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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/

July 18, 2012

Immigration, Racism, and the Supreme Court

The issue of immigration has been tossed about like a political football for some time. Democrats argue that migrants who have spent many years in the United States should be permitted to apply for lawful status. Republicans criticize these proposals as “amnesty.” But Congress has been unable to agree on comprehensive immigration reform.

Three and one-half years into his term, President Obama announced on June 15 a policy to halt deportations for many undocumented immigrants who came to the United States as children. They must be under age 30, have come to the United States when they were under age 16, have lived in the U.S. for at least five years, be either an honorably discharged veteran or a high school graduate, and have suffered no felony or “significant” misdemeanor convictions.

Ten days after Obama revealed his new program, the Supreme Court issued its long-awaited decision on Arizona’s SB 1070. Arizona had enacted a repressive law aimed at “attrition [of undocumented immigrants] through enforcement.” Five other states followed suit and waited as the high court considered the constitutionality of Arizona’s law.

In a victory for those who support a humane immigration policy, the Court overturned three sections of SB 1070: Arizona cannot criminalize unlawful presence in the United States, or working without papers; and the decision to arrest someone for unlawful presence in the U.S. is solely a federal issue. The Court made clear that the enforcement of immigration law is reserved to the federal government.

But unfortunately, the Court unanimously upheld the most controversial provision of SB 1070, at least for the time being. Section 2(b) requires state officers to determine the immigration status of anyone they stop, detain or arrest if they have “reasonable suspicion” the person is an undocumented immigrant. Although the Court didn’t address racial profiling in its opinion, how can this statute possibly be enforced without considering skin color, language and clothing?

Section 2(b) says that Arizona officers “may not solely consider race, color or national origin” in the enforcement of this section. But 2(b) effectively requires the consideration of race, color and national origin because it is unfathomable how a law enforcement official could avoid considering those factors in deciding whom to investigate under the new law. Even the most well-meaning officer cannot possibly determine whether an individual may be undocumented without making judgments based on apparent race, color and national origin. As Tucson Police Chief Roberto A. Villasenor noted, “It says you can’t use race and ethnicity. If you’re not paying attention to race and ethnicity, what other elements are there? . . . If it’s 95 percent based on race and ethnicity, what’s the other 5 percent? No one knows.”

The Supreme Court’s decision was apparently a compromise, leaving open the possibility of additional constitutional challenges. A majority of the Court was not prepared to rule at this point that section 2(b) will interfere with federal immigration enforcement. Future lawsuits will argue that 2(b) in practice is preempted by the federal government’s exclusive jurisdiction over immigration, and that it invariably leads to racial profiling which violates the Due Process and Equal Protection Clauses of the Constitution.

One justice who refused to compromise with his fellow justices jumped inappropriately into the political battle in his dissenting opinion. Antonin Scalia personally attacked Obama’s new policy, writing:

The president said at a news conference that the new program is “the right thing to do” in light of Congress’ failure to pass the administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing application of the Immigration Act that the president declines to enforce boggles the mind.

Aside from the impropriety of this cheap shot – which led one Washington Post columnist to call for Scalia’s resignation – the justice is wrong about Obama refusing to enforce the immigration law. There have been more deportations during the Obama presidency than in any other administration.

But to its credit, Immigration and Customs Enforcement (ICE) has directed its officials to use particular care in considering the cases of veterans, members of the armed forces, long-time lawful permanent residents, minors and elderly individuals, those present in the United States since childhood, pregnant or nursing women, victims of domestic violence and trafficking, individuals who suffer from a serious mental or physical disability, and those with serious health concerns.

After the Court issued its opinion, the Department of Homeland Security (DHS) said it will send a directive to federal agents in Arizona that they must continue to enforce the immigration law consistent with the administration’s priorities, and should not initiate deportation of those who have not committed serious crimes or are not repeat offenders.

DHS also announced it was suspending 287g joint agreements in Arizona. Under these pacts, the federal government had deputized state and local law enforcement officials to detain undocumented immigrants. The program had led to serious civil rights abuses.

Several civil rights and immigrants rights organizations have signed a letter to Janet Napolitano, Secretary of Homeland Security, urging her to terminate the 287g agreements in Alabama, Georgia, Indiana, South Carolina and Utah, the five states that have enacted laws like SB 1070. The letter also requests that DHS collect data to determine whether state and local police in all six states (including Arizona) are engaged in racial profiling and illegal detentions. This data could be helpful for future lawsuits.

In its opinion, the Court made clear that Arizona police who request an immigration status check from the federal authorities may not extend a detention longer than would normally occur merely because they have not received a response from the federal authorities.

Although the Court struck down three provisions of SB 1070, section 2(b) remains on the books. Instead of gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that leads to the targeting of non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a “states rights” approach where each state is free to enact its own racist law.

There is a hopeful sign in California, however, where the legislature recently approved a bill that prevents state police officers from turning over a detained person to federal immigration authorities unless the detainee has been convicted of a felony.

Migrants, no less than U.S. citizens, are entitled to dignity, respect, and human rights. Let us join the voices of compassion and oppose the mean-spirited actions that aim to legalize racial profiling and scapegoat immigrants. Laws like SB 1070 demean us all.

June 26, 2012

Killer Drone Attacks Illegal, Counter-Productive

By Marjorie Cohn and Jeanne Mirer

The Bush administration detained and tortured suspected militants; the Obama administration assassinates them. Both practices not only visit more hatred upon the United States; they are also illegal. Our laws and treaties prohibit torture. The Constitution forbids the government from depriving any person of life without due process of law; that is, arrest and fair trial. Yet President Obama has approved the killing of people, many of whom were not even identified before the kill order was given.

Jo Becker and Scott Shane reported in the New York Times that Obama maintains a “kill list.” After consulting with his counterterrorism adviser John O. Brennan, Obama personally makes the decision to have individuals executed. Brennan was closely identified with torture, secret prisons, and extraordinary rendition during the Bush administration. The Times story, based on interviews with three dozen current and former Obama advisers, reports that “Mr. Obama has avoided the complications of detention by deciding, in effect, to take no prisoners alive. While scores of suspects have been killed under Mr. Obama, only one has been taken into U.S. custody” because he doesn’t want to add new prisoners to Guantanamo.

The leak of the kill list angered Republicans, evidently because they believe it demonstrates Obama’s “strength” in foreign policy. Some progressives who do not fully understand the profound illegality of drone attacks find them preferable to the United States’ all out invasions of more countries. We all need to understand that the unlawful precedent the United States is setting with its use of killer drones not only undermines the rule of law; it also will prevent the United States from reasonably objecting when other countries that obtain drone technology develop “kill lists” of persons those countries believe represent threats to them.

On June 15, for the first time, Obama publicly acknowledged that his administration is engaging in “direct action” in Yemen and Somalia. Although the United States is not at war with either country, George W. Bush’s “War on Terror” has morphed into Obama’s “War on Al Qaeda.” Obama’s “war” has been used as an excuse to assassinate anyone anywhere in the world whenever the President gives the order.

But “there is not a distinct entity called Al Qaeda that provides a sound basis for defining and delimiting an authorized use of force,” according to Paul P. Pillar, deputy director of the CIA’s Counterterrorist Center from 1997 to 1999. The United States is not at war with Yemen and Somalia. Even if Obama identifies certain people living in Yemen or Somalia as members of Al-Qaeda who are desirous of committing acts of terror against the people of the United States, there is no basis in law for our government to declare war on individuals it considers a threat. The United States has legal means to indict and extradite, both under U.S. and international law.

Since 2004, some 300 drone strikes have been launched in Pakistan. Twenty percent of the resulting deaths are believed to have been civilians. The Pakistan Human Rights Commission says U.S. drone strikes were responsible for at least 957 deaths in Pakistan in 2010.

In the three and one-half years since Obama took office, between 282 and 585 civilians have been killed, including more than 60 children. “The CIA’s drone campaign has killed dozens of civilians who had gone to rescue victims or who were attending funerals,” a new report by the London-based Bureau of Investigative Journalism found.

But, according to the Times article, Obama has developed a creative way to count civilian casualties. All military-age men killed in a drone strike zone are considered to be combatants, “unless there is explicit intelligence posthumously proving them innocent.” As a result, Brennan reported last year that not one civilian had been killed during one year of strikes. An administration official recently claimed that the number of civilians killed by drone strikes in Pakistan was in the “single digits.” Three former senior intelligence officials told the Times that they couldn’t believe the number could be so low.

Obama, who has been targeting “suspected militants” (called “personality strikes”) in Pakistan, Yemen and Somalia, even killing U.S. citizens, has authorized expanded drone attacks – whenever there are suspicious “patterns of behavior” at sites controlled by a terrorist group. These are known as “signature strikes.” That means bombs are being dropped on un-identified people who are in an area where suspicious activity has taken place. This goes beyond the illegal practice of “targeted killing.” People are being killed without even being an identified target.

The administration justifies its use of armed drones with reference to the Authorization for the Use of Military Force that Congress passed just days after the September 11 attacks. In the AUMF, Congress authorized force against groups and countries that had supported the terrorist strikes. But Congress rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” Deterrence and preemption are exactly what Obama is trying to accomplish by sending robots to kill “suspected militants” or those who happen to be present in an area where suspicious activity has taken place.

Moreover, in the National Defense Authorization Act of 2012, Congress specifically declared, “Nothing in this section is intended to . . . expand the authority of the President or the scope of the Authorization for the Use of Military Force [of September 2001].”

Drone attacks also violate well-established principles of international law. A targeted killing is defined as the “intentional, premeditated, and deliberate use of lethal force . . . against a specific individual who is not in the physical custody of the perpetrator,” according to Philip Alston, former UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions. Targeted or political assassinations – sometimes known as extra-judicial executions – run afoul of the Geneva Conventions, which include willful killing as a grave breach. Grave breaches of Geneva are punishable as war crimes under the U.S. War Crimes Act.

Christof Heyns, the current UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, expressed grave concern about the targeted killings, saying they may constitute war crimes. He called on the Obama administration to explain how its drone strikes comport with international law, specify the bases for decisions to kill rather than capture particular individuals, and whether the State in which the killing takes place has given consent. Heyns further asked for specification of the procedural safeguards in place, if any, to ensure in advance of drone killings that they comply with international law. He also wanted to know what measures the U.S. government takes after any such killing to ensure that its legal and factual analysis was accurate and, if not, the remedial measures it would take, including justice and reparations for victims and their families. Although Heyns’ predecessor made similar requests, Heyns said the United States has not provided a satisfactory response.

Heyns also called on the U.S. government to make public the number of civilians collaterally killed as a result of drone attacks, and the measures in place to prevent such casualties. Once again, Heyns said the United States has not satisfactorily responded to a prior query for such information.

Likewise, UN High Commissioner for Human Rights Navi Pillay recently declared that U.S. drone attacks in Pakistan violate the international law principles of proportionality and distinction. Proportionality means that an attack cannot be excessive in relation to the anticipated military advantage sought. Distinction requires that the attack be directed only at a legitimate military target.

The United States has ratified the International Covenant on Civil and Political Rights. The ICCPR states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The Covenant also guarantees those accused of a crime the right to be presumed innocent and to a fair trial by an impartial tribunal. Targeted killings abrogate these rights.

Self defense under Article 51 of the United Nations Charter is a narrow exception to the Charter’s prohibition of the use of force or the threat of force to settle international disputes. Countries may engage in individual or collective self-defense only in the face of an armed attack. To the extent the United States claims the right to kill suspected terrorists or their allies before they act, there must exist “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case. Obama’s drone attacks do not meet this standard.

The United States’ resort to ever increasing targeted killings is a direct result of the “War on Terror” the Bush administration declared after 9/11. Bush declared a perpetual war on a tactic and claimed all Al-Qaeda and Taliban are terrorists who may be preemptively killed as a form of self defense, rather than being arrested and tried for criminal acts. Although he does not use the phrase “War on Terror,” Obama has continued and even extended this policy. It is the product of a powerful military industrial complex in the United States which sees the use of force as the first step to resolving disputes rather than a last resort, notwithstanding the strictures of the UN Charter.

This practice sets a dangerous precedent. Heyns opined that “any Government could, under the cover of counter-terrorism imperatives, decide to target and kill an individual on the territory of any State if it considers that said individual constitutes a threat.” Heyns also cited information that indicates “the attacks increasingly fuel protests among the population.” Heyns said the “lack of transparency” and “dangerous precedent” that drone attacks represent “remain of grave concern.”

Drone strikes are also counterproductive. They breed increased resentment against the United States and lead to the recruitment of more terrorists. “Drones have replaced Guantanamo as the recruiting tool of choice for militants,” Becker and Shane wrote in the Times article. They quoted Faisal Shahzad, who, while pleading guilty to trying to detonate a bomb in Times Square, told the judge, “When the drones hit, they don’t see children.” Pakistani ambassador Zamir Akram told the Geneva Forum last week that the drone attacks are illegal and violate the sovereignty of Pakistan, “not to mention being counter-productive.” He added, “thousands of innocent people, including women and children, have been murdered in these indiscriminate attacks.”

Becker and Shane noted, “[Obama’s] focus on strikes has made it impossible to forge, for now, the new relationship with the Muslim world that he had envisioned. Both Pakistan and Yemen are arguably less stable and more hostile to the United States than when Mr. Obama became president. Justly or not, drones have become a provocative symbol of American power, running roughshod over national sovereignty and killing innocents.”

Ibrahim Mothana, who wrote an op-ed in the Times titled “How Drones Help Al Qaeda,” agrees. “Drone strikes are causing more and more Yemenis to hate America and join radical militants; they are not driven by ideology but rather by a sense of revenge and despair,” Mothana observed.

It is time to halt this dangerous and illegal practice.  

Jeanne Mirer, a contributor to “The United States and Torture:Interrogation, Incarceration, and Abuse,” is an attorney in New YorkCity and president of the International Association of Democratic Lawyers.

June 25, 2012

Hope Dies at Guantánamo

The tragic case of Adnan Farhan Abdul Latif hit a dead end when the US Supreme Court issued an order refusing to hear his case last week. Latif, a Yemeni man, has been imprisoned at Guantanamo Bay since January 2002, after being detained while traveling to seek medical treatment.

Latif had suffered serious head injuries as the result of a car accident in 1994, and the Yemeni government paid for him to receive treatment in Jordan at that time. But his medical problems persisted, and in 1999 Yemen’s Ministry of Public Health recommended that Latif undergo tests, therapy and surgical procedures at his own expense. Unable to afford it, Latif said he left Yemen in 2001 with the help of a charitable worker to seek free medical treatment in Pakistan. When he was picked up in Afghanistan — on his way to Pakistan — and transferred to US custody in December 2001, Latif had his medical records with him.

After a kangaroo court proceeding, a Combatant Status Review Tribunal at Guantanamo declared Latif to be an “enemy combatant.” He was not allowed to attend the hearing, nor was he permitted to see the evidence against him. Instead of a lawyer, he was given a “Personal Representative” — a military officer who did not represent Latif’s interests.

Four years ago, the Supreme Court rejected the Bush administration’s argument that the detainees at Guantanamo had no right to contest the legality of their confinement in US courts. In Boumediene v. Bush, the Court upheld the habeas corpus rights of the detainees, saying they must be given “a meaningful opportunity” to challenge their detention.

Latif petitioned a federal district court for a writ of habeas corpus. The Obama administration opposed the petition, relying on information from an interrogation report. Large sections of the report were blacked out, so it is difficult to know exactly what the report says. But we do know that, according to the report, Latif admitted to being recruited for jihad, receiving weapons training from the Taliban and serving on the front line with other Taliban troops. Latif said his interrogators garbled his words so that their summary bears no relation to what he actually said.

In the US District Court for the District of Columbia, Judge Henry Kennedy granted Latif’s habeas petition, concluding that it could not “credit the information [in the Report] because there is serious question as to whether the [Report] accurately reflects Latif’s words, the incriminating facts in the [Report] are not corroborated, and Latif has presented a plausible alternative story to explain his travel.” It troubled Judge Kennedy that, “[n]o other detainee saw Latif at a training camp or in battle. No other detainee told interrogators that he fled from Afghanistan to Pakistan, from Tora Bora or any other location, with Latif. No other type of evidence links Latif to Al Qaeda, the Taliban, a guest house, or a training camp.”

Particularly significant to Judge Kennedy was that the “fundamentals [of Latif’s story] have remained the same.” More than a dozen interrogation summaries and statements contained “[Latif’s] adamant denials of any involvement with al Qaida [sic] or the Taliban; his serious head injury from a car accident in Yemen; his inability to pay for the necessary medical treatment; and his expectation and hope that [the charitable worker] would get him free medical care.”

Judge Kennedy also reasoned that errors in the report support “an inference that poor translation, sloppy note taking . . . [blacked out] . . . or some combination of those factors resulted in an incorrect summary of Latif’s words.” The fact that Latif was found in possession of his medical papers when seized, according to the judge, “corroborat[ed]” Latif’s “plausible” story.

The government appealed the district court ruling to the conservative US Court of Appeals for the District of Columbia Circuit, which reversed the grant of habeas corpus. The appellate court admitted that the interrogation report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted [parts blacked out] for national security purposes.” But for the first time, the DC Circuit held that government reports must be accorded a “presumption of regularity.” That means they will be presumed to be true unless the detainee can rebut that
presumption.

Judge Janice Rogers Brown, who wrote the opinion for the two judges in the majority on the three-judge appellate panel, twisted Boumediene’s statement that “innovation” could be used in habeas corpusproceedings into a “presumption of regularity” in government reports. Judge Brown criticized “Boumediene’s airy suppositions.”

The dissenting appellate judge, David S. Tatel, noted that, in practice, the presumption of regularity will compel courts to rubber-stamp government detentions because “it suggest[s] that whatever the government says must be true.” He concluded that the report in Latif’s case was inherently unreliable because “it contain[s] multiple layers of hearsay.” Judge Tatel accused the majority of denying Latif the “meaningful opportunity” to contest the lawfulness of his detention that Boumediene guarantees.

When seven detainees whose petitions had been denied by the DC Circuit, including Latif, took their cases to the Supreme Court, they hoped the high court would do justice. During the Bush administration, the Court had struck down illegal and unjust executive policies. These included the denial of habeas corpus rights to Guantanamo detainees, the refusal to afford due process to US citizens caught in the “war on terror” and theholding of military commissions because they violated the Uniform Code of Military Justice and theGeneva Conventions.

But hope for justice died last week when the Court refused to even consider the propriety of the appellate court’s denial of habeas corpus to those seven detainees. Henceforth, detainees who lose in the DC Circuit cannot expect the Supreme Court to give them relief. Their last stop will be at one of the most right-wing circuits in the country, which overturns or delays all release orders by federal judges if the government objects.

The Supreme Court’s refusal to review the appellate court decisions in these cases has rendered Boumedienea dead letter. Since 2008, two-thirds of detainees who have filed habeas corpus petitions have won at the district court level, yet not one of them has been released by judicial order. Judge Tatel wrote that “it is hard to see what is left of the Supreme Court’s command in Boumediene that habeas review be ‘meaningful.'”

Like many men at Guantanamo, Latif went on a hunger strike to assert the only power he had in the face of utter hopelessness — the power to refuse food. He was force-fed for three months, which, he says, “is like having a dagger shoved down your throat.” As attorney Marc D. Falkoff writes in his chapter about Latif inThe United States and Torture: Interrogation, Incarceration, and Abuse, “[t]he United Nations Commission on Human Rights calls this torture.”

Of the 800 men and boys held at Guantanamo since 2002, 169 remain. Of those prisoners, 87 have had their release approved by military review boards established during the Bush administration, and later by the Guantanamo Review Task Force established by President Obama in 2009. Yet they continue to languish in the prison camp.

In her opinion, Judge Brown wrote, “Luckily, this is a shrinking category of cases. The ranks of Guantanamo detainees will not be replenished.” Indeed, Obama has sent only one new prisoner to Guantanamo. His strategy is to assassinate “suspected militants” or people present in “suspicious areas” with drones, obviating the necessity of incarcerating them and dealing with their detention in court. As Judge Brown ominously observed, “Boumediene’s logic is compelling: take no prisoners. Point taken.”

This piece first appeared on Jurist.