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February 9, 2002

Bush and The Geneva Convention: Begging the Question

In a striking example of double-talk, President George W. Bush has announced that the United States will apply the Geneva Convention to the captured Taliban fighters in Guantanamo, but won’t classify them as prisoners of war. This is like being half pregnant. The Geneva Convention Relative to the Treatment of Prisoners of War spells out how prisoners of war must be treated. Bush’s statement that he will apply the Geneva Convention to the Taliban prisoners is tantamount to a declaration that they are POWs.

Bush says his decision will result in “no change” in the treatment of the captives, because they’re already generally being treated consistent with the Geneva Convention. Bush’s non-decision is admittedly calculated to remind other rogue nations who might capture U.S. fighters that our soldiers must be granted the protections of the Geneva rules.

The Geneva Convention Relative to the Treatment of Prisoners of War requires that the status of captured persons be determined by a “competent tribunal” should “any doubt arise” about whether they are prisoners of war. Meanwhile, they must be afforded the protections of the Geneva Convention.

Despite widespread doubt around the world, the Pentagon says there is no doubt at all about the status of the Guantanamo captives But White House spokesman Ari Fleisher’s statement that the drafters of the Geneva Convention didn’t contemplate international terrorists belies the Pentagon’s insistence that there is no doubt about their status. The United States can’t have it both ways.

The Pentagon has taken it upon itself to classify the captives as “unlawful combatants” in order to deny them the rights spelled out in the Geneva Convention. These rights include humane treatment and the right not to be interrogated or coerced into providing information. The U.S. government is admittedly interrogating the captives. And from its steadfast refusal to consider them POWs, it is surely using coercion to get them to talk. Moreover, keeping human beings in small outdoor cages does not qualify as humane treatment.

Even if a competent tribunal were to decide that some of the captives are not POWs, then our government is still duty bound to follow two other treaties we’ve ratified – the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. The Torture Convention forbids the use of physical or mental coercion for the purpose of getting information, and the ICCPR prohibits compulsion to get someone to confess guilt. Keeping human beings in cages constitutes inhuman and degrading treatment, which is proscribed by both of these treaties.

George W. Bush and his administration have demonstrated a consistent unwillingness to follow our international treaty obligations. By refusing to ratify the Kyoto Protocol and disavowing the Anti-Ballistic Missile Treaty, our government has sent a strong message to other countries that we have no respect for our legal obligations. The treaties we have ratified are not simply abstract international principles. Under the Constitution, they are part of our domestic law and bind our government to respect them.

In an unprecedented move, the United States was voted off the United Nations Commission on Human Rights last year. It should come as no surprise that other countries are unimpressed with our human rights hypocrisy – demanding that foreign nations uphold human rights while flaunting our own human rights responsibilities. President Bush ended his recent State of the Union address with these words: “We choose freedom and the dignity of every life.” The captives at Guantanamo are human beings, who may or may not have committed crimes. The United States government must adhere to its treaty obligations; it must also take the high road and treat all human beings with dignity and respect.

February 6, 2002

Israel Resisters and Palestinian Rights

The government of Israel faces a serious dilemma. Its population lives in legitimate fear of terrorist suicide bombers. But its reprisals against the Palestinian civilian population have been so heavy-handed that they are creating dissension within the ranks of Israel’s own army.

Indeed, a February 4 editorial in The New York Times, a long-time supporter of Israel, said: “The growing harshness of Israeli military practices in the West Bank and Gaza is creating thousands of potential suicide bombers and Israel haters as well as coarsening a generation of young Israeli soldiers.”

More than 100 Israeli army reservists have declared they will no longer fight in the West Bank and Gaza Strip “with the aim of dominating, expelling, starving and humiliating an entire people.” These Israeli soldiers follow in the tradition of scores of American GI’s who refused to kill Vietnamese civilians during the 1960s and 1970s. After Seymour Hirsch exposed the cover-up of the My Lai Massacre, where U.S. soldiers killed thousands of civilians, Lt. William Calley was tried and convicted of murder. Calley unsuccessfully claimed he was just following orders. That defense theory has been rejected by the Nuremberg Tribunal and the International Criminal Court.

In their declaration, the Israeli resisters said: “The price of occupation is the loss of the Israeli Defense Forces’ semblance of humanity and the corruption of all of Israeli society.” They reported firing at Palestinians who hadn’t endangered them, stopping ambulances at checkpoints, and stripping areas clean of groves and trees necessary to people’s livelihoods. Some fear their treatment of Palestinian civilians constitutes war crimes. Attacks on a civilian population as a form of collective punishment violate Article 50 of the Hague Regulations and Articles 33 and 53 of the Fourth Geneva Convention.

The dissenting Israeli reservists made clear their statements were not aimed at the Israeli army, but rather at the political system. A recent poll conducted by Israel Radio found 30 percent of Israelis supported the reservists’ protest.

Last month, the Israeli army’s demolition of 52 Palestinian homes, which left 411 people homeless, drew rare criticism from Israeli Cabinet ministers and journalists. The demolition was condemned by the United Nations Relief and Works Agency. B’Tselem, an Israeli human rights organization, said: “House demolitions are a blatant violation of human rights and contravene international humanitarian law, which forbids destruction of property, collective punishment and reprisals.”

The Israeli government has called the reservists’ declaration “dangerous and antidemocratic.” Israeli Premier Ariel Sharon threatened to sever all communication with Palestinian Authority President Yasir Arafat after the interception of a shipment of arms that Israel claims were bound for the Palestinians last month. With Arafat out of the picture, however, Israel would have no one with whom to negotiate except the extremists.

The Palestinians live under a system of apartheid, according to a report issued by the National Lawyers Guild delegation to the occupied Palestinian territories and Israel last year. In December, the United Nations General Assembly condemned Israel’s treatment of the Palestinians and called for international observers to be dispatched to the Palestinian territories, which Israel rejects. The U.S. government has consistently opposed U.N. resolutions critical of Israel’s policies. The U.S. staged a walkout from the United Nations World Conference Against Racism last year when it criticized Israel’s treatment of the Palestinians. The National Lawyers Guild report said most of the weapons Israel has used to inflict indiscriminate attacks with excessive force on the Palestinian civilian population were manufactured in the United States.

Lev Grinberg, Director of the Humphrey Institute for Social Research at the Ben Gurion University of the Negev in Israel, says: “Unless we, the Israelis, cast off our arrogant mode of thinking, and our position as an occupying power, the present cycle of bloodshed can only intensify, with Arafat and even more so, in his absence.”

In his op-ed in The New York Times on February 3, Arafat unequivocally condemned terrorist attacks against Israeli civilians. He invoked U.N. resolutions, which call for the return of the Palestinian refugees, and the Oslo Accords, where the Palestinians recognized Israel, renounced their claim to historic Palestine, and settled for 22 percent of the land (the West Bank and Gaza). He described the Palestinian vision, which would have Israel and a Palestinian state co-exist equally with peace and security for both. But, he said, “two peoples cannot reconcile when one demands control over the other…we will only sit down as equals, not as supplicants; as partners, not as subjects.”

The popularity of Sharon, known as “The Bulldozer,” has declined in Israel since his election last year. Resistance to the Israeli government’s occupation of the Palestinian territories is now growing within Israel. Forty-five percent of Israelis polled by Israel Radio said they thought more reservists would join the resistance and refuse service in the West Bank and Gaza. They will do so at great risk to themselves. Many resisters have been disciplined and jailed. But it will take a large resistance movement within Israel to ultimately stop the collective punishment of the Palestinians, end the occupation and halt the killing of both Israelis and Palestinians.

The war between Israel and the Palestinians has claimed too many lives on both sides. It is essential that a neutral international body try to negotiate an end to the bloodshed. International observers should be allowed in, and there should be an emphasis on reconciliation, not cutting Arafat out of the equation.

January 18, 2002

Will Walker’s Statements be Admitted Against Him?

No evidence is more damning than the confession of a defendant in a criminal case. Attorney John Ashcroft has announced that the federal government will charge John Walker, who was found in the company of the Taliban in Afghanistan, with conspiracy and aiding terrorists. Walker’s statements to the government and to CNN, if admitted, will be crucial to the prosecution’s case against him. There are three possible constitutional bases on which the admissibility of his statements can be analyzed.

First, as a suspect in custodial interrogation, Walker had the right to remain silent and the right to counsel present with him during questioning, under Miranda v. Arizona, which protects the Fifth Amendment privilege against self-incrimination. The government interrogated Walker for forty-five days in a custodial setting without his attorney present. Ashcroft claims Walker waived his Miranda rights both orally and in writing, and thus plans to use the fruits of those interrogations against Walker.

Undoubtedly, Walker’s attorneys will argue at trial that, under the circumstances, Walker could not have voluntarily, knowingly and intelligently waived his rights. Isolated with government interrogators on a ship in the ocean, with no opportunity to communicate with a lawyer or his family, he likely felt intense pressure to cooperate with the government, and thus did not voluntarily waive his rights. When Walker was found, he had been wounded and was in a weakened condition. His interrogators were experts, likely to succeed in eliciting statements from him.

Although Walker’s parents retained a lawyer on his behalf, the Supreme Court held in Moran v. Burbine, that the right to counsel is a personal one and can only be asserted by the suspect himself. In that case, the suspect’s sister, unbeknownst to Burbine, had secured counsel for him. The attorney continually tried to see Burbine, but was turned away by police. Without invoking his right to counsel, Burbine waived his Miranda rights and confessed to murder. It took sixty pages for Justice Sandra Day O’Connor, writing for the majority, to justify how the police could keep an attorney from a suspect in custodial interrogation.

Prosecutors may assert the public safety exception to Miranda, by arguing that national security concerns in obtaining intelligence information from Walker about the activities of the Taliban and al Qaeda, trumped their obligations to comply with Miranda. The exception was successfully asserted in New York v. Quarles, where a rape suspect, who ran into a grocery store in the middle of the night, was found with an empty gun holster. Without Mirandizing him, the police asked him where he had hidden the gun. The admission of his statements was justified as necessary to protect the public safety, even though the market was closed and he was in police custody. This exception is rarely used, but national security concerns may present a more compelling case to invoke it in Walker’s case.

The second constitutional basis on which the defense may object to the use of Walker’s statements is the Fifth Amendment’s due process clause, which protects a suspect against being coerced into confessing. In ruling on whether Walker was coerced by the government into confessing, the judge must decide where to draw that fine line between where free will ends and compulsion begins.

Walker may argue he was coerced by being held incommunicado for forty-five days and by forceful tactics by the interrogators themselves. When he appeared on CNN, he was wounded and heavily drugged on morphine. If Walker can show that condition persisted during his interrogation by the government, he may convince the judge his due process rights were violated. Courts, however, are generally hesitant to exclude statements on this ground.

The government will also seek to use statements Walker made on CNN shortly after his capture. Although non-governmental persons are not required to comply with Miranda, their interrogations may be challenged under the Fifth Amendment’s due process clause. Walker objected to the taping of his conversation with CNN; yet, the lights and camera were turned on anyway. He was questioned by CNN personnel and made some very damaging admissions, which were broadcast repeatedly on CNN. It is undisputed that Walker was in great pain and heavily drugged on morphine when he spoke to CNN. That may be sufficient to exclude those statements.

Finally, James Brosnahan, an attorney hired by Walker’s parents, has still not been allowed to speak with Walker. Under the Sixth Amendment, a defendant in a criminal case is entitled to the assistance of counsel once criminal charges have been filed against him. The government waited forty-five days to bring charges against Walker, perhaps in order to avoid an obligation to provide him with counsel.

The decision about whether to allow the jury to consider Walker’s statements will be made by the judge before trial. This determination will take place after hearing testimony by the government interrogators and, perhaps, Walker himself. Unfortunately, when the versions of events surrounding interrogations conflict, judges often believe the government and not the defendant. The case against Walker was intentionally brought in the United States District Court for the Eastern District of Virginia, reputedly one of the most conservative federal courts in the country.

John Walker is charged with conspiracy to murder United States nationals abroad as well as lesser charges. Conspiracy, often based on guilt by association, is not difficult to prove. Walker’s statements to the government and to CNN are crucial to the prosecutor’s case. In spite of intense public pressure to admit them, the judge should make a considered decision based on the law.

December 14, 2001

Don’t Rush to Judgment on John Walker

Don’t label John Walker a traitor yet.

Sen. Hillary Clinton of New York didn’t hesitate to call John Walker a traitor when she was interviewed on Meet the Press. The American was recently found with the Taliban in Mazar-e Sharif, Afghanistan, and was taken into U.S. custody.

The crime of treason requires a prosecutor to prove both an intent to betray the United States and an act of levying war against the United States or giving aid and comfort to the enemy. Our Constitution mandates that the act be proved by the testimony of two witnesses or a confession in open court.

That Walker, 20, was found in the company of the Taliban, without more evidence, is not sufficient, as circumstantial evidence cannot serve as the basis for proving a treasonous act.

Further, the Supreme Court has defined “enemy” as the subject of a foreign power in a state of open hostilities with the United States. Since it is the Northern Alliance, not the Taliban, which has a seat at the United Nations and is recognized as the lawful government of Afghanistan, Walker’s activities might not fit within the legal definition of treason.

When Mr. Walker went to Afghanistan, the United States and the Taliban were still on friendly terms.

In a new book published in Paris, Bin Laden: The Forbidden Truth, former French intelligence officer Jean-Charles Brisard and journalist Guillaume Dasquie document an amicable relationship between George W. Bush, and the Taliban. The book quotes John O’Neill, former director of anti-terrorism for the FBI, who thought the State Department, acting on behalf of U.S. and Saudi oil interests, interfered with FBI efforts to track down Osama bin Laden before Sept. 11.

The State Department and Pakistan’s Inter-Services Intelligence agency financed, armed and trained the Taliban in its civil war against the Northern Alliance to make the region safe for U.S.-based corporate oil interests, according to Ahmed Rashid’s best-selling book, Taliban: Militant Islam, Oil & Fundamentalism in Central Asia. California-based UNOCAL was negotiating for an oil pipeline to run through Afghanistan and Pakistan, but it pulled out of the deal because of feminist opposition to the Taliban’s treatment of women after President Bill Clinton bombed al-Qaida training camps in retaliation for the 1998 U.S. embassy bombings in East Africa.

Deputy Defense Secretary Paul Wolfowitz said earlier this week that Mr. Walker was lucky he was a U.S. citizen and was captured by the United States. The implication was that if the Northern Alliance had captured him or if he were a non-U.S. citizen prisoner of the United States, he wouldn’t have been so humanely treated.

The United States has signed, ratified and implemented the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It prohibits securing information by torture, even in wartime. Mr. Walker is reportedly cooperating with U.S. military authorities; it is hoped he is being treated humanely as required by the torture convention and the Geneva Convention Relative to the Treatment of Prisoners of War.

Mr. Walker does not come under the jurisdiction of a military court under the Uniform Code of Military Justice, as he is not in the U.S. military. He cannot be tried in one of the Bush administration’s new secret military tribunals, as they apply only to noncitizens. Mr. Walker has not renounced his U.S. citizenship.

We don’t know whether Mr. Walker was simply an idealistic kid who joined the Taliban when it was still friendly to the United States in order to help build a pure Islamic state. We don’t know whether he acted voluntarily, or what his mental state was when he was captured.

The U.S. government may decline to file charges against Mr. Walker if he provides sufficient information to help the anti-terrorism effort. But if charges are levied against him, we should wait until the evidence comes out before judging him.

December 7, 2001

The Deadly Pipeline War: U.S. Afghan Policy Driven by Oil Interests

George W. Bush justifies his bombing of Afghanistan as a war against terror. A twin motive, however, is to make Afghanistan safe for United States oil interests.

A few days before September 11, the U.S. Energy Information Administration documented Afghanistan’s strategic “geographical position as a potential transit route for oil and natural and gas exports from Central Asia to the Arabian Sea,” including the construction of pipelines through Afghanistan.

Prior to September 11, United States policy toward the Taliban was largely influenced by oil. In a new book published in Paris, “Bin Laden, la verite interdite” (“Bin Laden, the forbidden truth”), former French intelligence officer Jean-Charles Brisard and journalist Guillaume Dasquie document a cozy relationship between George W. Bush and the Taliban. The book quotes John O’Neill, former director of anti-terrorism for the FBI, who thought the U.S. State Department, acting on behalf of United States and Saudi oil interests, interfered with FBI efforts to track down Osama bin Laden.

Before he was tapped as Bush’s running mate, Dick Cheney was CEO of Halliburton, the biggest oil services company in the world. In a 1998 speech to the “Collateral Damage Conference” of the Cato Institute, Cheney said, “the good Lord didn’t see fit to put oil and gas only where there are democratically elected regimes friendly to the United States. Occasionally we have to operate in places where, all things considered, one would not normally choose to go. But, we go where the business is.”

Because of the instability in the Persian Gulf, Cheney zeroed in on the world’s other major source of oil, the Caspian Sea, whose resources were estimated at $4 trillion by U.S. News and World Report. Cheney told oil industry executives in 1998, “I can’t think of a time when we’ve had a region emerge as suddenly to become as strategically significant as the Caspian.”

But Caspian oil, landlocked between Russia, Iran and former Soviet republics, presents formidable transport challenges. Afghanistan is strategically located near the Caspian Sea. In 1994, the U.S. State Department and Pakistan’s Inter-Services Intelligence agency sought to install a stable regime in Afghanistan to enhance the prospects for Western oil pipelines. They financed, armed and trained the Taliban in its civil war against the Northern Alliance.

In 1995, California-based UNOCAL proposed the construction of an oil pipeline from Turkmenistan, south through Afghanistan and Pakistan, to the Arabian Sea. Yasushi Akashi, U.N. Under-Secretary General for Humanitarian Affairs, was critical of “outside interference in Afghanistan” in 1997, which, he said, “is now all related to the battle for oil and gas pipelines. The fear is that these companies and regional powers are just renting the Taliban for their own purposes.”

Meanwhile, feminists and Greens in the United States mobilized opposition to UNOCAL’s pipeline deal and Washington’s covert support of the Taliban, because of the latter’s oppression of women. In 1998, after the U.S. bombed Al-Qaeda training camps in retaliation for the bombings of the U.S. embassies in Africa, UNOCAL pulled out of the pipeline negotiations.

Once the Taliban are overthrown and the U.S. installs a pro-Western government, lucrative investment opportunities will arise. Rob Sobhani, president of Washington-based Caspian Energy Consulting, said, “Other major energy companies could see big opportunities in a deal crucial to restarting Afghanistan’s economy.” A new pipeline could produce revenues totaling $100 million.

United States dependence on Middle East — and soon Caspian — oil — has led our government to engage itself in heavy-handed, and deadly, interventions. The development of a sensible U.S. energy policy would obviate the perceived need to dominate other countries.

But there has been an ongoing pipeline war between Russia and the U.S., which support competing pipeline routes. An energy expert at the National Security Council clarified the United States’ anti-Russia policy in 1997: “US policy was to promote the rapid development of Caspian energy . . . We did so specifically to promote the independence of these oil-rich countries, to in essence break Russia’s monopoly control over the transportation of oil from that region, and frankly, to promote Western energy security through diversification of supply.”

Former Russian President Boris Yeltsin recognized this in 1998: “We cannot help seeing the uproar stirred up in some Western countries over the energy resources of the Caspian. Some seek to exclude Russia from the game and undermine its interests. The so-called pipeline war in the region is part of this game.”

This pipeline war has taken some curious turns since September 11. A New York Times article in October emphasized new oil cooperation between Russia and the United States. Laurent Ruseckas of Cambridge Energy Research Associates said: “This whole idea of the U.S. and Russia fighting over Caspian oil seems completely outdated. The West would like to see Russian and Caspian oil on stream as quickly as possible.”

But after September 11, Russia, which has sustained the Northern Alliance for ten years, provided it with heavy artillery and encouraged it to move into Kabul, in direct contravention of Bush’s orders. Eric R. Margolis, author of “War at the Top of the World – The Struggle for Afghanistan, Kashmir and Tibet,” chides Bush’s naivete in thinking “the Russians are now our friends.” Margolis warns, “the president should understand that where geopolitics and oil are concerned, there are no friends, only competitors and enemies.”

At this point, the outcome of U.S.-Russian relations, and the pipeline war, remains uncertain. The deaths and starvation of thousands of Afghanis, however, is a certainty. Regardless of how the black gold is ultimately piped out of the Caspian Sea, the United States should replace its pipeline of bombs with a pipeline of humanitarian assistance to the people of Afghanistan.

December 1, 2001

No Military Tribunals: Let UN Try Terrorists

George W. Bush’s order grant-ing the secretary of defense authority to establish a military commission to try suspected terrorists is a deliberate attempt to circumvent due process protections for criminal defendants, which are widely recognized in the United States and in international criminal tribunals.

Ostensibly aimed at members of al-Qaeda, the commission would have jurisdiction as well over any non-U.S. citizen who causes, threatens or aims to cause, any injury to a U.S. citizen or U.S. national security, foreign policy or the economy, provided Bush “determines” the person has committed or aided the commission of “acts of international terrorism.” Thus, foreign nationals who steal or destroy property owned by a U.S. corporation could be hauled before a military tribunal where universally accepted standards of due process do not apply, if Bush decides “it is in the interest of the United States.”

One of the most basic internationally recognized tenets of justice requires that criminal proceedings be open to the public and that evidence against the accused be revealed to him. The International Military Tribunal at Nuremberg tried and convicted Nazi leaders in public proceedings in which the defendants were able to hear the evidence against them in a language they could understand. They were entitled to the assistance of counsel and had the right to cross-examine witnesses called by the prosecution.

Bush’s military commission could be closed on order of the secretary of defense, defendants could be convicted based on secret evidence and there is no provision for assistance of counsel or the right of cross-examination.

In the past, military combatants have been tried in U.S. military courts, while spies and foreign agents have been tried in our criminal courts. Although the Supreme Court in 1942 upheld the president’s authority to establish a military tribunal to try German soldiers who came onto U.S. soil, the United States was at war with Germany at the time.

No nations at war

No nation executed an armed attack against the United States on Sept. 11. Although Congress authorized Bush to use armed force under the War Powers Resolution, it stopped short of declaring war. Yet Bush’s commission would have the authority to try those suspected of violating the laws of war.

The U.N. Security Council established a criminal tribunal with jurisdiction over crimes committed in Yugoslavia. Many have already been tried and sentenced by the International Criminal Tribunal for the Former Yugoslavia, for war crimes and crimes against humanity, and several more prosecutions are pending. The statute that established the tribunal provides the accused with the presumption of innocence and the rights to a public hearing, counsel of his own choosing, cross-examination of witnesses and to appeal any conviction to a judicial body. Bush’s commission denies all of these rights to the accused.
This commission is structured to enable military prosecutors to convict defendants more easily, without having to provide them with due process. It authorizes a secret proceeding where the accused isn’t entitled to see the evidence against him. The rules of evidence do not apply. And any noncitizen identified by Bush would be subject to the jurisdiction of the commission.

The Security Council should establish a special criminal tribunal for the Sept. 11 attacks, modeled after the Yugoslavia statute. Suspected terrorists should be tried as well in U.S. federal courts, for crimes against humanity, where they would be entitled to due process protections afforded any U.S. citizen suspected of committing a heinous crime. We should not retreat from our constitutional system of justice, which has served us well for more than 200 years. The Constitution guarantees all “persons,” not just citizens, basic fairness before depriving them of their liberty or their life.

November 6, 2001

Bombing of Afghanistan is Illegal and Must be Stopped

In a patently illegal use of armed force, United States and British bombs are falling on the people of Afghanistan. There are already reports of thousands of dead and wounded civilians from the same kind of American “smart bombs” used in Vietnam and Yugoslavia, with the promise of myriad casualties from unexploded cluster bombs. Yet while the media bombards us with details about the tragic but few deaths from Anthrax, we are shielded from photographs of the dead and injured in Afghanistan.

Jan Ziegler, Special Rapporteur on the Right to Food to the United Nations High Commissioner for Human Rights, warned on October 15, “The bombing has to stop right now. There is a humanitarian emergency.” Relief agencies left Afghanistan in the wake of the bombing. The arrival of winter is imminent, when up to 7.5 million Afghans internally displaced by the bombing will be beyond the reach of humanitarian aid. Routing chief suspect Osama bin Laden from his cave with bombs is like finding a needle in a haystack, while mass starvation is inevitable.

The media has created a tidal wave of support in the United States for attacking the country that harbors bin Laden. In a recent Gallup/CNN/USA Today poll, 45 percent of Americans said they were willing to “torture known terrorists if they knew details about future terrorist attacks in the United States,” notwithstanding the United States’ ratification and implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the fact that the prohibition against torture is considered to be jus cogens, a preemptory or inviolable norm of international law.

Yet in spite of nearly universal global condemnation of the September 11 attacks, the bombardment of Afghanistan does not sit well in the Arab world, which is faced with pictures of wounded Afghan children and Israeli tanks rolling into Palestinian villages. Akhbar el Yom, one of the biggest newspapers in Egypt, featured a photograph of an Afghan child orphaned by the bombs. It sported the caption, “Is this baby a Taliban fighter?” And the recent killings of rebel Northern Alliance supporters by misguided American bombs, has backfired and helped build support for the Taliban. European countries are also beginning to question the wisdom of the sustained bombing campaign, which is killing civilians and failing to accomplish its goal.

Although the horror of the mass tragedy inflicted on September 11 is indisputable, the bombings of Afghanistan by the United States and the United Kingdom are illegal. This bombardment violates both international law and United States law, set forth in the United Nations Charter, a treaty ratified by the U.S. and therefore part of the supreme law of the land under the U.S. Constitution.

The U.N. Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense.

The Security Council, made up of representatives from 15 countries from each region of the world, is the only body that can authorize the use of force. Only the Security Council can decide what action can be taken to maintain or restore international peace and security.

The Security Council has a series of options under the U.N. Charter: (1) it can suggest that the United States sue Afghanistan in the International Court of Justice (World Court), for harboring Osama bin Laden and others, if the evidence supports their involvement in these attacks, and seek their immediate arrests; (2) it can order interruption of economic relations, rail, sea, air, postal, telegraphic, radio communications and the severance of diplomatic relations; (3) it can establish an international tribunal to try those suspected of perpetrating the September 11th attack; (4) it can establish a U.N. force to make arrests, prevent attacks or counter aggression; and (5) as a last resort, it can authorize the application of armed force with the Military Staff Committee.

The United States has gone to the Security Council twice since the September 11 attack. The Security Council passed two resolutions, neither of which authorize the use of force. Resolutions 1368 and 1373 condemn the September 11 attacks, and order the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urging the ratification and enforcement of the international conventions against terrorism (which the U.S. has not ratified).

Although the United States has reported its bombing to the Security Council as required by article 51 of the U.N. Charter, the Security Council has not authorized and could not authorize the use of unilateral military force by the United States and the United Kingdom, or NATO, which is not a U.N. body.

The bombing of Afghanistan is not legitimate self-defense under article 51 of the Charter because: 1) the attacks in New York and Washington D.C. were criminal attacks, not “armed attacks” by another state, and 2) there was not an imminent threat of an armed attack on the U.S. after September 11, or the U.S. would not have waited three weeks before initiating its bombing campaign. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” (Caroline Case, 29 BFSP 1137-8; 30 BFSP 19-6 (1837)). This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the U.N. General Assembly.

Even if the U.S. was authorized on September 11 to use military force under article 51, that license ended once the Security Council became “seized” of the matter, which indeed it did on September 12, by passing Resolution 1368, and reaffirming in Resolution 1373 on September 28 that it “remains seized” of the matter. By bombing Afghanistan, the United States and the United Kingdom are committing acts of aggression, which is prohibited by the U.N. Charter.

The universal desire is to feel safe and secure. The only path to safety and security is through international law, not vengeance and retaliation. George W. Bush and the U.S. Congress must take the following steps:

  1. immediately stop the bombing of Afghanistan and Iraq, remove all ground forces, and refrain from illegally bombing or invading any other country;
  2. contribute money and people power to the U.N. peacekeeping forces;
  3. refuse to further eviscerate the U.S. Bill of Rights, in the name of national security. (The Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA Patriot Act), rushed through Congress in the wake of September 11, vastly expands the government’s ability to place wiretaps, invade e-mails, and hold immigrants in indefinite detention);
  4. not repeat the actions of the U.S. government when it interned Japanese-Americans during World War II, and targeted suspected communists during the McCarthy era;
  5. refuse to allow the racial profiling, and INS and FBI intimidation, of Arabs, Muslims and South Asians; and
  6. submit this matter to appropriate international bodies, including the United Nations and the World Court.

Since no state has executed an armed attack against the United States, this is a criminal matter that can be prosecuted in a number of possible venues. First, the United States could bring criminal prosecutions in its domestic courts for crimes against humanity and for violations for international conventions under the principle of universal jurisdiction, as Israel did when it prosecuted Adolph Eichmann for his role in the Holocaust.

Second, the Security Council could establish a special criminal tribunal for the September 11 attacks, as it did in Yugoslavia and Rwanda. The Montreal Sabotage Convention, which criminalizes the destruction of civilian aircraft while in service, is directly on point and should be used here. It was invoked during the resolution of the dispute between the United States, the United Kingdom and Libya over the handling of the Libyan suspects in the Lockerbie bombing cases. Both the United States and Afghanistan are parties to that convention.

The International Criminal Court would not be an available forum, because 1) it has not yet come into force, as it needs the ratification of 60 states and 43 have ratified thus far; 2) its jurisdiction is limited to crimes occurring after it comes into force; and 3) the United States refuses to ratify the ICC statute, because it is afraid its leaders may become defendants in war crimes prosecutions.

Former Soviet President Mikhail S. Gorbachev wrote in a recent op-ed in The New York Times, “it is now the responsibility of the world community to transform the coalition against terrorism into a coalition for a peaceful world order.” He advocates leadership by the Security Council to take concrete steps such as accelerated nuclear and chemical disarmament, and urges United States ratification of the verification protocol of the convention banning biological weapons, as well as the treaty to prohibit all nuclear testing. Gorbachev also opposes the use of the battle against terrorism “to establish control over countries or regions,” which, he maintains, would not only discredit the coalition; it would prevent its potential for building a peaceful world.

On September 29, the day originally set for anti-globalization protests, thousands marched in the streets demanding peace. Students on campuses across the country are mobilizing to oppose the bombing. Our anti-terrorism coalition must be true to its name, and aim its energy not at the innocent people of Afghanistan, but at building global peace.

October 5, 2001

Hoist on Our Own Petard

The tragedy of September 11 was unimaginable. Or was it? The hatred that fueled 19 people to blow themselves up and take thousands with them has its genesis in a history of the United States government’s exploitation of people in oil-rich nations around the world.

President George W. Bush accuses the terrorists of targeting our freedom and democracy. But it was not the Statue of Liberty that was destroyed. It was the World Trade Center – symbol of the U.S.-led global economic system, and the Pentagon – heart of the United States military, that took the hits.

Those who committed these heinous crimes were attacking American foreign policy, not the American people. The 5500+ civilians who died were likely considered “collateral damage” by the hijackers and their co-conspirators

During Rosh Hashanah and Yom Kippur, Jews are exhorted to take steps to rectify the harm we have caused others. Last week, I told a World War II veteran of my worry that bombing Afghanistan would likely kill many innocent people. “American lives are more important than Afghan lives,” he retorted. Aghast, I later realized that this typifies the way our government has acted for years toward people in Third World countries.

Exactly one year before the Shah of Iran was toppled by a coalition led by people acting in the name of the Ayatollah Khomeini, I visited that country as an international legal observer on behalf of the International Association of Democratic Lawyers. I interviewed dozens of people, from the Ayatollah Shariat Madari (the leading ayatollah in Khomeini’s exiled absence) to poets, communists, political prisoners and myriad others. Although downtown Tehran sported a U.S. corporation on every corner, the people were drowning in poverty and misery. I returned to the United States and was scoffed at when I predicted a revolution in Iran.

In 1953, the CIA had overthrown the democratically-elected nationalist, secular prime minister, Mohammed Mossadeq (whose government had nationalized the British oil company) and installed the Shah, Mohammed Reza Pahlevi, ushering in 25 years of a brutal and repressive reign of terror. Iran became the largest customer for U.S. arms and U.S.-based oil companies replaced the British.

When Iranians began to rise up against the Shah, the U.S. told him it supported him “without reservation” and encouraged him to use force to maintain his power, even trying to engineer a military coup to save him. In 1979, a broad-based united front consisting of nationalists as well as militant Muslims, coalesced around Khomeini, overthrew the Shah and inaugurated a theocracy based on religious fascism. Because of Washington’s long-standing support for the Shah, Khomeini’s government became a model for fundamentalist anti-U.S. Islamic regimes.

The United States was eager to counter the now anti-American Iranian government and prevent it from controlling the Persian Gulf, the largest oil source in the world. But the U.S. heartily supported Saddam Hussein during his worst atrocities, including the gassing of the Kurds.

To keep both Iran and Iraq off balance, the United States quietly encouraged Iraq to invade Iran in 1980, with the promise of financing from Saudi Arabia, and the U.S. opposed any Security Council action to condemn the invasion. Removing Iraq from its list of terrorist nations, the U.S. allowed the transfer of arms to Iraq, while simultaneously permitting Israel to arm Iran.

The United States supplied Saddam Hussein with the technology to develop chemical and biological weapons, according to a 1996 Associated Press report. Even after Iraq used its chemical weapons in 1984, the U.S. restored diplomatic relations with Iraq, sent the U.S. navy into the Persian Gulf, and accidentally shot down an Iranian civilian airplane, killing 290 people. Then-Presidential candidate George H.W. Bush’s comment on the accident: “I will never apologize for the United States. I don’t care what the facts are.”

Still playing both ends against the middle, the U.S. itself directly supplied arms covertly to Iran in 1985. Thinking the United States was still his ally, Saddam informed the U.S. ambassador to Iraq that he was about to invade Kuwait in 1991. He received no protest from the U.S. ambassador. But the United States, not wanting Iraq to dominate the western shore of the Persian Gulf, reacted by re-invading Kuwait.

The U.S. didn’t really wish to destroy Iraq; it still wanted Iraq as a counterweight to Iran. But the United States underestimated Saddam’s ability to maintain his position of control over the Kurds and the Shiites – both politically and through the use of terror.

In the last decade, the United States has dropped tens of thousands of bombs on Iraq, killing many civilians, using napalm, cluster bombs and depleted uranium, in what the Los Angeles Times described as a “massacre” and a “massive slaughter.” As a result of the bombing and devastating economic sanctions, between 4000 and 5000 Iraqi children still die every month. When asked on CBS television in 1996 for her reaction to these deaths, former Secretary of State Madeleine Albright said, “we think the price is worth it.”

Evidently, the perpetrators of the September 11 attack thought the price of 5500 innocent lives was worth it. Suspicion has focused on Osama bin Laden, who despises the United States for the Gulf War, its support for Israel’s treatment of the Palestinians, and the location of U.S. bases in Saudi Arabia, home to the holiest Muslim shrines.

Bush is aiming the largest concentration of American firepower since World War II at Afghanistan, which harbors bin Laden. The President has made it clear that all countries that support terrorists are on our hit list. But even though none of the hijackers came from Afghanistan, and many hailed from Saudi Arabia, the U.S. maintains friendly relations with the Saudis, the largest suppliers of the world’s oil.

Oil has been the principal motivation for much of United States foreign policy. Since 1996, the U.S. overlooked the Taliban’s terror in hopes the U.S. could build an oil pipeline across Afghanistan to Pakistan, to transport up to two hundred billion barrels of oil and gas through Central Asia.

After the Taliban took over Kabul, a U.S. State Department spokesman saw “nothing objectionable” about the Taliban’s brand of Islam. Osama bin Laden was trained by the CIA in terror tactics to fight the Russians in Afghanistan. In the 1980s, the United States funneled more than $2 billion in guns and money to the fundamentalist mujaheddin in Afghanistan, the largest covert action program since World War II.

Likewise, the United States gave considerable assistance to the Kosovo Liberation Army – a Muslim terrorist group financed by the Third World Relief Agency, through which bin Laden and others funneled $350 million – and its twin, the National Liberation Army in Macedonia.

Although U.S.-led NATO ostensibly bombed Yugoslavia for 78 days in 1999 to stop ethnic cleansing, the bombing was actually part of a strategy of containment, to keep the region safe for the Trans-Balkan oil pipeline through Albania and Macedonia. Cooperation of the Albanians with the pipeline project was likely contingent on the U.S. helping them wrest control of Kosovo from the Serbs.

Jerrold Post, a psychological profiler at the CIA for 21 years, said recently the “real dilemma” is the “roiling hatred within the Arab world directed at the United States. . . America doesn’t have the vaguest idea how much hatred.” He maintains that terrorists exploit “feelings of despair over economic conditions … and [over] totalitarian regimes.”

The Book of Exodus speaks of God “visiting the iniquity of the fathers upon the children, and upon the children’s children, unto the third and to the fourth generation.” Our innocent civilians have been hoist on the cruel petard of a long history of brutal and opportunistic U.S. foreign policy, where yesterday’s freedom fighters are considered today’s terrorists. “Collateral damage” is unacceptable regardless of whose lives are lost. The only way to truly eradicate terrorism is to understand the conditions that created it and obliterate them.

October 1, 2001

Rise Above It: Fight Terror Legally

THE DRUMBEATS OF war resound all around our country. President Bush says, “We are at war,” and has deployed heavy bombers to the Persian Gulf. The government vows to wage a protracted military campaign and Congress has appropriated $40 billion to aid the recovery and war efforts.

We have never seen more heinous acts of terrorism than the events of Sept. 11. Many point to instances of U.S.-supported terrorism in other countries such as Indonesia, Chile, Nicaragua, El Salvador and Guatemala, and remind us that the CIA trained Osama bin Laden in terrorist tactics to fight the Russians in Afghanistan. But no just cause can excuse the murder of innocent civilians, wherever it may occur.

The people who conspired to hijack those airplanes and kill thousands of people are guilty of crimes against humanity. They must be identified and brought to justice in accordance with the law. But retaliation by bombing other countries is not the answer and can only lead to the deaths of more innocent people.

Whatever action we decide to take must conform to the rule of law, which underpins our democracy. After the horrors of World War II, nearly all the nations of the world determined never to have another world war by founding the United Nations. If the evidence supports the suspicion that bin Laden was responsible for these attacks, we must insist that the U.S. take the steps agreed to in the United Nations Charter to immediately sue Afghanistan in the World Court for harboring him.
The Unites States should ask the court to order Afghanistan to surrender bin Laden for trial immediately. This is what the United States did when it sued Iran in the World Court; when the court ordered the United States to stop mining the harbors of Nicaragua, the United States complied.

The U.N. Security Council met on Sept. 12 and adopted Resolution 1368, calling on “all States to work together urgently to bring to justice the perpetrators, organizers and sponsors” of the attack and stating that they “will be held accountable.” The Security Council called “on the international community to redouble its efforts” against terrorism, and expressed its “readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001– in accordance with its responsibilities under the Charter–“

This means that the United States must not take its own military action in violation of the U.N. Charter, which mandates that members settle their international disputes by peaceful means and refrain from the threat or use of force, unless authorized by the Security Council. The United States must decide, with all other 14 members of the Security Council, what steps should be taken toward the goal of peace, not revenge and further war.

Further, the U.S. military must be forbidden from committing acts of war against any nation or individual. Only Congress has the power to declare war against another nation. Although it has authorized the use of force, Congress stopped short of declaring war under the War Powers Act. No nation has attacked the United States.

It is also imperative that we follow the rule of law at home and refrain from sacrificing our civil liberties in our zest to catch those responsible. Racial profiling against people of Middle Eastern descent and Muslims must be assiduously avoided, and judges should be as vigilant as ever in issuing wiretap orders and search warrants.

We must also guard against the xenophobia that led President Franklin D. Roosevelt to issue Executive Order 9066 in 1942, which authorized the internment of more than 70,000 American citizens and 50,000 resident aliens for being of Japanese ancestry.

Finally, as a sign that the United States has learned something from the bombing of a civilian city, the U.S. should immediately stop its almost daily bombardment of Iraq, which has not been authorized by the Security Council.

It is understandable that in the midst of our anguish and grief, calls for vengeance will abound. But our country was built on a firm foundation of the rule of law and we signed the U.N. Charter because we are peace-loving people. Never will our humanity be tested more than now.

September 5, 2001

U.S. Boycott of the World Race Conference Signals Denial of Racism at Home

The United States government’s walkout at the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in South Africa belies our commitment to eradicating racism in this country. Although framed as opposition to resolutions condemning Israel for its treatment of the Palestinians, the Bush Administration is really worried about international attention focusing on inequality here in the United States.

When the U.S. delegation left the conference, the South African government stated, “It will be unfortunate if a perception were to develop that the U.S.A.’s withdrawal from the conference is merely a red herring demonstrating an unwillingness to confront the real issues posed by racism in the U.S.A. and globally.”

Our country is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. That treaty requires us to condemn racial discrimination and to pursue by all appropriate means and without delay a policy to eliminate racial discrimination. It also mandates that we guarantee to everyone without distinction as to race, color, or national or ethnic origin, the rights to public health, medical care, social security, social services and the right to education and training.

Yet 139 years after the Emancipation Proclamation, vast disparities with respect to race pervade every aspect of American life. Non-English-speaking minorities are discriminated against in the educational system and widespread segregation still exists in public elementary and secondary schools. Extensive job discrimination endures in both the public and private labor markets. There are discrepancies in the incomes of white and minority high school graduates.

Racial profiling from the initial police stop to the charging process and trial through the sentencing procedure has been widely documented. Mandatory sentences of life imprisonment are imposed disproportionately on minority defendants. Non-whites are much more likely than whites to be charged with and sentenced to death for substantially similar crimes.

Police brutality against minorities came out of the closet with the videotaped beating of Rodney King in Los Angeles, and the execution of Amadou Diallo and the sodomizing of Abner Louima in New York. The Rampart Scandal in the Los Angeles Police Department proves that the problem encompasses more than just a few bad apples.

Environmental racism has resulted in the location of toxic waste dumps in communities of color. Hate crimes against racial minorities persist. Immigrants, also frequent victims of hate crimes, are often abused by the U.S. Immigration and Naturalization Service.

The United States boycotted prior United Nations conferences on racism in 1978 and 1983, also ostensibly because of resolutions equating Zionism with racism. Siding with Israel isn’t based on the U.S. government’s great love for the Jews, or concern for them as an oppressed people. It is Israel’s strategic location in the Middle East, near the oil-rich Persian Gulf, that motivates the U.S. to support Israel, while disregarding repression in other global hotspots. The United States ignored the genocide in Rwanda, Turkey’s scorched earth campaign against the Kurds, and the ethnic cleansing of 200,000 Serbs from the Krajina reigon by the Croatian army in 1995.

U.S.-led NATO bombed the people of Yugoslavia for 78 days and then moved in to occupy Kosovo and Macedonia, not to stop ethnic cleansing, but to maintain American hegemony over European markets and transport routes for Caspian Sea oil. The United States will not, however, defy Israel by asking the United Nations to send observers or peacekeepers into the West Bank and Gaza, to stop the horrific bloodshed there.

Adjoa Aiyetoro, an attorney with the Women’s International League for Peace and Freedom in Washington, said of the U.S. decision to pull out of the conference: “We definitely believe it is a smoke screen . . . the United States is showing one more time [that] all this talk about freedom and liberty is a lie.” She added, “They need to stop hiding behind and supporting Israel when the United States isn’t even supporting its own people.”

The other issue that terrified the Bush Administration about the 2001 conference was a demand that the U.S. pay reparations to African-Americans for the damage done to them by slavery. Rep. John Conyers Jr. (D.-Mich.) reported that other delegates from the Congressional Black Caucus alleged the U.S. was using the Middle East issue as a smoke screen to avoid discussion of reparations.

Bush had decided not to send Secretary of State Colin Powell to South Africa for the conference, replacing him instead with a “mid-level” delegation, which staged the walkout. The Reverend Jesse Jackson aptly characterized this mid-level delegation as a “high-level insult.”

The United States government was insulted when it was kicked off the United Nations Commission on Human Rights earlier this year. The self-anointed global human rights policeman should attend to the inequality and injustice at home. U.N. Secretary General Kofi Annan told the delegates in South Africa, “Your anger can be valuable if you channel this into a worldwide racism struggle where all of your agendas converge.” By its high-level boycott of the conference, the United States government is pursuing its own agenda of denial of the institutional racism that persists in this country.