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September 13, 2010

Business as Usual in Iraq

Last week, President Obama ceremoniously announced that U.S. combat operations had ended in Iraq. As Democrats face an uphill battle in the upcoming midterm elections, Obama felt he had to make good on his campaign promise to move the fighting from Iraq to Afghanistan. But while he has escalated the killing in Afghanistan, it’s business as usual in Iraq.

The United States, with its huge embassy in Baghdad and five large bases throughout Iraq, will continue to pull the strings there. Last week, Vice President Biden delivered a power-sharing plan to the Iraqis, who have been unable to form a government in the six months since the March election resulted in a stalemate. “We think that’s better for the future of Iraq,” Biden declared. The New York Times speculated about whether “the Americans can close the deal.” But the United States will continue to do a lot more than simply make suggestions about how Iraqis should share political power.

The timing of Obama’s announcement that combat troops are leaving Iraq is based on the status of forces agreement (SOFA) the Bush administration negotiated with the Iraqis in 2008. It calls for U.S. combat troops to leave Iraq by August 31, 2010. The SOFA also requires the Pentagon to withdraw all of its forces by the end of 2011, but this date may be extended.

Obama’s speech about withdrawing combat troops from Iraq is an effort to demonstrate compliance with the SOFA as the midterm elections draw near. But events on the ground reveal that he is playing a political version of the old shell game. As Obama proclaimed the redeployment of a Stryker battalion out of Iraq, 3,000 combat troops from the 3rd Armored Cavalry Regiment redeployed back into Iraq from Fort Hood, Texas. And that cavalry regiment will have plenty of company. The State Department is more than doubling its “security contractors” to 7,000 to make sure U.S. interests are protected. And with them will come 24 Blackhawk helicopters, 50 Mine Resistant Ambush-Protected vehicles and other military equipment.

Fifty thousand U.S. military troops remain in Iraq. Forty-five hundred U.S. special forces troops continue to fight and kill with Iraqi special forces. American troops are still authorized to take preemptive action against any threat they perceive. The policy regarding air strikes and bombings will remain unchanged. And untold numbers of “civilian contractors” – more accurately called mercenaries – will stay in Iraq, unaccountable for their war crimes.

When Obama spoke to the nation about ending combat operations in Iraq, he delivered his message with a spin that would make George W. Bush proud. Obama renamed the U.S. occupation of Iraq “Operation New Dawn,” and talked of the sacrifices we made during “Operation Iraqi Freedom.” But he failed to mention the more than 100,000 dead Iraqis, the untold numbers of wounded Iraqis and the 2 million Iraqis who went into exile. He said nothing about the few hours per day that most Iraqis enjoy electricity. He neglected to note that unions have been outlawed and Iraq’s infrastructure is in shambles. And he omitted any reference to the illegality of Bush’s war of aggression – in violation of the UN Charter – and Bush’s policy of torture and abuse of Iraqis – in violation of the Geneva Conventions. Obama chose instead to praise his predecessor, saying, “No one could doubt President Bush’s . . . commitment to our security.” But foreign occupation of Iraq and mistreatment of prisoners never made us more secure.

Obama also failed to remind us that we went to war based on two lies by the Bush administration: that Iraq had weapons of mass destruction, and that al Qaeda was in bed with Saddam Hussein.

Obama spoke of “credible elections” in Iraq. But “Iraq does not have a functional democracy,” said Raed Jarrar, Iraq consultant for American Friends Service Committee and a senior fellow at Peace Action. “We cannot expect to have a functional democracy from Iraq that was imposed by a foreign occupation,” he said on Democracy Now!

“The new Iraqi state is among the most corrupt in the world,” journalist Nir Rosen wrote in Foreign Policy. “It is only effective at being brutal and providing a minimum level of security. It fails to provide adequate services to its people, millions of whom are barely able to survive. Iraqis are traumatized. Every day there are assassinations with silenced pistols and the small magnetic car bombs known as sticky bombs.”

Obama put the cost of the wars at $3 trillion, an awesome sum that could well be used to provide universal health care, quality education, and improved infrastructure to create jobs in this country. But he overlooked the cost of treating our disabled veterans, many of whom return with traumatic brain injury and post traumatic stress disorder. “There is no question that the Iraq war added substantially to the federal debt,” Joseph Stiglitz and Linda Bilmes wrote in the Washington Post. “The global financial crisis was due, at least in part, to the war,” they added.

Regardless of how Obama tries to spin his message about the disaster the United States has created in Iraq, 60 percent of Americans think the U.S. invasion of Iraq was a mistake, 70 percent believe it wasn’t worth sacrificing American lives, and only one quarter feel it made us safer. The majority of Iraqis also oppose the U.S. occupation.

As I ponder events unfolding in Iraq, and Obama’s efforts to explain them to us, I am reminded of the highly decorated Marine Corps General Smedley Butler. Nearly 70 years ago he declared that, “War is a racket.” He was referring to the use of Marines in Central America during the early 20th Century to protect U.S. corporations like United Fruit, which were exploiting agricultural resources in that region. In my view, the Iraq war had a similar purpose – to secure the rich Iraqi oil fields and make them available to corporations that will continue to feed America’s petroleum addiction.

In a more honest speech, Obama would have said we successfully removed a leader who was unfriendly to American geopolitical and economic interests and replaced him with people beholden to U.S. money and materiel. U.S. forces have been downsized and re-branded. The “enduring presence posts” (new nomenclature for U.S. bases in Iraq) will ensure that we maintain hegemony in Iraq. Mission accomplished.

August 20, 2010

California Assembly Votes to Report on Human Rights to U.N. Committees

On August 9, the California Assembly took the historic step of becoming the first state to agree to publicize the text of three ratified U.N. human rights treaties, and to submit the required reports to the State Department for consideration by the U.N. treaty committees. The State Assembly voted to pass ACR 129, the Human Rights Reporting legislation, by a vote of 52 to 11, with 16 abstentions. The legislation will now move to the state Senate.

The International Convention on Elimination of all forms of Racial Discrimination requires the United States to publicize the text at the federal, state and local levels, and to make periodic reports to the U.N. Committee on Elimination of Racial Discrimination every two years on complaints of racial discrimination in every aspect of life, and on progress in eliminating such discrimination.

The U.S. ratified this treaty in 1994 and has issued some of the required reports, but has never publicized the text nor has it sought, or included, information from each state, as required. Now the California Assembly has voted to publicize and make the required reports.

The International Convention against Torture and other Cruel, Inhuman or Degrading or Treatment was ratified by the United States in 1994. It requires reporting every four years on misconduct and proper conduct by police, prison guards, human services agents, and everyone in government, and what steps the government is taking to correct reported problems.

The International Covenant on Civil and Political Rights requires reports to the U.N. Human Rights Committee every five years on violations and enforcement of freedom of assembly, labor union rights, rights of children, immigrants, and LGBT. When the Senate passes this Assembly Concurrent Resolution 129, California agencies will collect the information they already gather and submit it to the State Department for submission to the U.N. Human Rights Committee.

Bill Monning, the representative for the 27th Assembly district,
sponsored ACR129.

The City of Berkeley in September 2009 voted to become the first U.S. city to make reports under these treaties. City officials now state that collecting the information for the reports has heightened concern about human rights at City Hall.

Rev. Daniel Buford, President of the Meiklejohn Civil Liberties Institute and Prophetic Justice Minister at Allen Temple Baptist Church in Oakland, testified before the Assembly Appropriations Committee before adoption of the Resolution. He reported that he found the three treaties very helpful in working on justice in the killing of Oscar Grant by BART police officer Johannes Mehserle last year.

Attorney Ann Fagan Ginger, founder of MCLI, reports enthusiastic response when she describes the treaties to African American, Asian American, Latino and human rights organizations, students, unions, and people working on health care, prison conditions, the homeless, immigrant rights, ecology issues, and all other human rights related issues.

When the United States ratifies a treaty, it becomes part of U.S. law under the Supremacy Clause of the Constitution. The United States has not fully complied with its obligations under our ratified human rights treaties. While our government does not hesitate to criticize other countries for their human rights violations, it has been derelict in complying with our own human rights commitments. Hopefully the California Senate will also pass this important legislation which would send a strong message to other states and the federal government that this country is serious about protecting human rights.

August 8, 2010

Landmark Ruling Declares Prop 8 Unconstitutional

In a stunning, carefully crafted 136-page opinion, U.S. District Court Judge Vaughn Walker held in Perry v. Schwarzenegger that California’s Proposition 8, which outlaws same-sex marriage, is unconstitutional. The lawsuit was filed by two gay couples who sought to overturn Prop 8. Interestingly, the named defendant, Gov. Arnold Schwarzenegger, did not defend Prop 8. Neither did California’s Attorney General Jerry Brown; in fact, he conceded that Prop 8 is unconstitutional. It was the official proponents of the ballot initiative in the California election who defended Prop 8 in the lawsuit.

After making 80 bullet-proof findings of fact, Walker concluded that Prop 8 violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The judge agreed with all of the legal arguments advanced by the plaintiffs. The forces for marriage equality hit a grand slam. It remains to be seen, however, whether Walker’s ruling will hold up on appeal.

Walker presided over the first trial in U.S. history that raised the issue of whether same-sex marriage violates the federal Constitution. He heard testimony for two weeks, including that of plaintiffs’ myriad experts and the plaintiffs themselves. The anti-marriage equality side presented only two witnesses, who were unable to articulate any rational reason to treat straights and gays differently when it comes to the right to marry. Walker found that the opinions of one of those witnesses, David Blankenhorn, who is founder and president of the Institute for American Values, were “not supported by reliable evidence or methodology . . . and entitled to essentially no weight.” Kenneth Miller, a professor of government at Claremont McKenna College, also testified for the pro-Prop 8 side. The judge noted that Miller’s research did not focus on gay and lesbian issues, and the opinions he gave at trial conflicted with his prior opinions, which undermined his credibility.

When trial judges make factual findings, they are rarely disturbed on appeal; appellate courts usually confine themselves to reviewing legal conclusions. Walker’s detailed findings of facts include the following:

–Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage.

–California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.

–Individuals do not generally choose their sexual orientation.

–Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.

–Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

–The sexual orientation of an individual does not determine whether the individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.

Walker determined that “Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” Same-sex couples, the judge found, are situated identically to opposite-sex couples regarding their ability to perform the rights and obligations of marriage under California law. He rejected the argument that domestic partnerships are a worthy substitute for marriage, which he called “a culturally superior status.”

Because the plaintiffs sought to exercise the fundamental right to marry, their claim was subject to strict scrutiny. “The minimal evidentiary presentation made by proponents [of Prop 8],” the judge said, “does not meet the heavy burden of production necessary to show that Proposition is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny.” Thus, the judge ruled that Prop 8 violates the Due Process Clause.

Walker then held, “Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause.” All classifications based on sexual orientation, he wrote, “appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.” When there is a suspect classification, the court will judge it with strict scrutiny.

But, Walker noted, strict scrutiny is unnecessary here because Prop 8 fails even if the court uses the “rational basis” test, in which case the Prop 8 proponents would only need to show that there was a rational basis for treating homosexuals differently from heterosexuals. This is how the judge shot down each one of the rationales the proponents set forth for denying gays the right to marry:

(1) Reserve marriage as only a union between a man and a woman.
–Judge: Tradition alone cannot form a rational basis for a law.

(2) Proceed with caution when implementing social changes.
–Judge: “Because the evidence showed that same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.”

(3) Promote opposite-sex parenting over same-sex parenting.
–Judge: The evidence shows “beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.” Prop 8 has nothing to do with children; it simply prevents same-sex couples from marrying.

(4) Protect the freedom of those who oppose marriage for same-sex couples.
–Judge: Prop 8 does not affect any First Amendment right or responsibility of parents to educate their children, or the rights of those opposed to homosexuality or to same-sex marriage.

(5) Treat same-sex couples differently from opposite-sex couples.
–Judge: Prop 8 creates an administrative burden on California because it must maintain a parallel institution for same-sex couples.

(6) Any other conceivable interest.
Judge: Proponents have not identified any rational basis that Prop 8 could conceivably further.

A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation, the judge said. Thus, he held, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

To the proponents’ arguments that the purpose of marriage is procreation, Walker retorted, “Never has the state inquired into procreative capacity or intent before issuing a marriage license.” Moreover, the fact that a majority of California voters supported Prop 8 is irrelevant, according to Walker, who wrote that “fundamental rights may not be submitted to [a] vote.”

If this case reaches the U.S. Supreme Court, it will likely fall to the swing Justice Anthony Kennedy to decide whether he wishes to be on the right side of history by affirming Judge Walker’s ruling. Kennedy authored Lawrence v. Texas, which overturned Texas’ anti-sodomy law, and Romer v. Evans, which struck down Colorado’s anti-gay ballot initiative. But Kennedy joined with the four conservative justices in overruling Walker’s decision to broadcast the Prop 8 trial to some locations, although this may reflect Kennedy’s views about the effect of televising trials rather than the way he feels about same-sex marriage.

Well-aware that Kennedy may cast the critical vote, Walker cited Romer and Lawrence several times in his ruling. For example, Walker held that “moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women . . . is not a proper basis on which to legislate,” citing Romer.

Walker also wrote, “The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce ‘profound and deep convictions accepted as ethical and moral principles’ through the criminal code. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot.”

Both Schwarzenegger and Brown asked Walker to permit gay marriages to proceed in California even while the case proceeds through the appellate courts. In ruling on this request, the judge will consider whether his opinion is likely to be upheld on appeal as well as whether same-sex couples who seek to marry would suffer irreparable harm by a postponement.

Judge Walker’s ruling may or may not survive. Nevertheless, in overturning Proposition 8, he struck a mighty blow against homophobia and in favor of equality.

July 27, 2010

Puerto Rican Political Prisoner Carlos Alberto Torres Released Today After 30 Years

Today, Puerto Rican political prisoner Carlos Alberto Torres walked out of prison after 30 years behind bars. He was convicted of seditious conspiracy – conspiring to use force against the lawful authority of the United States over Puerto Rico. Torres was punished for being a member of an armed clandestine organization called the FALN, which had taken responsibility for bombings in the Chicago area that resulted in no deaths or injuries. He was not accused of taking part in these bombings, only of being a member of the FALN.

In 1898, Puerto Rico was ceded to the United States by Spain as war bounty in the treaty that ended the Spanish-American War. Nevertheless, the U.S. invaded Puerto Rico and has occupied it ever since. Puerto Ricans have always resisted foreign occupation of their land and called for independence.

Colonized peoples of other empires, particularly in Africa, also resisted colonial control, similarly risking prison and death. In the 1950’s and 60’s, some fought in their own national territory; others, like the Algerians, took their struggle to the metropolis. This wave of anti-colonial struggle led to the formation of a body of international law, which recognized colonialism as a crime against humanity, and which also recognized the right of a people to fight to end that crime, and in the process to use any means at their disposal, including armed struggle.

Torres, who was sentenced to 78 years, invoked international law in his defense, and argued that the courts of the colonizing country may not criminalize captured anti-colonial combatants, but must turn them over to an impartial international tribunal to have their status adjudicated.

The Puerto Rican independence movement enjoys wide support internationally, as evidenced by annual resolutions for 29 years of the United Nations Decolonization Committee, declarations of the Non-Aligned Movement, and recent submissions to the United Nations Human Rights Council Universal Periodic Review.

All of these expressions call on the U.S. government to release Puerto Rican political prisoners who have served 30 and 29 years of their disproportionately long 70 year sentences in U.S. prisons for cases related to the struggle for Puerto Rican independence. They include Torres (who was sentenced to 30 years) and Oscar López Rivera (sentenced to 29 years), as well as Avelino González Claudio, who was recently sentenced to seven years. None of these men was convicted for harming anyone or taking a life.

Torres’ attorney, National Lawyers Guild member Jan Susler of Chicago, notes, “Carlos is being released from prison due to the unflagging support of the Puerto Rican independence movement and others who work for human rights. The more than 10,000 letters of support from the U.S., Puerto Rico, Mexico and other countries sent a strong message to the Parole Commission.”

When President Clinton granted clemency to several of the other Puerto Rican political prisoners in 1999, he declared that “the prisoners were serving extremely lengthy sentences – in some cases 90 years – which were out of proportion to their crimes.” Clinton said he was moved by the support from “various members of Congress, a number of religious organizations, labor organizations, human rights groups, and Hispanic civil and community groups” along with “widespread support across the political spectrum within Puerto Rico,” as well as thousands of letters requesting their release. He also indicated that he was moved by “worldwide support on humanitarian grounds from numerous quarters,” pointing specifically to Jimmy Carter, Nobel Prize laureate South African Archbishop Desmond Tutu, and Coretta Scott King.

Supporters from all over the United States flocked to the welcoming celebration in Chicago, which took place in the heart of the Puerto Rican community. Tomorrow, Torres, his family and attorney will fly to Puerto Rico, where thousands will greet him with a concert of the nation’s finest musicians and artists.

Yet there is a damper on the celebration, as Torres leaves behind his compatriot Oscar López, a 67 year old decorated Viet Nam veteran. López did not accept the terms of President Clinton’s 1999 clemency offer, which would have required him to serve an additional 10 years in prison with good conduct. Though he declined the offer, López has now served the additional 10 years in prison with good conduct. Had he accepted the deal, he would have been released last September. Those who did accept are living successful lives, fully integrated into civil society. There is no reason to treat him differently.

While we celebrate this remarkable day in the life of Torres and the movement for Puerto Rican independence, let us commit ourselves to continue to struggle until Oscar López Rivera and Avelino González Claudio, as well as all political prisoners in U.S. prisons, also walk free.

July 26, 2010

John McCain on Iraq: ‘We Already Won That One’

On July 15, I attended a reception in Washington DC to celebrate the 15th anniversary of the normalization of relations between the United States and Vietnam. Geoff Millard and I spoke to Sen. John McCain. When Geoff introduced himself as chairman of the board of Iraq Veterans against the War, McCain retorted, “You’re too late. We already won that one.”

McCain is now the second U.S. official to declare “mission accomplished” in a war that continues to ravage the people and land of Iraq. “[I]t would be a huge mistake to see Iraq as either a success story or as stable,” Juan Cole, Professor of Modern Middle Eastern and South Asian History at the University of Michigan, wrote on Informed Comment. McCain’s declaration of victory in Iraq is as specious as the one George W. Bush made after he strutted across the flight deck of the Abraham Lincoln on May 1, 2003.

Gen. David Petraeus is often credited with reducing the violence in Iraq after the “surge” of 30,000 extra U.S. troops. But the violence continues unabated. Every few days there are reports of suicide bombings, car bombs, roadside bombs, and armed attacks in Iraq. About 300 civilians continue to die each month and more than two million Iraqis continue to live as refugees.

I wonder how McCain defines “victory” in Iraq. The U.S. mission there has never been clear since the invasion in 2003. First the search for weapons of mass destruction proved fruitless. Then it became evident there was no link between Al Qaeda and Saddam Hussein. Finally we were told the U.S. invaded Iraq to accomplish regime change and bring democracy to the Iraqi people. But if democracy is the goal, there has been no victory.

Neither Prime Minister Nuri al-Maliki nor Ayad Allawi won a mandate in Iraq’s March election, which created a power vacuum. ”The shortages of power, which remain a chronic problem seven years after the American invasion, have combined with a near paralysis of Iraq’s political system and violence to create a volatile mix of challenges before a planned reduction of United States forces this summer,” according to the New York Times. Ryan Crocker, former U.S. ambassador to Iraq, described the “elitist authoritarianism that basically ignores the people.”

Sunni Arab insurgents have taken advantage of the political vacuum to mount “effective bombing campaigns” and target the banks, says Cole. Last month, attackers in military uniforms tried to storm the Central Bank of Iraq in Baghdad, causing explosions and gun battles with soldiers and police. Fifteen people were killed and 50 were wounded.

Most Iraqis have less than six hours of electricity per day. Baghdad’s poorer neighborhoods have as little as one hour per day, leaving them without so much as an electric fan to withstand the blistering heat – 120 degrees in some places. The electricity shortages caused thousands of Iraqis to join street demonstrations in Baghdad last month.

The political situation in Iraq is worse than it was before the U.S. invaded. Although Saddam Hussein was a tyrant, he nevertheless raised the Iraqi standard of living to a respectable level. “Saddam [had] improved the school system in Iraq and literacy for women was phenomenal for that of an Arab country at the time,” William Quandt, a professor of Middle East politics at the University of Virginia who has served as an adviser to the American government on Mideast policy, said on the PBS News Hour. “People didn’t go hungry in those days in Iraq,” Quandt added.

“We knew Saddam was tough,” Mr. Said Aburish, author of a biography of Hussein called ‘Secrets of His Life and Leadership,’ noted on PBS Frontline. “But the balance was completely different then. He was also delivering. The Iraqi people were getting a great deal of things that they needed and wanted and he was popular.”

Al Qaeda did not operate in Iraq before Bush’s “Operation Iraqi Freedom.” Now Al Qaeda in Mesopotamia terrorizes Iraqis in areas like Amil in Mosul. “They say you have to slaughter soldiers and police,” Staff Col. Ismail Khalif Jasim told the New York Times.

There is a campaign of assassinations aimed at government officials across Iraq, the Times reported a few weeks ago: “Some 150 politicians, civil servants, tribal chiefs, police chiefs, Sunni clerks and members of the Awakening Council [former Sunni insurgents now aligned with the Iraqi government and U.S. military] have been assassinated throughout Iraq since the election.” Speculation about those responsible includes Shiite militia allies, Sunni extremist groups like Al Qaeda in Mesopotamia, Kurdish political parties, and Iran.

Reconstruction of what we have destroyed in Iraq remains elusive. After six years and $104 million spent on restoring a sewage treatment system in Falluja, U.S. officials are walking away without connecting a single house. American reconstruction officials have also walked away from partially completed police stations, schools and government buildings in the past months. “Even some of the projects that will be completed are being finished with such haste, Iraqi officials say, that engineering standards have deteriorated precipitously, putting workers in danger and leaving some of the work at risk of collapse,” the Times reported earlier this month.

President Obama is scheduled to reduce the number of U.S. soldiers in Iraq from 80,000 to 50,000 by the end of August. But that does not mean stability has been attained, nor does it mean the occupation will end. The U.S. is sending civilian “contractors” – perhaps more accurately called mercenaries – to replace them.

The number of State Department security contractors will more than double – from 2,700 to between 6,000 and 7,000 – according to a July 12 report of the bipartisan Commission on Wartime Contracting. The State Department has requested 24 Blackhawk helicopters, 50 Mine-Resistant Ambush-Protected vehicles, and other military equipment from the Pentagon. The gigantic U.S. embassy and five “Enduring Presence Posts” (U.S. bases) will remain in Iraq. The contractors are simply taking over the duties of the departing soldiers.

Transferring military functions to civilians is “one more step in the blurring of the lines between military activities and State Department or diplomatic activities,” said Richard Fontaine of the Center for a New American Security in Washington D.C.

The U.S. government has changed the language describing military activity in Iraq from combat operations to “stability operations,” but U.S. forces will continue to kill Iraqis. “In practical terms, nothing will change,” Maj. Gen. Stephen Lanza told the Times. “We are already doing stability operations.”

Bush’s war of choice in Iraq has caused 4,413 American deaths. Iraq Body Count estimates that between 97,110 and 105,956 Iraqi civilians have been killed. Untold numbers have been seriously wounded. By September, we will have spent nearly $750 billion on this war and occupation.

John McCain should examine the actual state of affairs in Iraq. If he does, he might stop declaring victory.

July 6, 2010

Losing in Afghanistan

Last week, the House of Representatives voted 215-210 for $33 billion to fund Barack Obama’s troop increase in Afghanistan. But there was considerable opposition to giving the President a blank check. One hundred sixty-two House members supported an amendment that would have tied the funding to a withdrawal timetable. One hundred members voted for another amendment that would have rejected the $33 billion for the 30,000 new troops already on their way to Afghanistan; that amendment would have required that the money be spent to redeploy our troops out of Afghanistan. Democrats voting for the second amendment included House Speaker Nancy Pelosi and nine Republicans. Both amendments failed to pass.

The new appropriation is in addition to the $130 billion Congress has already approved for Iraq and Afghanistan this year. And the 2010 Pentagon budget is $693 billion, more than all other discretionary spending programs combined.

Our economic crisis is directly tied to the cost of the war. We are in desperate need of money for education and health care. The $1 million per year it costs to maintain a single soldier in Afghanistan could pay for 20 green jobs.

Not only is the war bankrupting us, it has come at a tragic cost in lives. June was the deadliest month for U.S. troops in Afghanistan. In addition to the 1,149 American soldiers killed in Afghanistan, untold numbers of Afghan civilians have died from the war – untold because the Defense Department refuses to maintain statistics of anyone except U.S. personnel. After all, Donald Rumsfeld quipped in 2005, “death has a tendency to encourage a depressing view of war.”

There are other “depressing” aspects of this war as well. As Gen. Stanley McChrystal reported just days before he got the axe, there is a “resilient and growing insurgency” with high levels of violence and corruption within the Karzai government. McChrystal’s remarks were considered “off message” by the White House, which was also irked by the general’s criticisms of Obama officials in a Rolling Stone article. McChrystal believes that you can’t kill your way out of Afghanistan. “The Russians killed 1 million Afghans and that didn’t work.”

He and his successor, Gen. David Petraeus, likely disagree on the need to prevent civilian casualties (known as “Civ Cas”). McChrystal instituted some of the most stringent rules of engagement the U.S. military has had in a war zone: “Patrol only in areas that you are reasonably certain that you will not have to defend yourselves with lethal force.” Commanders cannot fire on buildings or other places if they have reason to believe civilians might be present unless their own forces are in imminent danger of being overrun. And they must end engagements and withdraw rather than risk harming noncombatants. McChrystal knows that for every innocent person you kill, you create new enemies; he calls it “insurgent math.” According to the Los Angeles Times, McChrystal “was credited with bringing about a substantial drop in the proportion of civilian casualties suffered at the hands of NATO’s International Security Assistance Force and its Afghan allies.”

While testifying in Congress before he was confirmed to take McChrystal’s place, Petraeus told senators that some U.S. soldiers had complained about the former’s rules of engagement aimed at preventing civilian casualties.

According to the Rolling Stone article, Obama capitulated to McChrystal’s insistence that more troops were needed in Afghanistan. In his December 1 speech at West Point, the article says, “the president laid out all the reasons why fighting the war in Afghanistan is a bad idea: It’s expensive; we’re in an economic crisis; a decade-long commitment would sap American power; Al Qaeda has shifted its base of operations to Pakistan. Then,” the article continued, “without ever using the words ‘victory’ or ‘win,’ Obama announced that he would send an additional 30,000 troops to Afghanistan, almost as many as McChrystal had requested.”

Both Obama and Petraeus no longer speak of “victory” over the Taliban; they both hold open the possibility of settlement with the Taliban. Indeed, Maj. Gen. Bill Mayville, chief of operations for McChrystal, told Rolling Stone, “It’s not going to look like a win, smell like a win or taste like a win.”

The majority of Americans now oppose the war in Afghanistan. Fareed Zakaria had some harsh words for the war on his CNN show, saying that “the whole enterprise in Afghanistan feels disproportionate, a very expensive solution to what is turning out to be a small but real problem.” Noting that CIA director Leon Panetta admitted that the number of Al Qaeda left in Afghanistan may be 50 to 100, Zakaria asked, “why are we fighting a major war” there? “Last month alone there were more than 100 NATO troops killed in Afghanistan,” he said. “That’s more than one allied death for each living Al Qaeda member in the country in just one month.” Citing estimates that the war will cost more than $100 billion in 2010 alone, Zakaria observed, “That’s a billion dollars for every member of Al Qaeda thought to be living in Afghanistan in one year.” He queried, “Why are we investing so much time, energy, and effort when Al Qaeda is so weak?” And Zakaria responded to the argument that we should continue fighting the Taliban because they are allied with Al Qaeda by saying, “this would be like fighting Italy in World War II after Hitler’s regime had collapsed and Berlin was in flames just because Italy had been allied with Germany.”

There is also division in the Republican ranks over the war. Republican National Committee chairman Michael Steele made some gutsy comments about the war in Afghanistan, saying it is not winnable and calling it a “war of Obama’s choosing.” (Even though George W. Bush first invaded Afghanistan, Obama made the escalation of U.S. involvement a centerpiece of his campaign.) Steele said that if Obama is “such a student of history, has he not understood that, you know, that’s the one thing you don’t do, is engage in a land war in Afghanistan? Everyone who has tried, over 1,000 years of history, has failed.” Interestingly, Republicans Lindsey Graham and John McCain slammed Steele and jumped to Obama’s defense. Rep. Ron Paul, however, agreed with Steele, saying, “Michael Steele has it right, and Republicans should stick by him.”

Obama will likely persist with his failed war. He appears to be stumbling along the same path that Lyndon Johnson followed. Johnson lost his vision for a “Great Society” when he became convinced that his legacy depended on winning the Vietnam War. It appears that Obama has similarly lost his way.

May 31, 2010

Israel Murders Human Rights Workers Delivering Humanitarian Aid

On Sunday, Israel murdered human rights workers who were attempting to deliver 10,000 tons of humanitarian aid to the people of Gaza, because Gaza has been virtually cut off from the outside world by Israel. At least 9 people were reportedly killed and dozens injured when Israeli troops boarded the six-ship Freedom Flotilla convoy in international waters and immediately fired live ammunition at the people on board the ships. The convoy was comprised of 700 people from 50 nationalities and included a Nobel laureate, members of parliament from Ireland, Germany, Sweden, Turkey and Malaysia, as well as Palestinian members of the Israeli Knesset and a Holocaust survivor.

Israel’s armed attack on these human rights workers constitutes a clear breach of international law. The human rights workers should be released immediately, medical treatment should be provided for the wounded, and all humanitarian aid materials should be immediately transferred to Gaza.

Human rights organizations and bar associations, including the International Association of Democratic Lawyers, the National Lawyers Guild, the American Association of Jurists, the International Jewish Anti-Zionist Network, MADRE, the European Association of Lawyers for Democracy, World Human Rights, the Palestinian Center for Human Rights, and the governments of Britain, France, Germany and Turkey have condemned the Israeli assault. The U.S. government, has not yet spoken out in opposition to the assault by Israel, the largest recipient of U.S. aid.

There should be an international investigation of crimes committed during and after Israel’s armed attack on the Freedom Flotilla and prosecution of all Israeli officials and soldiers responsible.

Israel must end its illegal blockade of Gaza, which constitutes unlawful aggression under General Assembly Resolution 3314 (1974). When the Security Council convenes, it should order Israel to cease its acts of aggression.

May 29, 2010

Rwandan Arrest of U.S. Lawyer Motivated by Politics

Professor Peter Erlinder, noted criminal defense lawyer and past president of the National Lawyers Guild, was arrested Friday morning in Rwanda for “genocide ideology.” Erlinder’s representation of high-profile defendants before the International Criminal Tribunal for Rwanda (ICTR) has incurred the wrath of government officials, who have charged him with “negation of the Tutsi genocide” for mounting defenses of his clients that conflict with the government party line about who was responsible for the 1994 genocide.

The Rwandan government recently blasted the U.S. government for criticizing Rwanda’s restrictions on the media and human rights organizations in advance of the upcoming August national elections. A Human Rights Watch researcher had been barred from the country and several independent newspapers had been shuttered. Opposition supporters had been attacked and jailed.

Erlinder had recently filed a lawsuit in Oklahoma against Rwandan president Paul Kagame, which likely angered the government in Rwanda. Erlinder had traveled to Kigali, Rwanda to represent his client, Victoire Ingabire Umuhoza, who is also charged with “denying genocide.” Ms. Umuhoza happens to be opposing President Kagame in the forthcoming August elections. Since he arrived in Kigali, the government-sponsored media there has been very critical of Erlinder.

The “Law Relating to the Punishment of the Crime of Genocide Ideology,” unique to Rwanda, defines genocide broadly and does not require that one have any link to a genocidal act. It punishes legitimate forms of expression protected by international treaties. Human Rights Watch, Amnesty International and the U.S. State Department have denounced the law as a means for political repression.

In an interview shortly before he traveled to Kigali, Erlinder stated that Ms. Umuhoza was not in Rwanda in 1994 and the charges against her are not supported by a verdict of the ICTR.

Regardless of the merits of the case, however, it is unsupportable that an attorney be arrested and jailed for vigorously representing his client. In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts. Adams later said his representation of those British soldiers was “one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”

Bar associations including the National Lawyers Guild (NLG) and the National Association of Criminal Defense Lawyers (NACDL) have condemned Erlinder’s arrest. “There can be no justice for anyone if the state can silence lawyers for defendants whom it dislikes and a government that seeks to prevent lawyers from being vigorous advocates for their clients cannot be trusted,” said NLG president David Gespass. “Government intimidation and interference with criminal defense lawyers is unacceptable in all its forms and it fundamentally undermines justice,” according to an NACDL press release.

Erlinder should be released immediately. He should be given immediate access to counsel and the charges against him should be dismissed.

May 14, 2010

Kagan’s Troubling Record

After President Obama nominated Elena Kagan for the Supreme Court, he made a statement that implied she would follow in the footsteps of Justice Thurgood Marshall, the civil rights giant and first black Supreme Court justice. Kagan served as a law clerk for Marshall shortly after she graduated from Harvard Law School. Specifically, Obama said that Marshall’s “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career.” Unfortunately, history does not support Obama’s optimism that Kagan is a disciple of Marshall.

Kagan demonstrated while working as his law clerk that she disagreed with Marshall’s jurisprudence. In 1988, the Supreme Court decided Kadrmas v. Dickinson Public Schools, a case about whether a school district could make a poor family pay for busing their child to the closest school, which was 16 miles away. The 5-justice majority held that the busing fee did not violate the Fourteenth Amendment’s Equal Protection Clause. They rejected the proposition that education is a fundamental right which would subject the statute on which the school district relied to ‘strict scrutiny.’ The Court also declined to review the statute with ‘heightened scrutiny’ even though it had different effects on the wealthy and the poor. Instead, the majority found a ‘rational basis’ for the statute, that is, allocating limited governmental resources.

Marshall asked clerk Kagan to craft the first draft of a strong dissent in that case. But Kagan had a difficult time complying with Marshall’s wishes and he returned several drafts to her for, in Kagan’s words, “failing to express in a properly pungent tone – his understanding of the case.” Ultimately, Marshall’s dissent said, “The intent of our Fourteenth Amendment was to abolish caste legislation.” He relied on Plyler v. Doe, in which the Court had upheld the right of the children of undocumented immigrants to receive free public education in the State of Texas. “As I have stated on prior occasions,” Marshall wrote, “proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake.” Kagan later complained that Marshall “allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences to guide him.”

Kagan evidently rejects these humanistic factors that guided Marshall’s decision making and would follow a more traditional approach. This is a matter of concern for progressives, who worry about how the Supreme Court will deal with issues like a woman’s right to choose, same sex marriage, “don’t ask, don’t tell,” and the right of corporations to donate money to political campaigns without restraint. While Kagan has remained silent on many controversial issues, she has announced her belief that the Constitution provides no right to same-sex marriage. If the issue of marriage equality comes before the Court, Justice Kagan would almost certainly rule that denying same sex couples the right to marry does not violate equal protection.

There are other indications that should give progressives pause as well. During her solicitor general confirmation hearing, Kagan said, “The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding…” But the Constitution is full of affirmative rights – the right to a jury trial, the right to counsel, the right to assemble and petition the government, etc. Does Kagan not understand that decisions made by the Supreme Court give life and meaning to these fundamental rights? Is she willing to interpret those provisions in a way that will preserve individual liberties?

While Kagan generally thinks the Constitution serves to limit governmental power, she nevertheless buys into the Republican theory that the Executive Branch should be enhanced. In one of her few law review articles, Kagan advocated expansive executive power consistent with a formulation from the Reagan administration. This is reminiscent of the ‘unitary executive’ theory that George W. Bush used to justify grabbing unbridled executive power in his ‘war on terror.’

As solicitor general, Kagan asserted in a brief that the ‘state secrets privilege’ is grounded in the Constitution. The Obama White House, like the Bush administration, is asserting this privilege to prevent people who the CIA sent to other countries to be tortured and people challenging Bush’s secret spying program from litigating their cases in court.

During her forthcoming confirmation hearing, senators should press Kagan to define her judicial philosophy. Several of the radical right-wingers on the Court define themselves as ‘originalists’, claiming to interpret the Constitution consistent with the intent of the founding fathers.

I would like to hear Kagan say that her judicial philosophy is that human rights are more sacred than property interests. I would hope she would declare that her judicial philosophy favors the right to self-determination – of other countries to control their destinies, of women to control their bodies, and of all people to choose whom they wish to marry.

Kagan is likely to be circumspect about her views. She will frequently decline to answer, protesting that issues may come before the Court. We should be wary about how Justice Kagan will rule when they do.

May 10, 2010

Kagan Will Move Supreme Court to the Right

President Barack Obama has chosen Elena Kagan to fill the vacancy left by Justice John Paul Stevens’ retirement. Sadly, Kagan cannot fill Justice Stevens’ mighty shoes.

As the Rehnquist court continued to eviscerate the right of the people to be free from unreasonable searches and seizures, Associate Justice John Paul Stevens filed principled and courageous dissents. For example, the majority held in the 1991 case of California v. Acevedo that although the police cannot search a closed container without a warrant, they can wait until a person puts the container into a car and then do a warrantless search because the container is now mobile. In a ringing dissent that exemplified his revulsion at executive overreaching, Justice Stevens wrote that “decisions like the one the Court makes today will support the conclusion that this Court has
become a loyal foot soldier in the Executive’s fight against crime.”

The founders wrote checks and balances into the Constitution so that no one branch would become too powerful. But during his “war on
terror,” President George W. Bush claimed nearly unbridled executive power to hold non-citizens indefinitely without an opportunity to challenge their detention and to deny them due process. Three times, a closely divided Supreme Court put on the brakes. Justice Stevens played a critical role in each of those decisions. He wrote the opinions in Rasul v. Bush and Hamdan v. Rumsfeld and his fingerprints were all over Boumediene v. Bush.

Unfortunately, President Barack Obama has continued to assert many of Bush’s executive policies in his “war on terror.” Elena Kagan, Obama’s choice to replace Justice Stevens, has never been a judge. But she has been a loyal foot soldier in Obama’s fight against terrorism and there is little reason to believe that she will not continue to do so. During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield. While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent.

Justice Stevens ruled in favor of broad enforcement of our civil rights laws. In his 2007 dissent in Parents Involved in Community Schools v. Seattle School District No. 1, he wrote that “children of all races benefit from integrated classrooms and playgrounds.” When Kagan was dean of Harvard Law School, she hired 32 tenured and
tenure-track academic faculty members. Only seven were women and only one was a minority. “What a twist of fate,” wrote four minority law professors on Salon.com, “if the first black president – of both the Harvard Law Review and the United States of America – seemed to be untroubled by a 21st Century Harvard faculty that hired largely white men.”

Obama had a golden opportunity to appoint a giant of a justice who could take on the extreme right-wingers on the Court who rule consistently against equality and for corporate power. When he cast a vote against the confirmation of John Roberts to be Chief Justice, Senator Obama said, “he has far more often used his formidable skills
on behalf of the strong and in opposition to the weak.” Justice Stevens has done just the opposite.

If he wanted to choose a non-judge, Obama could have picked Harold Hongju Koh or Erwin Chemerinsky, both brilliant and courageous legal scholars who champion human rights and civil rights over corporate and executive power. Unlike Kagan, whose 20 years as a law professor produced a paucity of legal scholarship, Koh and Chemerinsky both have a formidable body of work that is widely cited by judges and scholars.

But Obama took the cautious route and nominated Kagan, who, like Harriet Miers, has no record of judicial opinions and no formidable legal writings. Since Kagan was handily confirmed as solicitor general, Obama probably thinks her confirmation will go smoothly. After the health care debacle, however, he should know that the right-wingers will not be appeased by this milk toast appointment, but will oppose whomever he nominates.

The Warren Court issued several landmark decisions. It sought to remedy the inequality between the races and between rich and poor, and to curb unchecked executive power. Chief Justice Earl Warren wrote these words, which would later become his epitaph: “Where there is injustice, we should correct it. Where there is poverty, we should eliminate it. Where there is corruption, we should stamp it out. Where there is violence, we should punish it. Where there is neglect, we should provide care. Where there is war, we should restore peace. And wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

Conservatives decry activist judges – primarily those who act contrary to conservative politics. But the Constitution is a short document and it is up to judges to interpret it. Obama has defensively bought into the right-wing rhetoric, saying recently that during the 1960’s and 1970’s, “liberals were guilty” of the “error” of being activist judges. Rather than celebrating the historic achievements of the Warren Court – and of Justice Stevens – Obama is once again cowering in the face of conservative opposition.

Obama should have done the right thing, the courageous thing, and filled Justice Stevens’ seat with someone who can fill his shoes. His nomination of Elena Kagan will move the delicately balanced court to the Right. And that is not the right thing.