack on Lauber, Romney told Fox News that he didn’t remember the incident, although he apologized for his pranks that “might have gone too far.” It’s hard to believe that Romney cannot recall an incident that others who assisted in the attack have regretted for years. Or perhaps there were so many more that he doesn’t recall this one.

Lauber wasn’t the only student Romney harassed. Gary Hummel, a gay student who had not yet come out, says Romney shouted, “Atta girl!” when Hummel spoke out in English class. Once again, Romney claims he doesn’t remember that insult.

In still another high school incident, Romney caused English teacher Carl Wonnberger, who had severe vision problems, to smack into a closed door, after which Romney laughed hysterically.

While these episodes demonstrate cruelty, one might dismiss them as the work of an immature high school prankster. But, unfortunately, Romney’s bullying didn’t end in high school. Romney is now famous for driving to Canada with the family dog caged and strapped to the roof of his car.

Moreover, Romney made a career of bullying when he was head of private equity firm Bain Capital. Bain would invest in companies, load them up with debt, and then sell them for huge profits. The companies often had to lay off workers and sometimes were forced into bankruptcy.

The Wall Street Journal found that of the 77 companies in which Bain invested while Romney headed it from 1984 to 1999, 22 percent filed for bankruptcy or went out of business. In addition, Bain hid its profits in tax havens.

William D. Cohan, a Wall Street deal-adviser for 17 years, wrote in the Washington Post: “Seemingly alone among private-equity firms,” Bain Capital under Romney’s leadership “was a master at bait-and-switching Wall Street bankers to get its hands on the companies that provided the raw material for its financial alchemy.” Cohan said Bain “did all that it could to game the system.”

For 28 years, Joe Soptic was a steelworker at Worldwide Grinding Systems. Soptic told Amy Goodman that after the company was bought out in 1993, his wife had to quit working, she didn’t have health insurance, and he couldn’t afford to buy it after his salary was reduced from $59,000 to $24,800 annually. When his wife became ill with cancer, she went to a county hospital. When she died, he said, “I had this big bill.” Soptic was forced to liquidate his 401(k)s, which are now gone. He lost his job after the company declared bankruptcy under the control of Bain. While 750 workers lost their jobs, Bain made billions of dollars in profit. Bain denied workers the severance pay and health insurance they had been promised, and their retirement benefits were reduced by as much as $400 a month.

Randy Johnson had worked for nine years at an office supply factory in Marion, Indiana, when American Pad and Paper, which had been acquired by Bain, bought out the factory in 1994. Johnson was hired back, but without a union contract. He lost his pension plan, and his wages and benefits were reduced. After an unsuccessful effort to negotiate a contract, the plant closed. Johnson and more than 250 of his fellow workers were fired. Johnson, who had tried to get Romney’s attention during the labor dispute, said, “I really think [Romney] didn’t care about the workers. It was all about profit over people.”

A bully does not care whom he may hurt by his tormenting behavior. He intimidates the vulnerable for his own benefit, or amusement. He lacks compassion. Romney fits this profile.

March 25, 2012

International Association of Democratic Lawyers Opposes Military Force Against Syria and Iran

The International Association of Democratic Lawyers (IADL), a non-governmental organization having consultative status with the United Nations (UN) Economic and Social Council (ECOSOC), is dedicated to uphold international law, particularly the peaceful resolution of disputes as set forth in the UN Charter and basic human rights instruments.

IADL notes with concern that while the UN Human Rights Council is on the verge of adopting a new, updated declaration on the Human Right to Peace, the major Western powers are poisoning the atmosphere by creating hysteria to wage war against Syria and Iran. The IADL condemns in the strongest possible terms these threats to international peace and security which are prohibited by the UN Charter and the doctrine of jus cogens.

IADL is alarmed by the events occurring in Syria. Media reports show mounting levels of violence by both government forces and defected army units and other armed gangs. The violence is taking a heavy toll, leaving hundreds of people dead, and thousands wounded and traumatized with dramatic effects particularly on women, children and innocent civilians. This must be stopped immediately, by resort to peaceful, diplomatic means, to help the Syrian people stop the violence.

IADL strongly condemns the killing of civilians under any circumstances. The targeting of civilians violates the Geneva Conventions and the International Covenant on Civil and Political Rights (ICCPR). Those States that violate these laws must be held accountable.

The UN Charter commands that all Members settle their international disputes by peaceful means, to maintain international peace, security, and justice. Members must also refrain from the threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the purposes of the United Nations. The Charter does not permit the use of military force under the pretext of humanitarian intervention.

Western countries and the mainstream media are advocating military intervention in Syria using the Responsibility to Protect doctrine as a justification.

The Responsibility to Protect is contained in the General Assembly’s Outcome Document of the 2005 World Summit. It is not enshrined in any international instrument. Paragraph 139 says that the international community, through the UN, has “the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

Chapter VI of the Charter requires parties to a dispute likely to endanger the maintenance of international peace and security to “first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” Chapter VIII governs “regional arrangements,” such as the Arab League, and the African Union. It specifies that regional arrangements “shall make every effort to achieve pacific settlement of local disputes through such regional arrangements . . .”

It is only when peaceful means have been tried and proved inadequate that the Security Council can resort to forceful action under Chapter VII of the Charter. That action includes boycotts, embargoes, severance of diplomatic relations, and even military blockades or operations by air, sea or land. Chapter VII only authorizes the Council to order these forceful measures in order to maintain or restore international peace and security, not to restore domestic order within a state such as Syria.

NATO’s military invasion of Libya sought to be justified by reference to the Responsibility to Protect doctrine. The Security Council passed Resolution 1973, which begins with the call for “the immediate establishment of a ceasefire.” The resolution authorizes UN Member States “to take all necessary measures . . . to protect civilians and civilian populated areas” of Libya.

But rather than pursuing an immediate ceasefire, immediate military action was taken instead. The military force exceeded the bounds of the “all necessary measures” authorization. “All necessary measures” should first have been peaceful measures to settle the conflict. Yet peaceful means were not exhausted before the military invasion began. A high level international team – consisting of representatives from the Arab League, the African Union, and the UN Secretary General – should have been dispatched to Tripoli to attempt to negotiate a real cease-fire, and set up a mechanism for elections and for protecting civilians.

IADL categorically opposes any foreign intervention – including economic, political, and military interference – in the internal affairs of the Syrian people. IADL further calls for an immediate end to violence from all sides to the conflict, and a peaceful resolution of the dispute, in accordance with the UN Charter.

IADL is also extremely alarmed at threats of war against Iran from the leaders of Israel and the United States. Israeli Prime Minister Benjamin Netanyahu maintains that Iran is developing nuclear weapons despite evidence to the contrary.

Both the UN International Atomic Energy Agency (IAEA) and the 2011 U.S. National Intelligence Estimate have found no evidence that Iran is developing a nuclear weapons program. Under the 1968 Nuclear Non-Proliferation Treaty (NPT), Iran has the legal right to produce nuclear power for peaceful purposes.

IADL strongly condemns the position that Israel has a sovereign “right” to take unilateral military action against Iran. Article 2 of the Charter requires the peaceful settlement of international disputes.

A state can use military force against another state in only two situations. First, under Article 51 of the Charter, a state can act in individual or collective self-defense to respond to an attack against a UN member state. A state can act in self-defense only until the Security Council becomes seized of the matter.

Iran has not attacked any country in some 200 years. Iran is not a threat to Israel’s security. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the UN General Assembly. IADL condemns the position of the United States that it will not hesitate to attack with military force to “prevent” it from acquiring a nuclear weapon.

The other exception to the Charter’s prohibition on the use of military force is when the Security Council approves the armed intervention. The Council has not sanctioned an armed attack on Iran.

Security Council Resolution 687, that ended the first Gulf War, requires a weapons-of-mass-destruction-free zone in the Middle East. Israel, which reportedly has an arsenal of 200-400 nuclear weapons, stands in violation of that resolution. Israel refuses to sign the NPT, thus avoiding inspections by the IAEA.

Last month, Iran offered to restart negotiations with the United States, Russia, China, France, Britain and Germany regarding its nuclear program. Israel’s position is that Iran must halt all uranium enrichment and the suspension must be verified by the IAEA before negotiations with Iran can resume. This is unacceptable as Iran has a legal right to enrich uranium for peaceful purposes.

IADL opposes threats of war by Israel and the United States. IADL calls on all parties to negotiate a peaceful, diplomatic solution to the crisis. Iran should be allowed to continue limited enrichment on Iranian soil under strict monitoring by the IAEA.

IADL urges all states and peoples in the region to live in mutual respect according to the principles of the UN Charter.

IADL urges the international community to uphold international law, in particular the principles of the UN Charter, and work to realize the Human Right to Peace.

Marjorie Cohn is deputy secretary general of the International Association of Democratic Lawyers.

January 31, 2012

The Haditha Massacre: No Justice for Iraqis

“They ranged from little babies to adult males and females.
I’ll never be able to get that out of my head. I can still smell the blood.
This left something in my head and heart.”
-Lance Cpl. Roel Ryan Briones

Last week, Staff Sgt. Frank Wuterich was sentenced to a reduction in rank but no jail time for leading his squad in a rampage known as “The Haditha Massacre.” Wuterich, who was charged with nine counts of manslaughter, pled guilty to dereliction of duty. Six other Marines have had their charges dismissed and another was acquitted for his part in the massacre.

What was the Haditha Massacre? On November 19, 2005, US Marines from Kilo Company, Third Battalion, First Marine Division killed 24 unarmed civilians in Haditha, Iraq, execution-style, in a three to five hour rampage. One victim was a 76-year-old amputee in a wheelchair holding a Koran. A mother and child bent over as if in prayer were also among the fallen. “I pretended that I was dead when my brother’s body fell on me and he was bleeding like a faucet,” said Safa Younis Salim, a 13-year-old girl who survived by faking her death. Other victims included six children ranging in age from 1 to 14. Citing doctors at Haditha’s hospital, The Washington Post reported, “Most of the shots … were fired at such close range that they went through the bodies of the family members and plowed into walls or the floor.”

The executions of 24 unarmed civilians were apparent retaliation for the death of Lance Cpl. Miguel Terrazas when a small Marine convoy hit a roadside bomb earlier that day. A statement issued by a US Marine Corps spokesman the next day claimed: “A US Marine and 15 civilians were killed yesterday from the blast of a roadside bomb in Haditha. Immediately following the bombing, gunmen attacked the convoy with small-arms fire. Iraqi army soldiers and Marines returned fire, killing eight insurgents and wounding another.” A subsequent Marine version of the events said the victims were killed inadvertently in a running gun battle with insurgents.

Both of these stories were false, and the Marines knew it. They were blatant attempts to cover up the atrocity, disguised as “collateral damage.” Congressman John Murtha, a former Marine, was briefed on the Haditha investigation by Marine Corps Commandant Michael Hagee. Murtha said, “The reports I have from the highest level: No firing at all. No interaction. No military action at all in this particular incident. It was an explosive device, which killed a Marine. From then on, it was purely shooting people.” Marine Corps officials told Murtha that troops shot a woman “in cold blood” as she was bending over her child begging for mercy. Women and children were in their nightclothes when they were killed.

The Haditha Massacre did not become public until Time magazine ran a story in March 2006. Time had turned over the results of its investigation, including a videotape, to the US military in January. Only then did the military launch an investigation. These Marines “suffered a total breakdown in morality and leadership, with tragic results,” a US official told the Los Angeles Times.

Murtha said, “Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood.” Many of our troops suffer from post-traumatic stress disorder, or PTSD. Lance Cpl. Roel Ryan Briones, a Marine in Kilo Company, did not participate in The Haditha Massacre. T.J. Terrazas was his best friend. Briones, who was 20 years old at the time, saw Terrazas after he was killed. “He had a giant hole in his chin. His eyes were rolled back up in his skull,” Briones said of his buddy. “A lot of people were mad,” Briones said. “Everyone had just a [terrible] feeling about what had happened to T.J.”

After the massacre, Briones was ordered to take photographs of the victims and help carry their bodies out of their homes. He is still haunted by what he had to do that day. Briones picked up a young girl who was shot in the head. “I held her out like this,” he said, extending his arms, “but her head was bobbing up and down and the insides fell on my legs.” “I used to be one of those Marines who said that post-traumatic stress is a bunch of bull,” said Briones, who has gotten into serious trouble since he returned home. “But all this stuff that keeps going through my head is eating me up. I need immediate help.”

Murtha told ABC there was “no question” the US military tried to “cover up” the Haditha incident, which Murtha called “worse than Abu Ghraib.” His high-level briefings indicated to him that the cover-up went “right up the chain of command.”

The Bush administration set rules of engagement that resulted in the willful killing and indiscriminate slaughter of civilians. In particular, U.S. troops in Iraq operated in “free-fire zones,” with orders to shoot everything that moves. Attacks in civilian areas resulted in massive civilian casualties, which the Bush administration casually called “collateral damage.”

Like other grave breaches of the Geneva Conventions, these acts of summary execution and willful killing are punishable under the US War Crimes Act. Commanders have a responsibility to make sure civilians are not indiscriminately harmed and that prisoners are not summarily executed. Because rules of engagement are set at the top of the command chain, criminal liability extends beyond the perpetrator under the doctrine of command responsibility. George W. Bush, Dick Cheney, and Donald Rumsfeld should be charged with war crimes.

A few days after the story of The Haditha Massacre became public, US forces killed eleven civilians after rounding them up in a room in a house in Ishaqi near Balad, Iraq, handcuffing and shooting them. The victims ranged from a 75-year-old woman to a six-month-old child, and included three-year-olds and five-year-olds and three other women as well. A report by the US military found no wrongdoing by the US soldiers.

Allegations that US troops have engaged in summary executions and willful killing in Iraq have also emerged from other Iraqi cities, including Qaim, Abu Ghraib, Taal Al Jal, Mukaradeeb, Mahmudiya, Hamdaniyah, Samarra, and Salahuddin. There are similar accusations stemming from incidents in Afghanistan as well.

Many people in Iraq are outraged as the legal books close on The Haditha Massacre. They are also perturbed at the US drones flying over Iraqi skies in Baghdad to protect the largest US embassy in the world that, even after the United States “pulled out” of Iraq, still houses 11,000 Americans protected by 5,000 mercenaries. “Our sky is our sky, not the U.S.A.’s sky,” Adnan al-Asadi, acting Iraqi interior minister, said. The US military left Iraq because the Iraqis refused to grant US soldiers immunity for crimes like those at The Haditha Massacre.

The 24 Haditha victims are buried in a cemetery called Martyrs’ Graveyard. Graffiti on the deserted house of one of the families reads, “Democracy assassinated the family that was here.”

January 17, 2012

Pressure Israel, Not Iran

Neocons in Israel and the United States are escalating their rhetoric to prepare us for war with Iran. Even the infamous John Yoo, architect of George W. Bush’s illegal torture and spying programs, is calling on the Republican presidential candidates to “begin preparing the case for a military strike to destroy Iran’s nuclear program.”

Under the 1968 Nuclear Non-Proliferation Treaty (NPT), Iran has the legal right to produce nuclear power for peaceful purposes. The United Nations International Atomic Energy Agency (IAEA) has found no evidence that Iran is developing a nuclear weapons program. Defense Secretary Leon Panetta recently said on CBS that Iran is not currently trying to build a nuclear weapon.

Nevertheless, the United States and Israel are mounting a campaign of aggression against Iran. The United States has imposed punishing sanctions against Iran that are crippling Iran’s economy, and pressuring other countries and strong-arming financial institutions to stop buying oil from Iran, the world’s third largest exporter. The Obama administration is also preparing new punitive measures that target the Central Bank of Iran. And the House of Representatives voted overwhelmingly to pass the Iran Threat Reduction Act of 2011 which would outlaw any contact between U.S. government employees and some Iranian officials.

There is also evidence that Israel, with the possible assistance of the United States, has orchestrated the assassinations of at least five Iranian nuclear scientists or engineers since 2007. The New York Times reported: “The campaign, which experts believe is being carried out mainly by Israel, apparently claimed its latest victim on [January 11] when a bomb killed a 32-year-old nuclear scientist in Tehran’s morning rush hour.” These assassinations constitute acts of terrorism. There have also been cyber-attacks on Iranian centrifuges and an explosion at a missile facility last year that killed a senior general and 16 other people.

These acts of aggression are designed to provoke Iran to retaliate, including possibly closing the Strait of Hormuz, which will spark a war that could spread to the entire Middle East.

In addition, the United States has shifted combat troops and warships to the Middle East, and supplied Israel with bunker-busting bombs. Moreover, President Barack Obama has deployed 9,000 U.S. troops to Israel to participate later this year with thousands of Israeli troops in “war games” to test the U.S./Israeli air defense system; this exercise will be the largest ever joint drill between the two countries. Panetta said the exercise is designed “to back up our unshakable commitment to Israel’s security.”

Iran is not a threat to Israel’s security. Iran has not attacked any country in some 200 years. In 1953, the CIA engineered a coup that replaced a democratic government in Iran with the vicious Shah. He ruled Iran with an iron hand for 25 years, wreaking torture and terror on Iranians while keeping Iran open to Western investment. When I visited Iran in 1978 as a human rights observer, there were dozens of U.S. corporations in downtown Tehran. One year later, the chickens came home to roost. The Iranian revolution overthrew the Shah, replacing him with a tyrannical theocracy that continues to violate the rights of the Iranian people. But that does not mean that Iran, if it does obtain nuclear weapons, will attack Israel. The Iranian government knows that Israel and the United States would retaliate with unimaginable military force that would devastate Iran and much of the Middle East.

Article 2 of the United Nations Charter requires the peaceful settlement of international disputes between Iran and the United States. Both the U.S. and Iran are signatories of the Kellogg-Briand Peace Pact of 1928, which states, “The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.” Yet the United States has been illegally threatening war against Iran, dating back to the administration of President George W. Bush.

Security Council Resolution 687, that ended the first Gulf War, requires a weapons-of-mass-destruction-free zone in the Middle East. Israel, which reportedly has an arsenal of 200-300 nuclear weapons, stands in violation of that resolution. Israel refuses to sign the NPT, thus avoiding inspections by the IAEA. As Shibley Telhami and Steven Kull advocate in a recent op-ed in the Times, we should work toward a nuclear weapons-free zone in the Middle East, and that includes Israel. They cite a poll in which 65 percent of Israeli Jews think it would be best if neither Israel nor Iran had the bomb, even if that means Israel giving up its nukes.

AIPAC (American Israel Public Affairs Committee), the Israel lobby in the United States, has tremendous support in the U.S. Congress. Even Zionist Thomas Friedman wrote in the Times last month that the standing ovation Israeli Prime Minister Benjamin Netanyahu got in Congress “was bought and paid for by the Israel lobby.” AIPAC also exerts considerable pressure on Obama to be tough on Iran. When the new Chairman of the joint Chiefs of Staff and the new head of CENTCOM told Obama late last year they were disappointed that he was not firmly opposing an Israeli strike on Iran, Obama replied that he “had no say over Israel” because “it is a sovereign country.”

Obama does indeed have a say – a strong say – over Israel. The United States has pledged $30 billion to Israel over the next 10 years. Obama should inform his counterparts in Israel that if it launches a military attack on Iran, the U.S. will withhold foreign aid from Israel. Although pressure from the neocons to support an Israeli attack on Iran will increase as the presidential elections draws near, Obama has a legal duty to refrain from actions that will lead to war with Iran.

Additionally, the U.N. Security Council, which has the duty to prevent threats to international peace and security, should order Israel and the United States to cease their aggressive provocation against Iran.

The same voices who brought us the illegal, tragic, and ill-advised war with Iraq will continue to try to dominate the national conversation with battle cries against Iran. It is up to us to prevail upon our elected officials to avoid a tragic conflagration in Iran by pressuring Israel to cease and desist.

January 15, 2012

Close the Guantánamo Gulag

Travelers to Cuba and music lovers are familiar with the song “Guantanamera”— literally, the girl from Guantánamo. With lyrics by José Martí, the father of Cuban independence, Guantanamera is probably the most widely known Cuban song. But Guantánamo is even more famous now for its U.S. military prison. Where “Guantanamera” is a powerful expression of the beauty of Cuba, “Gitmo” has become a powerful symbol of human rights violations—so much so that Amnesty International described it as “the gulag of our times.”

That description can be traced to January 2002, when the base received its first 20 prisoners in shackles. General Richard B. Myers, chairman of the Joint Chiefs of Staff, warned they were “very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down.” We now know that a large portion of the 750 plus men and boys held there posed no threat to the United States. In fact, only five percent were captured by the United States; most were picked up by the Northern Alliance, Pakistani intelligence officers, or tribal warlords, and many were sold for cash bounties.

The Guantánamo story starts in 1903, when the U.S. Army occupied Cuba after its war of independence against Spain. The Platt Amendment, which granted the United States the right to intervene in Cuba, was included in the Cuban Constitution as a prerequisite for the withdrawal of U.S. troops from the rest of Cuba. That provision provided the basis for the 1903 Agreement on Coaling and Naval Stations, which gave the United States the right to use Guantánamo Bay “exclusively as coaling or naval stations, and for no other purpose.”

In 1934, President Franklin D. Roosevelt signed a new treaty with Cuba that allows the United States to remain in Guantánamo Bay until the U.S. abandons it or until both Cuba and the United States agree to modify their arrangement. According to that treaty, “the stipulations of [the 1903] agreement with regard to the naval station of Guantánamo shall continue in effect.” That means Guantánamo Bay can be used only for coaling or naval stations. Additionally, article III of the 1934 treaty provides that the Republic of Cuba leases Guantánamo Bay to the United States “for coaling and naval stations.” Nowhere in either treaty did Cuba give the U.S. the right to utilize Guantánamo Bay as a prison camp.

It is no accident that President George W. Bush chose Guantánamo Bay as the site for his illegal prison camp. His administration maintained that Guantánamo Bay is not a U.S. territory, and thus, U.S. courts are not available to the prisoners there. But, as the Supreme Court later affirmed, the United States, not Cuba, exercises exclusive jurisdiction over Guantánamo Bay. Amanda Williamson, a spokeswoman in the Red Cross’ Washington office, noted that prisoners at Guantánamo “have been placed in a legal vacuum, a legal black hole.” Amnesty International went further, noting an obvious gap between U.S. rhetoric and practice: “Given the USA’s criticism of the human rights record of Cuba, it is deeply ironic that it is violating fundamental rights on Cuban soil, and seeking to rely on the fact that it is on Cuban soil to keep the U.S. courts from examining its conduct.”

Although the Convention Against Torture, a treaty the United States has ratified, forbids the use of coercion under any circumstances to obtain information, prisoners released from Guantánamo have detailed assaults, prolonged shackling in uncomfortable positions, sexual abuse, and threats with dogs. Mustafa Ait Idr, an Algerian citizen who was living in Bosnia when he was sent to Guantánamo, charged that U.S. military guards jumped on his head, resulting in a stroke that paralyzed his face. They also broke several of his fingers and nearly drowned him in a toilet. Mohammed Sagheer, a Pakistani cleric, claimed the wardens at Guantánamo used drugs “that made us senseless.” French citizen Mourad Benchellali, released from Guantánamo in July 2004, said, “I cannot describe in just a few lines the suffering and the torture; but the worst aspect of being at the camp was the despair, the feeling that whatever you say, it will never make a difference.” Benchellali added, “There is unlimited cruelty in a system that seems to be unable to free the innocent and unable to punish the guilty.”

Australian lawyer Richard Bourke, who has represented many of the men incarcerated at Guantánamo, charged that prisoners have been subjected to “good old-fashioned torture, as people would have understood it in the Dark Ages.” According to Bourke, “One of the detainees had described being taken out and tied to a post and having rubber bullets fired at them. They were being made to kneel cruciform in the sun until they collapsed.” Abdul Rahim Muslimdost, an Afghan who was released from Guantánamo in April 2005, said he suffered “indescribable torture” there.

U.S. and international bodies have verified reports of torture and abuse. Physicians for Human Rights found that “the United States has been engaged in systematic psychological torture of Guantánamo detainees” at least since 2002. FBI agents saw female interrogators forcibly squeeze male prisoners’ genitals and witnessed detainees stripped and shackled low to the floor for many hours. In February 2006, the United Nations Human Rights Commission reported that the violent force-feeding of detainees by the U.S. military at Guantánamo amounts to torture.

The very existence of the Guantánamo prison camp harms America’s international reputation. A January 2005 editorial in Le Monde concluded, “The simple truth is that America’s leaders have constructed at Guantánamo Bay a legal monster.” Moreover, it has created more enemies of the United States. Writing for the New York Times, Somini Sengupta maintained that Guantánamo Bay has been a setback in the war on terror insofar as it has “emerged as a symbol of American hypocrisy.”

The list of Guantánamo critics is a long one. Archbishop Desmond Tutu dubbed it a stain on the character of the United States. Former U.N. Secretary General Kofi Annan said the United States must close the camp as soon as possible. The Economist called for the facility to be dismantled, described the treatment of the prisoners there as “unworthy of a nation which has cherished the rule of law since its very birth,” and claimed it “has alienated many other governments at a time when the effort to defeat terrorism requires more international co-operation in law enforcement than ever before.” The National Lawyers Guild, Association of American Jurists, Inter-American Commission on Human Rights, and Amnesty International have all called for closing the prison camp and releasing or charging prisoners with criminal offenses in accordance with international legal norms.

In addition to legal and political problems with Guantánamo, there are enormous human costs to consider. Attorney Joseph Margulies has been to death row in six states and watched his client be executed. But as he noted, “I have never been to a more disturbing place than the military prison at Guantánamo Bay. It is a place of indescribable sadness, where the abstract enormity of ‘forever’ becomes concrete: this windowless cell; that metal cot; those steel shackles.”

Indeed, Army Col. Terry Carrico, the first warden at Guantánamo, complained that when he was there, the men were held in “basically outdoor cages,” adding, “It’s what you would normally find in a veterinarian’s facilities to hold animals.” Carrico said “very few” of the men imprisoned during his tenure had useful intelligence. He favors closing Guantánamo, but doubts that will ever happen.

President Barack Obama said a year ago that he was committed to closing Guantánamo because it was a symbol that was “probably the No. 1 recruiting tool” on terrorist websites. But Obama signed the National Defense Authorization Act (NDAA), which bars any transfer of detainees to U.S. prisons, even for trial. The act also restricts the President’s authority to transfer detainees to other countries. Of the 171 men remaining at Guantánamo, 89 have been cleared for release by a review conducted by the CIA, FBI, military, and Department of Homeland Security. But those men will likely die at Guantánamo because Obama refused to put the brakes on Congress’s use of the issue as a political football in the NDAA.

In a recent op-ed in The New York Times, Harvard lecturer Jonathan M. Hansen wrote, “It is past time to return this imperialist enclave to Cuba,” adding, “It has served to remind the world of America’s long history of interventionist militarism.”

Obama should heed Hansen’s words. For the abiding presence of the Guantánamo gulag is not simply illegal and immoral. It also continues to be a symbol of U.S. hypocrisy, and makes us a target for more terrorist attacks.