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June 8, 2013

Bradley Manning’s Legal Duty to Expose War Crimes

The court-martial of Bradley Manning, the most significant whistleblower case since Daniel Ellsberg leaked the Pentagon Papers, has begun. Although Manning pled guilty earlier this year to 10 offenses that will garner him 20 years in custody, military prosecutors insist on pursuing charges of aiding the enemy and violation of the Espionage Act, that carry life in prison. The Obama administration, which has prosecuted more whistleblowers under the Espionage Act than all prior presidencies combined, seeks to send a strong message to would-be whistleblowers to keep their mouths shut.

A legal duty to report war crimes

Manning is charged with crimes for sending hundreds of thousands of classified files, documents and videos, including the “Collateral Murder” video, the “Iraq War Logs,” the “Afghan War Logs,” and State Department cables, to Wikileaks. Many of the things he transmitted contain evidence of war crimes.

The Collateral Murder video depicts a US Apache attack helicopter killing 12 civilians and wounding two children on the ground in Baghdad in 2007. The helicopter then fired upon and killed the people trying to rescue the wounded. Finally, a US jeep drove over one of the bodies, cutting the man in half. These acts constitute three separate war crimes.

Manning fulfilled his legal duty to report war crimes. He complied with his legal duty to obey lawful orders but also his legal duty to disobey unlawful orders.

Section 499 of the Army Field Manual states, “Every violation of the law of war is a war crime.” The law of war is contained in the Geneva Conventions.

Article 85 of the First Protocol to the Geneva Conventions describes making the civilian population or individual civilians the object of attack as a grave breach. The firing on and killing of civilians shown in the Collateral Murder video violated this provision of Geneva.

Common Article 3 of the Geneva Conventions requires that the wounded be collected and cared for. Article 17 of the First Protocol states that the civilian population “shall be permitted, even on their own initiative, to collect and care for the wounded.” That article also says, “No one shall be harmed . . . for such humanitarian acts.” The firing on rescuers portrayed in the Collateral Murder video violates these provisions of Geneva.

Finally, Section 27-10 of the Army Field Manual states that “maltreatment of dead bodies” is a war crime. When the Army jeep drove over the dead body, it violated this provision.

Enshrined in the US Army Subject Schedule No. 27-1 is “the obligation to report all violations of the law of war.” At his guilty plea hearing, Manning explained that he had gone to his chain of command and asked them to investigate the Collateral Murder video and other “war porn,” but his superiors refused. “I was disturbed by the response to injured children,” Manning stated. He was also bothered by the soldiers depicted in the video who “seemed to not value human life by referring to [their targets] as ‘dead bastards.'”

The Uniform Code of Military Justice sets forth the duty of a service member to obey lawful orders. But that duty includes the concomitant duty to disobey unlawful orders. An order not to reveal classified information that contains evidence of war crimes would be an unlawful order. Manning had a legal duty to reveal the commission of war crimes.

No reason to believe leak could harm US or aid foreign power

In order to prove Manning violated the Espionage Act, prosecutors must prove beyond a reasonable doubt that he had “reason to believe” the files could be used to harm the United States or aid a foreign power. When he pled guilty, Manning stated, “I believed if the public, particularly the American public, could see this it could spark a debate on the military and our foreign policy in general as it applied to Iraq and Afghanistan.” He added, “It might cause society to reconsider the need to engage in counter terrorism while ignoring the situation of the people we engaged with every day.” These are hardly the words of a man who thought his actions could harm the United States or help a foreign power. To the contrary. Manning will be permitted to introduce evidence about his belief that certain documents would not cause harm to national security if publicly released. It was after Wikileaks published evidence of the commission of war crimes against the Iraqi people that Iraq refused to grant criminal and civil immunity to US troops if their stay in Iraq was prolonged, causing Obama to withdraw them from Iraq. This saved myriad American and Iraqi lives.

Making an Example of Manning: cruel, inhuman and degrading treatment

Manning was 22 years old when he courageously committed the acts for which he stands criminally accused. For the first 11 months of his confinement, he was held in solitary confinement and subjected to humiliating forced nudity during inspection. In fact, Juan Mendez, UN special rapporteur on torture, characterized the treatment of Manning as cruel, inhuman and degrading. He said, “I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to his regime by the prison authorities) constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the Convention against Torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.” Mendez could not conclusively say Manning’s treatment amounted to torture because he was denied permission to visit Manning under acceptable circumstances. Mendez also concluded that, “imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”

Obama himself has also violated Manning’s presumption of innocence, saying two years ago that Manning “broke the law.” But although the Constitution requires the President to enforce the laws, Obama refuses to allow the officials and lawyers from the Bush administration who sanctioned and carried out a regime of torture – which constitutes a war crime under Geneva – to be held legally accountable. Apparently if Bradley Manning had committed war crimes, instead of exposing them, he would be a free man, instead of facing life in prison for his heroic deeds.

This article first appeared on Truthout.

May 25, 2013

Guantanamo, Drone Strikes and the Non-War Terror War: Obama Speaks

As one of the 1,200-plus signatories to the full-page ad that appeared in The New York Times, calling for the closure of Guantanamo, I was disappointed in President Barack Obama’s speech Thursday on counterterrorism, drones and Guantanamo.

Torture and Indefinite Detention at Guantanamo

In a carefully crafted – at times defensive, discourse, Obama said, “In some cases, I believe we compromised our basic values – by using torture to interrogate our enemies and detaining individuals in a way that ran counter to the rule of law,” adding, “We unequivocally banned torture.” But Obama failed to note that the United Nations Human Rights Commission determined in 2006 that the violent force-feeding of detainees at Guantanamo amounted to torture and that he has continued that policy. More than half the remaining detainees are refusing food to protest their treatment and indefinite detention, many having been held for more than a decade with no criminal charges. In only a brief, but telling, mention of his administration’s violent force-feeding of hunger strikers at Guantanamo, Obama asked, “Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that.”

One would hope that Obama’s sense of justice would prevent him from allowing the tortuous force-feeding of people like Nabil Nadjarab, who has said, “To be force-fed is unnatural, and it feels like my body is not real. They put you on a chair – it reminds me of an execution chair. Your legs, arms and shoulders are tied with belts. If you refuse to let them put the tube in, they force your head back . . . [it is very risky] because if the tube goes in the wrong way, the liquid might get into your lungs. I know some who have developed infections in the nose. They now have to keep tubes in their noses permanently.” British resident Shaker Aamer reported being subjected to sleep deprivation and being dragged around like an animal at Guantanamo. David Remes, who represents two detainees, reported “shocking” genital searches “designed to deter” detainees from meeting with their lawyers. The “new military policy,” said Remes, “is to sexually abuse them in searches.”

And Obama asks, “Is that who we are?”

Obama did not say he would close Guantanamo. He criticized Congress for placing restrictions on transferring detainees who have been cleared for release, although he signed the legislation Congress passed. To his credit, Obama lifted the moratorium on detainee transfers to Yemen and appointed a new senior envoy at the State Department and Department of Defense to oversee detainee transfers to third countries. But Obama did not pledge to use the waiver provision contained in Section 1028(d) of the 2013 National Defense Authorization Act that would allow the Secretary of Defense to authorize transfers when it is in the national security interest of the United States. Nor did he promise to stop blocking the release of detainees cleared by habeas corpus proceedings. 

The Non-War Terror War

Obama explained how he plans to continue his war on terror without calling it a war on terror. He stated, “Under domestic law and international law, the United States is at war with al Qaeda, the Taliban and their associated forces.”

While also saying, “Beyond Afghanistan, we must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America,” Obama listed Pakistan, Yemen, Somalia and Mali as places the United States is involved in fighting terror. Because, he said, “we are at war with an organization that right now would kill as many Americans as they could if we did not stop them first,” Obama concluded, “This is a just war – a war waged proportionally, in last resort and in self-defense.”

Obama understands that not all wars are just wars. He was referring to, but misapplied, three principles of international law that govern the use of military force. Proportionality means that an attack cannot be excessive in relation to the anticipated military advantage. Yet when drones are used to take out convoys, large numbers of civilians will be, and have been, killed. Last resort means that a country may resort to war only if it has exhausted all peaceful alternatives to resolving the conflict. By assassinating rather than capturing suspected terrorists and bringing them to trial, Obama has not used military force as a last resort. And self-defense is defined by the leading Caroline Case of 1837, which said that the “necessity for self-defense must be instant, overwhelming, leaving no choice of means and no moment for deliberation.” The Obama administration has provided no evidence that the people it targeted were about to launch an imminent attack on the United States.

New Rules for Drone Strikes?

Although he defended the use of drones and targeted killing, Obama proclaimed, “America does not take strikes when we have the ability to capture individual terrorists – our preference is always to detain, interrogate and prosecute them.” Yet, 4,700 people have been killed by drone strikes, only two percent of whom were high-level terrorist suspects. And Obama has added only one person to the detention rolls at Guantanamo since he took office. “This [Obama] government has decided that instead of detaining members of al-Qaida [at Guatanamo] they are going to kill him,” according to John Bellinger, who formulated the Bush administration drone policy.

Obama referred to the killing of Osama bin Laden as exceptional because “capture, although our preference, was remote.” Yet it was clear when the US soldiers arrived at bin Laden’s compound that the people there were unarmed and bin Laden could have been captured. Obama admitted, “The cost to our relationship with Pakistan – and the backlash among the Pakistani public over encroachment on their territory – was so severe that we are now just beginning to rebuild this important partnership.” Indeed, in light of Pakistan’s considerable arsenal of nuclear weapons, Obama took a substantial risk to our national security in breaching Pakistan’s sovereignty by his assassination operation.

Ben Emmerson, UN special rapporteur on counterterrorism and human rights, said the drone strikes in Pakistan violate international law. “As a matter of international law, the US drone campaign in Pakistan . . . is being conducted without the consent of the elected representatives of the people or the legitimate government of the state,” he noted. Obama said we are “narrowly targeting our action against those who want to kill us.” He did not address his administration’s policy of using drone strikes to kill rescuers and attendees at funerals after the original strike killings.

The day before his speech, Obama signed a Presidential Policy Guidance, which he said, provides “clear guidelines, oversight and accountability.” As Obama delivered his speech, the White House issued a Fact Sheet regarding policies and procedures for counterterrorism operations, but did not release the policy guidance itself. That Fact Sheet says, “The policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect.” It provides that “lethal force will be used outside areas of active hostilities” only when certain preconditions are met. But it does not define “areas of active hostilities.”

Preconditions for using lethal force include:

1. The requirement of a “legal basis” for the use of lethal force. It does not define whether “legal basis” means complying with ratified treaties, including the UN Charter, which prohibits the use of military force except in self-defense or when approved by the Security Council.

2. The target must pose a “continuing, imminent threat to US persons.” The Fact Sheet does not define “continuing” or “imminent.” The recently leaked Department of Justice White Paper says that a US citizen can be killed even when there is no “clear evidence that a specific attack on US persons and interests will take place in the immediate future.”

3. There must be “near certainty” that the terrorist target is present. Neither the Fact Sheet nor Obama in his speech addressed whether the administration will continue “signature strikes” (known as crowd killings), which don’t target individuals but rather areas of suspicious activity.

4. There must be “near certainty” that noncombatants will not be injured or killed. This is apparently a departure from present practice, as numerous noncombatants have been killed in US drone strikes. The Fact Sheet changes the current policy of defining noncombatants as all men of military age in a strike zone “unless there is explicit intelligence posthumously proving them innocent.”

5. There must be an assessment that “capture is not feasible” at the time of the operation. It is unclear what feasibility means. The White Paper appears to indicate that “infeasible” means inconvenient.

6. There must be an assessment that relevant governmental authorities in the country where the attack is contemplated cannot or will not effectively address the “threat to US persons,” which is left undefined.

7. There must be an assessment that no other reasonable alternatives exist to address the “threat to US persons,” also left undefined.

Finally, the Fact Sheet would excuse these preconditions when the president takes action “in extraordinary circumstances” which are “both lawful and necessary to protect the United States or its allies.” There is no definition of “extraordinary circumstances.”

A few days before Obama’s speech, Attorney General Eric Holder publicly acknowledged the killing of four US citizens, only one of which – Anwar Awlaki – was actually targeted, in 2011. That means 75 percent were “collateral damage,” including Awlaki’s 16-year-old son, Abdulrahman. In his speech, after affirming that a US citizen cannot be targeted and killed without due process (arrest and trial), Obama claimed that Awlaki was involved in terrorist plots in 2009 and 2010; this is long before Obama ordered that he be killed by drone strike in 2011, which would appear to violate the “imminence” requirement. Indeed, Lt. Col. Tony Schaefer, a former Army Intelligence officer, said on MSNBC that Awlaki could have been captured but the administration made a decision to kill instead of capture him. 

The use of drones and targeted assassination and the continuing existence of Guantanamo engender hatred against the United States. Farea al-Muslimi, a Yemeni man who testified before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, spoke about how his friends and neighbors reacted to a recent drone strike in his neighborhood. “Now, however, when they think of America, they think of the fear they feel at the drones over their heads. What the violent militants had failed to achieve, one drone strike accomplished in an instant.”

The Unanswered Questions

During Obama’s speech, Code Pink’s Medea Benjamin yelled out several questions before being escorted out of the room.

She asked the President:

* What about the indefinite detention?

* What about the 102 hunger strikers? 

* What about the killing of 16-year-old Abdulrahman al-Awlaki? Why was he killed?

* Can you tell the Muslim people their lives are as precious as our lives?

* Can you stop the signature strikes that are killing people on the basis of suspicious activities?

* Will you apologize to the thousands of Muslims that you have killed?

* Will you compensate the innocent family victims? That will make us safer here at home.

* Can you take the drones out of the hands of the CIA?

* You are commander-in-chief. You can close Guantanamo today! You can release those 86 prisoners [cleared for release]. It’s been 11 years.

* I love my country. I love the rule of law. 

* Abide by the rule of law. You’re a constitutional lawyer.

Obama responded, “I’m willing to cut the young lady who interrupted me some slack because it’s worth being passionate about. . . . The voice of that woman is worth paying attention to.” But he went on to say he obviously doesn’t agree with much of what she said. One wonders what parts he does agree with.

This article first appeared on Truthout.

May 9, 2013

Death is Preferable to Life at Obama’s Guantanamo

More than 100 of the 166 detainees at Guantanamo are starving themselves to death. Twenty-three of them are being force-fed. “They strap you to a chair, tie up your wrists, your legs, your forehead and tightly around the waist,” Fayiz Al-Kandari told his lawyer, Lt. Col. Barry Wingard. Al-Kandari, a Kuwaiti held at Guantanamo for 11 years, has never been charged with a crime.

“The tube makes his eyes water excessively and blood begins to trickle from the nose. Once the tube passes his throat the gag reflex kicks in. Warm liquid is poured into the body for 45 minutes to two hours. He feels like his body is going to convulse and often vomits,” Wingard added.

The United Nations Human Rights Council concluded that force-feeding amounts to torture. The American Medical Association says that force-feeding violates medical ethics. “Every competent patient has the right to refuse medical intervention, including life-sustaining interventions,” AMA President Jeremy Lazarus wrote to Defense Secretary Chuck Hagel. Yet President Barack Obama continues the tortuous Bush policy of force-feeding hunger strikers.

Although a few days after his first inauguration, Obama promised to shutter Guantanamo, it remains open. “I continue to believe that we’ve got to close Guantanamo,” Obama declared in his April 30 press conference. But, he added, “Congress determined that they would not let us close it.” Obama signed a bill that Congress passed which erected barriers to closure. According to a Los Angeles Times editorial, “Obama has refused to expend political capital on closing Guantanamo. Rather than veto the defense authorization bills that have limited his ability to transfer inmates, he has signed them while raising questions about whether they intruded on his constitutional authority.”

“I don’t want these individuals to die,” Obama told reporters. In fact, Obama has the power to save the hunger strikers’ lives without torturing them. Eighty-six – more than half – of the detainees remaining at Guantanamo have been cleared for release for the past three years. Section 1028(d) of the 2013 National Defense Authorization Act empowers the Secretary of Defense to approve transfers of detainees when it is in the national security interest of the United States. Fifty-six of the 86 cleared detainees are from Yemen. Yet Obama imposed a ban on releasing any of them following the foiled 2009 Christmas bomb plot by a Nigerian man who was recruited in Yemen. Obama must begin signing these certifications and waivers at once.

Indeed, Obama said in his press conference, “I think – well, you know, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe . . . It hurts us in terms of our international standing . . . It is a recruitment tool for extremists. It needs to be closed.”

In addition, Obama’s March 7, 2011 Executive Order 13567 provides for additional administrative review of detainees’ cases. The Periodic Review Board (PRB) would provide an opportunity for a detainee to challenge his continued detention. Yet Obama has delayed by more than a year PRB hearings at which other detainees could be cleared for release. Despite a requirement that the PRB begin review within one year, no PRB has yet been created. Obama should appoint an official to oversee the closure of Guantanamo and commence periodic reviews immediately so that detainees can challenge their designations and additional detainees can be approved for transfer.

Moreover, as suggested by Lt. Col. David Frakt, who represented Guantanamo detainees before the military commissions and in federal habeas corpus proceedings, Obama should direct the attorney general to inform the D.C. Circuit Court of Appeals that the Department of Justice no longer considers the cleared detainees to be detainable. Obama has blocked the release of eight cleared detainees by opposing their habeas corpus petitions. “[W]hen the Obama administration really wants to transfer a detainee, they are quite capable of doing so,” Frakt wrote in JURIST.

The Constitution Project’s Task Force on Detainee Treatment, which includes two former senior U.S. generals, and a Republican former congressman and lawyer, Asa Hutchinson, issued a report that concluded the treatment and indefinite detention of the Guantanamo detainees is “abhorrent and intolerable.” It called for the closure of the prison camp by next year.

Twenty-five former Guantanamo detainees issued a statement recommending that the American medical profession stop its complicity with abuse force-feeding techniques; conditions on confinement for detainees be improved immediately; all detainees who have not been charged be released; and the military commissions process be ended and all those be charged tried in line with the Geneva Conventions.

The detainees who are refusing food have been stripped of all possessions, including a sleeping mat and soap, and are made to sleep on concrete floors in freezing solitary cells. “It is possible that I may die in here,” said Shaker Aamer through his lawyer, Clive Stafford Smith. “I hope not, but if I do die, please tell my children that I loved them above all else, but that I had to stand up for the principle that they cannot just keep holding people without a trial, especially when they have been cleared for release.” Aamer, a British father of four, was approved for release more than five years ago.

Col. Morris Davis, who served as Chief Prosecutor for the Terrorism Trials at Guantanamo, personally charged Osama bin Laden’s driver Salim Hamdan, Australian David Hicks, and Canadian teen Omar Khadr. All three were convicted and have been released from Guantanamo. “There is something fundamentally wrong with a system where not being charged with a war crime keeps you locked away indefinitely and a war crime conviction is your ticket home,” Davis wrote to Obama.

March 19, 2013

A War of Aggression, From “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law” (2007)

According to sources inside the administration, George W. Bush was planning to invade Iraq and remove its government well before the terrorist attacks of September 11, 2001. Such an invasion violates the UN Charter, which the United States signed in 1945 after the bloodiest conflict in history. The Charter permits countries to use military force against another country only in self-defense or with Security Council permission. But the evidence indicates that the U.S.-led invasion satisfied neither condition and is therefore a war of aggression, which constitutes a Crime Against Peace – exactly the kind of war the Charter was meant to prevent.

Although Bush marketed the war in Iraq as necessary to protect us from Saddam Hussein’s weapons of mass destruction (WMD), his decisions had less to do with self-defense than with dominating the oil-rich Middle East. Some evidence for this conclusion can be found in a September 2000 report prepared by the neoconservative Project for a New American Century (PNAC). The report, commissioned by Dick Cheney, outlines a plan “to maintain American military preeminence that is consistent with the requirements of a strategy of American global leadership.” It notes that while “the unresolved conflict with Iraq provides the immediate justification, the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein.” Another document produced for Vice President Cheney’s secret Energy Task Force included a map of Iraqi oilfields, pipelines, refineries and terminals as well as charts detailing Iraqi oil and gas projects and “Foreign Suitors for Iraqi Oilfield Contracts.” That document was dated March 2001, six months before 9/11 and two years before Bush invaded Iraq.

After 9/11, the Bush administration attacked Afghanistan and removed the Taliban from power. But the primary target all along was Iraq. To sell the war to the American people, the administration made two claims and repeated them like a mantra. First, Iraq had weapons of mass destruction. Second, it had ties with al-Qaeda and was thus complicit in the 9/11 attacks. Although the administration argued that both reasons justified the use of force against Iraq, it was advised repeatedly that neither claim was valid.

No Weapons of Mass Destruction

An August 2006 report prepared at the direction of Rep. John Conyers, Jr. found that “members of the Bush Administration misstated, overstated, and manipulated intelligence with regards to linkages between Iraq and Al Qaeda; the acquisition of nuclear weapons by Iraq; the acquisition of aluminum tubes to be used as uranium centrifuges; and the acquisition of uranium from Niger.” The report also noted that “[b]eyond making false and misleading statements about Iraq’s attempt to acquire nuclear weapons, the record shows the Bush Administration must have known these statements conflicted with known international and domestic intelligence at the time.” Finding that the administration had also misstated or overstated intelligence information regarding chemical and biological weapons, the report concluded that “these misstatements were in contradiction of known countervailing intelligence information, and were the result of political pressure and manipulation.” In short, the Bush gang misrepresented the WMD threat to justify its planned invasion of Iraq.

No Connection Between Iraq and al Qaeda

On September 21, 2001, Bush was told in the President’s Daily Brief that the intelligence community had no evidence connecting Saddam Hussein’s regime to the 9/11 attacks. Furthermore, there was scant credible evidence that Iraq had any significant collaborative ties with al Qaeda. This was no surprise. Al Qaeda is a consortium of intensely religious Islamic fundamentalists, whereas Hussein ran a secular government that repressed religious activity in Iraq.

Undeterred, Bush and his people continued to tout the connection. Although the Defense Intelligence Agency (DIA) determined in February 2002 that “Iraq is unlikely to have provided bin Laden any useful [chemical or biological weapons] knowledge or assistance,” Bush proclaimed one year later, “Iraq has also provided al-Qaeda with chemical and biological weapons training.” And although the CIA concluded in a classified January 2003 report that Hussein “viewed Islamic extremists operating inside Iraq as a threat,” Cheney claimed the next day that the Iraqi government “aids and protects terrorists, including members of al-Qaeda.”

To support their claims that Iraq was training al-Qaeda members, Bush, Cheney, and Colin Powell repeatedly cited information provided by Ibn al-Shaykh al-Libi, an al-Qaeda prisoner captured shortly after 9/11. An ex-FBI official told Newsweek that the CIA “duct-taped [al-Libi’s] mouth, cinched him up and sent him to Cairo” for some “more-fearsome Egyptian interrogations” in violation of U.S. law prohibiting extraordinary rendition. Al-Libi’s account proved worthless. The February 2002 DIA memo reveals al-Libi provided his American interrogators with false material suggesting Iraq had trained al-Qaeda to use weapons of mass destruction. Even though U.S. intelligence thought the information was untrue as early as 2002 because it was obtained by torture, al-Libi’s information provided the centerpiece of Colin Powell’s now thoroughly discredited February 2003 claim before the United Nations that Iraq had developed WMD programs.

The March to War

Unable to find any WMD or connection between Iraq and the 9/11 attacks, Bush never wavered in his march toward war. “From the very beginning,” former Treasury Secretary Paul O’Neill said on 60 Minutes, “there was a conviction that Saddam Hussein was a bad person and that he needed to go. It was all about finding a way to do it. That was the tone of it. The president saying, ‘Go find me a way to do this.'”

On September 15, 2001, in a meeting at Camp David, Defense Secretary Donald Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of “good targets in Afghanistan.” Former Deputy Defense Secretary Paul Wolfowitz argued that war against Iraq might be “easier than against Afghanistan.” The 9-11 Commission Report noted that as early as September 20, 2001, Undersecretary of Defense for Policy Douglas Feith suggested attacking Iraq in response to the 9/11 attacks. In late November 2001, Bush instructed Rumsfeld to develop an Iraq war plan. “What have you got in terms of plans for Iraq?,” Bush asked. “What is the status of the war plan? I want you to get on it. I want you to keep it secret.”

In his January 2002 State of the Union Address, Bush declared that countries like Iraq, Iran, and North Korea “constitute an axis of evil . . . These regimes pose a grave and growing danger . . . I will not wait on events, while dangers gather.” As early as February 2002, the Bush administration took concrete steps to deploy military troops and assets into Iraq without advising Congress or seeking its approval. By late March, Dick Cheney told his fellow Republicans that a decision had been made to invade Iraq. The same month, Bush poked his head into Condoleezza Rice’s office and said, “Fuck Saddam. We’re taking him out.”

In July 2002, a highly classified document titled CentCom Courses of Action was leaked to the New York Times. Prepared two months earlier, it contained what the Pentagon labeled a “war plan” for invading Iraq. The document, which indicated an advanced stage of planning, called for tens of thousands of marines and soldiers to attack Iraq from the air, land, and sea to topple Saddam Hussein. 

In August 2002, Cheney cautioned that Saddam Hussein could try to dominate “the entire Middle East and subject the United States to nuclear blackmail.” He added, “There is no doubt that Saddam Hussein now has weapons of mass destruction.” The same month, the Bush administration quietly established the White House Iraq Group (WHIG) to lead a propaganda campaign to bolster public support for war with Iraq.

A week before WHIG began its work in earnest, the Sunday Times of London broke the story of the “Downing Street Memo,” which contained the secret minutes of a July 2002 meeting with Tony Blair and Sir Richard Dearlove, chief of British intelligence. Dearlove reported that Bush had already decided to go to war and was making sure “the intelligence and facts” about Iraq and WMD “were being fixed around the policy” of war on Iraq.

Shortly after WHIG convened, White House officials told the New York Times there was a meticulously planned strategy to sell a war against Iraq to the American people. But the White House decided to wait until after Labor Day to kick off the plan. The reason, as explained by White House chief of staff Andrew Card, seemed straight from the pages of George Orwell’s 1984: “From a marketing point of view,” Card said, “you don’t introduce new products in August.” The new product was introduced the following month by National Security Adviser Condoleezza Rice, who warned, “We don’t want the smoking gun to be a mushroom cloud.” The same week, on the anniversary of 9/11, Bush declared the United States would “not allow any terrorist or tyrant to threaten civilization with weapons of mass murder.” The next day, in an address to the United Nations, Bush reiterated that Iraq was a “grave and gathering danger.”

Three weeks before the midterm elections, Congress gave Bush the “Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq.” The White House wanted to pass the resolution while many in Congress were facing reelection; those who opposed Bush’s war on Iraq would be painted as soft on terror. The resolution said Iraq posed a “continuing threat to the national security of the United States” by “continuing to possess and develop a significant chemical and biological weapons capability” and “actively seeking a nuclear weapons capability.” It authorized the President to use the Armed Forces to “defend the national security of the United States against the continuing threat posed by Iraq” and to “enforce all relevant United Nations Security Council Resolutions regarding Iraq.” Iraq didn’t pose a threat to the United States, and only the Security Council has the power to enforce its resolutions. But Congress capitulated to the Bush gang’s hyperbole and intense pressure. Some legislators later said they were duped by the Bush administration into voting for this resolution.

In his 2003 State of the Union address, Bush famously claimed, “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.” It was pure fiction. “The White House kept saying that no decision had been made about Iraq, but only the blind or the deaf could fail to see that a decision had long ago been made,” Frank Rich wrote in The Greatest Story Ever Sold.

The Real Motive

Why was Bush so determined to invade Iraq? Wolfowitz admitted that the WMD rationale was a “bureaucratic” excuse for war that everyone could agree on. When no WMD turned up, Wolfowitz revealed a new raison d’etre: the invasion of Iraq was a way to redraw the Middle East to reduce the terrorist threat to the United States.

In November 2002, Rumsfeld sought to decouple oil access from regime change in Iraq when he claimed that the U.S. beef with Iraq had “nothing to do with oil, literally nothing to do with oil.” A year later, Bush announced in his State of the Union Address, “We have no desire to dominate, no ambitions of empire.” But the denials were unconvincing, and a great deal of evidence suggests that oil and domination had everything to do with the decision to invade.

In February 2001, a month after Bush’s inauguration, White House officials discussed a memo called “Plan for Post-Saddam Iraq,” which described troop requirements, establishing war crimes tribunals, and dividing up Iraq’s oil wealth.” Meanwhile, Treasury Secretary Paul O’Neill was astonished to discover that actual plans “were already being discussed to take over Iraq and occupy it – complete with disposition of oil fields, peacekeeping forces, and war crimes tribunals – carrying forward an unspoken doctrine of preemptive war.” According to O’Neill, a preemptive attack on Iraq and the prospect of dividing the world’s second largest oil reserve among the world’s contractors “made for an irresistible combination.”

The Self-Defense Argument

Returning to the legality of the Iraq invasion and occupation, we find that the UN Charter requires all members to settle their international disputes by peaceful means. No nation can use military force against the territorial integrity or political independence of any other country. As noted earlier, the only two exceptions to this prohibition are when a nation acts in self-defense or when the Security Council authorizes the use of force. A country may use military force in individual or collective self-defense “if an armed attack occurs” against a U.N. member country or in response to an imminent attack. It is well established that the need for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”

Iraq had not attacked any other nation for 11 years. It lacked both the capacity and the will to lodge an imminent attack on any country. Its military capability had been severely weakened by the Gulf War, years of punishing sanctions and intrusive inspections, and almost daily bombing raids by the United States and Britain over the “no-fly zones.”

Bush made little pretense that Iraq constituted an imminent threat. Rather, he invoked his own doctrine of “preemptive war” to justify his attack. He unveiled that doctrine in a speech at West Point in June 2002. “We must take the battle to the enemy,” Bush said, “disrupt his plans, and confront the worst threats before they emerge.” The international community was unmoved. Quite simply, the U.S. invasion of Iraq wasn’t self-defense because it didn’t respond to an armed or imminent attack.

The Security Council Never Authorized War

The UN Charter declares that no member has the right to enforce any Security Council resolution with military action unless the Council decides there has been a material breach of its resolution and all non-military means of enforcement have been exhausted. Then the Council may authorize the use of military force. The use of armed force for preemptive or retaliatory purposes is prohibited by the Charter.

Bush was never interested in achieving a diplomatic solution in Iraq. Bush tried mightily to arrange a Security Council resolution that would authorize his war, but the Council refused. Bush then cobbled together prior resolutions to rationalize his invasion. None of them, however, individually or collectively, constituted authorization for his use of force against Iraq.

Faced with Iraq’s increasing cooperation with weapons inspectors in the weeks leading up to the invasion, Bush’s rationale for disarming Iraq morphed into “regime change” to bring democracy to the Iraqi people. But forcible regime change violates the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States and therefore part of our domestic law under the Supremacy Clause of the Constitution.

Shock and Awe—and the Consequences

Despite the absence of Security Council authorization, a quarter million troops from the United States and the United Kingdom invaded Iraq in March 2003. Delivering on their promise to “shock and awe,” the “coalition forces” dropped several 2,000-pound bombs on Baghdad in rapid succession, in what the New York Times dubbed “almost biblical power.”

Since then, the use of cluster bombs, depleted uranium, and white phosphorous gas by U.S. forces in Iraq has been documented. These are weapons of mass destruction. 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 weapons spread high levels of radiation over vast areas of land. 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. The US War Crimes Act punishes grave breaches of Geneva as war crimes. The Bush administration is committing war crimes with its use of these weapons.

“Operation Iraqi Freedom” unleashed a tragedy of immense proportion. More than 3,000 American soldiers and tens of thousands of Iraqis have been killed. Close to 7,000 Iraqi civilians were killed in July and August 2006 alone. In October 2006, the British medical journal the Lancet published a study conducted by Iraqi physicians with oversight by epidemiologists at Johns Hopkins University’s Bloomberg School of Public Health. The study estimated that 655,000 Iraqi civilians had died since Bush invaded Iraq in March 2003.

Loss of life isn’t the only shocking and awful consequence of “Operation Iraqi Freedom.” The United Nations concluded in its July-August 2006 report that bodies found “often bear signs of severe torture, including acid-induced injuries and burns caused by chemical substances, missing skin, broken bones (back, hands and legs), missing eyes, missing teeth and wounds caused by power drills or nails.” 

Furthermore, “Operation Iraqi Freedom” has led to anti-American sentiment elsewhere. According to a declassified portion of the April 2006 National Intelligence Estimate, which represents the consensus of the 16 U.S. intelligence agencies, “The Iraq conflict has become the ’cause celebre’ for jihadists, breeding a deep resentment of U.S. involvement in the Muslim world and cultivating supporters for the global jihadist movement.” The report concludes, “The Iraq jihad is shaping a new generation of terrorist leaders and operatives.”

The Greatest Menace of Our Times

The Nuremberg Charter defines “Crimes Against Peace” as “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” Bush’s war on Iraq is a war of aggression, and thus constitutes a Crime Against Peace.

U.S. Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. In his opening statement in 1945, Justice Jackson wrote, “No political, military, economic, or other considerations shall serve as an excuse or justification” for a war of aggression. “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would be unwilling to have invoked against us.”

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war “essentially an evil thing . . . To initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Justice Jackson labeled the crime of aggression “the greatest menace of our times.” Over 50 years later, his words still ring true in Iraq.

March 1, 2013

The Uncommon Courage of Bradley Manning

Bradley Manning has pleaded guilty to 10 charges including possessing and willfully communicating to an unauthorized person all the main elements of the WikiLeaks disclosure. The charges carry a total of 20 years in prison. For the first time, Bradley spoke publicly about what he did and why. His actions, now confirmed by his own words, reveal Bradley to be a very brave young man.

When he was 22 years old, Pfc. Bradley Manning gave classified documents to WikiLeaks. They included the “Collateral Murder” video, which depicts U.S. forces in an Apache helicopter killing 12 unarmed civilians, including two Reuters journalists, and wounding two children.

“I believed if the public, particularly the American public, could see this it could spark a debate on the military and our foreign policy in general as it applied to Iraq and Afghanistan,” Bradley told the military tribunal during his guilty plea proceeding. “It might cause society to reconsider the need to engage in counter terrorism while ignoring the human situation of the people we engaged with every day.”

Bradley said he was frustrated by his inability to convince his chain of command to investigate the Collateral Murder video and other “war porn” documented in the files he provided to WikiLeaks. “I was disturbed by the response to injured children.” Bradley was bothered by the soldiers depicted in the video who “seemed to not value human life by referring to [their targets] as ‘dead bastards.’” People trying to rescue the wounded were also fired upon and killed. A U.S. tank drove over one body, cutting the man in half. The actions of American soldiers shown in that video amount to war crimes under the Geneva Conventions, which prohibit targeting civilians, preventing the rescue of the wounded, and defacing dead bodies.

No one at WikiLeaks asked or encouraged Bradley to give them the documents, Bradley said. “No one associated with the WLO [WikiLeaks Organization] pressured me to give them more information. The decision to give documents to WikiLeaks [was] mine alone.”

Before contacting WikiLeaks, Bradley tried to interest the Washington Post in publishing the documents but the newspaper was unresponsive. He tried unsuccessfully to contact the New York Times.

During his first nine months in custody, Bradley was kept in solitary confinement, which is considered torture as it can lead to hallucinations, catatonia and suicide.

Bradley maintained his not guilty pleas to 12 additional charges, including aiding the enemy and espionage, for which he could get life imprisonment.

Bradley’s actions are not unlike those of Daniel Ellsberg, whose release of the Pentagon Papers helped to expose the government’s lies and end the Vietnam War.

Marjorie Cohn is co-author of “Rules of Disengagement: The Politics and Honor of Military Dissent” (with Kathleen Gilberd). She testifies at courts-martial and military hearings about the illegality of the wars, the duty to obey lawful orders, and the duty to disobey unlawful orders.

February 19, 2013

An Interview with Marjorie Cohn about Targeted Killings

By Dennis Bernstein, Flashpoints, Pacifica Radio

DB:  We continue our discussion of the revelations around a memo coming out of the Justice Department that the administration plans to keep up these assassinations and expand the program.  Joining us to take a legal look at this is Marjorie Cohn, Professor at Thomas Jefferson School of Law and former President of the National Lawyers Guild.  She is also the editor of “The United States and Torture: Interrogation, Incarceration, and Abuse.”  Welcome back to Flashpoints, Marjorie.  You say the White Paper runs afoul of international and US law.  Please explain.

Read more

January 11, 2013

Zero Dark Thirty: Torturing the Facts

On January 11, eleven years to the day after George W. Bush sent the first detainees to Guantanamo, the Oscar-nominated film Zero Dark Thirty is making its national debut.  Zero Dark Thirty is disturbing for two reasons. First and foremost, it leaves the viewer with the erroneous impression that torture helped the CIA find bin Laden’s hiding place in Pakistan. Secondarily, it ignores both the illegality and immorality of using torture as an interrogation tool.

The thriller opens with the words “based on first-hand accounts of actual events.” After showing footage of the horrific 9/11 attacks, it moves into a graphic and lengthy depiction of torture. The detainee “Ammar” is subjected to waterboarding, stress positions, sleep deprivation, and confined in a small box. Responding to the torture, he divulges the name of the courier who ultimately leads the CIA to bin Laden’s location and assassination. It may be good theater, but it is inaccurate and misleading.
The statement “based on first-hand accounts of actual events” is deceptive because it causes the viewer think the story is accurate. All it really means, however, is that the CIA provided Hollywood with information about events depicted in the movie. Acting CIA Director Michael Morrell wrote a letter to the Senate Select Committee on Intelligence in which he admitted the CIA engaged extensively with the filmmakers.  After receiving his letter, Senators John McCain, Dianne Feinstein and Carl Levin requested information and documents related to the CIA’s cooperation.
The senators sent a letter to Morrell saying they were “concerned by the film’s clear implication that information obtained during or after the use of the CIA’s coercive interrogation techniques played a critical role in locating Usama Bin Laden (UBL).” They noted, “the film depicts CIA officers repeatedly torturing detainees. The film then credits CIA detainees subjected to coercive interrogation techniques as providing critical lead information on the courier that led to the UBL compound.” They state categorically: “this information is incorrect.”
The letter explains that after a review of more than six million pages of CIA records, Feinstein and Levin made the following determination: “The CIA did not first learn about the existence of the UBL courier from CIA detainees subjected to coercive interrogation techniques. Nor did the CIA discover the courier’s identity from CIA detainees subjected to coercive techniques. No CIA detainee reported on the courier’s full name or specific whereabouts, and no detainee identified the compound in which UBL was hidden. Instead, the CIA learned of the existence of the courier, his true name, and location through means unrelated to the CIA detention and interrogation program.”
In a speech on the Senate floor, McCain declared, “It was not torture, or cruel, inhuman, and degrading treatment of detainees that got us the major leads that ultimately enabled our intelligence community to find Osama bin Laden.” McCain added: “In fact, not only did the use of ‘enhanced interrogation techniques’ on Khalid Sheik Mohammed not provide us with the key leads on bin Laden’s courier, Abu Ahmed; it actually produced false and misleading information.”
Many high-level interrogators, including Glenn L. Carle, Ali Soufan and Matthew Alexander, report that torture is actually ineffective and often interferes with the securing of actual intelligence. A 2006 study by the National Defense Intelligence College concluded that traditional, rapport-building interrogation techniques are very effective even with the most recalcitrant detainees, but coercive tactics create resistance.
Moreover, torture is counter-productive.  An interrogator serving in Afghanistan told Forbes, “I cannot even count the amount of times that I personally have come face to face with detainees, who told me they were primarily motivated to do what they did, because of hearing that we committed torture . . . Torture committed by Americans in the past continues to kill Americans today.”
Torture is also illegal and immoral – important points that are ignored in Zero Dark Thirty.  After witnessing the savage beating of a detainee at the beginning of the film, the beautiful heroine “Maya” says “I’m fine.” As he’s leaving Pakistan, Maya’s colleague Dan tells her, “You gotta be real careful with the detainees now. Politics are changing and you don’t want to be the last one holding the dog collar when the oversight committee comes.”
Torture is illegal in all circumstances. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty the United States ratified which makes it part of U.S. law, states unequivocally: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The prohibition of torture is absolute and unequivocal. Torture is never lawful.
Yet despite copious evidence of widespread torture and abuse during the Bush administration, and the Constitution’s mandate that the President enforce the laws, Obama refuses to hold the Bush officials and lawyers accountable for their law breaking.
Granting impunity to the torturers combined with propaganda films like Zero Dark Thirty, which may well win multiple Oscars, dilutes any meaningful public opposition to our government’s cruel interrogation techniques. Armed with full and accurate information, we must engage in an honest discourse about torture and abuse, and hold those who commit those illegal acts fully accountable.

November 13, 2012

Make Obama Do It

By Marjorie Cohn and Jeanne Mirer

President Obama declared in his victory address on election night, “Democracy in a nation of 300 million can be noisy and messy and complicated . . . We want our children to live in an America that isn’t burdened by debt, that isn’t weakened by inequality, that isn’t threatened by the destructive power of a warming planet.” Those were powerful words. But they must be followed with action.

When he thanked his campaign workers, the former community organizer spoke emotionally from the heart. He ran an incredible grassroots campaign, which must now be turned into a movement to work with Occupy and other progressive groups to effect real change.

Glenn Greenwald warned in The Guardian that progressives are bound to be disappointed again in Obama because we will be under pressure to conform when our demand that he not agree to cut Social Security or Medicare as part of a “grand bargain” does not succeed.

But recall that in 1940, the great labor leader A. Philip Randolph prevailed upon FDR to improve the conditions of blacks and workers. The President responded, “I agree with everything you have said. Now make me do it.”

It is up to us to make Obama do it. How we get the President to do the right things are the challenges we face. What we do know is that those who mobilized to defeat Romney and Ryan should not demobilize. Those progressive constituencies that supported the President must come together to speak with one voice on key issues.

During the presidential election, many progressives were hesitant to vote for Barack Obama. They could not forget that he bailed out the huge banks with no accountability for the white-collar criminals who wreaked so much havoc on our economy while at the same time providing no relief for those whose homes were being foreclosed. Nor could they countenance Obama’s use of drones to summarily execute untold numbers of people, including many civilians. Progressives were upset that Obama failed to close Guantanamo, continuing to hold many people in indefinite detention without criminal charges. We were outraged that the President wanted to look forward and not hold any of those who authorized and committed torture accountable. He neglected to mention poverty during the campaign, despite the fact that 42.6 million people live below the poverty line in the United States. Obama also deported record numbers of undocumented immigrants and continued the Bush policy of warrantless eavesdropping.

Before the election, Marjorie Cohn joined Daniel Ellsberg, Cornel West, Frances Fox Piven, Barbara Ehrenreich, Jim Hightower, Norman Solomon and Jeff Cohen in issuing a call to progressive voters who were conflicted to ensure that we make defeating Romney a priority: “If you live in a close state, defeat Romney and his right-wing policies by voting Obama/Biden. If you live in a state where the outcome will be lopsided, you’re in a position to send a loud and clear vote of protest against Obama policies you oppose.”

We “consistently challenged Obama policies (on civil liberties, war and bloated military spending, environment, potential cuts to Social Security and Medicare, to name a few)” but we knew “that the policies of a Romney/Ryan administration would be worse on many issues and better on none. Consider Romney’s recent vow to ‘change course’ toward even more war-mongering in the Middle East. Or their profound differences on abortion rights and Supreme Court picks.”

The rest is history. President Obama was reelected handily, the only Democrat besides Franklin D. Roosevelt to win two terms with a majority of the popular vote. Women, gays, African-Americans, Asian-Americans, Latinos, youth, and poor people understood the greater dangers of a Romney presidency. Obama prevailed in eight of the nine swing states. Although efforts to suppress the vote in communities of color in those swing states backfired, we know voter suppression is very real. Karl Rove & Co. used millions of dollars thanks to Citizens United to defeat Obama; luckily those dollars turned out to be ill-spent – on ads and not a comparable “ground game.”

Maureen Dowd put it well: “Last time, Obama lifted up the base with his message of hope and change; this time the base lifted up Obama with the hope he will change.” With Obama’s reelection, we must do more than hope that Obama will change. We have a unique opportunity to demand Obama move in a progressive direction.

The Affordable Care Act has survived so we can keep our kids on our health insurance policies until they turn 26, people with pre-existing conditions will not be denied insurance, and many who could not afford insurance before will be covered. But we must push for universal health care.

Romney cannot pack the Supreme Court with more radical right-wingers. But we should pressure Obama to appoint true progressives to the highest court in the land.

Romney cannot inflate military spending even more than the 20 percent of the U.S. budget it currently occupies. But we can demand a reduction in military spending, which adds significantly to the deficit, makes us no safer, and leeches money from education and health care.

Whereas Romney sees workers as expendable when it comes to maximizing profit, Obama must see to it that union rights are strengthened. He must also acknowledge the major role unions, union members and union households played in organizing the ground game and for his reelection. The President must commit himself to finding ways, including using his executive authority, to create good jobs.

Instead of Obama’s unprecedented targeting of whistleblowers, we must urge him to abandon the policies that led to the commission of war crimes that people like Julian Assange and Bradley Manning have exposed.

It is one thing to be pro-choice. Obama must push to make coverage for abortion available in all federal health insurance programs.

Obama took an important step when he issued an executive order preventing the deportation of young people who came to the United States before they were 16 and have lived here continuously for five years. In his second term, Obama should end discrimination and racial profiling by the Department of Homeland Security and the mass arrests and detentions of immigrants. He should also work on comprehensive immigration reform that includes a reasonable pathway to citizenship.

We must hold Obama to his pledge to protect Medicare and Social Security no matter how tempting it may be to weaken them in the impending deal to prevent us from going over the proverbial but not real “fiscal cliff.” Obama should also be pressured to stick to his self-proclaimed mandate to make the rich pay higher taxes.

To help prevent another economic meltdown, Obama ought to push for strong regulation, especially in the banking and financial sectors of the economy. A financial transactions tax on Wall Street, hedge funds, etc., targeted to job creation and infrastructure must be seriously considered.

The United States is a key player in the global economy. But the free trade regimes we have followed have only promoted growing inequality in this country and countries with whom we trade. We need fair trade that includes protections for workers, human rights and the environment.

In order to work seriously to protect our environment, Obama must push for a heavy tax on carbon emissions and major regulation of coal, oil and gas companies. He must demand transition to renewables before it is too late to stop the ravages of storms like Hurricanes Katrina and Sandy.

During his first campaign, Obama pledged to immediately “let folks know” whether the products they consume contain genetically modified organisms (GMO’s) by proper labeling. He has not yet made good on that promise despite overwhelming public support for labeling GMO’s. Large corporations, including Monsanto, spent $50 million to defeat Proposition 37 in California, which would have required such labeling.

Although Obama has resisted Benjamin Netanyahu’s demands that the United States draw a red line to prevent Iran from developing a nuclear weapons capability, Obama has imposed punishing sanctions that are devastating to the Iranian people, and not necessarily targeted to the nuclear program, while not saying a word about Israel’s nuclear arsenal. He must not pander to the right-wing Israeli government on Iran or sacrifice the rights of Palestinians.

After the election, Bill O’Reilly noted, “The white establishment is now the minority.” He was not talking about the white working class, but rather the white elite that has run our institutions since the country’s founding. O’Reilly continued, “And the voters, many of them, feel that this economic system is stacked against them, and they want stuff.” These comments betray his racism and racial stereotypes because it was clear that the people he claimed “wanted stuff” were people of color. We need to reaffirm that all people have a right to live in a society in which the economy serves their interests, and that people are entitled to basic human rights. As stated in the Universal Declaration of Human Rights, human rights include economic rights – the right to a decent job, to organize and join unions, to a good education and quality health care, adequate housing, and to economic security when people become aged or disabled.

While the President can always blame an obstructionist Congress for the need to “compromise,” the way he sets the terms of the debate will invariably determine the outcome.

We know that President Obama, like any president of the United States, faces immense pressures from Wall Street (bankers), the Chamber of Commerce, the Military Industrial (Congressional) Complex, the Prison Industrial Complex, and the insurance, fossil fuel and gun industries. All of these lobbies seek to promote their own interests – including the rights of capital over labor, criminalization of broad segments of society, reliance on carbon-based energy sources and wars to obtain them. They aim to profit from health care and privatize as much as possible, and to ensure that people do not believe they have any entitlements to health care or social security.

These are the many reasons to organize to make Obama do the right thing. But the burden is not only on the President. The burden is on us to organize the counter-pressure through all of the progressive constituencies. It is a challenge we must embrace.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Jeanne Mirer, who practices labor and employment law in New York, is president of the International Association of Democratic Lawyers.

September 3, 2012

No Accountability for Torturers

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

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

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

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

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

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

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

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

August 2, 2012

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

By Jeanne Mirer and Marjorie Cohn

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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