Marjorie Cohn

Agent Orange Continues to Poison Vietnam

noreply@blogger.com (Marjorie Cohn) — Sun, 14 Jun 2009 19:15:00 +0000

From 1961 to 1971, the U.S. military sprayed Vietnam with Agent Orange, which contained large quantities of Dioxin, in order to defoliate the trees for military objectives. Dioxin is 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).

Between 2.5 and 4.8 million people were exposed to Agent Orange. 1.4 billion hectares of land and forest - approximately 12 percent of the land area of Vietnam - were sprayed.

The Vietnamese who were exposed to the chemical have suffered from cancer, liver damage, pulmonary and heart diseases, defects to reproductive capacity, and skin and nervous disorders. Children and grandchildren of those exposed have severe physical deformities, mental and physical disabilities, diseases, and shortened life spans. The forests and jungles in large parts of southern Vietnam have been devastated and denuded. They may never grow back and if they do, it will take 50 to 200 years to regenerate. Animals that inhabited the forests and jungles have become extinct, 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, contributing to the warming of the planet and dislocation of crop and animal life.

The U.S. government and the chemical companies knew that Agent Orange, when produced rapidly at high temperatures, would contain large quantities of Dioxin. Nevertheless, the chemical companies continued to produce it in this manner. The U.S. government and the chemical companies also knew that the Bionetics Study, commissioned by the government in 1963, showed that even low levels of Dioxin produced significant deformities in unborn offspring of laboratory animals. But they suppressed that study and continued to spray Vietnam with Agent Orange. It wasn’t until the study was leaked in 1969 that the spraying of Agent Orange was discontinued.

U.S. soldiers who served in Vietnam have experienced similar illnesses. After they sued the chemical companies, including Dow and Monsanto, that manufactured and sold Agent Orange to the government, the case settled out of court for $180 million which gave few plaintiffs more than a few thousand dollars each. Later the U.S. veterans won a legislative victory for compensation for exposure to Agent Orange. They receive $1.52 billion per year in benefits.

But when the Vietnamese victims of Agent Orange sued the chemical companies in federal court, U.S. District Judge Jack Weinstein dismissed the lawsuit, concluding that Agent Orange did not constitute a poison weapon prohibited by the Hague Convention of 1907. Weinstein had reportedly told the chemical companies when they settled the U.S. veterans’ suit that their liability was over and he was making good on his promise. His dismissal was affirmed by the Second Circuit Court of Appeals and the Supreme Court refused to hear the case. The chemical companies admitted in their filing in the Supreme Court that the harm alleged by the victims was foreseeable although not intended. How can something that is foreseeable be unintended?

On May 15 and 16 of this year, the International Peoples’ Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange convened in Paris and heard testimony from 27 victims, witnesses and scientific experts. Seven people from three continents served as judges of the Tribunal, which was sponsored by the International Association of Democratic Lawyers (IADL).

Testimony given by the witnesses showed the following:

Mai Giang Vu, a member of the Army of South Vietnam, carried barrels of the chemicals on his back. His two sons could not walk or function normally, their limbs gradually “curled up” and they could only crawl. They died at the ages of 23 and 25.

Pham The Minh, whose parents also served in the South Vietnamese Army, showed the Tribunal his severely deformed, crooked, skinny legs; he has great difficulty walking, as well as digestive and pulmonary diseases.

To Nga Tran is a French Vietnamese who worked as a journalist during the spraying. Her daughter weighed 6.6 pounds at the age of three months. Her skin began shredding and she could not bear to have skin contact or simple demonstrations of love. She died at 17 months, weighing 6.6 pounds. Ms. To described a woman who gave birth to a “ball” with no human form. Many children are born without brains; others make inhuman sounds.

Rosemarie Hohn Mizo is the widow of George Mizo, who served in the U.S. Army in Vietnam in 1967. He slept on contaminated ground and consumed food and drink that were also contaminated. George refused to serve after he was wounded for the third time; he was court-martialed and sentenced to 2-1/2 years in prison and a dishonorable discharge. George helped found the Friendship Village where Vietnamese victims live in a supportive environment. He died from conditions related to his exposure to Agent Orange.

Georges Doussin, co-founder of the Friendship Village, visited a dormitory where he saw 50 highly deformed “monsters,” who produced inhuman sounds. One man whose parent had been exposed to Agent Orange had four toes on each foot. Doussin said Agent Orange creates “total anarchy in evolution.”

Dr. Nguyen Thi Ngoc Phuong, from Tu Du Hospital in Ho Chi Minh City (Saigon), sees many children born without arms and/or legs, without heads or faces, and without a brain chamber. According to the World Health Organization, only 1 – 4 parts per trillion (PPT) of Dioxin in breast milk can cause severe deformities in fetuses and even death. But up to 1450 PPT are found in maternal milk in Vietnam.

Dr. Jeanne Stellman, who wrote the seminal article about Agent Orange in the magazine Nature, testified that “this is the largest unstudied environmental disaster in the world (except for natural disasters).”

Dr. Jean Grassman, from Brooklyn College at City University of New York, testified that Dioxin is a potent cellular disregulator which alters a variety of pathways to disrupt many systems. Children, she said, are very sensitive to Dioxin; the intrauterine or post natal exposure to Dioxin may result in altered immune, neurobehavioral, and hormonal functioning. Women pass their exposure to their children both in utero and through the excretion of Dioxin in breast milk.

Many ecosystems have been destroyed and Dioxin continues to poison Vietnam, especially in the several “hot spots.”

Chemist Dr. Pierre Vermeulin testified that it was estimated that $1 billion would be required to restore one hectare of land in Vietnam. The cost of caring for the victims, many of whom need 24-hour care, is enormous.

In 1973, President Richard Nixon promised $3.25 billion in reconstruction aid to Vietnam “without any preconditions.” That aid was never granted.

There are only 11 Friendship Villages in Vietnam; 1000 are needed to care for the child victims of Agent Orange.

Last week, the Bureau of the IADL, meeting in Hanoi, presented President Nguyen Minh Triet of the Socialist Republic of Vietnam with the final decision of the Tribunal. The judges found the U.S. government and the chemical companies guilty of war crimes, crimes against humanity, and ecocide during the illegal U.S. war of aggression in Vietnam. We recommended that the Agent Orange Commission be established in Vietnam to assess the damages suffered by the people and destruction of the environment, and that the U.S. government and the chemical companies provide compensation for the damage and destruction.

I told the President that it always struck me that even as U.S. bombs were dropping on the people of Vietnam, they always distinguished between the American government and the American people. The President responded, “We fought the forces of aggression but we always reserved our love for the people of America . . . because we knew they always supported us.”

An estimated 3 million Vietnamese people were killed in the war, which also claimed 58,000 American lives. For many other Vietnamese and U.S. veterans and their families, the war continues to take its toll.

Several treaties the United States has ratified require an effective remedy for violations of human rights. It is time to make good on Nixon’s promise and remedy the terrible wrong the U.S. government perpetrated on the people of Vietnam. Congress must pass legislation to compensate the Vietnamese victims of Agent Orange as it did for the U.S. Vietnam veteran victims.

Our government must know that it cannot continue to use weapons that target and harm civilians. Indeed, the U.S. military is using depleted uranium in Iraq and Afghanistan, which will poison those countries for incalculable decades.

Marjorie Cohn, a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild, served as a judge on the International Peoples’ Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange. She is a member of the Bureau of the International Association of Democratic Lawyers.

National Lawyers Guild Calls for Reasoned Analysis of Sotomayor Nomination

noreply@blogger.com (Marjorie Cohn) — Sat, 30 May 2009 04:27:00 +0000

New York--In the wake of President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court, the National Lawyers Guild (NLG) encourages a reasoned analysis of Sotomayor's candidacy. Critics are focusing on accusations of judicial activism and identity politics rather than engaging in sound examination of her legal qualifications. Comments of this nature serve only to distract from meaningful discussion surrounding the judicial confirmation process.

“When Judge Sotomayor was nominated, conservative pundits immediately leveled allegations of judicial activism against her. That charge is not only hypocritical, but is also disingenuous. Bush v. Gore, supported by these same commentators in 2000, is the most vivid example of judicial activism ever displayed by the highest court,” said Marjorie Cohn, President of the National Lawyers Guild.

Critics have increasingly questioned the role that Sotomayor’s race and gender played in her nomination. Changing the discourse from one of judicial qualifications to one of identity politics detracts from a proper evaluation of her suitability for the job.

The Guild encourages an analysis that focuses on Sotomayor’s credentials and ability to interpret the Constitution of the United States. These are the criteria by which any judicial nominee should be evaluated.

Obama’s Guantánamo Appeasement Plan

noreply@blogger.com (Marjorie Cohn) — Mon, 25 May 2009 18:18:00 +0000

Two days after his inauguration, President Obama pledged to close Guantánamo within one year. The Republicans, led by Senators John McCain, Mitch McConnell and Pat Roberts, immediately launched a concerted campaign to assail the new president. They claimed his plan would release dangerous terrorists into U.S. communities and allow released terrorists to resume fighting against our troops. Fox News agitator Sean Hannity and Bush team players like torture-memo lawyer John Yoo filled the airwaves and print media with paranoia.

The Republican attacks were bogus. A 2008 McClatchy investigation revealed that the overwhelming majority of Guantánamo detainees taken into custody in 2001 and 2002 in Afghanistan and Pakistan were innocent of wrongdoing or bit players with little intelligence value. A substantial number of those prisoners were literally sold to U.S. officials in exchange for bounty payments offered by the U.S. military. A Seton Hall Law Center report has debunked Pentagon claims that many released detainees have “returned to the fight.” And no one has ever escaped from one of the U.S. super-max prisons, which house hundreds of people convicted of terrorist offenses.

The Republicans have continued to oppose the effort to close Guantánamo. In an attempt to burnish his image and forestall war crimes charges, Dick Cheney now leads the charge, making ubiquitous attacks on Obama. Keeping Guantánamo open is “important,” Cheney declares. He claims that closing Guantánamo would endanger Americans, and warns that if detainees are brought to the United States, they would “acquire all kinds of legal rights.” Obama is also taking heat from the intelligence community. Those officials, like Cheney, seek to justify what they did under the Bush regime.

And now even the Democrats are piling on the bandwagon. Reacting defensively to the Republican attack campaign, the Senate voted 90 to 6 to deny Obama funds to close Guantánamo until he comes up with a “plan” for relocating the detainees there. “We spent hundreds of millions of dollars building an appropriate facility with all security precautions on Guantánamo to try these cases,” said Democratic Senator Jim Webb on ABC News. “I do not believe they should be tried in the United States,” he added.

The pressure has caused Obama to buckle. Timed to coincide with a Cheney speech to the right-wing American Enterprise Institute, Obama announced an appeasement plan to deal with the 240 remaining Guantánamo detainees. Parts of his plan would threaten the very foundation of our legal system – that no one should be held in custody if he has committed no crime. These are Obama’s five categories for disposition of detainees once Guantánamo is closed:

1) Those who violated the laws of war will be tried in military commissions.

Obama's plan would backtrack on an early promise to shut down the military commissions. Obama now claims that such commissions can be fair because they will no longer permit the use of evidence obtained by cruel, inhuman or degrading interrogation methods. He fails to mention, however, that the Pentagon is using “clean teams” to re-interrogate people who were previously interrogated using the prohibited methods. When they once again give the same information, it miraculously becomes untainted. Obama also fails to acknowledge that those tried in the military commissions are forbidden from seeing all the evidence against them, a violation of the bedrock principle that the accused must have an opportunity to confront his accusers.

Even the U.S. Supreme Court has disagreed with this part of Obama's proposed plan of action. In Ex parte Milligan, the Supreme Court declared military trials of civilians to be unconstitutional if civil courts are available.

Prisoners falling in this category should be tried in the courts of the United States, because the laws of war are actually part of U.S. law. The Supremacy Clause of the Constitution says that treaties shall be the supreme law of the land. The Geneva Conventions and the Hague Convention, which the United States has ratified, contain the laws of war.

2) Those who have been ordered released from Guantánamo will remain in custody.

Seventeen Uighurs from China were ordered released after they were found not to be enemy combatants. But they continue to languish in custody because they would be imperiled if returned to China, which considers them enemies of the state. Suggestions that they be brought to the United States have been met with paranoid NIMBY (not in my backyard!) protestations. So, under Obama's plan they will remain incarcerated in a state of legal limbo.

3) Those who cannot be prosecuted yet “pose a clear danger to the American people” will remain in custody with no right to legal process of any kind.

These are people who have never been charged with a crime. Obama did not say why they cannot be prosecuted. Secretary of Defense Robert Gates claims as many as 100 people may fall into this category. Included in this group are those who have “expressed their allegiance to Osama bin Laden.” They will suffer “prolonged detention.”

Obama's plan for "prolonged detention" is nothing more than a newly-coined phrase for “preventive detention,” a policy that harks back to the bad old days of the Alien and Sedition Acts of 1798 and the internment of people of Japanese extraction in the 1940’s. If Obama succeeds in convincing Congress to legalize “prolonged detention,” the United States will continue to be a pariah state among justice-loving nations. The U.S. Congress, still rendered catatonic by post-9/11 rhetoric, will probably capitulate along with Obama.

Michael Ratner, president of the Center for Constitutional Rights, noted that Obama’s new system of preventive detention will just “move Guantánamo to a new location and give it a new name.”

4) Those who can be safely transferred to other countries will be transferred.

Obama noted that 50 men fall into this category. It is unclear what will happen to them when they reach their destinations.

5) Those who violated U.S. criminal laws will be tried in federal courts.

Obama cited the examples of Ramzi Yousef, who tried to blow up the World Trade Center, and Zacarias Moussaoui, who was identified as the 20th 9/11 hijacker. Both were tried and convicted in U.S. courts and both are serving life sentences.

This is the only clearly acceptable part of Obama's plan. All detainees slated to remain in custody should be placed into this category. The federal courts provide due process as required by the Fifth Amendment to the Constitution, which does not limit due process rights to U.S. citizens: “No person . . . shall be deprived of life, liberty, or property without due process of law.”

The federal courts are well suited to deal with accused terrorists. Indeed, federal judges who have presided over such cases say that the Classified Information Procedures Act can effectively protect classified intelligence in federal court trials.

If Mr. Obama proceeds with the plan he announced this week he will empower those who point to U.S. hypocrisy on human rights as a justification to do us harm. Obama’s capitulation to the intelligence gurus and the right-wing attack dogs will not only imperil the rule of law; it will actually make us more vulnerable to future acts of terrorism.

Stanford Anti-War Alumni, Students Call for Condi War Crimes Probe

noreply@blogger.com (Marjorie Cohn) — Wed, 06 May 2009 03:55:00 +0000

During the Vietnam War, Stanford students succeeded in banning secret military research from campus. Last weekend, 150 activist alumni and present Stanford students targeted Condoleezza Rice for authorizing torture and misleading Americans into the illegal Iraq War.

Veterans of the Stanford anti-Vietnam War movement had gathered for a 40th anniversary reunion during the weekend. The gathering featured panels on foreign policy, the economy, political and social movements, science and technology, media, energy and the environment, and strategies for aging activists.

On Sunday, surrounded by alumni and students, Lenny Siegel and I nailed a petition to the University President’s office door. The petition, circulated by Stanford Says No to War, reads:

“We the undersigned students, faculty, staff, alumni, and other concerned members of the Stanford community, believe that high officials of the U.S. Government, including our former Provost, current Political Science Professor, and Hoover Institution Senior Fellow, Condoleezza Rice, should be held accountable for any serious violations of the Law (included ratified treaties, statutes, and/or the U.S. Constitution) through investigation and, if the facts warrant, prosecution, by appropriate legal authorities.”

I stated, “By nailing this petition to the door of the President’s office, we are telling Stanford that the university should not have war criminals on its faculty. There is prima facie evidence that Rice approved torture and misled the country into the Iraq War. Stanford has an obligation to investigate those charges.”

After the petition nailing, I cited the law and evidence of Condoleezza Rice’s responsibility for war crimes - including torture - and for selling the illegal Iraq War:

As National Security Advisor, Rice authorized waterboarding in July 2002, according to a newly released report of the Senate Intelligence Committee. Less than two months later, she hyped the impending U.S. invasion of Iraq, saying, “We don’t want the smoking gun to be a mushroom cloud.” Her ominous warning was part of the Bush administration’s campaign to sell the Iraq war, in spite of the UN International Atomic Energy Agency’s assurances that Saddam Hussein did not possess nuclear weapons.

A week before the nailing of the petition, Rice made some Nixonian admissions in response to questions from Stanford students during a campus dinner designed to burnish Rice’s image on campus.

In October 1968, Stanford anti-war activists had nailed a document to the door of the trustees’ office which demanded that Stanford “halt all military and economic projects concerned with Southeast Asia.”

If you have had any affiliation with Stanford, please sign the petition at http://www.stanford.edu/group/antiwar/crpetition.html.

Condi Channels Nixon: If the President Says So, It’s Not Illegal

noreply@blogger.com (Marjorie Cohn) — Thu, 30 Apr 2009 14:02:00 +0000

On April 27, Condoleezza Rice had a brief Q & A with some Stanford students:

Condi was extremely uncomfortable, defensive and nervous. She was rude to the first student, interrupted him and yelled at him.

When asked by another student about a recent report that she authorized waterboarding, Condi said, “I didn't authorize anything. I conveyed the authorization of the administration to the agency [CIA] that they had policy authorization subject to the Justice Department’s clearance.”

The kicker was when she was asked whether waterboarding is torture. She replied, "By definition, if it was authorized by the President, it didn't violate our obligations under the Convention against Torture."

Richard Nixon: “If the president does it, it's not illegal.”

John Yoo, in a 2005 debate with Notre Dame professor Doug Cassel: There is no law that could prevent the President from ordering that a young child of a suspect in custody be tortured, even by crushing the child's testicles.

Torture Used to Try to Link Saddam with 9/11

noreply@blogger.com (Marjorie Cohn) — Fri, 24 Apr 2009 00:28:00 +0000

When I testified last year before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties about Bush interrogation policies, Congressman Trent Franks (R-Ariz) stated that former CIA Director Michael Hayden had confirmed that the Bush administration only waterboarded Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashirit for one minute each. I told Franks I didn’t believe that. Sure enough, one of the newly released torture memos reveals that Mohammed was waterboarded 183 times and Zubaydah was waterboarded 83 times. One of Stephen Bradbury’s 2005 memos asserted that “enhanced techniques” on Zubaydah yielded the identification of Mohammed and an alleged radioactive bomb plot by Jose Padilla. But FBI supervisory special agent Ali Soufan, who interrogated Zubaydah from March to June 2002, wrote in the New York Times that Zubaydah produced that information under traditional interrogation methods, before the harsh techniques were ever used.

Why, then, the relentless waterboarding of these two men? It turns out that high Bush officials put heavy pressure on Pentagon interrogators to get Mohammed and Zubaydah to reveal a link between Saddam Hussein and the 9/11 hijackers, in order to justify Bush’s illegal and unnecessary invasion of Iraq in 2003, according to a newly released report of the Senate Armed Services Committee. That link was never established.

The Senate Intelligence Committee revealed that Condoleezza Rice approved waterboarding on July 17, 2002 “subject to a determination of legality by the OLC.” She got it two weeks later from Jay Bybee and John Yoo. Rice, Dick Cheney, John Ashcroft, Alberto Gonzales and George Tenet reassured the CIA in spring 2003 that the abusive methods were legal.

Team Bush claimed - and still claims - that it had to use harsh techniques to protect us from the terrorists. They really sought to create evidence to rationalize an illegal, unnecessary, and tragic war.

Bush Memos Reveal Policy of Cruelty; Obama Refuses to Enforce the Law

noreply@blogger.com (Marjorie Cohn) — Wed, 22 Apr 2009 16:10:00 +0000

In response to a Freedom of Information Act request by the ACLU, President Obama released four Bush-era memos that describe unimaginably brutal techniques and provide “legal” justification for clearly illegal acts of torture and cruel, inhuman or degrading treatment. In the face of monumental pressure from the CIA to keep them secret, Obama demonstrated great courage in deciding to make the grotesque memos public. At the same time, however, in an attempt to pacify the intelligence establishment, Obama said, “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He guaranteed free legal representation for CIA employees investigated by Congress or international tribunals, and indemnification for any financial judgments rendered against them.

Obama’s intent to immunize those who violated our laws banning torture and cruel treatment violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

The memos

The memo dated August 1, 2002 was signed by Jay Bybee, and the other three memos, dated May 10, 2005, were signed by Stephen Bradbury.

In startlingly clinical and dispassionate terms, the authors of the newly-released torture memos describe and then rationalize why the devastating techniques the CIA sought to employ on human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques, including banging heads into walls 30 times in a row, prolonged nudity, repeated facial and abdominal slapping, dietary manipulation, and dousing with cold water as low as 41 degrees. They allow shackling in a standing position for 180 hours, sleep deprivation for 11 days, confinement of people in small dark boxes with insects for hours, and waterboarding to create the perception they are drowning. Moreover, the memos permit many of these techniques to be used in combination for a 30-day period. They find that none of these techniques constitute torture or cruel, inhuman or degrading treatment.

Waterboarding, admittedly the most serious of the methods, is designed, according to Bybee, to induce the perception of “suffocation and incipient panic, i.e. the perception of drowning.” But although Bybee finds that “the use of the waterboard constitutes a threat of imminent death,” he accepts the CIA’s claim that it does “not anticipate that any prolonged mental harm would result from the use of the waterboard.” As psychologist Jeffrey Kaye points out, the CIA and the Justice Department “ignored a wealth of other published information” that indicates dissociative symptoms, changes greater than those in patients undergoing heart surgery, and drops in testosterone to castration levels after acute stress associated with techniques that the memos sanction.

The Torture Statute punishes conduct, or conspiracy to engage in conduct, specifically intended to inflict severe physical or mental pain or suffering. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from either the intentional infliction or threatened infliction of severe physical pain or suffering, or from the threat of imminent death.

Bybee asserts that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” He makes the novel claim that the presence of personnel with medical training who can stop the interrogation if medically necessary “indicates that it is not your intent to cause severe physical pain.”

Now a federal judge with lifetime appointment, Bybee concludes that waterboarding does not constitute torture under the Torture Statute. However, he writes, “we cannot predict with confidence whether a court would agree with this conclusion.”

The Bush administration claimed it only used waterboarding three times. But a footnote in one of Bradbury’s memos says waterboarding was utilized “with far greater frequency than initially indicated” with “large volumes of water” rather than small quantities as required by the CIA’s rules.

Bybee’s memo explains why the 10 techniques could be used on Abu Zubaydah, who was considered to be a top Al Qaeda operative. “Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from [the CIA’s] proposed interrogation methods,” the CIA told Bybee. But Zubaydah was a low-ranking Al Qaeda operative, according to leading FBI counter-terrorism expert Dan Coleman, who advised a top FBI official, “This guy is insane, certifiable, split personality.” This was reported by Ron Suskind in his book, The One Percent Doctrine.

The CIA’s request to confine Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA it could place a harmless insect in the box and tell Zubaydah that it will sting him but it won’t kill him. Even though the CIA knew that Zubaydah had an irrational fear of insects, Bybee found there would be no threat of severe physical pain or suffering if it followed this procedure.

Another noxious aspect of these memos is the use of medical professionals to enable the torture and cruel treatment. They are on hand to monitor the victims to make sure they come close to death, but don’t actually die. But the medical personnel may well allow the abuse to cause severe physical pain and do nothing to stop it until the victim reaches the point of impending death. One of Bradbury’s memos requires that a physician be on duty during waterboarding to perform a tracheotomy in case the victim doesn’t recover after being returned to an upright position.

Employing a standard used to measure due process violations, Bradbury concluded that “the CIA interrogation techniques, with their careful screening procedures and medical monitoring, do not ‘shock the conscience,’” and thus were not cruel, inhuman or degrading. It is difficult to imagine how the techniques described above would fail to shock the conscience of any human being.

Obama’s refusal to faithfully execute the law

The Constitution requires the President to enforce the law against both the petty thief who stole salmon from the market, and the CIA agent who tortured or abused a prisoner.

Our law prohibits torture and cruel, inhuman or degrading treatment, and requires that those who subject people to such treatment be prosecuted. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation. The Geneva Conventions proclaim an “obligation” to bring those who have committed torture and cruel treatment before our “own courts.” The Torture Convention and the Geneva Conventions are both part of U.S. law under the Supremacy Clause of the Constitution, which says, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Two federal statutes – the Torture Statute and the War Crimes Act (torture is a war crime) - provide for life imprisonment and even the death penalty if the victim dies from torture.

Obama has made a political calculation to seek amnesty for the CIA torturers. He expressed his “intention” to protect people who relied in good faith on Justice Department advice. However, good faith reliance on superior orders was rejected as a defense at Nuremberg and in Lt. Calley’s Vietnam-era trial for the My Lai Massacre. The Torture Convention provides unequivocally, “An order from a superior officer or a public authority may not be invoked as a justification for torture.”

There is evidence that the CIA was using the illegal techniques as early as April 2002, three to four months before the August memo was written. That would eliminate “good faith” reliance on Justice Department advice as a “defense” to prosecution. And Obama did not say he favored amnesty for those who set the policy – which would include Cheney, Rumsfeld, Rice, Powell, Ashcroft and Gonzales who comprised the Principals Committee that authorized the torture and Bush who approved of it. Nor did Obama include in his intended amnesty the lawyers – like Yoo, Bybee, Bradbury, Addington and Haynes - whose opinions under girded the policy.

When ABC’s George Stephanopoulos asked Rahm Emanuel on Sunday, “What about the people who designed the policies?", Emmanuel said the President doesn’t support their prosecution either.

But the decision about whether and who to prosecute is up to the Attorney General, Eric Holder. If Holder continues to carry out Obama’s political agenda by resisting investigations and prosecution, Congress can, and should, authorize the appointment of a special independent prosecutor to do what the law requires.

The Watergate scandal led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President Carter asked Congress to pass a law authorizing the appointment of a special prosecutor to investigate and prosecute unlawful acts by high government officials. The bill empowered the attorney general to conduct a preliminary 90-day investigation when serious allegations arose involving a high government official.

Under the act, the attorney general could drop the investigation if he determined it was unsupported by the evidence. But if he found some merit to the charges, he was required to apply to a three-judge panel of federal court judges who would appoint a special prosecutor to investigate, prosecute, and issue a report. This procedure was used to appoint Kenneth Starr, whose witch hunt led to Bill Clinton's impeachment. In reaction, Congress allowed the independent counsel statute to expire by its own terms in 1999. It’s time for the people to demand that Congress enact an independent counsel statute.

Universal jurisdiction

What happens if the United States government refuses to prosecute those who ordered, justified and carried out the torture and abuse? Other countries will launch criminal investigations of U.S. nationals under universal jurisdiction. See Spain Investigates What America Should [http://marjoriecohn.com/2009/04/spain-investigates-what-america-should.html].

Indeed prosecutors in Spain decided to file criminal charges against Yoo, Bybee, Gonzales, Haynes, Addington and Feith for torture. But in a rare move, Candido Conde-Pumpido, Spain’s attorney general, overruled the prosecutors’ decision, saying the case had “no merit” because the six men were not present when the abuse took place and it was up to the United States to prosecute.

Universal jurisdiction is used to prosecute foreign nationals when their own country refuses to prosecute. Adoph Eichmann, often called “the architect of the Holocaust,” was tried, convicted and executed by Israel for crimes unconnected to Israel. He orchestrated the deportations but was not necessarily present at the gas chambers when millions were murdered.

Curiously, Conde-Pumpido’s decision followed discussions between the U.S. and Spanish governments in which the Obama administration strongly suggested that charges against the six would be “inconvenient,” according to Scott Horton of Harpers. Apparently and unfortunately, Obama is following the same tack Bush took by pressuring countries to back down on universal jurisdiction prosecutions.

The Spanish case is not dead, however. Judge Baltasar Garzon, who issued the arrest warrant for Augusto Pinochet in 1998, still has the power to determine whether the case will proceed.

Ultimately, it is up to Obama to fulfill his constitutional duty to ensure that the laws are faithfully executed. As he seems inclined to shirk that duty, it is up to us to pressure him, and Congress to hold accountable, those who violate our laws. Obama said that “nothing will be gained by spending our time and energy laying blame for the past.” He is wrong. There is more to gain from upholding the rule of law. It will make future leaders think twice before they authorize the cruel, illegal treatment of other human beings.

Spain Investigates What America Should

noreply@blogger.com (Marjorie Cohn) — Tue, 07 Apr 2009 00:07:00 +0000

A Spanish court has initiated criminal proceedings against six former officials of the Bush administration. John Yoo, Jay Bybee, David Addington, Alberto Gonzales, William Haynes and Douglas Feith may face charges in Spain for authorizing torture at Guantánamo Bay.

If arrest warrants are issued, Spain and any of the other 24 countries that are parties to European extradition conventions could arrest these six men when they travel abroad.

Does Spain have the authority to prosecute Americans for crimes that didn't take place on Spanish soil?

The answer is yes. It's called "universal jurisdiction." Universal jurisdiction is a well-established theory that countries, including the United States, have used for many years to investigate and prosecute foreign nationals for crimes that shock the conscience of the global community. It provides a critical legal tool to hold accountable those who commit crimes against the law of nations, including war crimes and crimes against humanity. Without universal jurisdiction, many of the most notorious criminals would go free. Countries that have used this as a basis to prosecute the most serious of crimes should be commended for their courage. They help to create a just world in which we all seek to live.

Israel used universal jurisdiction to prosecute, convict and execute Adolph Eichmann for his crimes during the Holocaust, even they had no direct relationship with Israel.

A federal court in Miami recently convicted Chuckie Taylor, son of the former Liberian president, of torture that occurred in Liberia. A U.S. court sentenced Taylor to 97 years in prison in January.

Universal jurisdiction complements, but doesn't supersede, national prosecutions. So if the United States were investigating the Bush officials, other countries would refrain from doing so.

When the United States ratified the Convention Against Torture, it promised to extradite or prosecute those who commit, or are complicit in, the commission of torture.

President Obama, when asked whether he favored criminal investigations of Bush officials, replied, "My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen."

"But," he added, "generally speaking, I'm more interested in looking forward than I am in looking backward." Preoccupied with the economy and two wars, Obama reportedly wants to wait before considering prosecutions that would invariably anger the GOP.

Evidence that Bush officials set a policy that led to the torture of prisoners at Guantánamo continues to emerge.

According to ABC News, Gonzales met with other officials in the White House and authorized torture, including waterboarding.

The Office of Professional Responsibility, which reports to the U.S. attorney general, drafted a report that excoriates Yoo and Bybee for writing the infamous torture memos. Haynes, Addington and Feith participated in decisions that led to torture. The release of additional graphic torture memos by the U.S. Department of Justice is imminent.

It is the responsibility of the United States to investigate allegations of torture. Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 support criminal investigations.

Former Navy General Counsel Alberto Mora told Congress, "There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq - as judged by their effectiveness in recruiting insurgent fighters into combat - are, respectively the symbols of Abu Ghraib and Guantánamo." Providing impunity to those who ordered the torture will be the third recruiting tool.

If the United States refuses to investigate now, it will be more likely that some future administration will repeat this scenario. The use of torture should be purged from our system, much like we eradicated slavery.

Memos Provide Blueprint for Police State

noreply@blogger.com (Marjorie Cohn) — Wed, 04 Mar 2009 06:03:00 +0000

Seven newly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called “torture memos” that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

What does the federal maiming statute prohibit? It makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." It further prohibits individuals from "throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance" with like intent.

The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.

The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush’s Department of Justice, issued two disclaimer memos – on October 6, 2008 and January 15, 2009 – that said the assertions in those seven memos did “not reflect the current views of this Office.” Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.

Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.

In his memos, Yoo justified giving unchecked authority to the President because the United States was in a “state of armed conflict.” Yoo wrote, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.

Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn’t intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Bybee claimed the Torture Convention didn’t apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.

The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee’s torture memos, has not yet been released.

Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI’s leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun – his information was virtually worthless.

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.

War Criminals, Including Their Lawyers, Must Be Prosecuted

noreply@blogger.com (Marjorie Cohn) — Fri, 20 Feb 2009 01:29:00 +0000

Since he took office, President Obama has instituted many changes that break with the policies of the Bush administration. The new president has ordered that no government agency will be allowed to torture, that the U.S. prison at Guantánamo will be shuttered, and that the CIA’s secret black sites will be closed down. But Obama is non-committal when asked whether he will seek investigation and prosecution of Bush officials who broke the law. “My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen,” Obama said. “But,” he added, “generally speaking, I'm more interested in looking forward than I am in looking backwards.” Obama fears that holding Team Bush to account will risk alienating Republicans whom he still seeks to win over.

Obama may be off the hook, at least with respect to investigating the lawyers who advised the White House on how to torture and get away with it. The Office of Professional Responsibility (OPR) has written a draft report that apparently excoriates former Justice Department lawyers John Yoo, Jay Bybee and Stephen Bradbury, authors of the infamous torture memos, according to Newsweek’s Michael Isikoff. OPR can report these lawyers to their state bar associations for possible discipline, or even refer them for criminal investigation. Obama doesn’t have to initiate investigations; the OPR has already launched them, on Bush’s watch.

The smoking gun that may incriminate George W. Bush, Dick Cheney, et al., is the email traffic that passed between the lawyers and the White House. Isikoff revealed the existence of these emails on The Rachel Maddow Show. Some maintain that Bush officials are innocent because they relied in good faith on legal advice from their lawyers. But if the president and vice president told the lawyers to manipulate the law to allow them to commit torture, then that defense won’t fly.

A bipartisan report of the Senate Armed Services Committee found that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Cheney recently admitted to authorizing waterboarding, which has long been considered torture under U.S. law. Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft met with Cheney in the White House basement and authorized harsh interrogation techniques, including waterboarding, according to an ABC News report. When asked, Bush said he knew about it and approved.

John Yoo wrote in a Wall Street Journal oped that Bush “could even authorize waterboarding, which he did three times in the years after 9/11.”

A representative of the Justice Department promised that OPR’s report would be released sometime last November. But Bush's attorney general Michael Mukasey objected to the draft. A final version will be presented to Attorney General Eric Holder. The administration will then have to decide whether to make it, and the emails, public and then how to proceed.

When the United States ratified the Convention Against Torture, we promised to extradite or prosecute those who commit, or are complicit in the commission, of torture. We have two federal criminal statutes for torture prosecutions – the Torture Statute and the War Crimes Act (torture is considered a war crime under U.S. law). The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.

Yoo redefined torture much more narrowly than U.S. law provides, and counseled the White House that it could evade prosecution under the War Crimes Act by claiming self-defense or necessity. Yoo knew or should have known of the Torture Convention’s absolute prohibition of torture.

There is precedent for holding lawyers criminally liable for giving legally erroneous advice that resulted in great physical or mental harm or death. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to “legally” disappear political suspects to special detention camps.

Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 favor criminal investigations. Cong. John Conyers has introduced legislation to establish a National Commission on Presidential War Powers and Civil Liberties. Sen. Patrick Leahy advocates for a Truth and Reconciliation Commission; but this is insufficient. TRC’s are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.

Attorney General Eric Holder should appoint a Special Prosecutor to investigate and prosecute high Bush officials including lawyers like John Yoo who gave them “legal” cover. Obama is correct when he said that no one is above the law. Accountability is critical to ensuring that our leaders never again torture and abuse people.

A Call to End All Renditions

noreply@blogger.com (Marjorie Cohn) — Wed, 11 Feb 2009 00:00:00 +0000

Binyam Mohamed, an Ethiopian residing in Britain, said he was tortured after being sent to Morocco and Afghanistan in 2002 by the U.S. government. Mohamed was transferred to Guantánamo in 2004 and all terrorism charges against him were dismissed last year. Mohamed was a victim of extraordinary rendition, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured.

Mohamed and four other plaintiffs are accusing Boeing subsidiary Jeppesen Dataplan, Inc. of flying them to other countries and secret CIA camps where they were tortured. In Mohamed’s case, two British justices accused the Bush administration of pressuring the British government to block the release of evidence that was “relevant to allegations of torture” of Mohamed.

Twenty-five lines edited out of the court documents included details about how Mohamed’s genitals were sliced with a scalpel as well as other torture methods so extreme that waterboarding “is very far down the list of things they did,” according to a British official quoted by the Telegraph (UK).

The plaintiffs’ complaint quotes a former Jeppesen employee as saying, “We do all of the extraordinary rendition flights – you know, the torture flights.” A senior company official also apparently admitted the company transported people to countries where they would be tortured.

Obama’s Justice Department appeared before a three-judge panel of the Ninth U.S. Circuit Court of Appeals Monday in the Jeppesen lawsuit. But instead of making a clean break with the dark policies of the Bush years, the Obama administration claimed the same “state secrets” privilege that Bush used to block inquiry into his policies of torture and illegal surveillance. Claiming that the extraordinary rendition program is a state secret is disingenuous since it is has been extensively documented in the media.

“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.

If the judges accept Obama's state secrets claim, these men will be denied their day in court and precluded from any recovery for the damages they suffered as a result of extraordinary rendition.

Two and a half weeks before Obama’s representative appeared in the Jeppesen case, the new President had signed Executive Order 13491. It established a special task force “to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.”

This order prohibits extraordinary rendition. It also ensures humane treatment of persons in U.S. custody or control. But it doesn’t specifically guarantee that prisoners the United States renders to other countries will be free from cruel, inhuman or degrading treatment that doesn’t amount to torture. It does, however, aim to ensure that our government’s practices of transferring people to other countries complies with U.S. laws and policies, including our obligations under international law.

One of those laws is the International Covenant on Civil Political Rights (ICCPR), a treaty the United States ratified in 1992. Article 7 of the ICCPR prohibits the States Parties from subjecting persons “to torture or to cruel, inhuman, or degrading treatment or punishment.” The Human Rights Committee, which is the body that monitors the ICCPR, has interpreted that prohibition to forbid States Parties from exposing “individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”

Order 13491 also mandates, “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” The order does not define “expeditiously” and the definitional section of the order says that the terms ‘detention facilities’ and ‘detention facility’ “do not refer to facilities used only to hold people on a short-term, transitory basis.” Once again, “short term” and “transitory” are not defined.

In his confirmation hearing, Attorney General Eric Holder categorically stated that the United States should not turn over an individual to a country where we have reason to believe he will be tortured. Leon Panetta, nominee for CIA director, went further and interpreted Order 13491 as forbidding “that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values.”

But alarmingly, Panetta appeared to champion the same standard used by the Bush administration, which reportedly engaged in extraordinary rendition 100 to 150 times as of March 2005. After September 11, 2001, President Bush issued a classified directive that expanded the CIA’s authority to render terrorist suspects to other States. Former Attorney General Alberto Gonzales said the CIA and the State Department received assurances that prisoners will be treated humanely. “I will seek the same kinds of assurances that they will not be treated inhumanely,” Panetta told the senators.

Gonzales had admitted, however, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us . . . If you’re asking me, ‘Does a country always comply?’ I don’t have an answer to that.”

The answer is no. Binyam Mohamed’s case is apparently the tip of the iceberg. Maher Arar, a Canadian born in Syria, was apprehended by U.S. authorities in New York on September 26, 2002, and transported to Syria, where he was brutally tortured for months. Arar used an Arabic expression to describe the pain he experienced: “you forget the milk that you have been fed from the breast of your mother.” The Canadian government later exonerated Arar of any terrorist ties. Thirteen CIA operatives were arrested in Italy for kidnapping an Egyptian, Abu Omar, in Milan and transporting him to Cairo where he was tortured.

Panetta made clear that the CIA will continue to engage in rendition to detain and interrogate terrorism suspects and transfer them to other countries. “If we capture a high-value prisoner,” he said, “I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” No clarification of how long is “temporarily” or what “debrief” would mean.

When Sen. Christopher Bond (R-Mo.) asked about the Clinton administration’s use of the CIA to transfer prisoners to countries where they were later executed, Panetta replied, “I think that is an appropriate use of rendition.” Jane Mayer, columnist for the New Yorker, has documented numerous instances of extraordinary rendition during the Clinton administration, including cases in which suspects were executed in the country to which the United States had rendered them. Once when Richard Clarke, President Clinton’s chief counter-terrorism adviser on the National Security Council, “proposed a snatch,” Vice-President Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”

There is a slippery slope between ordinary rendition and extraordinary rendition. “Rendition has to end,” Michael Ratner, president of the Center for Constitutional Rights, told Amy Goodman on Democracy Now! “Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence.” Ratner queried whether Cuba could enter the United States and take Luis Posada, the man responsible for blowing up a commercial Cuban airline in 1976 and killing 73 people. Or whether the United States could go down to Cuba and kidnap Assata Shakur, who escaped a murder charge in New Jersey.

Moreover, “renditions for the most part weren’t very productive,” a former CIA official told the Los Angeles Times. After a prisoner was turned over to authorities in Egypt, Jordan or another country, the CIA had very little influence over how prisoners were treated and whether they were ultimately released.

The U.S. government should disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001. Those who ordered renditions should be prosecuted. And the special task force should recommend, and Obama should agree to, an end to all renditions.

Israel’s Collective Punishment of Gaza

noreply@blogger.com (Marjorie Cohn) — Tue, 06 Jan 2009 21:10:00 +0000

Since Israel began its war on Gaza 11 days ago, more than 560 Palestinians – about a quarter of them civilians – have been killed. Some two thousand Gazans, including hundreds of children, have been wounded. Israel’s “Operation Cast Lead” marks an escalation of Israel’s two-year blockade of the Gaza Strip which has deprived 1.5 million Palestinians of necessary food, medicine, fuel and other necessities.

Israel is using white phosphorous gas, an illegal chemical weapon that burns to the bone. Dr. Mads Gilbert, a member of a Norwegian triage medical team working in Gaza, has documented Israel’s use of Dense Inert Metal Explosive (DIME), which cuts its victims to pieces and reportedly causes cancer in survivors. Gilbert, who has worked in several conflict zones, said the situation in Gaza is the worst he has ever seen. Two United Nations schools have been hit by airstrikes, killing at least 30 people. The New York Times reported on Monday that Gazan hospitals are full of civilians, not Hamas fighters.

The targeting of civilians violates the Fourth Geneva Convention. Since the rockets fired from Gaza into Israel cannot distinguish between civilians and military targets, they are illegal. But Israel’s air and ground attack in Gaza violates Geneva in four ways. First, it constitutes collective punishment of the entire population in Gaza for the acts of a few militants. Second, it targets civilians, as evidenced by the large numbers of civilian casualties. Third, it is a disproportionate response to the rockets fired into Israel. Fourth, an occupying power has an obligation to ensure food and medical supplies to the occupied population; Israel’s blockade has created a humanitarian crisis in Gaza.

Israel’s airstrikes and ground assault on the people of Gaza have little to do with the Gazan rockets, which hadn’t killed any Israelis for a year before Israel’s current military operation. Israel’s leaders are bombing and attacking Gaza in order to gain an advantage in the upcoming Israeli elections in February.

Foreign Minister Tsipi Livni is locked in a tight race with Benyamin Netanyahu, who has criticized Livni for her “soft” treatment of the Palestinians. The Israeli government seeks to do as much damage as possible to Gaza while Bush is still in office. The New York Times cited several Middle East experts who “believe that Israel timed its move against Hamas, which began on Dec. 26, 25 days before Mr. Bush leaves office, with the expectation of such backing in Washington.” Obama, in spite of his unequivocal support for the policies of Israel during the campaign and his deafening silence about the recent casualties, is an unknown quantity.

Israel would be unable to carry out its aggressive policies in Gaza without the support of the United States, which gives Israel $3 billion in U.S. taxpayer money each year. The F-16 bombers and Apache attack helicopters Israel is using on Gaza were bought with U.S. money.

The war on Gaza also violates U.S. law. The Human Rights and Security Assistance Act mandates that the United States cease all military aid to Israel, which has engaged in a consistent pattern of gross violations of internationally recognized human rights. The Arms Export Control Act prohibits U.S. weapons from being used for any purpose other than inside the borders of a country for self-defense. Targeting schools, police stations and television broadcast centers is not self-defense.

Although Israel’s supreme court ordered the government to allow international media into Gaza to report on the situation there, Israel has refused. But, according to the New York Times, Israel has given “full access to Israeli political and military commentators.” Ethan Bronner, the Times bureau chief in Jerusalem, said, “Israel has never restricted media access like this before, and it should be ashamed . . . It’s betraying the principles by which it claims to live.”

In spite of the one-sided pro-Israel media coverage in the United States, Newsweek said, “Does it make sense for America to support [Israel’s] policy of punishing Hamas by making life unbearable for 1.5 million Gazans by denying aid and economic development? The answer is no.” An editorial in the Los Angeles Times called for “an end to a blockade that amounts to the collective punishment of Palestinians under Hamas rule.” And the New York Times editorialized that “the longer the Israeli incursion. . . the more Hamas’s popularity grows among its supporters.”

Hundreds of thousands of people around the world are protesting Israel’s aggression in Gaza. Ten thousand demonstrated in Israel and scores have taken to the streets in Europe, the Middle East and throughout the United States.

A recent Rasmussen Reports poll found that Americans generally “are closely divided over whether the Jewish state should be taking military action against militants in the Gaza strip.” But Democratic voters overwhelmingly oppose the Israeli offensive by a 24-point margin (31-55%). Republicans, on the other hand, overwhelmingly support it (62-27%). Nevertheless, Democratic Party leaders have followed Bush in their uncritical support for Israel.

The United States has blocked a ceasefire resolution in the Security Council. In the absence of council action, the General Assembly is empowered to act under the Uniting for Peace Resolution 377. Assembly president Miguel D’Escoto, who has been critical of Israel’s actions in Gaza, said that “the time has come to take firm action if the UN does not want to be rightly accused of complicity by omission.” The Human Rights Council should send a high level fact finding mission to Gaza.

It’s time to call a halt to the violence and bloodshed.

Cheney Throws Down Gauntlet, Defies Prosecution for War Crimes

noreply@blogger.com (Marjorie Cohn) — Thu, 18 Dec 2008 22:27:00 +0000

Dick Cheney has publicly confessed to ordering war crimes. Asked about waterboarding in an ABC News interview, Cheney replied, “I was aware of the program, certainly, and involved in helping get the process cleared.” He also said he still believes waterboarding was an appropriate method to use on terrorism suspects. CIA Director Michael Hayden confirmed that the agency waterboarded three Al Qaeda suspects in 2002 and 2003.

U.S. courts have long held that waterboarding, where water is poured into someone’s nose and mouth until he nearly drowns, constitutes torture. Our federal War Crimes Act defines torture as a war crime punishable by life imprisonment or even the death penalty if the victim dies.

Under the doctrine of command responsibility, enshrined in U.S. law, commanders all the way up the chain of command to the commander-in-chief can be held liable for war crimes if they knew or should have known their subordinates would commit them and they did nothing to stop or prevent it.

Why is Cheney so sanguine about admitting he is a war criminal? Because he’s confident that either President Bush will preemptively pardon him or President-elect Obama won’t prosecute him.

Both of those courses of action could be illegal.

First, it is not clear that a president can immunize himself or his subordinates from prosecution for committing crimes that he himself authorized. During the Constitutional convention, George Mason expressed concern that a president could abuse his pardon power to ‘pardon crimes which were advised by himself’ or, before indictment or conviction, ‘to stop inquiry and prevent detection.’

On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which require humane treatment, did not apply to Al Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high level meetings where waterboarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.

Attorney General Michael Mukasey says there’s no need for Bush to issue blanket pardons since there is no evidence that anyone developed the policies “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” But noble motives are not defenses to the commission of crimes.

Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, “There is no longer any doubt as to whether the current 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.”

Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions.

The bipartisan December 11 report of the Senate Armed Services Committee concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Lawyers who wrote the memos that purported to immunize government officials from war crimes liability include John Yoo, Jay Bybee, William Haynes, David Addington and Alberto Gonzales. There is precedent in our law for holding lawyers criminally liable for participating in a common plan to violate the law.

Committee chairman Senator Carl Levin told Rachel Maddow that you cannot legalize what’s illegal by having a lawyer write an opinion.

The committee’s report also found that “Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.” Those techniques migrated to Iraq and Afghanistan, where prisoners in U.S. custody were also tortured.

Pardons or failures to prosecute the officials who planned and authorized torture would also be immoral. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantánamo.”

During the campaign, Obama promised to promptly review actions by Bush officials to determine whether “genuine crimes” were committed. He said, “If crimes have been committed, they should be investigated,” but “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

Two Obama advisors told the Associated Press that “there’s little-if any – chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.”

When he takes office, Obama should order his new attorney general to appoint an independent prosecutor to investigate and prosecute those who ordered and authorized the commission of war crimes.

Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can’t authorize war crimes and get away with it.

Obama: Ratify the Women’s Convention Soon

noreply@blogger.com (Marjorie Cohn) — Fri, 05 Dec 2008 17:07:00 +0000

Nearly 30 years after President Jimmy Carter signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the United States remains the only democracy that refuses to ratify the most significant treaty guaranteeing gender equality. One hundred eighty-five countries, including over 90 percent of members of the United Nations, have ratified CEDAW.

U.S. opposition to ratification has been informed not simply by an objective analysis of how CEDAW’s provisions might conflict with U.S. constitutional law. Rather, it reflects the ideological agenda and considerable clout of the religious right and the corporate establishment. Issues of gender equality raise some of the most profound divisions between liberals and conservatives. The right-wing agenda was born again in the Bush administration, which issued numerous directives limiting equality between the sexes. Bush targeted funding for family planning and packed the courts and his administration with anti-choice ideologues.

The parade of horribles trumpeted by ratification opponents includes predictions that it would force the United States to pass an Equal Rights Amendment (ERA). Opposition to the ERA in the 1980s was also grounded in religious fundamentalism. There are fears that ratification may lead to the legalization of same-sex marriage, the abolition of single-sex schools, and create a nation of androgynous children.

Much of the hysteria directed at ratification is based upon false assumptions. One opponent warned: “A messy divorce case shouldn’t end up in the World Court.” This is a reference to the International Court of Justice, which does not even have jurisdiction over marital dissolution cases. An editorial in Hanover, Pennsylvania’s The Evening Sun predicted CEDAW backers will use the International Criminal Court as an enforcement tool. But, the International Criminal Court only has jurisdiction over war crimes, genocide and crimes against humanity.

Cecilia Royals of the National Institute of Womanhood said, “This treaty represents a battering ram against free and democratic societies, and particularly against women with traditional values.” The Weekly Standard charged the treaty “mandates complete sex equality in the military, the overthrow of market wages and implementation of ‘comparable-worth’ pay scales, rigid gender quotas, abortion on demand, and federally mandated child care.” Many opposed to ratification seek to protect the large corporations – the backbone of U.S. capitalism – from having to enact equality provisions that would imperil the bottom line.

Although President Carter signed CEDAW in 1980, the treaty has never been sent to the full U.S. Senate for its advice and consent to ratification. When the president signs a treaty, we are forbidden from taking action inconsistent with the object and purpose of the treaty. But we don’t become a party, with all the treaty obligations, until the president ratifies the treaty with the advice and consent of the Senate.

After Ronald Reagan became president and the Republicans gained control of the Senate, CEDAW languished in the Senate Foreign Relations Committee. Neither Reagan nor President George H.W. Bush sought ratification. Reagan made his contempt for CEDAW perfectly clear when he said that once adopted, the treaty would lead to “sex and sexual differences treated as casually and amorally as dogs and other beasts treat them.”

In 1994, at the behest of the Clinton administration, the Senate Foreign Relations Committee held hearings and recommended full Senate approval of CEDAW. Yet Committee chairman Jesse Helms continued to hold CEDAW hostage by keeping it from a vote in the Senate. In response to a last-minute campaign against ratification fueled by radio talk shows, a “hold” was placed on the treaty, preventing the full Senate from voting on it.

Five years later, 10 female members of the House of Representatives, including Nancy Pelosi, delivered to a hearing of the Senate Foreign Relations Committee (the Committee) a letter supporting ratification, signed by 100 members of Congress. Jesse Helms scolded them with, “Now you please be a lady,” before ordering uniformed officers to “[e]scort them out.”

When the Committee recommended ratification in 1994, it attached proposed reservations, understandings, and declarations (RUDS) to its recommendation, which purported to qualify the terms of ratification. These qualifications, however, would effectively eviscerate the promise of equality enshrined in the treaty. For example, ratification opponents insist that the First Amendment, particularly freedom of religion, trumps a woman’s right to privacy. CEDAW prohibits discrimination by private as well as public entities. States have defined issues of family planning, childcare, marriage, and domestic violence as “private.”

CEDAW, in effect, mandates that states parties take affirmative action to ensure equality for women in the areas of employment, education, health care and family planning, economic, political, cultural, social, and legal relations. CEDAW specifies that temporary measures taken to achieve equality will not constitute discrimination. The U.S. reservation makes clear that notwithstanding the prescriptions of CEDAW to eliminate gender discrimination by any “person, organization or enterprise,” ratification would not mean that the United States would have to ensure that private entities regulate private conduct.

Jesse Helms added an understanding to ratification stating that CEDAW does not create a right to abortion, and that abortion should not be used as a method of family planning. This understanding is unnecessary because CEDAW does not even mention abortion. Opposition to reproductive rights has been a hot button issue for the right-wing evangelicals.

Other reservations specify that the United States undertakes no obligation to enact statutes requiring comparable worth or paid maternity leave. Full-time, year-round, wage-earning American women now earn an average of 75 cents for every dollar earned by men in similar jobs. Women in the United States only enjoy the right to short, unpaid maternity leave, and they can be fired for being late due to pregnancy or maternity-related illness. Women in Canada, Europe and Cuba enjoy greater wage equality and paid maternity rights than women in the United States.

The recommended RUDs purport to ensure that ratification of CEDAW would not require that the United States adopt greater protections than those afforded under the U.S. Constitution. Yet U.S. equal protection jurisprudence falls short of safeguards women would have under CEDAW. Classifications based on race require strict scrutiny and mandate that the government demonstrate a compelling government interest to support them. But classifications based on gender require only intermediate or skeptical scrutiny. Instead of a compelling government interest, there need only be a substantial relationship between the interest and the classification. The Secretary of State even indicated in a 1994 letter to the Senate Foreign Relations Committee that the United States would continue to follow the [lesser] intermediate scrutiny standard after ratification, notwithstanding the treaty’s defining principle prohibiting gender discrimination.

Moreover, CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose” of impairing or nullifying women’s human rights and fundamental freedoms. Yet, U.S. constitutional jurisprudence requires that there be proof of both a discriminatory impact and a discriminatory purpose in order to establish an equal protection violation.

It has been U.S. policy to eschew limitations on speech that reinforce the inferiority of women. Indeed, significant inequality between the sexes persists in the United States in employment and education, and in the economic, political, cultural, and criminal system. Women in the United States do not enjoy guarantees of social welfare rights such as food, clothing, housing, health care and decent working conditions. The refusal to enshrine these rights in U.S. law is the reason our government has also failed to ratify the International Covenant on Economic Social and Cultural Rights (ICESCR). See Obama Spells New Hope for Human Rights.

CEDAW, like the three human rights treaties the United States has ratified – the International Convention on the Elimination of All Forms of Racial Discrimination, the Torture Convention, and the International Covenant on Civil and Political Rights - contains a declaration that the treaty is non-self-executing,which means that it requires implementing legislation to make it effective. Scholars including Professor Louis Henkin maintain that the Senate’s general practice of appending non-self-executing declarations to ratification violates the Supremacy Clause, which mandates that treaties shall be the supreme law of the land. The opposition to ratification stems not only from the belief that the United States should not ratify any treaty with provisions inconsistent with U.S. constitutional jurisprudence; it also demonstrates a refusal to require our government to change or enact laws that comport with the obligations we would undertake by ratifying a treaty.

Finally, there is a declaration that the United States will only submit on a case-by-case basis to the jurisdiction of the International Court of Justice to resolve disputes about the interpretation of CEDAW. According to the Vienna Convention on the Law of Treaties, RUDs which are incompatible with the object and purpose of a treaty are void. The RUDs proposed by the Senate committee are not only incompatible with the mandate of equality in CEDAW, they shun the primary object of the treaty: non-discrimination against women. Professor Cherif Bassiouni has said: “The Senate’s practice of de facto rewriting treaties, through reservations, declarations, understandings, and provisos, leaves the international credibility of the United States shaken and its reliability as a treaty-negotiating partner with foreign countries in doubt.”

Yet, in spite of the RUDs, CEDAW continues to languish in Committee. Early in 2002, President George W. Bush called CEDAW “generally desirable” and said it “should be approved.” Yet once the right-wing pressure geared up, Bush backed down. Five months later and shortly before the Senate Foreign Relations Committee voted 12-7 to approve the treaty, Secretary of State Colin Powell reported that the treaty was “complex” and “vague.” Attorney General John Ashcroft, no champion of women’s rights, was charged with “reviewing” CEDAW. Bush never sent CEDAW to the Senate for advice and consent to ratification.

More than 120 organizations, including AARP, the League of Women Voters, Amnesty International, and the World Federalist Association, support ratification. The city of San Francisco voted in 1998 to adopt the treaty, and its provisions are in force there. City departments have incorporated the treaty into hiring practices as well as budgets for juvenile rehabilitation programs and public transportation.

President-elect Barack Obama has said he supports ratification of CEDAW as well as the Equal Rights Amendment. He has promised increased enforcement by his Office of Civil Rights to ensure effective protection from sex discrimination. President-elect Obama should not hesitate to send CEDAW to the Senate for advice and consent to ratification, without the proposed RUDs that would eviscerate its protections.

It took nearly 150 years for women to gain the right to vote in this country. There is no principled reason our government should resist full equality for women. The United States must climb on board and ratify the Convention on the Elimination of All Forms of Discrimination Against Women.

Guantánamo Justice Delayed Seven Years

noreply@blogger.com (Marjorie Cohn) — Mon, 24 Nov 2008 17:49:00 +0000

Since the Bush administration began transporting men and boys to Guantánamo Bay in January 2002, it has tried to prevent them from presenting their cases before a neutral federal judge. Indeed, the naval base was turned into a prison camp precisely to keep the detainees away from impartial courts. The government argued that federal courts had no jurisdiction over men detained on Cuban soil. Twice, the Supreme Court rejected that argument, finding that the United States exercises complete jurisdiction and control over the Guantánamo Bay base.

Finally, on November 20, in a stunning development, U.S. District Court Judge Richard J. Leon ordered the government to release five Guantánamo Bay detainees “forthwith.” Finding that the government failed to prove the men were “enemy combatants,” the judge, in a rare comment, urged senior government leaders not to appeal his ruling. “Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough,” he said.

The five detainees the judge ordered released are Lakhdar Boumediene, Mustafa Ait Idir, Hadj Boudella, Saber Lahmar and Mohammed Nechla. Judge Leon did, however, find that a sixth detainee, Belkacem Bensayah, was properly classified an enemy combatant.

It was the Supreme Court’s June 12, 2008 decision in Boumediene v. Bush (see Supreme Court Checks and Balances in Boumediene) that allowed Judge Leon to review the enemy combatant classifications. The high court upheld the Guantánamo detainees’ constitutional right to habeas corpus and made clear they were “entitled to a prompt habeas corpus hearing.” Judge Leon adopted the definition of "enemy combatant" used by the Combatant Status Review Tribunals, which is “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

The six detainees in this case are native Algerians who were residing in Bosnia and Herzegovina, over a thousand miles from the battlefield in Afghanistan. All six held Bosnian citizenship or lawful permanent residence as well as native Algerian citizenship. Arrested by Bosnian authorities in October 2001 for alleged involvement in a plot to bomb the U.S. Embassy in Sarajevo, they were ordered released from prison on January 17, 2002 and then turned over to U.S. personnel who transported them to Guantánamo on January 20, 2002. They have been there ever since.

President Bush had withdrawn the alleged bomb plot as a basis for their detention. He argued instead that the men planned to travel to Afghanistan in late 2001 and take up arms against the United States and allied forces. Judge Leon found the government had failed to prove these allegations by a preponderance of evidence in the cases of all but Bensayah.

The judge said the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source. He wrote that “while the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it.” He added, “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court’s obligation under the Supreme Court’s decision in Hamdi to protect petitioners from the risk of erroneous detention.”

The government did, however, present additional evidence which persuaded Judge Leon that Bensayah was “an al-Qaida facilitator” who planned to take up arms against the United States and facilitate the travel of unnamed others to do the same. That, wrote the judge, “constitutes direct support of al-Qaida in furtherance of its objectives” and “this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”

Bosnian authorities have indicated they are willing to take the five detainees once they are released.

In October, another federal district judge in Washington, Ricardo M. Urbina, ordered that 17 Uighur detainees be released from Guantánamo. The judge didn’t hold an evidentiary hearing because the government conceded the men were not enemy combatants. But the 17 men from western China languish in custody because the government has appealed Judge Urbina’s ruling.

President-elect Barack Obama has pledged to close the Guantánamo prison when he takes office. The National Lawyers Guild has urged Obama to ensure that the prisoners are released, repatriated, resettled, or brought to trial (if there is probable cause to believe they have committed a crime) in strict accordance with international human rights and humanitarian law, and the principles of fundamental justice pertaining to criminal proceedings. This includes but is not limited to, the Four Geneva Conventions of 1949, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. The United States has ratified all of these treaties which makes their provisions binding U.S. law under the Supremacy Clause of the Constitution.

The Guild opposes the creation of national security courts to try the detainees. Although Obama said in August, "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” three Obama advisers told the Associated Press that the President-elect is expected to propose a new court system to deal with “sensitive national security cases.”

Concerns have been cited about disclosure of classified information in civilian courts and courts-martial. However, the Classified Information Procedures Act (CIPA) provides an adequate method of protecting classified information in existing U.S. courts. CIPA allows a judge to assess the importance of sensitive evidence before it is disclosed in open court and, if necessary, create a nonclassified substitute for use at trial. Former federal prosecutors Richard B. Zabel and James J. Benjamin, Jr. studied the 107 post-9/11 cases and prepared a 171-page white paper for Human Rights First called In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. They wrote, “[w]e are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.” National security courts, they write, “would give the government more power and make it easier for the government to secure convictions.”

President-elect Obama should send those prisoners he intends to try to U.S. civilian and military courts, which are well-suited to protect national security concerns. He should eschew the creation of a new system of courts with reduced due process, which will raise many of the same concerns as Bush’s dreaded military commissions.

NLG Calls on President-elect Obama to Close Guantanamo, Opposes Establishment of National Security Courts

noreply@blogger.com (Marjorie Cohn) — Wed, 12 Nov 2008 18:20:00 +0000

After September 11, 2001, George W. Bush established the Guantánamo Bay prison to enable the United States to imprison non-Americans indefinitely outside the reach and protection of both U.S. and international law. The military commissions and their trial procedures, created under the Military Commissions Act of 2006, have been universally condemned by jurists, scholars and human rights specialists as violating minimum fair trial standards and of being a sham intended to secure convictions.

The National Lawyers Guild (NLG) calls on President-elect Barack Obama to, on the first day of his presidency, issue a presidential order closing Guantánamo Bay prison and ending military commissions.

The NLG also urges President-elect Obama to thereafter, ensure that Guantánamo Bay prisoners are released, repatriated, resettled, or brought to trial (if there is probable cause to believe they have committed a crime) in strict accordance with international human rights and humanitarian law, and the principles of fundamental justice pertaining to criminal proceedings including, but not limited to, the Four Geneva Conventions of 1949, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. The United States has ratified all of these treaties which makes their provisions binding U.S. law under the Supremacy Clause of the Constitution.

The NLG opposes the establishment of special national security courts. Although President-elect Obama said in August, "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” three Obama advisers told the Associated Press that the President-elect is expected to propose a new court system to deal with “sensitive national security cases.” Concerns have been cited about disclosure of classified information in civilian courts and courts-martial.

However, the Classified Information Procedures Act (CIPA) provides a comprehensive and effective method of protecting classified information in existing U.S. courts. CIPA allows a judge to assess the importance of sensitive evidence before it is disclosed in open court and, if necessary, create a nonclassified substitute for use at trial. Former federal prosecutors Richard B. Zabel and James J. Benjamin, Jr. studied the 107 post-9/11 cases and prepared a 171-page white paper for Human Rights First called In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. They wrote, “[w]e are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.” National security courts, they write, “would give the government more power and make it easier for the government to secure convictions.”

“Guantánamo Bay prison is a legal black hole that has become a symbol of injustice, abuse, and U.S. hypocrisy,” said National Lawyers Guild President Marjorie Cohn. “The National Lawyers Guild called for its closure in 2005 and we are hopeful that President-elect Barack Obama will finally end this disgraceful chapter in U.S. history.”

Obama Spells New Hope for Human Rights

noreply@blogger.com (Marjorie Cohn) — Sun, 09 Nov 2008 23:58:00 +0000

Celebrations of Barack Obama’s election as President of the United States erupted in countries around the world. From Europe to Africa to the Middle East, people were jubilant. After suffering though eight years of an administration that violated more human rights than any other in U.S. history, Obama spells hope for a new day.

While George W. Bush was President, I wrote Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, which chronicled his war of aggression, policy of torture, illegal killings, unlawful Guantánamo detentions, and secret spying on Americans. When the book was published, it seemed unimaginable that we could elect a President who would turn those policies around. But the election of Obama holds that potential.

This is the first in a series of articles in which I will suggest how the Obama administration can start undoing some of the damage Bush wrought, by ratifying three of the major human rights treaties and the Rome Statute for the International Criminal Court.

Although the U.S. government frequently criticizes other countries for their human rights transgressions, the United States has been one of the most flagrant violators. We have refused to ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); and the Convention on the Rights of the Child (CRC). And while the United States worked with other countries for 50 years to create the International Criminal Court, it has failed to ratify that treaty as well. When we ratify a treaty, it becomes part of U.S. law under the Supremacy Clause of the Constitution.

In this article, I will explain why the United States should ratify the ICESCR, which is particularly relevant now that we are in the midst of the most serious economic crisis since the Great Depression.

In 1941, President Franklin D. Roosevelt, whose New Deal helped lift us out of the Depression, gave his famous Four Freedoms Speech, focused on freedom of speech and expression, freedom to worship, freedom from want, and freedom from fear. Roosevelt fleshed out the freedom from want and fear principles in his Economic Bill of Rights. It contained equality of opportunity, the right to a job and a decent wage, the end of special privileges for the few, universal civil liberties, and guaranteed old-age pensions, unemployment insurance and medical care.

FDR’s bill of rights formed the basis for the Universal Declaration of Human Rights, which Eleanor Roosevelt helped draft, and which the U.N. General Assembly adopted in 1949. The Declaration embraced two types of human rights: civil and political rights on the one hand; and economic, social and cultural rights on the other.

These rights were codified in two binding treaties: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The United States ratified the ICCPR in 1992. But it has refused to commit itself to the protection of economic, social and cultural rights. Since the Reagan administration, there has been a policy to define human rights in terms of civil and political rights, but to dismiss economic, social and cultural rights as akin to social welfare, or socialism.

Indeed, the United States' inhumane policy toward Cuba exemplifies this dichotomy. The U.S. government has criticized civil and political rights in Cuba while disregarding Cubans' superior access to universal housing, health care, education and public accommodations, and its guarantee of paid maternity leave and equal pay rates.

The refusal to enshrine rights such as employment, education, food, housing, and health care in U.S. law is the reason the United States has not ratified the ICESCR. This treaty contains the right to work in just and favorable conditions, to an adequate standard of living, to the highest attainable standards of physical and mental health, to education, to housing, and to enjoyment of the benefits of cultural freedom and scientific progress. It also guarantees equal rights for men and women, the right to work, the right to form and join trade unions, the right to social security and social insurance, and protection and assistance to the family.

In the United States, more than 10 million people are unemployed, 2 to 3 million families are homeless each year, and 46 million have no health care benefits. Untold numbers lost their retirement savings when the stock market crashed. Obama has pledged to give the rebuilding of our economy top priority after he is sworn in as President. He promised to create jobs and to ensure that all Americans are covered by health insurance. When Obama said he would cut taxes for 95 percent of the people but end the tax cuts for the rich, he was criticized for wanting to “spread the wealth.” But Obama’s plan is fully consistent with our progressive income tax system. After the election, 15,000 physicians called for a single-payer health care plan, which Obama and Congress should seriously consider.

The United States’ flouting of the United Nations in its unilateral war on Iraq, and torture of prisoners in Afghanistan, Guantánamo Bay, Cuba, and Iraq, has engendered widespread condemnation in the international community. Yale Law School Dean Harold Koh, citing Professor Louis Henkin, summarized the hypocrisy of the United States in the area of human rights as follows: “In the cathedral of human rights, the U.S. is more like a flying buttress than a pillar – choosing to stand outside the international structure supporting the international human rights system but without being willing to subject its own conduct to the scrutiny of the system.”

We should encourage President Obama to send the ICESCR to the Senate for advice and consent to ratification. Becoming a party to that treaty will help not only the people in this country; it will also engender respect for the United States around the world.

What About Constitutional Powers?

noreply@blogger.com (Marjorie Cohn) — Wed, 29 Oct 2008 15:35:00 +0000

Institute for Public Accuracy
915 National Press Building, Washington, D.C. 20045
(202) 347-0020 * http://www.accuracy.org * ipa@accuracy.org
___________________________________________________

Wednesday, October 29, 2008

What About Constitutional Powers? Two Views

MARJORIE COHN, Libertad48@san.rr.com, http://www.marjoriecohn.com
Cohn is the president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law and the author of "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law." She recently wrote the piece "A Palin Theocracy."

Cohn said today: "The next president will almost certainly appoint one to three justices to the Supreme Court, which is now delicately balanced politically. The most likely justices to retire are John Paul Stevens, Ruth Bader Ginsburg and David Souter. John McCain, who voted to confirm Robert Bork, Clarence Thomas, John Roberts and Samuel Alito, has vowed to appoint more justices like Roberts and Alito to the high court.

One McCain appointee would tip the balance of the Court to the right which would likely overturn Roe v. Wade and decisions protecting the rights of workers and the environment, and decisions curbing the power of the executive. Barack Obama voted against the confirmation of Roberts and Alito, and has promised to appoint justices like Ginsburg and Stephen Breyer. Even if Obama made three appointments, he would not tip the political balance of the Court to the left, but would maintain the status quo since he would likely be replacing the 'liberals.'"

BRUCE FEIN, bruce@thelichfieldgroup.com
Author of the new book "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy," Fein said today: "It's disgraceful that core constitutional questions have been virtually ignored in this election. Neither McCain nor Obama have indicated that they will move to a constitutional government and away from executive government.

"They have both said they would close Guantanamo, but that's really meaningless since they both assert the right to hold so-called 'enemy combatants' without charge, so they could simply move the people being detained to another facility.

"Both maintain that the executive can initiate war. Both -- like Bush now -- have said that they would not allow further waterboarding and that it is torture, but neither has said that they would prosecute the conceded waterboarding of the Bush administration. Likewise, neither has said they would prosecute members of the current administration for other criminal conduct, such as well-known criminal violations of the FISA statute. Neither Obama nor McCain has disclaimed the authority claimed by Bush to order current or former White House officials to defy congressional subpoena."

Fein recently wrote the piece "Palin vs. Palin."

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167

A Palin Theocracy

noreply@blogger.com (Marjorie Cohn) — Thu, 11 Sep 2008 05:51:00 +0000

John McCain’s selection of Sarah Palin as his vice presidential running mate has invigorated a lackluster campaign. The media can’t stop talking about her. Given McCain’s age and state of health (his medical file was nearly 1,200 pages long), Palin would indeed be a heartbeat away from becoming President. But what would a Palin administration really look like?

Palin is a radical right-wing fundamentalist Christian who would love to create a theocracy. She believes we are living in the “end times” which will result in a bloody inferno from which only true Christians will be saved. Palin recently attended a service in her Wasilla Bible Church run by David Brickner, who runs Jews for Jesus, a group the Anti-Defamation League criticizes for its “aggressive and deceptive” proselytizing of Jews. Those who don’t accept Jesus as their savior will burn in Hell, according to Palin’s brand of theology.

As Governor of Alaska, Palin asked her congregation to pray for the natural gas pipeline, which she characterized as “God’s will.” She also asked them to pray that the war in Iraq is a “task that is from God.” Palin has pushed for creationism to be taught in schools, and she opposes stem cell research.

Palin’s choice to have a Down syndrome child and her teenage daughter’s choice to continue her pregnancy have made right-wing evangelical Christians ecstatic. But while she chose pregnancy, Palin would deny a woman victimized by rape or incest the right to choose abortion, and then criminally punish both the woman for having one and her doctor for performing it.

McCain would also love to inject a heavy dose of Christianity into his administration. A year ago, he declared, “The Constitution established the United States of America as a Christian nation.” Just about the only issue on which McCain has not flip-flopped is his opposition to abortion rights. The next president will almost certainly make at least one appointment to the Supreme Court. McCain has pledged to appoint judges in the mold of Chief Justice John Roberts and Justice Samuel Alito; these would also be Palin’s preferred judges. Another conservative on the Court would mean that Roe v. Wade will be overruled. That will return us to back alley abortions with coat hangers.

Rick Davis, McCain’s campaign manager, said that “this election is not about issues . . . This election is about a composite view of what people take away from these candidates.” The Republicans know they will lose if they really focus on issues such as the economy, the war, healthcare, education, and the environment. They are hoping that pro-choice women who supported Hillary Clinton will gravitate to Palin because she’s a feisty – albeit anti-choice – woman. They are also banking on support from people who cannot bring themselves to vote for a black man.

But those non-evangelicals who back the McCain-Palin ticket do so at their peril. Not only will they continue to suffer four more years of the disastrous Bush policies; they will also find themselves living in a Christian theocracy.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law).

Preemptive Strikes Against Protest at RNC

noreply@blogger.com (Marjorie Cohn) — Tue, 02 Sep 2008 05:44:00 +0000

In the months leading up to the Republican National Convention, the FBI-led Minneapolis Joint Terrorist Task Force actively recruited people to infiltrate vegan groups and other leftist organizations and report back about their activities. On May 21, the Minneapolis City Pages ran a recruiting story called "Moles Wanted." Law enforcement sought to preempt lawful protest against the policies of the Bush administration during the convention.

Since Friday, local police and sheriffs, working with the FBI, conducted preemptive searches, seizures and arrests. Glenn Greenwald described the targeting of protestors by "teams of 25-30 officers in riot gear, with semi-automatic weapons drawn, entering homes of those suspected of planning protests, handcuffing and forcing them to lay on the floor, while law enforcement officers searched the homes, seizing computers, journals, and political pamphlets." Journalists were detained at gunpoint and lawyers representing detainees were handcuffed at the scene.

"I was personally present and saw officers with riot gear and assault rifles, pump action shotguns," said Bruce Nestor, the President of the Minnesota chapter of the National Lawyers Guild, who is representing several of the protestors. "The neighbor of one of the houses had a gun pointed in her face when she walked out on her back porch to see what was going on. There were children in all of these houses, and children were held at gunpoint."

The raids targeted members of "Food Not Bombs," an anti-war, anti-authoritarian protest group that provides free vegetarian meals every week in hundreds of cities all over the world. They served meals to rescue workers at the World Trade Center after 9/11 and to nearly 20 communities in the Gulf region following Hurricane Katrina.

Also targeted were members of I-Witness Video, a media watchdog group that monitors the police to protect civil liberties. The group worked with the National Lawyers Guild to gain the dismissal of charges or acquittals of about 400 of the 1,800 who were arrested during the 2004 Republican National Convention in New York. Preemptive policing was used at that time as well. Police infiltrated protest groups in advance of the convention.

Nestor said that no violence or illegality has taken place to justify the arrests. "Seizing boxes of political literature shows the motive of these raids was political," he said.

Further evidence the political nature of the police action was the boarding up of the Convergence Center, where protestors had gathered, for unspecified code violations. St. Paul City Council member David Thune said, "Normally we only board up buildings that are vacant and ramshackle." Thune and fellow City Council member Elizabeth Glidden decried "actions that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights."

"So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protestors who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do," Greenwald wrote on Salon.

Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with "conspiracy to commit riot," a rarely-used statute that is so vague, it is probably unconstitutional. Nestor said it "basically criminalizes political advocacy."

On Sunday, the National Lawyers Guild and Communities United Against Police Brutality filed an emergency motion requesting an injunction to prevent police from seizing video equipment and cellular phones used to document their conduct.

During Monday's demonstration, law enforcement officers used pepper spray, rubber bullets, concussion grenades and excessive force. At least 284 people were arrested, including Amy Goodman, the prominent host of Democracy Now!, as well as the show's producers, Abdel Kouddous and Nicole Salazar. "St. Paul was the most militarized I have ever seen an American city to be," Greenwald wrote, "with troops of federal, state and local law enforcement agents marching around with riot gear, machine guns, and tear gas cannisters, shouting military chants and marching in military formations."

Bruce Nestor said the timing of the arrests was intended to stop protest activity, "to make people fearful of the protests, but also to discourage people from protesting," he told Amy Goodman. Nevertheless, 10,000 people, many opposed to the Iraq war, turned out to demonstrate on Monday. A legal team from the National Lawyers Guild has been working diligently to protect the constitutional rights of protestors.

End the Occupation of Iraq - and Afghanistan

noreply@blogger.com (Marjorie Cohn) — Wed, 30 Jul 2008 17:00:00 +0000

So far, Bush's plan to maintain a permanent U.S. military presence in Iraq has been stymied by resistance from the Iraqi government. Barack Obama's timetable for withdrawal of American troops has evidently been joined by Iraqi Prime Minister Nuri al-Maliki, Bush has mentioned a "time horizon," and John McCain has waffled. Yet Obama favors leaving between 35,000 and 80,000 U.S. occupation troops there indefinitely to train Iraqi security forces and carry out "counter-insurgency operations." That would not end the occupation. We must call for bringing home - not redeploying - all U.S. troops and mercenaries, closing all U.S. military bases, and relinquishing all efforts to control Iraqi oil.

In light of stepped up violence in Afghanistan, and for political reasons - following Obama's lead - Bush will be moving troops from Iraq to Afghanistan. Although the U.S. invasion of Afghanistan was as illegal as the invasion of Iraq, many Americans see it as a justifiable response to the attacks of September 11, 2001, and the casualties in that war have been lower than those in Iraq - so far. Practically no one in the United States is currently questioning the legality or propriety of U.S. military involvement in Afghanistan. The cover of Time magazine calls it "The Right War."

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 or when authorized by the Security Council. After the 9/11 attacks, the Council passed two resolutions, neither of which authorized the use of military force in Afghanistan. Resolutions 1368 and 1373 condemned the September 11 attacks, and ordered 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 urged ratification and enforcement of the international conventions against terrorism.

The invasion of Afghanistan was not legitimate self-defense under article 51 of the Charter because the attacks on September 11 were criminal attacks, not “armed attacks” by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers came from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after September 11, or Bush would not have waited three weeks before initiating his October 2001 bombing campaign. 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 U.N. General Assembly.

Bush's justification for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists. Iranians could have made the same argument to attack the United States after they overthrew the vicious Shah Reza Pahlavi in 1979 and he was given safe haven in the United States. The people in Latin American countries whose dictators were trained in torture techniques at the School of the Americas could likewise have attacked the torture training facility in Ft. Benning, Georgia under that specious rationale.

Those who conspired to hijack airplanes and kill thousands of people on 9/11 are guilty of crimes against humanity. They must be identified and brought to justice in accordance with the law. But retaliation by invading Afghanistan is not the answer and will only lead to the deaths of more of our troops and Afghanis.

The hatred that fueled 19 people to blow themselves up and take 3,000 innocents with them has its genesis in a history of the U.S. government's exploitation of people in oil-rich nations around the world. Bush accused 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 U.S. military, that took the hits. Those who committed these heinous crimes were attacking American foreign policy. That policy has resulted in the deaths of two million Iraqis - from both Bill Clinton's punishing sanctions and George W. Bush's war. It has led to uncritical support of Israel's brutal occupation of Palestinian lands; and it has stationed more than 700 U.S. military bases in foreign countries.

Conspicuously absent from the national discourse is a political analysis of why the tragedy of 9/11 occurred and a comprehensive strategy to overhaul U.S. foreign policy to inoculate us from the wrath of those who despise American imperialism. The "global war on terror" has been uncritically accepted by most in this country. But terrorism is a tactic, not an enemy. You cannot declare war on a tactic. The way to combat terrorism is by identifying and targeting its root causes, including poverty, lack of education, and foreign occupation.

There are already 60,000 foreign troops, including 36,000 Americans, in Afghanistan. Large increases in U.S. troops during the past year have failed to stabilize the situation there. Most American forces operate in the eastern part of the country; yet by July 2008, attacks there were up by 40 percent. Zbigniew Brzezinski, national security advisor for Jimmy Carter, is skeptical that the answer for Afghanistan is more troops. He warns that the United States will, like the Soviet Union, be seen as the invader, especially as we conduct military operations "with little regard for civilian casualties." Brzezinski advocates Europeans bribing Afghan farmers not to cultivate poppies for heroin, as well as the bribery of tribal warlords to isolate al-Qaeda from a Taliban that is "not a united force, not a world-oriented terrorist movement, but a real Afghan phenomenon."

Indeed, on July 29, 2008, the RAND corporation released a report that argues that, "Current U.S. strategy against the terrorist group al Qaida has not been successful in significantly undermining the group's capabilities." The United States should pursue a counterterrorism strategy against al Qa'ida that emphasizes policing and intelligence gathering rather than a “war on terrorism” approach that relies heavily on military force, according to RAND.

We might heed Canada's suggestion that a broader mission, under the auspices of the United Nations instead of NATO, would be more effective. Our policy in Afghanistan and Pakistan should emphasize economic assistance for reconstruction, development and education, not for more weapons. The United States must refrain from further Predator missile strikes in Pakistan, and pursue diplomacy, not occupation.

Nor should we be threatening war against Iran, which would also be illegal and result in an unmitigated disaster. The U.N. Charter forbids any country to use, or threaten to use, military force against another country except in self-defense or when the Security Council has given its blessing. In spite of the U.N. International Atomic Energy Agency's conclusion that there is no evidence Iran is developing nuclear weapons, the White House, Congress, and Israel have continued to rattle the sabers in Iran's direction. Nevertheless, the antiwar movement has so far fended off passage of HR 362 in the House of Representatives, a bill that is tantamount to a call for a naval blockade against Iran - considered an act of war under international law. Credit goes to United for Peace and Justice, Code Pink, Peace Action, and dozens of other organizations that pressured Congress to think twice before taking that dangerous step.

We should pursue diplomacy, not war, with Iran; end the U.S. occupation of Iraq; and withdraw our troops from Afghanistan.

John Yoo, David Addington Stonewall Congress

noreply@blogger.com (Marjorie Cohn) — Thu, 26 Jun 2008 23:30:00 +0000

JOHN YOO, DAVID ADDINGTON STONEWALL CONGRESS; NATIONAL LAWYERS GUILD URGES SPECIAL PROSECUTOR, CONGRESSIONAL WAR CRIMES COMMISSION

Today the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Civil Liberties continued its investigation into the role played by key administration lawyers in the development of aggressive interrogation techniques. This was the third hearing of this subcommittee on this topic. The witnesses who testified were former Department of Justice lawyer John Yoo; Cheney's former legal counsel and now chief of staff, David Addington; and Christopher Schroeder, professor at Duke Law School.

NLG President Marjorie Cohn had testified at the first subcommittee hearing on May 6, articulating the law of torture, and stating that torture is never allowed under U.S. law. Today’s hearing was attended by Jeanne Mirer, co-chair of the NLG’s International Committee.

Yoo's testimony revealed that the guiding principle of his work at the Justice Department was his belief in the overriding power of the President to order anything he thinks necessary in the "war on terror." When specifically asked, "Is there anything that the President cannot order?" Yoo answered "I believe there are things an American President WOULD not order." He was asked again, "Are there things the President COULD not order?" Yoo replied that he would "have to know the context." Dan Mayfield from the NLG Military Law Task Force stated, "This is consistent with Yoo's previous statement that the President could order torture of a person up to and including the crushing of the testicles of a person's son in order to make the person talk." When asked whether a President could order that someone be buried alive, Yoo's answer was non-responsive: "No American president would ever have to order that," he said.

While Yoo claimed there was little in the law which helped to define torture, Shroeder pointed out the wealth of guidance that exists in the areas of asylum and immigration law. Yoo admitted that the Convention Against Torture and the U.S. Torture Statute both define torture. Yet he wrote his memos to re-define torture so that those following his re-definition could state, "We do not torture." Marjorie Cohn said, "Yoo's memos so vastly narrowed the definition of torture, the interrogator would nearly have to kill someone for it to constitute torture."

Yoo and Addington were evasive, repeatedly stonewalling members of the subcommittee. The Justice Department evidently placed limitations on what Yoo was allowed to discuss, but he invoked privileges where it did not appear privilege was authorized. This led to Yoo's refusal to answer several direct questions. Jeanne Mirer stated, “The evasiveness of Yoo and Addington did not earn them credibility with the subcommittee, and frustrated many of the questioners. These tactics prevented the subcommittee from getting answers to the many important questions about the source of legal authority for the positions espoused in the 'torture memos' regarding aggressive interrogation techniques.”

The NLG has decried the use of torture techniques as well as efforts by lawyers to try to justify them. The NLG has called for holding accountable those who violated the law. While these hearings have helped to establish the record, there is a need for a full blown investigation which could lead to a call for criminal prosecution. The NLG calls for the appointment of an independent special prosecutor, and the establishment of a congressionally appointed commission to investigate potential wrongdoing, including the commission of war crimes, by high officials and lawyers of the Bush administration.

Scalia Cites False Information in Habeas Corpus Dissent

noreply@blogger.com (Marjorie Cohn) — Fri, 20 Jun 2008 19:47:00 +0000

To bolster his argument that the Guantánamo detainees should be denied the right to prove their innocence in federal courts, Justice Antonin Scalia wrote in his dissent in Boumediene v. Bush: "At least 30 of those prisoners hitherto released from Guantánamo have returned to the battlefield." It turns out that statement is false.

According to a new report by Seton Hall Law Center for Policy and Research, "The statistic was endorsed by a Senate Minority Report issued June 26, 2007, which cites a media outlet, CNN. CNN, in turn, named the DoD as its source. The '30' number, however, was corrected in a DoD press release issued in July 2007, and a DoD document submitted to the House Foreign Relations Committee on May 20, 2008 abandons the claim entirely."

The largest possible number of detainees who could have "returned to the fight" is 12; however, the Department of Defense has no system for tracking the whereabouts of released detainees. The only one who has undisputedly taken up arms against the United States or its allies, "ISN 220," was released by political officers of the DoD against the recommendations of military officers.

Scalia bolstered his hysterical claim that the Boumediene decision "will almost certainly cause more Americans to be killed" with stale information that was proven to be false one year ago. Professor Mark Denbeaux, director of the Seton Hall Center, said Scalia "was relying uncritically on information that originated with a party in the case before him."

The Supreme Court decided in a 5-4 decision that the Guantánamo detainees were entitled to file petitions for writ of habeas corpus to challenge their detention. More than 200 men who have been held for up to six years and have never been charged with a crime, will now have their day in court. Many were snatched from their homes, picked up off the street or in airports, or sold to the U.S. military by warlords for bounty.

Scalia, who sits on the highest court in the land, has acted as a loyal foot soldier for the executive branch of government.

Supreme Court Checks and Balances in Boumediene

noreply@blogger.com (Marjorie Cohn) — Mon, 16 Jun 2008 19:37:00 +0000

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O'Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

"Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe."

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing 'enemy combatant' designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy combatant." These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of confidentiality to his client and often doesn't even advocate on behalf of the detainee; one even argued the government's case. The detainee doesn't have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic" evidence and were set up to rubber-stamp the "enemy combatant" designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force - "found the information presented to lack substance" and noted that statements presented as factual "lacked even the most fundamental earmarks of objectively credible evidence." After they determined there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham's affidavit about the shortcomings of the CSRT's in Boumediene's companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact." The Court then had to determine whether the procedure for judicial review of the CSRTs' "enemy combatant" designations constituted an adequate substitute for habeas corpus review.

"For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context," Kennedy wrote, "the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

But in the Detainee Treatment Act ("DTA"), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Since the DTA's scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as "an unconstitutional suspension of the writ."

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more Americans to be killed." Likewise, the Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result." Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, "Sometimes we just didn't get the right folks," but innocent men remain detained there because "[n]obody wants to be the one to sign the release papers . . . there's no muscle in the system."

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their "enemy combatant" designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. "The ultimate principle," he said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty." Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." Justice Souter cut to the chase in his separate opinion, citing "the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years." None of them has been charged with a crime and none has been brought before a fair and impartial judge.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

"Security subsists, too, in fidelity to freedom's first principles," according to Kennedy. "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

In responding to Laura Ingraham's false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin's admonition: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices - Ginsburg, Stevens, Souter and Breyer - in the majority, and the four conservative justices - Scalia, Thomas, Roberts and Alito - in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has "teed up the Supreme Court issue nicely for the G.O.P."

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, "It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that." By the next day, McCain had changed his tune. "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

NLG Says Politics Motivated Decision in Cuban Five Case

noreply@blogger.com (Marjorie Cohn) — Thu, 05 Jun 2008 20:43:00 +0000

Two Judges on Three-Judge Panel Uphold Conspiracy to Commit Murder Conviction Despite Government’s Lack of Evidence

New York. The National Lawyers Guild (NLG) believes that politics influenced yesterday’s federal appeals court decision upholding the convictions of five Cuban patriots accused of spying in the United States. The so-called Cuban Five were gathering information on U.S.-based exile groups planning terrorist actions against their island nation.

The court did, however, vacate the sentences of three of the Five, including two serving life terms. A three-judge panel of the 11th U.S. Circuit Court of Appeals returned the three cases to a federal judge in Miami for re-sentencing based on findings that the three men had gathered no classified information.

The full 11th Circuit court in August 2006 upheld the convictions of the Five: Gerardo Hernández , Fernando González , René González , Ramon Labañino, and Antonio Guerrero. It rejected claims that their federal trial should have been moved out of Miami because widespread opposition to the Cuban government among Cuban-Americans would make it impossible to get a fair and impartial jury.

In the appeal ruled on yesterday, the Five challenged rulings on the suppression of evidence from searches conducted under the Foreign Intelligence Surveillance Act, sovereign immunity, discovery procedures, jury selection, prosecutorial and witness misconduct, jury instructions, sufficiency of the evidence to support their convictions, and sentencing.

In this latest decision, the panel voted 2-1 to affirm the life sentence for Gerardo Hernández, who was convicted of conspiracy to commit murder in the deaths of four Miami-based pilots shot down by Cuban jets in 1996. In her 16-page dissent, Judge Phyllis Kravich wrote that the government failed to present evidence sufficient to prove beyond a reasonable doubt that Hernández agreed to participate in a conspiracy to shoot down planes over international airspace, resulting in the deaths of four pilots from an anti-Castro organization, Brothers to the Rescue. The panel also affirmed Rene González's 15-year sentence for acting as a non-registered foreign agent and conspiracy to act as a non- registered foreign agent.

The panel vacated the life terms of Labañino and Guerrero, agreeing with their contentions that their sentences were improperly configured because no "top secret information was gathered or transmitted." The judges also vacated Fernando González's 19-year sentence because he was not a manager or supervisor of the network. The panel remanded these cases to the district court for re-sentencing.

After a trial that lasted six months, the Five were convicted in 2001 of acting as unregistered Cuban agents in the United States and of conspiracy to commit espionage for attempting to penetrate U.S. military bases. A three-judge panel of the 11th Circuit overturned the convictions in 2005, saying there should have been a change of venue. But the full court reversed that decision, 10-2.

"Conspiracy has always been the charge used by the prosecution in political cases," said NLG attorney Leonard Weinglass, who represents Guerrero. "In the case of the Five, the Miami jury was asked to find that there was an agreement to commit espionage. The government never had to prove that espionage actually happened. It could not have proven that espionage occurred. None of the Five sought or possessed any top secret information or US national defense secrets," Weinglass added. "The sentence for the conspiracy charge is the same as if espionage were actually committed and proven. That is how three got life sentences. The major charges in this case were all conspiracy related, the most serious being conspiracy to commit murder levied against Gerardo Hernández."

"Anti-Cuba sentiment has tainted all possibility of a fair trial for the Five since their original arrest and confinement, which the UN Rapporteur on Torture described as violating the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment," said NLG Executive Director Heidi Boghosian. "During the original trial, the Bush administration paid journalists to write unfavorable stories about Cuba. Anti-Cuban extremists tried to intimidate the jurors, and even prospective jurors admitted that they would be afraid to return not-guilty verdicts against the Five."

"For nearly 50 years, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba," said NLG President Marjorie Cohn. "In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba."