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December 3, 2014

Prosecutor Manipulates Grand Jury Process to Shield Officer

You know the fix is in when a suspect who shot an unarmed man voluntarily provides four hours of un-cross examined testimony to a grand jury without taking the Fifth.

On August 9, Ferguson, Missouri Police Officer Darren Wilson gunned down 18-year-old African American Michael Brown. Since that fateful day, people across the country have protested against racial profiling, excessive police force, and the failure of the criminal justice system to provide accountability.

The nail in the coffin of “equal justice under law” came on November 24, when the St. Louis County grand jury refused to indict Wilson for any criminal charges in the shooting death of Brown. In a virtually unprecedented move, St. Louis Prosecutor Robert McCulloch in effect deputized the grand jurors to sit as triers of fact as in a jury trial.Read more

October 17, 2014

US Government Sanitizes Vietnam War History

For many years after the Vietnam War, we enjoyed the “Vietnam syndrome,” in which US presidents hesitated to launch substantial military attacks on other countries. They feared intense opposition akin to the powerful movement that helped bring an end to the war in Vietnam. But in 1991, at the end of the Gulf War, George H.W. Bush declared, “By God, we’ve kicked the Vietnam syndrome once and for all!”

With George W. Bush’s wars on Iraq and Afghanistan, and Barack Obama’s drone wars in seven Muslim-majority countries and his escalating wars in Iraq and Syria, we have apparently moved beyond the Vietnam syndrome. By planting disinformation in the public realm, the government has built support for its recent wars, as it did with Vietnam.Read more

September 29, 2014

“I’m Just a Kid”: Tariq’s Ordeal

Last summer, Tariq Khdeir, a 15-year-old American citizen from Baltimore, accompanied his parents to the East Jerusalem neighborhood of Shuafat for a six-week visit with relatives. The first friend Tariq made when he arrived was his cousin, Muhammad Abu Khdeir, whom Tariq had not seen since he was four years old. “We had so much fun,” Tariq told a gathering at the national conference of the U.S. Campaign to End the Israeli Occupation in San Diego on September 19, 2014.

One night while he was in Jerusalem, Tariq saw some police with Muhammad. Tariq thought they had kidnapped Muhammad. Tariq wondered, “Is he gonna come back? Is he gonna come back alive”? But Muhammad did not come back alive. In retaliation for the deaths of three Israeli teenagers, Muhammad was beaten and burnt alive by three Jewish extremists.

After Muhammad’s murder, people took to the streets in protest. Israeli Defense Force soldiers began firing rubber bullets at them. Incredulous, Tariq thought, “Is this really happening in front of me”? Then Israeli soldiers began to run after Tariq. Panicked, Tariq ran.Read more

September 18, 2014

Obama Declares Perpetual War

President Barack Obama escalated the drone war he has conducted for the past five and a half years by declaring his intention to “degrade and ultimately destroy” the Islamic State, also known as ISIS, or ISIL. Since August 8, Obama has mounted at least 154 airstrikes in Iraq. He will send 475 additional US troops, increasing the total number in Iraq to about 1,600. Obama announced he would conduct “a systematic campaign of airstrikes” in Iraq, and possibly in Syria. But, not limiting himself to those countries, Obama declared the whole world his battlefield, stating “We will hunt down terrorists who threaten our country, wherever they are . . . if you threaten America, you will find no safe haven.”

If, indeed, there were an imminent threat of attack on the United States, Obama would be legally entitled to launch a military operation. The United Nations Charter, which prohibits the use of military force, allows an exception when a country acts in self-defense. Under the well-established Caroline doctrine, the “necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation.” The only problem is, Obama admitted, “We have not yet detected specific plotting against our homeland.” Citing only the vague possibility of future “deadly attacks,” Obama nevertheless declared a perpetual war with no specific end time.Read more

September 8, 2014

US Slammed for Failure to Fulfill Legal Obligation to Eliminate All Forms of Racial Discrimination

Three weeks after the shooting of Michael Brown in Ferguson, the Committee on the Elimination of Racial Discrimination (CERD) published a report detailing how the United States has failed to fulfill its legal obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (Convention). The CERD report was scathing in its criticism of the US for not complying with the Convention’s mandates. Since the US ratified this treaty, thereby becoming a State Party, it is part of US law under the Supremacy Clause of the Constitution.Read more

August 22, 2014

National Lawyers Guild, other legal organizations urge International Criminal Court to investigate war crimes by Israeli, U.S. leaders in Gaza

The National Lawyers Guild (NLG), Center for Constitutional Rights, International Association of Democratic Lawyers, Arab Lawyers Union, and American Association of Jurists (Asociacion Americana de Juristas) sent a letter on Friday, August 22 to Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), urging her to initiate an investigation of war crimes, genocide, and crimes against humanity committed by Israeli leaders and aided and abetted by U.S. officials in Gaza. Under the Rome Statute, the ICC has the power to hold individuals criminally accountable for the most serious of crimes.

“In light of the extreme gravity of the situation in the occupied Gaza Strip, in particular the large number of civilian casualties and large scale destruction of civilian property, including schools, mosques and hospitals, and the ongoing incitement to genocide perpetrated by Israeli political figures and leaders, the [NLG] and endorsing organizations strongly urge the Office of the Prosecutor to use its power under Article 15 of the Rome Statute to initiate a preliminary investigation” of crimes within the ICC’s jurisdiction.Read more

August 8, 2014

US Leaders Aid and Abet Israeli War Crimes, Genocide & Crimes against Humanity

By sending vast amounts of military aid to Israel, members of the US Congress, President George W. Bush, President Barack Obama and Defense Secretary Chuck Hagel have aided and abetted the commission of war crimes, genocide and crimes against humanity by Israeli officials and commanders in Gaza. An individual can be convicted of a war crime, genocide or a crime against humanity [PDF] in the International Criminal Court (ICC) if he or she “aids, abets or otherwise assists” in the commission or attempted commission of the crime, “including providing the means for its commission.”

There is growing evidence that Israeli leaders and commanders have committed the following war crimes, genocide and crimes against humanity as defined in the Rome Statute for the ICC. US military aid has aided, abetted and assisted the commission of these crimes by providing Israel with the military means to commit them.
Read more

July 15, 2014

Israel Inflicts Illegal Collective Punishment on Gaza

Israel has commenced full-scale warfare on the people of Gaza. The recent tensions began about six weeks ago when Israeli forces abducted 17 Palestinian teenage boys in the occupied West Bank. Then, on June 12, three Israeli teenagers were abducted in the southern West Bank; Israel blamed Hamas. After the three youths were found dead, a group of Israelis tortured and killed a Palestinian teenager in Jerusalem. Finally, on July 7, Israel launched a large military operation dubbed “Operation Protective Edge” in the Gaza Strip.

During the past week, Israel has killed 162 Palestinian civilians and counting, including 34 children. In addition to more than 1,200 Israeli airstrikes, Israel has threatened to launch a ground invasion of Gaza. Israel attacked a center for the mentally and physically disabled in Beit Zahiya, killing three patients and a nurse. In addition, Israel has stepped up demolitions of Palestinian homes, and administrative detentions of Palestinians without charge or trial.
Read more

June 30, 2014

Will Supremes Apply Cell Phone Privacy to Metadata Collection?

In one of the most significant Fourth Amendment rulings ever handed down by the Supreme Court, all nine justices agreed in an opinion involving two companion cases, Riley v. California and United States v. Wurie, that police generally need a warrant before reading data on the cell phone of an arrestee. This decision may well presage how the Court will rule on the constitutionality of the National Security Agency (NSA) metadata collection program when that issue inevitably comes before it.

Warrants Needed to Search Cell Phone Data

There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest. The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence. Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.

In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestee’s cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects – protecting officers and preventing destruction of evidence – do not apply to the digital content on cell phones: “There are no comparable risks when the search is of digital data.”

Moreover, “[m]odern cell phones, as a category,” Roberts noted, “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Responding to the government’s assertion that a search of cell phone data is “materially indistinguishable” from searches of physical items, Roberts quipped, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Indeed, Roberts observed, the search of a cell phone would typically provide the government with even more personal information than the search of a home, an area that has traditionally been given the strongest privacy protection. Modern cell phones, Roberts wrote, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Roberts was referring to the ubiquitous presence of cell phones appended to our ears as we walk down the street.

But the Court held that while a warrant is usually required to search data on an arrestee’s cell phone, officers could rely on the exigent circumstances exception in appropriate cases. For example, when a suspect is texting an accomplice who is preparing to detonate a bomb, or a child abductor may have information about the child’s location on his cell phone, or circumstances suggest the phone will be the target of an imminent attempt to erase the data on it, police may dispense with a search warrant.

Metadata Collection Implicates Similar Privacy Concerns

The Riley/Wurie opinion provides insights into how the Court will decide other digital-era privacy issues. Roberts was concerned that “[a]n Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns – perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” The Chief Justice could have been describing the NSA metadata collection program, which requires telecommunications companies to produce all of our telephone communications every day. Although the government claims it does not read the content of those communications, it does monitor the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. As Roberts pointed out in the cell phone case, much can be learned from this data. Calls to a clinic that performs abortions or visits to a gay website can reveal intimate details about a person’s private life. A URL, such as www.webMD.com/depression, can contain significant information, even without examining the content. Whether we access the Internet with our cell phones, or with our computers, the same privacy considerations are implicated.

Roberts quoted Justice Sonia Sotomayor’s concurrence in United States v. Jones, the case in which the Court held that a warrant is generally required before police install and monitor a GPS tracking device on a car. Sotomayor wrote, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” U.S. District Court Judge Richard J. Leon also cited that concurrence by Sotomayor in his 2013 decision that the metadata collection probably violates the Fourth Amendment (Klayman v. Obama).

And both Roberts and Leon distinguished the cell phone search and metadata collection, respectively, from the 1979 case of Smith v. Maryland, in which the Court held that no warrant is required for a telephone company to use a pen register to identify numbers dialed by a particular caller. The Smith Court concluded that a pen register was not a Fourth Amendment “search,” and therefore the police did not need to use a warrant or an exception to the warrant requirement. In order to constitute a “search,” a person must have a reasonable expectation of privacy that is violated. The Court said in Smith that a person does not have a reasonable expectation of privacy in numbers dialed from a phone since he voluntarily transmits them to a third party – the phone company.

Roberts stated in the Riley/Wurie decision: “There is no dispute here that the officers engaged in a search of Wurie’s cell phone.” Likewise, Leon wrote that the issue of “whether a pen register constitutes a ‘search’ is a far cry from the issue in the [metadata collection] case.” Leon added, “When do present-day circumstances – the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and the 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.”

If the Court is consistent in its analysis, it will determine that the collection by the government of all of our electronic records implicates the same privacy concerns as the inspection of the data on our cell phones. It remains to be seen if and when the metadata collection issue comes before the Court. But the fact that the cell phone decision was 9-0 is a strong indication that all of the justices, regardless of ideology, are deeply concerned about protecting the privacy of our electronic communications.

This piece first appeared on Jurist.

June 19, 2014

Obama on the Brink: War or Peace?

Once again, we are poised on the brink of a war that could violate US and international law. President Barack Obama faces a critical decision: will he meaningfully pursue a peaceful solution – even collaborating with Israel’s archenemy Iran – or will he succumb to pressure from the hawks responsible for destabilizing Iraq during the misnamed “Operation Iraqi Freedom?”

The Crisis in Iraq and “Operation Iraqi Freedom”

After two horrific wars that killed millions of people, the countries of the world adopted the United Nations Charter “to save succeeding generations from the scourge of war.” Although the Charter is part of US law, President Obama is poised to violate it if he mounts a military attack on Iraq.

All hell has broken loose in Iraq. The Islamic State of Iraq and Syria (ISIS) and its Sunni allies have taken control of Mosul, Iraq’s second largest city; they control most of the western and northern sections of Iraq, and they’re headed for Baghdad. Nearly 500 civilians have been killed and more than 1,600 have been wounded. Close to 53,000 people have been displaced from Anbar Province. The bloodshed is directly attributable to the illegal and ill-advised 2003 US-led invasion of – and regime change in – Iraq.

ISIS, a Syrian group, is a successor to Al-Qaeda in Iraq, which did not even exist before “Operation Iraqi Freedom” destabilized Iraq and much of the Middle East, attracting extremist groups. The US-led war wreaked devastation on Iraq, killing tens of thousands of Iraqis and leaving untold numbers maimed. The war and punishing sanctions destroyed Iraq’s infrastructure, leaving the country in shambles.

Saddam Hussein, who was deposed and later executed by US-supported forces, was a secular Sunni Muslim. Although a tyrant (like many of the dictators the United States has supported), he held Iraq together, preventing it from devolving into sectarian chaos.

“Operation Iraqi Freedom” was based on the lie that Hussein had weapons of mass destruction (WMD) that he would share with al-Qaeda. The price of the US-led war there was astronomical. The Costs of War report, just issued by Brown University, found that the war in Iraq claimed 190,000 lives and will cost the United States at least $2.2 trillion. More than 70 percent, or about 134,000, of the dead were civilians. Of those killed, 4,488 were US troops, and at least 3,400 were US contractors (mercenaries). Moreover, the US government has spent $60 billion on reconstruction in Iraq, most of which has gone to the Iraqi military and police, not to rebuild the country’s infrastructure.

“Operation Iraqi Freedom” also violated the United Nations (UN) Charter, which forbids a country from using military force against another country unless carried out in self-defense or with the blessing of the UN Security Council. Iraq had not attacked any country since it went into Kuwait in 1990, and the Security Council did not sanction the 2003 US-led attack on Iraq. George W. Bush, Dick Cheney, Condoleezza Rice and Donald Rumsfeld mounted a war of aggression in Iraq, a crime the judges at Nuremberg called “the supreme international crime.”

Repression by al-Maliki

The US-led invasion of Iraq helped install Nuri Kamal al-Maliki, a Shiite Muslim, as prime minister. But instead of uniting the different religious groups after the US troops left two and a half years ago, the al-Maliki government viciously cracked down on its opponents. Torture, rape and arbitrary, mass arrests of Sunnis were common. Protestors were murdered, their leaders assassinated. What began as a peaceful opposition movement during the “Iraqi Spring” turned violent in response to al-Maliki’s repression. Many of those nonviolent protestors have joined ISIS.

Some Republicans argue that Obama should have kept our troops in Iraq instead of withdrawing them two years ago in accordance with the Status of Forces Agreement (SOFA) the Bush administration negotiated. In fact, Obama, who later took credit for pulling US troops out of Iraq, tried to negotiate a new SOFA with the Iraqi government to postpone our departure. However, al-Maliki refused to continue to grant US soldiers immunity for any criminal or civil wrongs they might commit. This followed Chelsea Manning’s publication of the “Collateral Murder Video,” which depicted the commission of war crimes by US forces in Iraq.

More US intervention in Iraq?

Meanwhile, “the US government – the prime cause of these problems to begin with – prepares to intervene however it chooses,” according to Falah Alwan, of the Federation of Workers’ Councils and Unions in Iraq.

US Secretary of State John Kerry announced that Obama was considering all available options, including drone strikes, in Iraq. Manned US warplanes based in the Gulf might also be used to mount air strikes. This course of action promises to exacerbate the violence and could prove disastrous, inviting terrorist attacks against US interests in the Gulf. US defense and intelligence officials told The Daily Beast that the Pentagon and CIA are not sure exactly who US forces should target. Bombing would inevitably kill many civilians in urban areas. Moreover, the United States would once again be violating the UN Charter. The United States would not be acting in self-defense because Iraq has not attacked us or any other UN member country. And the Security Council has not given its approval for a US attack on Iraq; the United States would have to secure agreement from all five permanent Council members: the Russian Federation, China, France, United Kingdom and United States. Under the War Powers Resolution, the President can introduce US troops into hostilities, or into situations “where imminent involvement in hostilities is clearly indicated by the circumstances,” only after (1) a Congressional declaration of war, (2) “specific statutory authorization,” or (3) in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” This is the current situation: First, Congress has not declared war. Second, neither the 2002 Authorization for the Use of Military Force (AUMF) (which Bush used to invade Iraq), nor the 2001 AUMF (which Bush used to invade Afghanistan), would provide a legal basis for an attack on Iraq at the present time. Third, there has been no attack on the United States or US armed forces. Moreover, the UN Charter only allows a military attack on another country in the case of self-defense or when the Security Council authorizes it; neither is the case at the present time.

Obama has ordered 275 US troops to Iraq to protect the US embassy there. He has reserved the option of sending 100 “security forces” who would coordinate US airstrikes, share intelligence with Iraqi security forces, and provide the Iraqi army with tactical advice. If Obama attacks Iraq, “Bush’s war” will become “Obama’s war.”

But Obama is poised on the horns of a dilemma. On June 13, he said, “We’re also going to pursue intensive diplomacy throughout this period both inside of Iraq and across the region.” Obama has expressed a willingness to collaborate with Iran, a Shiite-led country with close ties to the al-Maliki government, about ending the bloodshed in Iraq. This is a positive development, which hopefully will encompass broader issues, including the conflict in Syria, where Iran supports President Bashar al-Assad.

Kerry called ISIS an “existential” danger to Iraq. Ironically, Israel considers Iran an “existential” threat to its security. Thus far, Obama has proceeded cautiously with Iran during negotiations over Iran’s alleged nuclear weapons program, but, siding with Israel, maintains that “all options are on the table,” including US military force against Iran.

Obama has an unprecedented opportunity to be a real peacemaker in Iraq. The wisest course of action is a diplomatic solution that embraces the entire region. The United States should propose a resolution in the Security Council that would require an immediate ceasefire in Iraq and peacekeepers under UN auspices be sent to Iraq. Obama should also return to the Geneva process in collaboration with Iran, and seek a political solution to the Syrian crisis. The Security Council should pass a resolution mandating an immediate ceasefire in Syria and a peaceful resolution of that dispute. Iran, which supports the al-Maliki government in Iraq and the Assad regime in Syria, is key to any regional peace agreement in the Middle East. Peace is within reach if Obama has the fortitude to stand up to the “experts” who are invariably advising him to pursue military options in Iraq. What course will he choose?

Copyright, Truthout. Reprinted with permission.