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May 15, 2014

Death to the Death Penalty

The recent torturous execution of Clayton Lockett in Oklahoma has propelled the death penalty into the national discourse. The secret three-drug cocktail prison authorities administered to Lockett – the first to render him unconscious, the second to paralyze him, and the third to stop his heart and kill him – didn’t work as planned. After writhing in pain for 43 minutes, he finally died of a heart attack. Madeline Cohen, a lawyer who witnessed the botched execution, said Lockett had been “tortured to death.” Seasoned reporters, also witnesses, called it “horrific.” President Obama found it “deeply disturbing” and promised a review of how the death penalty is administered.

But the issue is not simply the most “painless,” fair, and efficient method the 32 death penalty states should use to put someone to death. It is not just a problem of executing innocent people, or the dubious constitutionality of the death penalty, or racism in its application and imposition, or that the death penalty does not deter homicide, or the higher cost of keeping someone on Death Row, or that nearly all industrialized countries have abolished capital punishment. The premeditated killing of a human being by the state is just plain wrong and the United States should abolish it.

A week after Lockett’s execution, the Constitution Project released its report after one of the most comprehensive examinations of capital punishment in the United States. Calling the administration of the death penalty “deeply flawed,” the report focused on procedural deficiencies. It recommended that death penalty states should use one drug instead of three to kill their citizens. It called for fewer constraints on post-conviction review of exonerating evidence, and videotaping of interrogations to identify false confessions, concluding that over 80 percent of 125 documented false confessions occurred in homicide cases; 20 percent of the defendants in those cases were sentenced to death. It recommended the abolition of the death penalty for “felony murder,” in which a person participates in, but does not commit, the homicidal act. It expressed concern about inconsistent application of the ultimate penalty since the Supreme Court ruled in 2002 that intellectually disabled individuals should not be executed. It criticized states such as Texas, Alabama and Pennsylvania for compensating capital defense lawyers so poorly that it is “nearly impossible” to receive a proper defense. And it urged death penalty states to determine whether there are racial disparities in the application of the death penalty. The bipartisan panel did not, however, recommend abolition of capital punishment.

Innocents on Death Row

A new study just released by the Proceedings of the National Academy of Sciences determined that 1 in every 25, or 4.1 percent, of people on death row, are innocent. But the innocence rate is 4.1 percent, more than twice the rate of exoneration. That means an unknown number of innocent people have been put to death. “Every time we have an execution, there is a risk of executing an innocent. The risk may be small, but it’s unacceptable,” said Richard Dieter, executive director of the Death Penalty Information Center.

Cruel and Unusual Punishment

The Eighth Amendment to the Constitution outlaws “cruel and unusual punishments.” Although the Supreme Court has upheld the death penalty, some justices have concluded it violates the Eighth Amendment. In 1972, in Furman v. Georgia, the high court imposed a moratorium on the death penalty because it was arbitrarily imposed. Justice Potter Stewart wrote for the majority that executions were “so wantonly and so freakishly imposed” that they are “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” But Stewart was only opposed to capital punishment as a matter of policy. States revised their death penalty statutes to eliminate arbitrariness, and four years later, the Court upheld Georgia’s new and improved death penalty law in Gregg v. Georgia. Unlike Justices William Brennan and Thurgood Marshall, Stewart did not believe the death penalty was unconstitutional.

Marshall noted in his concurrence in Furman, “Perhaps the most important principle in analyzing ‘cruel and unusual’ punishment questions is [that] . . . the cruel and unusual language ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’ . . . Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone, capital punishment cannot stand.”

Brennan also concurred in Furman. He wrote, “When examined by the principles applicable under the Cruel and Unusual Punishment Clause, death stands condemned as fatally offensive to human dignity. The punishment of death is therefore ‘cruel and unusual,’ and the States may no longer inflict it as a punishment for crimes. Rather than kill an arbitrary handful of criminals each year, the States will confine them in prison.”

Eighteen years after Furman, Justice Harry Blackmun came to the conclusion that the death penalty was unconstitutional. In 1994, his last year on the Court, Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.”

Most recently, in 2008, Justice John Paul Stevens decided the death penalty amounts to cruel and unusual punishment. Stevens concluded, “[T]he imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’” [quoting Justice Byron White’s Furman concurrence]. In his new book, Six Amendments, Stevens proposes the Eighth Amendment be changed to read, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

Racism in Imposition

According to Death Penalty Focus, the race of the victim and the race of the defendant in capital cases are major determinants in who is sentenced to death in the United States. A 1990 report by the General Accounting Office found “in 82 percent of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e. those who murdered whites were more likely to be sentenced to death than those who murdered blacks.” The Innocence Project reports that of the 316 post-conviction DNA exonerations, 198 involved African Americans.

Think Progress reports that African American defendants convicted of killing whites are much more likely to receive a sentence of death than white defendants convicted of killing African Americans. Since 1976, only 20 white people have been have been executed in the United States for killing a black person. But 269 black defendants were executed for killing a white person. Death sentences in Louisiana are 97 percent more likely in murder cases when the victim is white. Florida has never executed a white person for killing a black person.

Not a Deterrent Capital punishment does not deter people from committing homicide. Dartmouth University statistician John Lamperti notes “an overwhelming majority among America’s leading criminologists [have concluded that] capital punishment does not contribute to lower rates of homicide.” In fact, murder rates in non-death penalty states are lower than murder rates in states with the death penalty, according to the Death Penalty Information Center.

Life Without Parole Saves Money

The alternative to the death penalty is life in prison without the possibility of parole. Judge Arthur Alarcon and Prof. Paula Mitchell concluded that the cost of the death penalty in California has totaled over $4 billion since 1978. They calculated that a gubernatorial commutation of those sentences would result in an immediate savings of $170 million per year, a savings of $5 billion over the next 20 years. The California Commission on the Fair Administration of Justice found in 2008: “The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate.”

International Consensus

International treaties and customary norms forbid capital punishment. They include the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, and Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty. Last year, only 22 countries not involved in military conflict carried out executions. The United Nations Human Rights Committee found the United States to be in noncompliance with its obligations under the ICCPR due to the excessive number of offenses subject to the death penalty and the number of death sentences imposed. The Death Penalty Information Center reports that the countries that carried out the most executions in 2013 were China, Iran, Iraq, Saudi Arabia, Somalia and the United States. Does the United States really want this to be its peer group?

End Institutionalized Murder

Five U.S. states have abolished capital punishment in the last seven years. Support for the death penalty in the United States is waning. In October 2013, 60 percent of Americans favored capital punishment, down 20 percent from 1994.

The American Medical Association, the American Public Health Association, the American Board of Anesthesiology, and the American Nurses Association prohibit members from assisting in executions; they consider it a violation of their medical code of ethics.

Years after witnessing the excesses of the French Revolution, the Marquis de Lafayette told the French Chamber of Deputies in 1830, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” Indeed, as Eugene Robinson wrote in the Washington Post, “We fool ourselves if we think there is a ‘humane’ way to kill someone . . . The death penalty has no place in a civilized society . . . [T]here is no way to impose capital punishment without betraying the moral standards that our justice system is theoretically designed to uphold. Put simply, when we murder we become murderers.” Supreme Court Justice Arthur J. Goldberg wrote in 1976, “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”

It is high time for all of the states in this country and the federal government itself to outlaw capital punishment. There is no good reason to retain it, and compelling reasons to abolish it.

March 24, 2014

BDS: Non-Violent Resistance to Israeli Occupation

Thanks to Scarlett Johansson, the American Studies Association (ASA), and Israeli Prime Minister Benjamin Netanyahu, the Boycott, Divestment and Sanctions (BDS) movement has entered our national discourse. Representatives of Palestinian civil society launched BDS in 2005, calling upon “international civil society organizations and people of conscience all over the world to impose broad boycotts and implement divestment initiatives against Israel similar to those applied to South African in the apartheid era . . . [including] embargoes and sanctions against Israel.” The call for BDS specified that “these non-violent punitive measures” should last until Israel fully complies with international law by (1) ending its occupation and colonization of all Arab lands and dismantling the barrier Wall; (2) recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and (3) respecting, protecting and promoting the rights of Palestinian refugees to return to their land as stipulated in UN resolution 194.

Johansson is a spokesperson for SodaStream, a seltzer-making company whose major factory is located in an Israeli settlement in the occupied West Bank. SodaStream generates the highest volume of settlement exports to Europe. Until recently, Johansson was also an ambassador for Oxfam, which, like many other international organizations, opposes all trade from the Israeli settlements in the West Bank because companies are operating there illegally. Shortly before Johansson’s commercial for SodaStream aired during the Super Bowl last month, Oxfam forced Johansson to choose between SodaStreama and Oxfam. She chose SodaStream, stepping down from her post with Oxfam.

Additionally, the ASA recently endorsed a boycott of Israeli academic institutions, which emerged “from the context of U.S. military and other support for Israel; Israel’s violation of international law and UN resolutions; the documented impact of the Israeli occupation on Palestinian scholars and students; the extent to which Israeli institutions of higher education are a party to state policies that violate human rights; and finally, the support of such a resolution by a majority of ASA members.” In its statement of support for the ASA boycott, faculty members at the American University in Cairo cited Israeli policies that “have rendered the Gaza Strip the world’s largest open-air penitentiary.” The ASA is the third major U.S. academic organization – together with the Asian American and Native American and Indigenous Studies Association – to endorse the academic boycott of Israel during the past year.

And, earlier this month, when he delivered the keynote address to the annual meeting of the powerful Israel lobby in the United States, American Israel Public Affairs Committee (AIPAC), Netanyahu spent almost as much time attacking BDS as he did explaining why he thinks Iran is a strategic threat to Israel. Clearly disturbed by the proliferation of BDS worldwide, Netanyahu claimed, “Those who wear the BDS label should be treated exactly as we treat any anti-Semite or bigot.”

Is BDS anti-Semitic?

But, in the words of Rafeef Ziadah, a spokesperson for the Palestinian Boycott, Divestment and Sanctions National Committee, “The BDS movement is opposed, as a matter of principle, to all forms of discrimination, including anti-Semitism and Islamophobia.” In January, Palestinian human rights activist Omar Barghouti wrote in the New York Times, “Arguing that boycotting Israel is intrinsically anti-Semitic is not only false, but it also presumes that Israel and ‘the Jews’ are one and the same. This is as absurd and bigoted as claiming that a boycott of a self-defined Islamic state like Saudi Arabia, say, because of its horrific human rights record, would of necessity be Islamophobic.” Barghouti also noted, “BDS doesn’t pose an existential threat to Israel; it poses a serious challenge to Israel’s system of oppression of the Palestinian people, which is the root cause of its growing worldwide isolation.”

Nobel Peace Prize winner South African Archbishop Desmond Tutu concurs. “My voice will always be raised in support of Christian-Jewish ties and against the anti-Semitism that all sensible people fear and detest,” Tutu wrote in the Tampa Bay Times. “But this cannot be an excuse for doing nothing and for standing aside as successive Israeli governments colonize the West Bank and advance racist laws,” he added, noting “Israel’s theft of Palestinian land” and “Jewish-only colonies built on Palestinian land in violation of international law.”

Tutu cited the 2010 Human Rights Watch report, which “describes the two-tier system of laws, rules, and services that Israel operates for the two populations in areas in the West Bank under its exclusive control, which provide preferential services, development, and benefits for Jewish settlers while imposing harsh conditions on Palestinians.” Tutu writes, “This, in my book, is apartheid. It is untenable.” He called on “people and organizations of conscience to divest from . . . Caterpillar, Motorola Solutions and Hewlett Packard,” which profit “from the occupation and subjugation of Palestinians.”

Moreover, if BDS is anti-Semitic, why do so many Jews support it? In her recent piece in Tikkun Daily, Jewish Voice for Peace board member Donna Nevel mentioned that “respected members of the liberal Jewish community” and “a few liberal Zionist groups,” formerly opposed to BDS, are now calling for boycotts of products made in the settlements. She points out that groups like Jews Say No and Jewish Voice for Peace – “a diverse and democratic community of activists inspired by Jewish tradition to work together for peace, social justice, and human rights” – are “resonating with increasing numbers of Jews who support BDS as a natural outgrowth of their commitments.”

Some Jews in Israel have also engaged in non-violent resistance to Israeli government policies. Sixty youth recently signed an open letter to Netanyahu announcing their refusal to serve in the Israeli military due to the dehumanization of Palestinians living under occupation. In the occupied Palestinian territories, they wrote, “human rights are violated, and acts defined under international law as war-crimes are perpetuated on a daily basis.” The signatories cite “assassinations (extrajudicial killings), the construction of settlements on occupied lands, administrative detentions, torture, collective punishment and the unequal allocation of resources such as electricity and water.”

How extensive is the BDS movement?

The BDS movement is spreading throughout the world. European pension funds are divesting from banks and companies that operate in settlements, and European markets are labeling Israeli goods made in the West Bank. In January, PGGM, the Netherlands’ second largest pension fund, decided to divest from five of Israel’s largest banks because they financed companies involved in the construction of settlements. PGGM is the second Dutch company to recently break ties with Israeli companies. Also in January, two of Europe’s largest financial institutions, Nordea and Danske Bank, agreed to boycott Israeli banks with branches in the West Bank. Norway’s Government Pension Fund Global, a multibillion operation, has blacklisted Africa Israel Investments and Danya Cebus due to their ties to settlements in the West Bank. Argentine authorities have suspended a proposed $170 million water treatment plant’s deal with Israel’s state water company Mekorot, in response to local trade unions and human rights organizations that connected Mekorot’s role in Israel’s illegal theft of Palestinian water resources. Many Western artists and bands refuse to perform in Israel.

In his final report to the United Nations, Richard Falk, Special UN Rapporteur on the Occupied Palestinian Territories, called on the international community to comprehensively investigate the business activities of companies and financial institutions registered in their own respective countries, which profit from the settlements in Israel and other unlawful Israeli activities. He advocated that they “take appropriate action to end such practices and ensure appropriate reparation for affected Palestinians.” Significantly, Falk wrote, “Member States should consider imposing a ban on imports of settlement produce.”

Israel’s Maariv newspaper reported that the international boycott of Israeli settlement products has already led to financial losses of $30 million. Indeed, last August, Secretary of State John Kerry warned that Israel could face a boycott campaign “on steroids” if it continues to build settlements in the occupied West Bank.

In a recent interview, President Barack Obama asked, “Do you resign yourself to what amounts to a permanent occupation of the West Bank? Is that the character of Israel as a state for a long period of time? Do you perpetuate, over the course of a decade or two decades, more and more restrictive policies in terms of Palestinian movement? Do you place restrictions on Arab-Israelis that run counter to Israel’s traditions?” These are bold words. But it is unlikely Obama will follow them with bold action.

Israel remains the largest recipient of U.S. foreign aid, over $3 billion a year. And Elbit Systems Ltd., Israel’s largest arms manufacturer, has just been awarded a $145 million contract by the U.S. Department of Homeland Security Customs and Border and Protection to deploy border surveillance technology in southern Arizona. Elbit is the Israeli military’s largest suppliers of drones, which were involved in the killing of 29 children during Israel’s attack on Gaza in 2008-2009, and the ongoing bombing of Gaza. In light of Israel’s documented human rights violations, U.S. assistance and the Elbit contract are unacceptable. “Those who turn a blind eye to injustice actually perpetuate injustice,” Tutu said. “It doesn’t matter where we worship or live.”

Anti-BDS legislation and blacklisting student groups

Nevertheless, there has been a vigorous campaign to pass anti-BDS legislation, both in Israel and in the United States. In 2011, the Israeli Knesset passed an anti-boycott law which would sanction anyone who declares a commercial embargo on Israel, and label any boycott a civil offense subjecting its initiators to litigation. Several Israeli and U.S. human rights groups asked that the law be annulled and a special panel of the Israeli High Court of Law held a hearing on the bill in February. The New York Times opposed the bill, noting, “this is a fundamental issue of free speech.”

Anti-boycott legislation introduced earlier this year in both New York and Maryland which would punish institutions that endorse the boycott were withdrawn after several educators and legislators criticized the bills as an attack on academic freedom. But a revised version of the New York bill has been introduced that would punish colleges that use public funds for activities that support boycotts of Israel. In early March, the Protect Academic Freedom Act was introduced in the House of Representatives, which would deny government funding to any U.S institution that endorses the academic boycott of Israel.

And bills have been introduced in several state legislatures to penalize universities if their faculty members participate in professional organizations that express a political viewpoint by endorsing a boycott. More than 150 scholars and others signed a statement recognizing boycotts as “internationally affirmed and constitutionally protected forms of political expression.” Columbia Law School Professor Katherine Frank wrote, “A law targeting the boycott today cannot be differentiated from the laws that punished boycotts in the U.S. civil rights movement or those that compelled academics to sign loyalty oaths as a condition of employment.”

In another campaign against the BDS movement, some universities, including Northeastern, have banned Students for Justice in Palestine (SJP) from campuses and threatened disciplinary measures against some SJP members. This appears to be “part of a coordinated effort by the Israeli government and the Israel lobby to blacklist all student groups that challenge the official Israeli narrative,” according to Chris Hedges.

Resistance to the banning of student groups that criticize Israeli policies should cite the well-established Supreme Court precedents protecting academic freedom of speech, including Healy v. James (“[t]he college classroom with its surrounding environs is peculiarly the marketplace of ideas”), Keyishian v. Bd. of Regents of Univ. of N.Y. (“the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools [of higher learning]”), and Snyder v. Phelps (“speech on matters of public concern . . . is at the heart of the First Amendment’s protection”).

But unless and until Israel ends its brutal occupation of Palestinian lands, grants full equality to all its people – including Palestinians – and recognizes the right of Palestinian refugees to return to their land, the non-violent BDS movement will continue to grow and cripple the Israeli economy. A system based on inequality and oppression cannot survive.

January 31, 2014

Beyond Orwell’s Worst Nightmare

“Big Brother is Watching You,” George Orwell wrote in his disturbing book 1984. But, as Mikko Hypponen points out, Orwell “was an optimist.” Orwell never could have imagined that the National Security Agency (NSA) would amass metadata on billions of our phone calls and 200 million of our text messages every day. Orwell could not have foreseen that our government would read the content of our emails, file transfers, and live chats from the social media we use.

In his recent speech on NSA reforms, President Obama cited as precedent Paul Revere and the Sons of Liberty, who patrolled the streets at night, “reporting back any signs that the British were preparing raids against America’s early Patriots.” This was a weak effort to find historical support for the NSA spying program. After all, Paul Revere and his associates were patrolling the streets, not sorting through people’s private communications.

To get a more accurate historical perspective, Obama should have considered how our founding fathers reacted to searches conducted by the British before the revolution. The British used “general warrants,” which authorized blanket searches without any individualized suspicion or specificity of what the colonial authorities were seeking.

At the American Continental Congress in 1774, in a petition to King George III, Congress protested against the colonial officers’ unlimited power of search and seizure. The petition charged that power had been used “to break open and enter houses, without the authority of any civil magistrate founded on legal information.”

When the founders later put the Fourth Amendment’s prohibition on unreasonable searches and seizures into the Bill of Rights, they were attempting to ensure that our country would not become a police state.

Those who maintain that government surveillance is no threat to our liberty should consider the abuse that occurred nearly 200 years later, when FBI Director J. Edgar Hoover conducted the dreaded COINTELPRO (counter-intelligence program). It was designed to “disrupt, misdirect, discredit and otherwise neutralize” political and activist groups. During the McCarthy witch hunts of the 1950s, in an effort to eradicate the perceived threat of communism, our government engaged in widespread illegal surveillance to threaten and silence anyone with unorthodox political views. Thousands of people were jailed, blacklisted, and fired as the FBI engaged in “red-baiting.”

In the 1960’s, the FBI targeted Dr. Martin Luther King, Jr. in a program called “Racial Matters.” King’s campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed that King’s organization was being infiltrated by communists. But the FBI was really worried that King’s civil rights campaign “represented a clear threat to the established order of the U.S.” The FBI went after King with a vengeance, wiretapping his phones, and securing personal information which it used to try to discredit him, hoping to drive him to divorce and suicide.

Obama would likely argue that our modern day “war on terror” is unlike COINTELPRO because it targets real, rather than imagined, threats. But, as Hypponen says, “It’s not the war on terror.” Indeed, the Privacy and Civil Liberties Oversight Board, an independent federal privacy watchdog, found “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

The NSA spying program captures all of us, including European leaders, people in Mexico, Brazil, the United Nations, and the European Union Parliament, not just the terrorists. Although Obama assured us that the government “does not collect intelligence to suppress criticism or dissent,” our history, particularly during COINTELPRO, tells us otherwise.

Obama proposed some reforms to the NSA program, but left in place the most egregious aspects. He said that the NSA must secure approval of a judge on the Foreign Intelligence Surveillance Court before it gets access to the phone records of an individual. But that is a secret court, whose judges are appointed by the conservative Chief Justice John Roberts, and it has almost never turned down an executive branch wiretapping request since it was created in 1978. Most significantly, Obama did not say that surveillance without judicial warrants or individual suspicion should be halted.

“One of [Obama’s] biggest lapses,” a New York Times editorial noted, “was his refusal to acknowledge that his entire speech, and all of the important changes he now advocates, would never have happened without the disclosures by [Edward] Snowden, who continues to live in exile and under the threat of decades in prison if he returns to this country.”

Snowden’s revelations will reportedly continue to emerge. And you can bet that Orwell will continue to turn in his grave for a long time to come.

This originally appeared on Huffington Post.

January 16, 2014

NSA Metadata Collection: Fourth Amendment Violation

Edward Snowden, who worked for the National Security Agency (NSA), revealed a secret order of the Foreign Intelligence Surveillance Court (FISC), that requires Verizon to produce on an “ongoing daily basis … all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

The government has admitted it collects metadata for all of our telephone communications, but says the data collected does not include the content of the calls.

In response to lawsuits challenging the constitutionality of the program, two federal judges issued dueling opinions about whether it violates the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Judge Richard J. Leon, of the US District Court for the District of Columbia, held that the metadata program probably constitutes an unconstitutional search and seizure. Judge William H. Pauley III, of the US District Court for the Southern District of New York, determined that it does not violate the Fourth Amendment.

Leon’s opinion

Leon wrote, “Because the Government can use daily metadata collection to engage in ‘repetitive surreptitious surveillance of a citizen’s private goings on,’ the ‘program implicates the Fourth Amendment each time a government official monitors it.'” The issue is “whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. If they do—and a Fourth Amendment search has thus occurred—then the next step of the analysis will be to determine whether such a search is ‘reasonable.'” The first determination is whether a Fourth Amendment “search” has occurred. If so, the second question is whether that search was “reasonable.”

The judicial analyses of both Leon and Pauley turn on their differing interpretations of the 1979 U.S. Supreme Court decision, Smith v. Maryland. In Smith, a robbery victim reported she had received threatening and obscene phone calls from someone who claimed to be the robber. Without obtaining a warrant, the police installed a pen register, which revealed a telephone in the defendant’s home had been used to call the victim. The Supreme Court held that a person has no reasonable expectation of privacy in the numbers dialed from his telephone because he voluntarily transmits them to his phone company.

Leon distinguished Smith from the NSA program, saying that whether a pen register constitutes a “search” is “a far cry from the issue in [the NSA] case.” Leon wrote, “When do present-day circumstances—the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

Then Leon cited the 2012 Supreme Court case of United States v. Jones, in which five justices found that law enforcement’s use of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy. “Significantly,” Leon wrote, “the justices did so without questioning the validity of the Court’s 1983 decision in United States v. Knotts, that the use of a tracking beeper does not constitute a search because ‘[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.'” Leon contrasted the short-range, short-term tracking device used in Knotts with the constant month-long surveillance achieved with the GPS device attached to Jones’s car.

Unlike the “highly-limited data collection” in Smith, Leon noted, “[t]he NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!” He called the NSA program “effectively a joint intelligence-gathering operation [between telecom companies and] the Government.”

“[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” Leon exclaimed, calling it “the stuff of science fiction.” He cited Justice Scalia’s opinion in Kyllo v. United States, which held the use of a thermal imaging device, that measures heat waste emanating from a house, constitutes a “search.” Justice Scalia was concerned about increasing invasions of privacy occasioned by developing technology.

Leon wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”

Quoting Justice Sotomayor’s concurrence in Jones, Leon noted the breadth of information our cell phone records reveal, including “familial, political, professional, religious, and sexual associations.”

Having determined that people have a subjective expectation of privacy in their historical record of telephony metadata, Leon turned to whether that subjective expectation is one that society considers “reasonable.” A “search” must ordinarily be based on individualized suspicion of wrongdoing in order to be “reasonable.” One exception is when there are “special needs,” beyond the need for ordinary law enforcement (such as the need to protect children from drugs).

“To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion,” Leon wrote. “In effect,” he continued, “the Government urges me to be the first non-FISC judge to sanction such a dragnet.”

Leon stated that fifteen different FISC judges have issued 35 orders authorizing the metadata collection program. But, Leon wrote, FISC Judge Reggie Walton determined the NSA has engaged in “systematic noncompliance” and repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. And Presiding FISC Judge John Bates noted “a substantial misrepresentation [by the government] regarding the scope of a major collection program.”

Significantly, Leon noted that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

Pauley’s opinion

Pauley’s analysis of the Fourth Amendment issue was brief. He explained that prior to the September 11th terrorist attacks, the NSA intercepted seven calls made by hijacker Khalid al-Mihdhar to an al-Qaeda safe house in Yemen. But the overseas signal intelligence capabilities the NSA used could not capture al-Mihdhar’s telephone number identifier; thus, the NSA mistakenly concluded that al-Mihdhar was not in the United States. Pauley wrote: “Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (FBI) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.”

“If plumbed,” Pauley noted, the telephony metadata program “can reveal a rich profile of every individual as well as a comprehensive record of people’s association with one another.” He noted, “the Government acknowledged that since May 2006, it has collected [telephony metadata] for substantially every telephone call in the United States, including calls between the United States and a foreign country and calls entirely within the United States.”

But, unlike Leon, Pauley found Smith v. Maryland controls the NSA case. He quoted Smith: “Telephone users … typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.” Thus, Pauley wrote, when a person voluntarily gives information to a third party, “he forfeits his right to privacy in the information.”

While Leon’s distinction between Smith and the NSA program turned on the breadth of information collected by the NSA, Pauley opined, “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.” And whereas Leon’s detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones court did not overrule Smith.

Leon’s decision is the better-reasoned opinion.

Looking ahead

This issue is headed to the Court of Appeals. From there, it will likely go the Supreme Court. The high court checked and balanced President George W. Bush when he overstepped his legal authority by establishing military commissions that violated due process, and attempted to deny constitutional habeas corpus to Guantanamo detainees. It remains to be seen whether the court will likewise refuse to cower before President Barack Obama’s claim of unfettered executive authority to conduct dragnet surveillance. If the court allows the NSA to continue its metadata collection, we will reside in what can only be characterized as a police state.

This piece first appeared on Jurist.

November 18, 2013

Voices From the Drone Summit

Last weekend, I participated in a panel on the illegality of drones and targeted killing off the battlefield at the conference, “Drones Around the Globe: Proliferation and Resistance,” in Washington DC. Nearly 400 people from many countries came together to gather information, protest, and develop strategies to end targeted killing by combat drones. I found the most compelling presentations to be first-hand accounts by those victimized by U.S. drone attacks, and a former military intelligence analyst who helped choose targets for drone strikes.

Members of a delegation from Yemen provided examples of the devastation drones have wrought in their communities. Faisal bin Ali Jaber is an engineer. For some time, one of his relatives had been giving public lectures criticizing drone attacks. In August 2012, family and friends were celebrating the marriage of Jaber’s son. After the wedding, a drone struck Jaber’s relative, killing him instantly. Jaber lost a brother-in-law who was a known opponent of Al Qaeda, and a 21-year-old nephew in the attack.

Baraa Shaiban, a human rights activist who works with REPRIEVE, revealed that 2012 was a year that saw “drones like never before” in Yemen. He described the death of a mother and daughter from a drone strike. “The daughter was holding the mother so tight, they could not be separated. They had to be buried together.”

Two members of Al Qaeda were in Entesar al Qadhi’s village, one of the most oil rich areas of Yemen. Villagers were negotiating with the two men. A drone killed the chief negotiator, scuttling the negotiations and leaving the village vulnerable to Al Qaeda. “The drones are for Al Qaeda, not against Al Qaeda,” al Qadhi said.

Air Force Col. Morris Davis (ret.) is a professor at Howard University Law School. He was chief prosecutor at the Guantanamo military commissions until he was reassigned due to his disagreement with the government’s policies. Davis had been assigned to a chain of command below Defense Department General Counsel William Haynes, who favored the use of evidence gained through waterboarding. “The guy who said waterboarding is A-okay I was not going to take orders from. I quit,” Davis said at the time. At the Drone Summit, Davis related the case of Nek Muhammad, who, Davis noted, “was not a threat to us. He was killed as a favor to the Pakistani government so they would look the other way when we wanted to kill our targets.”

Daniel Hale helped choose targets for drone attacks. The former intelligence analyst with the Joint Special Operations Command in Afghanistan delivered a riveting talk. Hale utilized surveillance data for drone attacks. He would tell the sensor operator – who sits next to the “pilot” of the unmanned drone thousands of miles from the target – where to point the camera. This information would guide the “pilot” in dropping the bomb.

Every day, a slideshow of the most dramatic images from 9/11 and George W. Bush “looking somber” would be projected in the room in which Hale worked. On the wall in the main facility, there were television screens, each showing “a different bird [drone] in a different part of the country.” Every branch of the U.S. military and foreign militaries monitored “all of Afghanistan.” Hale would be assigned a mission “to go after a specific individual for nefarious activities.” He fed his intelligence to a sensor operator “so they would know where to look before a kinetic strike or detention” of an individual.

On one occasion, Hale located an individual who had been involved with Improvised Explosive Devices (IEDs). The man was riding a motorcycle in the mountains early in the morning. He met up with four other people around a campfire drinking tea. Hale relayed the information that led to a drone strike, which killed all five men. Hale had no idea whether the other four men had done anything. Hale had thought he was part of an operation protecting Afghanistan. But when the other four men died – a result of “guilt by association” – Hale realized he “was no longer part of something moral or sane or rational.” He had heard someone say that “terrorists are cowards” because they used IEDs. “What was different,” Hale asked, “between that and the little red joy stick that pushes a button thousands of miles away”?

August 28, 2013

Killing Civilians to Protect Civilians in Syria

By Marjorie Cohn and Jeanne Mirer

The drums of war are beating again. The Obama administration will reportedly launch a military strike to punish Syria’s Assad government for its alleged use of chemical weapons. A military attack would invariably kill civilians for the ostensible purpose of showing the Syrian government that killing civilians is wrong. “What we are talking about here is a potential response . . . to this specific violation of international norms,” declared White House press secretary Jay Carney. But a military intervention by the United States in Syria to punish the government would violate international law.

For the United States to threaten to and/or launch a military strike as a reprisal is a blatant violation of the United Nations Charter. The Charter requires countries to settle their international disputes peacefully. Article 2(4) makes it illegal for any country to either use force or threaten to use force against another country. Article 2(7) prohibits intervention in an internal or domestic dispute in another country. The only time military force is lawful under the Charter is when the Security Council approves it, or under Article 51, which allows a country to defend itself if attacked. “The use of chemical weapons within Syria is not an armed attack on the United States,” according to Notre Dame law professor Mary Ellen O’Connell.

The United States and the international community have failed to take constructive steps to promote peace-making efforts, which could have brought the crisis in Syria to an end. The big powers instead have waged a proxy war to give their “side” a stronger hand in future negotiations, evaluating the situation only in terms of geopolitical concerns. The result has been to once again demonstrate that military solutions to political and economic problems are no solution at all. In the meantime, the fans of enmity between religious factions have been inflamed to such a degree that the demonization of each by the other has created fertile ground for slaughter and excuses for not negotiating with anyone with “blood on their hands.”

Despite U.S. claims of “little doubt that Assad used these weapons,” there is significant doubt among the international community about which side employed chemical weapons. Many view the so-called rebels as trying to create a situation to provoke U.S. intervention against Assad. Indeed, in May, Carla del Ponte, former international prosecutor and current UN commissioner on Syria, concluded that opposition forces used sarin gas against civilians.

The use of any type of chemical weapon by any party would constitute a war crime. Chemical weapons that kill and maim people are illegal and their use violates the laws of war. The illegality of chemical and poisoned weapons was first established by the Hague regulations of 1899 and Hague Convention of 1907. It was reiterated in the Geneva Convention of 1925 and the Chemical Weapons Convention. The Rome Statute for the International Criminal Court specifically states that employing “poison or poisoned weapons” and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” are war crimes, under Article 8. The prohibition on the use of these weapons is an international norm regardless of whether any convention has been ratified. As these weapons do not distinguish between military combatants and civilians, they violate the principle of distinction and the ban on weapons which cause unnecessary suffering and death contained in the Hague Convention. Under the Nuremberg Principles, violations of the laws of war are war crimes.

The self-righteousness of the United States about the alleged use of chemical weapons by Assad is hypocritical. The United States used napalm and employed massive amounts of chemical weapons in the form of Agent Orange in Vietnam, which continues to affect countless people over many generations. Recently declassified CIA documents reveal U.S. complicity in Saddam Hussein’s use of chemical weapons during the Iran-Iraq war, according to Foreign Policy: “In contrast to today’s wrenching debate over whether the United States should intervene to stop alleged chemical weapons attacks by the Syrian government, the United States applied a cold calculus three decades ago to Hussein’s widespread use of chemical weapons against his enemies and his own people. The Reagan administration decided that it was better to let the attacks continue if they might turn the tide of the war. And even if they were discovered, the CIA wagered that international outrage and condemnation would be muted.”

In Iraq and Afghanistan, the United States used cluster bombs, depleted uranium, and white phosphorous gas. Cluster bomb cannisters contain tiny bomblets, which can spread over a vast area. Unexploded cluster bombs are frequently picked up by children and explode, resulting in serious injury or death. Depleted uranium (DU) weapons spread high levels of radiation over vast areas of land. In Iraq, there has been a sharp increase in Leukemia and birth defects, probably due to DU. White phosphorous gas melts the skin and burns to the bone. The Geneva Convention Relative to the Protection of Civilian Persons in time of War (Geneva IV) classifies “willfully causing great suffering or serious injury to body or health” as a grave breach, which constitutes a war crime.

The use of chemical weapons, regardless of the purpose, is atrocious, no matter the feigned justification. A government’s use of such weapons against its own people is particularly reprehensible. Secretary of State John Kerry said that the purported attack by Assad’s forces “defies any code of morality” and should “shock the conscience of the world.” He went on to say that “there must be accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people.”

Yet the U.S. militarily occupied over 75% of the Puerto Rican island of Vieques for 60 years, during which time the Navy routinely practiced with, and used, Agent Orange, depleted uranium, napalm and other toxic chemicals and metals such as TNT and mercury. This occurred within a couple of miles of a civilian population that included thousands of U.S. citizens. The people of Vieques have lived under the colonial rule of the United States now for 115 years and suffer from terminal health conditions such as elevated rates of cancer, hypertension, respiratory and skin illnesses and kidney failure. While Secretary Kerry calls for accountability by the Assad government, the U.S. Navy has yet to admit, much less seek atonement, for decades of bombing and biochemical warfare on Vieques.

The U.S. government’s moral outrage at the use of these weapons falls flat as it refuses to take responsibility for its own violations.

President Barack Obama admitted, “If the U.S. goes in and attacks another country without a UN mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it . . .” The Obama administration is studying the 1999 “NATO air war in Kosovo as a possible blueprint for acting without a mandate from the United Nations,” the New York Times reported. But NATO’s Kosovo bombing also violated the UN Charter as the Security Council never approved it, and it was not carried out in self-defense. The UN Charter does not permit the use of military force for “humanitarian interventions.” Humanitarian concerns do not constitute self-defense. In fact, humanitarian concerns should spur the international community to seek peace and end the suffering, not increase military attacks, which could endanger peace in the entire region.

Moreover, as Phyllis Bennis of the Institute for Policy Studies and David Wildman of Human Rights & Racial Justice for the Global Ministries of the United Methodist Church wrote, “Does anyone really believe that a military strike on an alleged chemical weapons factory would help the Syrian people, would save any lives, would help bring an end to this horrific civil war”?

Military strikes will likely result in the escalation of Syria’s civil war. “Let’s be clear,” Bennis and Wildman note. “Any U.S. military attack, cruise missiles or anything else, will not be to protect civilians – it will mean taking sides once again in a bloody, complicated civil war.” Anthony Cordesman, military analyst from the Center for Strategic and International Studies, asks, “Can you do damage with cruise missiles? Yes. Can you stop them from having chemical weapons capability? I would think the answer would be no.”

The United States and its allies must refrain from military intervention in Syria and take affirmative steps to promote a durable ceasefire and a political solution consistent with international law. If the U.S. government were truly interested in fomenting peace and promoting accountability, it should apologize to and compensate the victims of its own use of chemical weapons around the world.

Marjorie Cohn is a professor at Thomas Jefferson School of Law, former president of the National Lawyers Guild (NLG), and deputy secretary general of the International Association of Democratic Lawyers (IADL). New York attorney Jeanne Mirer is president of the IADL and co-chair of the NLG’s International Committee. Both Cohn and Mirer are on the board of the Vietnam Agent Orange Relief and Responsibility Campaign.

August 10, 2013

The Struggle Continues: Seeking Compensation for Vietnamese Agent Orange Victims, 52 Years On

By Marjorie Cohn and Jeanne Mirer

Today marks the 52nd anniversary of the start of the chemical warfare program in Vietnam, a long time with NO sufficient remedial action by the U.S. government. One of the most shameful legacies of the American War against Vietnam, Agent Orange continues to poison Vietnam and the people exposed to the chemicals, as well as their offspring.

For over 10 years, from 1961 to 1975, in order to deny food and protection to those deemed to be “the enemy,” the United States defoliated the land and forests of Vietnam with the chemicals known as Agent Orange. These chemicals contained the impurity of dioxin – the most toxic chemical known to science. Millions of people were exposed to Agent Orange and today it is estimated that three million Vietnamese still suffer the effects of these chemical defoliants.

In addition to the millions of Vietnamese who continue to be affected by this deadly poison, tens of thousands of U.S. soldiers are also affected. It has caused birth defects in hundreds of thousands of children in Vietnam and the United States – that is, the second and third generations of those who were exposed to Agent Orange decades ago. Medical evidence indicates that certain cancers (for example, soft tissue non-Hodgkin’s Lymphoma), diabetes (type II), and in children spina bifida and other serious birth defects, are attributable to the exposure.

The deadly mark left by Agent Orange on the natural environment of Vietnam includes the destruction of mangrove forests and the long-term poisoning of soil especially in the known “hot spots” near former U.S. military bases.

Surviving Vietnam veterans in the United States, after many years of organized action, have finally achieved limited compensation from our government for some illnesses they suffer due to Agent Orange poisoning. While this struggle continues, the three million surviving Vietnamese victims have received no such compensation or any humanitarian aid from the U.S. government. Nor have the children of the vast majority of U.S. veterans suffering from Agent Orange-related birth defects received any medical or other assistance.

The United States does not want to admit that its use of chemicals with poison as weapons of war on civilian populations violates the laws of war, which recognize the principle of distinction between military and civilian objects, requiring armies to avoid civilian targets. These laws of war are enshrined in the Hague Convention and the Nuremberg principles, and are codified in the Geneva Conventions of 1949 and the Optional Protocol of 1977, as well as the International Criminal Court statute.

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

Our government has a moral and legal obligation to compensate the people of Vietnam for the devastating impact of Agent Orange, and to assist in alleviating its effects. Indeed, the U.S. government recognized this responsibility in the Peace Accords signed in Paris in 1973, in which the Nixon administration promised to contribute $3 billion dollars toward healing the wounds of war, and to post-war reconstruction of Vietnam. But that promise remains unfulfilled.

For the past 52 years, the Vietnamese people have been attempting to address this legacy of war by trying to get the United States and the chemical companies to accept responsibility for this ongoing nightmare. An unsuccessful legal action by Vietnamese victims of Agent Orange against the chemical companies in U.S. federal court, begun in 2004, has nonetheless spawned a movement to hold the United States accountable for using such dangerous chemicals on civilian populations. The movement has resulted in pending legislation, H.R. 2519, The Victims of Agent Orange Relief Act of 2013, which provides medical, rehabilitative and social service compensation to the Vietnamese victims of Agent Orange, remediation of dioxin-contaminated “hot spots,” and medical services for the children of U. S. Vietnam veterans and Vietnamese-Americans who have been born with the same diseases and deformities.

Last year on the 51st anniversary of the beginning of the U.S. chemical war on Vietnam, we requested people around the world to observe 51 seconds of silence in memory of those who suffered and suffer from the effects of Agent Orange, and after the silence to take at least 51 seconds of action to support the struggle. This year again we urge you to reflect on the ongoing tragedy and take action by ensuring that your Congressional representative co-sponsors H.R. 2519, introduced by Rep. Barbara Lee.

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

August 7, 2013

Chelsea Manning’s Revelations Saved Lives

This is a historic verdict. Judge Denise Lind correctly found Chelsea Manning not guilty of aiding the enemy because the evidence failed to establish that Manning knew information she provided to WikiLeaks would reach al-Qaida. A conviction of aiding the enemy would have sent a chilling message to the news media that if they publish leaked classified information, their officers could face life in prison. That would deprive the public of crucial information.

The verdict finding Manning guilty of Espionage Act offenses, however, sends an ominous warning that could deter future whistle-blowers from exposing government wrongdoing. It’s important to keep in mind that Manning provided information indicating the U.S. had committed war crimes. Traditionally the Espionage Act has been used only against spies and traitors, not whistle-blowers. Yet President Obama has used the Espionage Act to prosecute more whistle-blowers than all prior administrations combined.

Manning’s revelations actually saved lives. After WikiLeaks published his documentation of Iraqi torture centers established by the United States, the Iraqi government refused Obama’s request to extend immunity to U.S. soldiers who commit criminal and civil offenses there. As a result, Obama had to withdraw U.S. troops from Iraq.

The American public needed to know the information Manning provided. She revealed evidence of war crimes in the “Collateral Murder” video, which depicts a U.S. Apache attack helicopter crew killing 12 unarmed civilians and wounding two children in Baghdad in 2007. The crew then killed people attempting to rescue the wounded. A U.S. tank drove over one of the bodies, cutting it in half. Those actions constitute war crimes under the Geneva Conventions.

The Bush administration waged an illegal war in Iraq in which thousands of people were killed. It also established an interrogation program that led to the torture and abuse of people in Iraq, Afghanistan, Guantanamo and the CIA black sites. Yet it is Bradley Manning, not the Bush officials, who is being prosecuted.

Judge Lind has already reduced any sentence Manning may receive by 112 days because of her mistreatment during the first 11 months of his custody, when she was kept in solitary confinement and humiliated by being forced to stand naked for inspection. Hopefully the judge will take into account how Manning’s revelations benefit our society when she passes sentence. Manning is still facing 90 years in prison for his convictions on 19 of the 21 counts with which she was charged.

This first appeared on Debate Club, US News & World Report

July 19, 2013

Key Mistakes Sway Jury in Zimmerman Trial

A Southern jury of six women – none of them black – found 28-year-old George Zimmerman’s shooting of unarmed 17-year-old Trayvon Martin to be justifiable homicide because he acted in self-defense.

The jurors were prohibited from considering race. They were instructed only on the parts of self-defense law that helped Zimmerman, and the chief police investigator improperly testified that he believed Zimmerman.

Jury prevented from considering race

None of the jurors thought race played a role in the case, Juror B-37 told CNN’s Anderson Cooper. In fact the question of Zimmerman profiling Martin because he was African-American didn’t even come up in deliberations, the juror said.

No wonder it never came up. At the beginning of the trial, the judge forbade the prosecution from speaking about racial profiling. Only the word “profiling” could be used, Judge Debra S. Nelson ruled. “Criminal profiling is based on behavior,” NAACP President Benjamin Jealous said on Democracy Now! “Racial profiling is based on color and on race. And the reality is that it appears that George Zimmerman had a pattern of confusing color with grounds for suspicion.”

The entire trial from start to finish was sanitized of any mention of race.

Zimmerman told the 911 operator, “These fucking punks” and “these assholes, they always get away,” when he spotted Martin walking down the street in Sanford, Florida, that fateful evening. “Looks like he’s up to no good or he’s on drugs or something,” Zimmerman said. “Something’s wrong with him.” When an investigator later asked Zimmerman what he meant by those words, the shooter replied, “I don’t know.”

But the prosecutor was forbidden from telling the jury that the “something” that was “wrong” may have been the color of Martin’s skin. The Rev. Dr. Raphael G. Warnock, senior pastor at the Rev. Dr. Martin Luther King Jr.’s Ebenezer Baptist Church in Atlanta, told the New York Times, “Trayvon Benjamin Martin is dead because he and other black boys and men like him are seen not as a person but a problem.”

Howard Simon, executive director of the ACLU of Florida, noted, “George Zimmerman saw a young black male as a threat to his community.”

Clifford Alexander, who worked as a lawyer in the Lyndon Johnson White House, said in an interview with the Washington Post, “The clear reason why Zimmerman had the audacity to approach this child was that he saw the color of his skin as a threat.”

Two days after the shooting, Zimmerman’s cousin, known as Witness No. 9, told a Sanford police officer in a telephone call, “I know George. And I know that he does not like black people.” She added, “He would start something. He’s a very confrontational person. It’s in his blood. Let’s just say that. I don’t want this poor kid and his family to just be overlooked.”

But the judge sanitized the case and everyone involved was forced to ignore the elephant in the room. Indeed, after the verdict, Mark O’Mara, Zimmerman’s defense attorney, made the preposterous statement that if his client were black, “he never would’ve been charged with a crime.”

Jury prevented from considering first aggressor

Florida’s self-defense law prohibits “initial aggressors” from using force if their own conduct has provoked that force. So if a defendant “initially provokes the use of force” against himself, he cannot claim to have acted in self-defense, unless he withdraws or retreats.

The prosecution asked the judge to instruct the jury that it could consider who was the first aggressor in the altercation between Zimmerman and Martin. If the judge had agreed to give that instruction, the jury might have concluded that, by following Martin, Zimmerman provoked a physical response from Martin. The defense objected to the instruction, and the judge decided not to give the first aggressor instruction.

The jury was instructed to consider only whether Zimmerman reasonably believed deadly force was necessary to prevent imminent death or great bodily harm to himself – when he later tussled with Martin on the ground. The jury was also told Zimmerman had no duty to retreat, that he could stand his ground, and meet force with force- including deadly force – if he was not engaged in an unlawful activity and was attacked in a place he had a right to be. Finally, the judge instructed the jury that if it had a reasonable doubt about whether Zimmerman was justified in using deadly force, they should find him not guilty.

The instructions prevented the jury from considering whether Zimmerman was the first aggressor when he got out of his truck and began following Martin. When Zimmerman told the 911 operator, “Shit, he’s running,” the operator asked, “Are you following him?” Zimmerman said that he was. “OK, we don’t need you to do that,” the operator told Zimmerman. But Zimmerman followed Martin nevertheless. Rachel Jeantel testified that Martin told her on the cellphone he was being followed by a “creepy ass cracker.”

The jury was only given partial instructions on self-defense – those parts that helped Zimmerman. They were prevented from considering whether Zimmerman might have been the first aggressor, which would have negated his claim of self-defense.

Ultimately, nothing mattered to the jury, Juror B-37 told Cooper, except whether Zimmerman feared for his life in the seconds before he shot Martin.

Juror B-37 said that Zimmerman was guilty of nothing more than “not using good judgment.” She added, “Both were responsible for the situation they had gotten themselves into.”

Officer permitted to make credibility judgment

Sanford police officer Chris Serino, the chief investigator on the case, testified that, given all the evidence, he believed Zimmerman was telling the truth. It is well-established that witnesses cannot make credibility judgments – it invades the jury’s exclusive province of determining the credibility and weight of any evidence. But the prosecution didn’t object to Serino’s testimony until the next morning, at which point the judge told the jury to disregard it. Yet the damage was done, and Serino again testified that there were no significant inconsistencies in Zimmerman’s statements to police.

From the beginning, Serino did not believe there was enough evidence to file criminal charges against Zimmerman. The officer told the FBI that he was pressured into making the arrest. Zimmerman finally was charged for Martin’s death only after a powerful national outcry, and the governor’s appointment of a special prosecutor – 40 days following the killing.

Serino testified, “In this case, [Zimmerman] could have been considered the victim also.” Likewise, Juror B-37 felt sorry for both of them – the dead boy and the shooter alike.

This article first appeared on Truthout.

July 5, 2013

Five “High-Value” Guantanamo Detainees Improperly Presumed Guilty

It is a bedrock principle of our system of justice that everyone who is charged with a crime is presumed innocent unless and until proven guilty. That includes “high-value detainees” awaiting trial in Guantánamo’s military commissions. Yet pre-trial hearings held June 17-21 in the cases of five men charged with planning the 9/11 attacks revealed a clear presumption of guilt on the part of the government. Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Attash, Ramzi bin al Shaibah, Ammar al Baluch, and Mustafa Ahmed Adam al Hawsawi have been charged with crimes for which they could be sentenced to death. Regardless of the emotions surrounding the terrorist attacks, these defendants must be treated fairly, in accordance with the law.

The issues litigated in the hearings included undue influence exerted on the military commission by political leaders, defects in the charging process, government violation of the attorney-client privilege, the right of the accused to exculpatory evidence in the hands of the International Committee of the Red Cross, and the exclusion of the accused from some pre-trial hearings. Judge James Pohl, who presides over these cases, took the motions under advisement. That means he postponed ruling on them until later. Although one defendant filed a motion to prevent the government from force-feeding him, that motion was not heard.

Undue influence in the charging process

Defense attorneys argued that high government officials exerted undue influence on the charging of their clients. The Military Commissions Act (MCA) expressly prohibits “any person” from unlawfully influencing or coercing the action of a military commission. Yet top US officials proclaimed the guilt of some of the defendants before they were charged and their cases set for trial in the military commissions. President George W. Bush made more than 30 public statements directly implicating Khalid Shaikh Mohammad in the 9/11 attacks; some of Bush’s statements also named Ramzi bin al Shaibah and Mustafa Ahmed Adam al Hawsawi. Secretary of State Donald Rumsfeld and White House Press Secretary Ari Fleischer made similar statements. President Barack Obama, Vice President Joe Biden, and Attorney General Eric Holder referred to the defendants as “terrorists.” Holder named all five defendants as “9/11 conspirators.” Obama and White House Press Secretary Robert Gibbs specifically referred to Mohammad, as did Sens. John McCain (R-Arizona) and Lindsey Graham (R-South Carolina). The guilt of the defendants, all of whom face the death penalty, was pre-determined.

Defects in the charging process

Mohammed al Qahtani was charged in 2008 along with the five defendants in the present case. But Susan Crawford, the former Convening Authority (CA) – who decides whether and what to charge against defendants in military commissions – determined that al Qahtani’s case should not be referred for prosecution. The CA found that “[w]e tortured [Mohammed al] Qahtani … His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

Torture of the present defendants may well have affected the decision to charge them as well, and particularly, whether to seek the death penalty (capital charges). CA Adm. Bruce MacDonald testified that a capital referral was not a foregone conclusion. But defense counsel were prevented from effectively developing that information.

The Sixth Amendment to the Constitution assures the right to effective assistance of counsel when the government is considering whether to pursue the death penalty. Yet the period preceding the formal charging of these defendants was replete with insurmountable obstacles to “learned counsel,” making their assignment meaningless. Under the MCA, defendants have the right to learned counsel, who are learned in applicable law relating to capital cases, to ensure defendants are effectively represented. But several roadblocks to their representation rendered their assignment mere window-dressing.

Learned counsel were denied timely security clearances, so they were unable to meet with their clients or read 1,500 pages of classified documents. The denial of access to the clients damaged the attorney-client relationship and prevented the defense from building rapport, which is essential in eliciting from the accused facts and circumstances that could lessen his culpability or establish actual innocence.

Because professionals known as “mitigation specialists” were also denied security clearances, they, too, could not meet with the accused to assist in the gathering of information the defense could submit to prevent their clients from being charged with the death penalty. According to American Bar Association Guidelines, a mitigation specialist is considered: “an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have.”

Furthermore, the accused were denied qualified and security-cleared translators, and one defendant had no case investigator until weeks before the charges were referred to the commission. Finally, there was a total obstruction of privileged attorney-client communications.

Thus, counsel were stymied in their efforts to effectively communicate with their clients about their detention, interrogation and torture by the US government, life history, current and past mental statuses, current location of their family, and the whereabouts of any educational, medical, or other records.

Government violation of the attorney-client privilege and interference with the right to counsel

The attorney-client privilege is the oldest privilege for confidential communications in the common law. Yet defense attorneys are prevented from bringing written work product to client meetings without revealing the contents to the government, unless they are signed or written by the defense team. Counsel are forced to rely on their memories to discuss complex legal issues.

Because of the government’s ongoing interference with the attorney-client privilege, bin ‘Attash had not received written privileged communication from his defense counsel from October 2011 until May 2012, when counsel filed a motion barring invasion of attorney-client communications. This caused “profound damage to the relationship between Mr. bin ‘Attash and his counsel.”

In addition, prison authorities established a “privilege team” to screen items prisoners could have in their cells to prevent their possession of “informational contraband”(which is given such a broad definition it could include media reports on efforts to close Guantánamo). But the review team includes intelligence agents, and they need not keep the information confidential.

Lawyers are forbidden from talking about “historical perspectives or [having] discussions of jihadist activities” or “information about current or former detention personnel” with their clients. Thus, Mohammad’s lawyer cannot ask his client why he may have plotted against the United States or who might have tortured him in the CIA black sites. Al Baluchi’s attorney is precluded from comparing his client’s alleged role in the offense with conspirators in other acts of terrorism who have and have not faced the death penalty. This is a serious interference with the defendant’s ability to present a defense.

Judge Pohl will likely issue new rules regarding attorney-client communications as early as this month.

Defense right to material in possession of International Committee of the Red Cross (ICRC)

The ICRC is an independent, neutral and impartial humanitarian organization. The Geneva Conventions contain a mandate for the ICRC to provide protection and assistance to victims of armed conflict and other situations of violence. ICRC’s confidential information must be kept confidential. All recipients of ICRC reports, including US authorities, are obligated to protect and abide by ICRC’s confidentiality. They are precluded from disclosing any confidential information in judicial or other legal proceedings.

Since 2002, the ICRC has visited detainees at Guantánamo. The ICRC engages in a confidential dialogue with the government about the conditions of confinement at Guantánamo. It also engages in confidential private interviews with detainees. The ICRC maintains its access, and its status of neutrality, because it guarantees confidentiality. But the ICRC can decide to turn over some of its material at its discretion.

The defense made a motion to compel the government to produce all correspondence between the ICRC and the Department of Defense regarding the conditions of confinement of the accused, including all ICRC reports, records and memoranda.

The prosecution argued “somewhat presumptuously” (in the ICRC’s words) that it should be able to review all confidential ICRC material to determine what should be provided to the defense.

There is a tension between the ICRC’s insistence on confidentiality, the government’s security concerns and the defendants’ right to exculpatory evidence under the Due Process Clause. The Supreme Court ruled in Brady v. Maryland that prosecutors must disclose materially exculpatory evidence in the government’s possession to the defense. That includes any evidence that goes toward negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence bearing on the credibility of a witness. Moreover, defense counsel argued that since this is a death case, there should be more favorable procedures for the defense. The prospect of an execution, without full disclosure of mitigating evidence, would shock a foreign government as much, if not more than, the provision of ICRC materials.

Exclusion of accused during closed pretrial hearings

Defense counsel objected to the exclusion of their clients during closed pretrial proceedings. The prosecution maintained that defendants must be excluded from hearings in which classified material is discussed. The MCA guarantees the right of the accused to be present at all hearings unless he is disruptive or during deliberations. The defense argued that defendants should be allowed to attend hearings in which classified information is discussed, if the information came from the accused himself. For example, Mohammad’s attorney wants his client to be present when they discuss his torture. The government waterboarded Mohammad 183 times at the CIA black site. Hearings were held from which the accused were excluded.

Motion to prevent force-feeding

Learned counsel for Hawsawi filed a motion to prevent the government from force-feeding his client, or in the alternative, to be notified in advance and given an opportunity to be heard before any force-feeding is employed. Hawsawi has been participating in the hunger strike at Guantánamo, but has not yet been force-fed. His counsel argued that “Mr. Hawsawi has been peacefully protesting by refusing food, on and off, for months now. Given his slender build and already relatively low body weight, it is entirely plausible that forced feeding is imminent.” This motion was not argued at the hearings because the judge found it premature, as Hawsawi is not being force-fed yet.

Of the 166 detainees remaining at Guantánamo, 104 are participating in the hunger strike, and 44 are being force-fed. The written procedures refer to force-feeding as “re-feeding.” Although they contain a few redactions (material blacked out), the pages that describe the procedure for “re-feeding” are totally redacted.

In 2006, the United Nations Human Rights Commission concluded that the violent force-feeding of detainees at Guantánamo amounted to torture. The Obama administration is also violently force-feeding detainees. The Constitution Project’s Task Force on Detainee Treatment found that “improper coercive involuntary feedings” were being undertaken with “physically forced nasogastric tube feedings of detainees who were completely restrained.” Boston University Professor George Annas, who co-authored a recent article in The New England Journal of Medicine, characterized the method of force-feeding being used on Democracy NOW!, as a “very violent type of force-feeding.” The American Medical Association and the World Medical Association have declared that force-feeding should not be used on a prisoner who is competent to refuse food.

On May 1, 2013, the Office of the United Nations High Commissioner on Human Rights wrote to the US government:

[I]t is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

Four detainees filed a motion in a Washington DC federal court on June 30 to stop them from being force-fed and force-medicated with Reglan, a drug that can cause severe neurological disorders. Reprieve brought the motion on behalf of Shaker Aamer, Nabil Hadjarab, Ahmed Belbacha and Abu Wa’el Dhiab, all of whom have been cleared for release from Guantanamo.

Looking ahead

Trials in these cases will not begin before 2015. President Obama should halt all military commission proceedings and announce that the trials will be held in federal civilian courts, which have shown they are more than capable of prosecuting terrorism cases. As demonstrated in both this piece and the one I wrote about al Nashiri’s pretrial hearings, justice is impossible to achieve in military commissions, where guilt is a foregone conclusion.

This first appeared on Truthout.

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