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August 29, 2003

The Thin Blue Line: How the US Occupation of Iraq Imperils International Law

The day after the truck bombing of the United Nations headquarters in Baghdad, U.N. Secretary General Kofi Annan remarked, “The blue flag has never been so viciously assaulted as it was yesterday.” Whether executed by remnants of Saddam Hussein’s Ba’ath Party, or foreign jihadis, or both working in concert, the attack was the result of a steady evisceration of the United Nations and international law by the United States.

“Preemptive War” Violates the U.N. Charter

One year after the September 11 terrorist attacks, George W. Bush invoked that tragedy to announce his new national security strategy of “preemptive war.” Citing Hussein’s weapons of mass destruction, and warning that Hussein would likely share them with al-Qaeda terrorists, Bush built his case for waging war on Iraq.

It was clear to the millions of people who marched in the streets before the war began, and it is now evident to most people, that there was no danger to “preempt” in Iraq. Severely weakened by the first Gulf War, 12 years of punishing sanctions, and intrusive weapons inspections, Hussein’s military forces mounted little resistance to the U.S.-U.K.’s “almost biblical force” against the Iraqi people.

Moreover, Bush’s preemption doctrine violates the Charter of the United Nations, which specifies that only the Security Council can sanction the use of force and it can only be used in self-defense. “Operation Iraqi Freedom” was not undertaken in self-defense and it was never authorized by the Security Council.

The Security Council Stands Up to Bush…Sort Of

In spite of the Bush administration’s threats and bribes in its attempts to secure the passage of a resolution putting the U.N.’s imprimatur on an armed invasion of Iraq, the Security Council held firm. Bush then cobbled together prior Council resolutions, none of which authorized force in Iraq, to justify his illegal war.

But the Security Council did not condemn the invasion. And the Council legitimized the U.S. and the U.K. as the occupying “Authority” of Iraq when it passed Resolution 1483.

The resolution also provided for the appointment of a U.N. Special Representative to coordinate, in conjunction with “the Authority,” humanitarian assistance and reconstruction activities in Iraq. In effect, the Special Representative would function in a secondary capacity; the occupying power maintained ultimate authority over the occupation and the awarding of the lucrative reconstruction contracts.

Kofi Annan appointed Sergio Vieira de Mello, the U.N. High Commissioner of Human Rights, as Special Representative. Mr. Vieira de Mello was one of the 23 people killed in the bombing of the Baghdad U.N. headquarters last week.

On Monday, the U.S. blocked the adoption of a Security Council resolution which would enhance the protection of U.N. and other humanitarian aid workers, because it called for the prosecution of war criminals in the International Criminal Court. The Council then adopted the resolution without reference to the ICC.

Bush removed the United States’ signature from the ICC’s statute last year out of fear that he and other officials could be prosecuted for war crimes, even though the ICC would only act if the national courts were unwilling to do so. The U.S. also pushed a resolution through the Security Council which provides immunity from jurisdiction to peacekeepers from countries which have not ratified the ICC’s statute.

The U.S. has extracted immunity agreements from 37 countries and cut off military assistance to 35 others who refuse to sign such accords. This defiance by the U.S. further undercuts the international rule of law.

Why Was the United Nations Targeted?

In the wake of the worst attack on the U.N. in its 58-year history, people are asking why the world’s premier peacekeeping organization was targeted. There is understandable resentment against the United States for the devastating bombings and military attacks against the people of Iraq. The occupiers have been unable to deliver safe streets, clean water, electricity and jobs, and they have conducted heavy-handed searches during the occupation.

The U.N. is in Baghdad, in the words of Mr. Vieira de Mello, “to assist the Iraqi people and those responsible for the administration of this land to achieve freedom, the possibility of managing their own destiny and determining their own future.”

Sergio Vieira de Mello sympathized with the Iraqi people. “It must be one of the most humiliating periods in their history,” he observed. “Who would like to see their country occupied?”

But, to many in the Arab world, the United States and the United Nations are indistinguishable. They see the U.N. as a tool of the U.S.

Mohammed Hindawi, an engineer in Cairo, said, “The U.N. did nothing for the Iraqis during the war. They arrived in Baghdad when the coast was clear. People expected the U.N.’s support, and they didn’t get it. It’s payback time.”

Mohsen Farouk, a carpenter in Cairo, noted, “It was just a matter of time. The U.N. is just a puppet of the U.S., and anyone who is angry with the U.S. is likely to consider the U.N. a target.”

The people responsible for the attack on the U.N. are also likely mindful of the devastation wreaked upon Iraqis by 12 years of sanctions.

Following the first Gulf War, the United States manipulated the Security Council into imposing a harsh regime of economic sanctions, which have led to the deaths of an estimated one million Iraqis.

Give U.N. Authority in Iraq

The Bush administration is lobbying for a new Security Council resolution which would urge other countries to send troops to help stabilize Iraq. The U.S., however, would maintain military control over all forces. Such a resolution would, in the words of The New York Times, provide “United Nations cover to the American operation.”

“Operation Iraqi Freedom” has opened a Pandora’s Box of terrorism in Iraq. The only hope for restoring peace and security is for the United States to step aside and allow the United Nations to take over the reconstruction. If the U.S. continues to insist on unilateral authority in Iraq, it will be sucked deeper into a quagmire from which there is no exit. And it will further weaken the U.N. and international law.

August 20, 2003

Sergio Vieira De Mello: Victim of Terror, Or U.S. Foreign Policy?

But for George W. Bush’s illegal and misguided war on Iraq, Sergio Vieira de Mello, the United Nations High Commissioner for Human Rights, would be alive today. Mr. de Mello devoted most of his life to the U.N.’s mission to protect human rights and achieve international peace and security. He served in some of the toughest trouble spots in the world, including Lebanon, East Timor, Yugoslavia, Peru, Bangladesh, Cyprus, Sudan, Cambodia and Mozambique.

Sergio Vieira de Mello went to Iraq at the request of U.N. Secretary General Kofi Annan for a four-month humanitarian commitment. One month short of his return to Geneva, Mr. de Mello was buried alive in rubble from a suicide truck bomber who targeted the United Nations in Baghdad.

Ignoring the pleas of millions of people around the world and most of the United Nations members, Bush had persisted in his march to war. Contrary to Bush’s assertions, Saddam Hussein never posed an imminent threat to the United States. Until Bush unleashed “almost biblical” firepower on Iraq, al Qaeda was not operating there. Yet since the U.S./U.K. became the occupying power, Iraq has become fertile ground for outside jihadis.

Many Saudi Arabian Islamists have crossed the border into Iraq to prepare for a holy war against the U.S./U.K. forces, according to The Financial Times. The Arab satellite television channel al-Arabiya broadcast a statement purportedly from al Qaeda, which urged Muslims around the world to travel to Iraq to fight the U.S. occupation, and claimed that recent attacks on U.S. forces had been carried out by jihadis.

The blast that killed Mr. de Mello and 19 others, and wounded more than 100 in the U.N. compound in Baghdad Tuesday, was likely the handiwork of the same forces that bombed the Jordanian embassy in Baghdad 12 days before, killing 11 people. Osama bin Laden has long decried the United States’ role in the first Gulf War, the punishing sanctions against the people of Iraq, and the United Nations for “supporting the oppressive, tyrannical and arrogant America [in Afghanistan] against those oppressed who have emerged from a ferocious war at the hands of the Soviet Union.”

In the twisted minds of the terrorists who likely executed the worst attack on a U.N. civilian operation in its 58-year history, the United States and the United Nations are linked. Yet Bush’s new doctrine of “preemptive war” is a clear violation of the U.N. Charter. And in spite of intense pressure by Bush, including threats and bribes, the members of the Security Council refused to hand him a resolution sanctioning his war on Iraq. Bush accused the United Nations of becoming “irrelevant.”

When he was sent to Baghdad, it was Sergio de Mello’s dream “to assist the Iraqi people and those responsible for the administration of this land to achieve … freedom, the possibility of managing their own destiny and determining their own future.” He empathized with the Iraqi people who resented the foreign occupiers. “It is traumatic,” he said. “It must be one of the most humiliating periods in their history. Who would like to see their country occupied?” He wanted “to make sure that the interests of the Iraqi people come first” as they rebuild their country.

Sergio de Mello’s death is an unspeakable tragedy for the cause of world peace. “I can think of no one we could less afford to spare,” observed Kofi Annan. And Salim Lone, Mr. de Mello’s spokesman in Baghdad, said, “He was a wonderful guy. He was the U.N. in a way.” Mr. Lone added, “I grieve most of all for the people of Iraq because he was really the man who could have helped bring about an end to the occupation. An end to the trauma the people of Iraq have suffered for so long.”

We must emerge from this tragedy by redoubling our support for the United Nations. As Iraqis, Americans, and many from other countries continue to die in Iraq, Bush must relinquish control of Iraq to the United Nations. It is the arrogance of occupation that creates roiling hatred against the occupier. Mr. de Mello was confident that Iraqis distinguished between the U.N. and the foreign occupiers. The end of the occupation would empower the people of Iraq to take control of their own destiny. Then Sergio Vieira de Mello will not have died in vain.

July 30, 2003

Why Iraq and Afghanistan? Cheney Tells All: It’s About the Oil

Now that the rationale provided by Bush & Co. for attacking Iraq is unraveling, it’s time to ask what the true motivation was for the rush to war. Many dismissed the signs of antiwar protestors, which read “No blood for oil.” But if we connect the oily fingerprints, beginning with Vice President Dick Cheney’s, it appears those protestors were right.

Cheney’s energy task force, in a May 2001 report, called on the White House to make “energy security a priority of our trade and foreign policy” and encourage Persian Gulf countries to welcome foreign investment in their energy sectors. In August 2002, Cheney warned a meeting of veterans that Saddam Hussein could seek to dominate the Middle East’s vast energy supplies, and said “there is no doubt that Saddam Hussein now has weapons of mass destruction.”

Before the invasion of Iraq, Secretary of Defense Donald Rumsfeld sought to decouple oil access from regime change in Iraq, which, he said, had “nothing to do with oil, literally nothing to do with oil.” Rumsfeld, Bush, Secretary of State Colin Powell, and National Security Advisor Condoleezza Rice all invoked Hussein’s weapons of mass destruction and his ties to Al Qaeda, neither of which has materialized to date, as imminent threats to the security of the United States. Three days before the attack on Iraq, Cheney said, “we believe he [Hussein] has, in fact, reconstituted nuclear weapons.” That claim, and Bush’s Niger uranium statement in his State of the Union address, were bogus.

When U.S.-U.K. forces took control of Iraq, their first order of business was to secure the oil fields, instead of the hospitals and antiquities museums. Meanwhile, Kellogg Brown & Root was awarded a controversial $7 billion no-bid contract to rebuild Iraq’s oil fields. KBR is a subsidiary of Halliburton, the world’s largest oil services company, formerly headed by Cheney before he was tapped for vice president. In a 1998 speech to the “Collateral Damage Conference” of the Cato Institute, Cheney said, “the good Lord didn’t see fit to put oil and gas only where there are democratically elected regimes friendly to the United States. Occasionally we have to operate in places where, all things considered, one would not normally choose to go. But, we go where the business is.”

The business is in Iraq. Since April 2001, the public interest group Judicial Watch has sought public access to the proceedings of Cheney’s energy task force meetings, under the Freedom of Information Act. Yet Cheney has fought tenaciously to keep them secret. On July 17, however, Judicial Watch secured some of the documents from the task force, which contain the smoking gun: “a map of Iraqi oilfields, pipelines, refineries and terminals, as well as 2 charts detailing Iraqi oil and gas projects” and “Foreign Suitors for Iraqi Oilfield Contracts.” The documents are dated March 2001, two years before Bush invaded Iraq.

The Bush administration’s October 2001 bombing of Afghanistan, although justified as a response to the September 11 attacks, was also part of U.S. oil strategy. Afghanistan never attacked the U.S. Yet, the U.S. and U.K. ousted the Taliban and secured Afghanistan for the construction of an oil pipeline from Turkmenistan, south through Afghanistan, to the Arabian Sea. Bush had been uncritical of the Taliban’s human rights record when Unocal oil company was negotiating for the pipeline rights before September 11. After assuming control of Afghanistan, Bush conveniently installed Hamid Karzai, a former Unocal official, as interim president of Afghanistan. “Operation Enduring Freedom” will allow oil corporations freedom to exploit Afghanistan for profit, while the Afghans continue to live in squalor.

Likewise, “Operation Iraqi Freedom” has enabled U.S. corporations to exploit Iraq’s oil, while thousands of Iraqis continue to die, lose their jobs, and live without electricity. American soldiers are still dying while U.S. taxpayers foot the $3.9 billion monthly bill. Oil has proven to be the most terrible weapon of mass destruction.

July 29, 2003

Assassination and Display in Iraq: The Killings of Uday and Qusai Hussein in International Law

Last week the US military assassinated Uday and Qusai Hussein in a villa in Mosul, Iraq. Hundreds of troops armed with automatic weapons, rockets, rocket-propelled grenades, and tow missiles, and dozens of vehicles and aircraft, attacked four people armed with AK-47 automatic rifles. Mustapha, the 14-year old son of Qusai, was also killed in the operation, along with another individual who was apparently a bodyguard.

The subsequent firestorm of media coverage momentarily diverted public attention from the Bush administation’s failing Iraq war – its vain attempts to find any weapons of mass destruction or link between Saddam Hussein and Al Qaeda, the White House’s admission that the President used false information in his State of the Union address, and the continuing deaths of American soldiers in an occupation with no end in sight.

The assassinations prompted chest-thumping and back-slapping all around. Even Senator Ted Kennedy joined British Prime Minister Tony Blair, The New York Times and the Washington Post, in congratulating Bush on the good news. Then, after reportedly reflecting on the pros and cons, Secretary of Defense Donald Rumsfeld gave the go-ahead to display the grisly photographs of the Hussein brothers’ reconstructed bullet-riddled faces. The Pentagon didn’t want to appear to be “gloating,” but Rumsfeld thought the photos would convince skeptical Iraqis that Uday and Qusai were indeed dead, which would reduce the attacks on U.S. troops and encourage informants to come forward without fear of retaliation by the old regime.

Both the targeted assassinations and the photographic display violated well-established principles of international law. Targeted, or political, assassinations are extrajudicial executions. They are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. Extrajudicial executions are unlawful, even in armed conflict. In a 1998 report, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted that “extrajudicial executions can never be justified under any circumstances, not even in time of war.”

The International Covenant on Civil and Political Rights, a treaty ratified by the United States, prohibits the arbitrary denial of the right to life, a right so fundamental, there can be no derogation from it even in “time of public emergency which threatens the life of the nation.” The U.N. General Assembly and Human Rights Commission, as well as Amnesty International, have all condemned extrajudicial executions.

After the Senate Select Committee on Intelligence disclosed in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although every succeeding president has renewed that order, the Clinton administration targeted Osama bin Laden in Afghanistan, but narrowly missed him.

In July 2001, the U.S. Ambassador to Israel denounced Israel’s policy of targeted killings, or “preemptive operations.” He said “the United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.”

Yet after September 11, former White House press secretary Ari Fleischer invited the killing of Saddam Hussein: “The cost of one bullet, if the Iraqi people take it on themselves, is substantially less” than the cost of war. Shortly thereafter, George W. Bush issued a secret directive, which authorized the CIA to target suspected terrorists for assassination when it would be impractical to capture them and when large-scale civilian casualties could be avoided. In November 2002, Bush reportedly authorized the CIA to assassinate a suspected Al Qaeda leader in Yemen. He and five traveling companions were killed in the hit, which Deputy Defense Secretary Paul Wolfowitz described as a “very successful tactical operation.”

Nearly sixty years ago, the U.S. government opposed the extrajudicial executions of Nazi officials who had committed genocide against millions of people. U.S. Supreme Court Justice Robert H. Jackson, who served as chief prosecutor at the Nuremberg War Crimes Tribunal, told President Harry Truman: “We could execute or otherwise punish [the Nazi leaders] without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would … not set easily on the American conscience or be remembered by children with pride.”

Americans should not feel pride in the public display of the gruesome photos of the assassinated Hussein brothers. The First Geneva Convention requires combatants to ensure that the dead are not despoiled. Reconstruction of their faces violates this treaty, which also provides that the dead be honorably interred; Islamic law requires immediate burial. When Iraqis displayed images of captured U.S. troops, Bush demanded that the POWs be treated humanely, and he warned that anyone who mistreated them would be tried for war crimes. But Bush didn’t complain when American media outlets featured Iraqi prisoners down on their knees, blindfolded and handcuffed. What’s good for the goose is good for the gander.

Uday and Qusai Hussein should have been arrested and tried in Iraqi courts or an international tribunal for their alleged crimes. George W. Bush cannot serve as judge, jury and executioner. This assassination creates a dangerous precedent, which could be used to justify the targeted killings of U.S. leaders. The display of the photographs may backfire and turn the brothers into martyrs who stood against the foreign invaders. It could also result in even more violence against U.S. troops.

July 17, 2003

Bush, Lies, and Impeachment: The Boy Who Cried Wolf

Revelations that the Bush administration sold us a bill of goods about Iraq’s weapons program are growing faster than the imaginary mushroom cloud George W. Bush used to whip up support for his invasion of Iraq. Weapons of mass destruction provided the excuse to distract Americans from the real reasons Bush and his men were itching to get into Iraq.

Two days before he invaded Iraq, Bush declared there was “no doubt” the Iraqi regime possessed and concealed “some of the most lethal weapons ever devised.” That claim has proved specious. If he had those horrible weapons, Hussein surely would have used them in self-defense, which he did not. Systematic searches by hundreds of weapons inspectors have failed to turn up any weapons of mass destruction in Iraq. Indeed, Deputy Defense Secretary Paul Wolfowitz, in Vanity Fair, described the weapons of mass destruction rationale as a “bureaucratic” excuse for war, upon which everyone could agree.

Before the war began, Democrats on the Senate Intelligence Committee asked the C.I.A. to make intelligence available to Congress; but only findings supportive of the Bush administration’s position on Iraq were declassified, according to Senator Bob Graham (D-Fla.). The Defense Intelligence Agency’s classified assessment of Iraq’s chemical weapons program concluded “there is no reliable information on whether Iraq is producing and stockpiling chemical weapons, or whether Iraq has–or will–establish its chemical warfare agent production facilities.” Nevertheless, Defense Secretary Donald Rumsfeld unequivocally told the House Armed Services Committee shortly thereafter, “We do know that the Iraqi regime has chemical and biological weapons.”

Another reason we were given for going to war with Iraq was that Hussein would share weapons with Al Qaeda. The Iraq-Al Qaeda link has also been thoroughly discredited. A United Nations panel found no such connection. The F.B.I. determined that Mohammed Atta, the lead September 11 hijacker, was in the United States when he was reputed to have met with an Iraqi official in Prague. And the senior Al Qaeda leader whom Secretary of State Colin Powell accused of operating out of Baghdad turned out to be in Kurdish, not Hussein-controlled, territory.

Now the lies are being revealed and Bush is busy shifting the blame and trying to change the subject. When confronted with the false uranium report in his State of the Union address, Bush blamed the C.I.A. and repeated his mantra that the world is a safer place without Saddam.

The problem is, Saddam posed no imminent threat to the United States prior to the war. He was weakened by Gulf War I, years of punishing sanctions, nearly daily bombings in the no-fly zones, and intrusive inspections. American soldiers are still dying in what Senator Ted Kennedy characterized as a “shooting gallery,” with no end in sight. General Tommy Franks predicted that our troops would be in Iraq for years, to the tune of $3.9 billion a month of taxpayers’ money.

So why did we go into Iraq?

Was it the oil and the desire to clinch U.S. control of the Middle East?

Did Bush think he would be vindicated by weapons found after he took control of Iraq?

His new doctrine of “preemptive war” is really a faith-based foreign policy. Bush’s breach of our trust will make it impossible to believe the boy-who-cried-wolf when he claims another country is threatening our national security.

Americans are demanding answers to many questions about why our soldiers were, and continue to be, placed in harm’s way. Why are the Republicans resisting a full and public investigation into “intelligence” about Iraq? Why did C.I.A. Director George Tenet take the fall for Bush’s misstatement about the African uranium? If Tenet is responsible for such a colossal failure, why does Bush express “absolute” confidence in him? Why wasn’t Tenet fired forthwith?

What else has Bush lied about?

An independent commission headed by a special prosecutor should be convened immediately to get to the bottom of this. Bill Clinton was impeached for lying about sex. If it is determined that Bush misled American soldiers into war, the House of Representatives should initiate impeachment proceedings against him. There is no higher crime or misdemeanor.

July 10, 2003

Affirmative Action Counteracts Centuries of Racism

Since the U.S. Supreme Court’s recent momentous affirmative action decisions, the talking heads have railed against “reverse discrimination,” a term that entered our vernacular 25 years ago with the Regents of the University of California v. Bakke opinion.

But focusing on equal rights for whites misses the point. Justice Ruth Bader Ginsburg, in her separate opinions in the Michigan cases, hits the nail on the head. In her dissent in Gratz v. Bolinger, where the court struck down the University of Michigan’s undergraduate admissions program, she decries the majority’s view that judicial inspection of all official race classifications should be judged by the same standard of review. This would be appropriate, she writes, if our country were “free of the vestiges of rank discrimination long reinforced by law.”

Ginsburg documents the large disparities between whites and minorities in earning power, unemployment rates, poverty levels and access to health care and quality education. She also discusses institutional racism. Ginsburg then says that the issue presented in Bakke — where a white man claimed discrimination because blacks were admitted before him — is categorically distinct from the issue presented in Brown v. Board of Education — where the Supreme Court said that black kids have the right to go to the very same schools as white kids.

Ginsburg reinforces this distinction with reference to international treaties, saying “Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality,” citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination Against Women.

The United Nations Human Rights Committee, which administers the International Covenant on Civil and Political Rights, has determined that affirmative action may involve preferential treatment, and as long as it is needed to correct discrimination in fact, “it is a case of legitimate differentiation.”

Illegitimate differentiations have been maintained for years. The children of alumni — who are primarily white — have always been granted preference in admission at the elite universities (e.g., George W. Bush). This system has served to discriminate against the children of non-alumni, or non-whites.

Justice Clarence Thomas, dissenting in the law school decision, Grutter v. Bolinger, where the court held that race can be used as a factor to achieve diversity in higher education, says “blacks can achieve in every avenue of American life without the meddling of university administrators.” He focuses on the stigma attached to blacks who take positions in “the highest places of government, industry or academia,” saying “it is an open question today whether their skin color played a part in their advancement.”

Thomas apparently wonders whether he himself benefited from affirmative action when he was admitted to Yale Law School and appointed to the Supreme Court. In any event, he disingenuously seeks to slam the door behind him, and deprive future generations of black students the opportunities that were available to him.

Thomas misses the point. As Justice Sandra Day O’Connor writes for the majority in Grutter, “By virtue of our Nation’s struggle with racial inequality, such [minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”

In my own criminal procedure classes, the perspectives of African-American students about racial profiling which enrich the classroom discussion could not be duplicated by their white counterparts. Indeed, according to O’Connor, “Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

Affirmative Action Counteracts Centuries of Racism

Since the U.S. Supreme Court’s recent momentous affirmative action decisions, the talking heads have railed against “reverse discrimination,” a term that entered our vernacular 25 years ago with the Regents of the University of California v. Bakke opinion.

But focusing on equal rights for whites misses the point. Justice Ruth Bader Ginsburg, in her separate opinions in the Michigan cases, hits the nail on the head. In her dissent in Gratz v. Bolinger, where the court struck down the University of Michigan’s undergraduate admissions program, she decries the majority’s view that judicial inspection of all official race classifications should be judged by the same standard of review. This would be appropriate, she writes, if our country were “free of the vestiges of rank discrimination long reinforced by law.”

Ginsburg documents the large disparities between whites and minorities in earning power, unemployment rates, poverty levels and access to health care and quality education. She also discusses institutional racism. Ginsburg then says that the issue presented in Bakke — where a white man claimed discrimination because blacks were admitted before him — is categorically distinct from the issue presented in Brown v. Board of Education — where the Supreme Court said that black kids have the right to go to the very same schools as white kids.

Ginsburg reinforces this distinction with reference to international treaties, saying “Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality,” citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination Against Women.

The United Nations Human Rights Committee, which administers the International Covenant on Civil and Political Rights, has determined that affirmative action may involve preferential treatment, and as long as it is needed to correct discrimination in fact, “it is a case of legitimate differentiation.”

Illegitimate differentiations have been maintained for years. The children of alumni — who are primarily white — have always been granted preference in admission at the elite universities (e.g., George W. Bush). This system has served to discriminate against the children of non-alumni, or non-whites.

Justice Clarence Thomas, dissenting in the law school decision, Grutter v. Bolinger, where the court held that race can be used as a factor to achieve diversity in higher education, says “blacks can achieve in every avenue of American life without the meddling of university administrators.” He focuses on the stigma attached to blacks who take positions in “the highest places of government, industry or academia,” saying “it is an open question today whether their skin color played a part in their advancement.”

Thomas apparently wonders whether he himself benefited from affirmative action when he was admitted to Yale Law School and appointed to the Supreme Court. In any event, he disingenuously seeks to slam the door behind him, and deprive future generations of black students the opportunities that were available to him.

Thomas misses the point. As Justice Sandra Day O’Connor writes for the majority in Grutter, “By virtue of our Nation’s struggle with racial inequality, such [minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”

In my own criminal procedure classes, the perspectives of African-American students about racial profiling which enrich the classroom discussion could not be duplicated by their white counterparts. Indeed, according to O’Connor, “Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”

June 17, 2003

Terrorism or National Liberation Struggle?

The word “terrorism” is bandied about by the Bush administration as it suits its political agenda. It is important to try to define and distinguish between different forms of terrorism, and to distinguish that from national liberation struggles.
M. Kalliopi K. Koufa, the U.N. special rapporteur for the U.N. Commission on Human Rights, has differentiated between five different types of terrorism: individual or group terrorism, international state terrorism, state regime or government terror, state sponsored or state supported terrorism, and national liberation struggles for self-determination. I will apply those definitions to the September 11th attacks, the U.S.-U.K. bombing of Afghanistan and Iraq, Israel’s occupation and massacre of the Palestinians, U.S. support for Israel’s military operation and Palestine’s response to the illegal occupation.

Individual Terrorism

The September 11 attacks are examples of sub-state terrorism. Individual acts of violence and intimidation, including assassinations, bombings, sabotage and robberies, have historically been perpetrated by individuals and groups to terrorize the state and the public in order to revolutionize the masses and create social and political change. Individual terrorism has been waged by religious as well as national and political groups. The planning of the September 11 attacks has been largely attributed to Osama Bin Laden and Al Qaeda. In 1996, Bin Laden declared a jihad to drive the U.S. military forces out of the Arabian Peninsula, overthrow the Saudi government and liberate Mecca and Medina. Four years later he issued a fatwa stating it is the duty of all Muslims to kill U.S. citizens and their allies. After September 11, he said, “America and its allies are massacring us in Palestine, Chechneya, Kashmir and Iraq. The Muslims have a right to attack America in reprisal….The September 11 attacks…targeted America’s icons of military and economic power.”

Bin Laden’s other flash points were the deaths of one million innocent Iraqis as the result of sanctions and U.S. complicity in Israel’s treatment of the Palestinians. He holds the American people responsible for electing a government that manufactures arms and gives them to Israel.

The Convention of the Organisation of the Islamic Conference on Combating International Terrorism defines terrorism as follows:
Any act of violence, or threat thereof notwithstanding its motives or intentions perpetrated to carry out an individual or collective criminal plan with the aim of terrorizing people or threatening to harm them or imperiling their lives, honour, freedoms, security or rights or exposing the environment or any facility or public or private property to hazards or occupying or seizing them, or endangering a national resource, or international facilities, or threatening the stability, territorial integrity, political unity or sovereignty of independent states.

The Convention defines a “terrorist” crime as “any crime executed, started or participated in to realize a terrorist objective in any of the contracting states or against its nationals, assets or interests or foreign facilities and nationals residing in its territory punishable by its internal law.” Under the Convention, the September 11 attacks constituted individual or group acts of terrorism because they were acts of violence to carry out an individual or collective plan to terrorize and imperil the lives of people in the World Trade Center and the Pentagon.

International State Terrorism
International state terrorism is the use of force as coercive diplomacy, the unlawful use of force in violation of the U.N. Charter. A number of states have endorsed the following definition of this form of state terrorism:
. . terror inflicted on a large scale and with the most modern means on whole populations for purposes of domination or interference in their internal affairs, armed attacks perpetrated under the pretext of reprisals for preventative action by states against the sovereignty and integrity of third states, and the infiltration of terrorist groups or agents into the territory of other states.

The bombing of Afghanistan by the U.S. and the U.K., undertaken in violation of the U.N. Charter, inflicted large scale terror on the whole population. The military strikes against Afghanistan were armed attacks perpetrated under the pretext of reprisals for the September 11 attacks and the prevention of further terrorist attacks on the U.S.9 They constituted international state terrorism and violated international law.

The sanctions against Iraq, the on-going bombing of Iraq in the “no-fly zones,” and the U.S-U.K.’s war on Iraq-none of which has been sanctioned by the Security Council-are other examples of international state terrorism. The U.S. and U.K. are not responding to an imminent threat of danger from Iraq. Regime change violates the sovereignty of Iraq as guaranteed by the U.N. Charter.

State Terrorism by a Regime or Government

Traditionally, “regime” or “government” terror is conducted by organs of the state against its own population or the population of an occupied territory for the purpose of preserving a regime or suppressing challenges to its authority. It is frequently characterized by kidnapping and assassination of political opponents of the government, by the police, secret service, army or security forces; imprisonment without trial; persecution and torture; massacres of racial or religious minorities or certain social classes; internment in concentration camps; and government by fear. Regime or governmental state terrorism is legitimized by the law the state has itself established.

Israel’s 36-year occupation of the Palestinian territories, its subjugation of the Palestinian people, in a system of apartheid, and its recent brutal massacre of hundreds of Palestinians, particularly in Jenin and Nablus, constitutes regime or governmental state terrorism. The Israeli government justifies its policies as lawful self-defense against Palestinian terrorists, e.g. “suicide bombers.”

State-Sponsored/Supported Terrorism

State-sponsored or state-supported terrorism includes overt or covert assistance or support by a state to terrorist agents in order to subvert or destabilize another state or its government.12 According to Koufa, “State sponsored terrorism occurs when a government plans, aids, directs and controls terrorist operations in another country. It is sometimes called ‘surrogate warfare.’”

Congress votes annual appropriations of military aid to Israel, which was $2.76 billion dollars this year.14 The U.S. financial and military aid to Israel, with the knowledge of Israel’s brutal occupation of Palestinian lands and massacres of Palestinian civilians, constitutes state-supported terrorism. Further, the U.S. exercise of its veto in the Security Council to prevent condemnation of Israel’s actions enables Israel to continue its occupation and terror against the Palestinians. The paramilitary forces tolerated by the U.S.-supported Uribe government in Colombia also characterize this form of terrorism.
Terrorism vs. National Liberation Struggles

In her report, the U.N. rapporteur Koufa distinguished between “terrorism” and “wars of national liberation in the context of the right of self-determination,”15 which are memorialized in the 1999 Convention of the Organization of the Islamic Conference on Combating International Terrorism. That convention says:
Peoples’ struggles, including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-determination in accordance with the principles of international law shall not be considered a terrorist crime.

Likewise, the 1998 Arab Convention on the Suppression of Terrorism excepts struggles against foreign occupation and aggression for liberation and self-determination from the definition of terrorist crime.

Two Islamic resistance movements, Hizbollah in Lebanon, and Hamas in Palestine, were born in the 1980s in reaction to Israel’s invasion, occupation and oppression of the Palestinians. They combine political action and militant jihad with humanitarian, social and educational programs.18 Hizbollah is a political party with seats in Parliament, and it continues to function in mainstream Lebanese society.19 Through suicide bombings, roadside booby traps and other violence, Hizbollah forced Israel to withdraw from the southern strip of southern Lebanon in May 2000.20 In response to Israel’s 2002 invasion of the occupied territories, Hizbollah fired rockets from Southern Lebanon into Israel.

Before 1994, Hamas restricted its guerrilla actions to political and military targets in the occupied territories. But after Baruch Goldstein, a Jewish settler, shot and killed 29 Muslim worshippers in the Mosque of the Patriarch in Hebron, Hamas took revenge with a new weapon-the suicide bomber. Israel has responded by massacring Palestinian civilians.

In September 2000, the Palestinians began a campaign of resistance (intifada), sparked by Israel’s increasing aggression in the occupied territories. The armed resistance of Palestinians to the 36-year Israeli occupation is not terrorism. It is an armed struggle for self-determination against foreign occupation, aggression and colonialism. Suicide bombers who target civilians, however, are engaging in terrorism.

Conclusion

The international community has long sought to eliminate international terrorism. It recently adopted U.N. General Assembly resolution 55/158, which reaffirmed international cooperation and stated that actions by states to combat terrorism should be conducted in conformity with principles of the charter. The U.S. must immediately ratify: the International Criminal Court statute, the International Convention for the Suppression of Terrorist Bombings, the International Convention for the Suppression of Financing Terrorism, the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and Their Destruction, and the Comprehensive Nuclear Test Ban Treaty. The United States government must stop claiming unilateral jurisdiction over individuals, organizations and nations it defines as “terrorist” or “aiding terrorists.” Instead it must work through the international legal community.

June 11, 2003

Dropping the Ball on Torture: The US Supreme Court Ruling in Chavez vs. Martinez

The use of torture to obtain information from suspects has become an important topic in fighting the war on terror. In December, for example, the Washington Post reported that CIA officials at Bagram air base in Afghanistan used interrogation techniques that could constitute torture.

In Chavez v. Martinez, decided May 27, the United States Supreme Court was presented with a golden opportunity to address the issue of torture in the context of a 42 U.S.C. §1983 claim against police. Acting like a deer staring into the headlights of an oncoming truck, the high court failed to take decisive action. The facts of this case were egregious.

Oliverio Martinez was riding his bicycle to his girlfriend’s house when two Oxnard police officers ordered him to dismount, spread his legs, and place his hands behind his head. A frisk of Martinez yielded a knife and an altercation ensued. Martinez was shot five times, leaving him paralyzed and blind.

On the way to the hospital and in the emergency room, Officer Ben Chavez repeatedly interrogated Martinez. In response to Chavez’ questions about what had occurred during the altercation with the officers, Martinez said several times, “I am dying” and “I am choking.” At one point, Martinez told Chavez, “I want them to treat me,” and he later asked Chavez, “Aren’t you going to treat me or what?”

The District Court found that Martinez “had been shot in the face, both eyes were injured; he was screaming in pain, and coming in and out of consciousness while being repeatedly questioned about the details of the encounter with the police.” Martinez admitted taking the officer’s gun and pointing it at the police; he also admitted that he regularly used heroin. At no time did Chavez Mirandize Martinez, who was never charged with a crime.

Both of Martinez’s constitutional arguments, violation of his Fifth Amendment privilege against self-incrimination and violation of his Fourteenth Amendment due process rights, were sustained by the Ninth Circuit Court of Appeals.

The U.S. Supreme Court was so fractured it produced six separate opinions. Six justices agreed that Martinez could not recover against Chavez for violation of Martinez’s privilege against self-incrimination, since he had not been criminally prosecuted. Five justices, writing for a Court unable to agree on whether Martinez’s due process rights had been violated by Chavez, punted that issue back to the lower court.

It is well-settled that police methods so brutal and offensive to human dignity that they shock the conscience violate the due process clause. Justice Clarence Thomas, writing also for Chief Justice William Rehnquist and Justice Antonin Scalia, was satisfied that Chavez’s interrogation of Martinez did not constitute a due process violation. Thomas admitted that “police torture or other abuse that results in a confession is [not] constitutionally permissible [even if] the statements are not used at trial.” Thomas’s denial of Martinez’s due process claim, however, is an implicit rejection of the notion that police used torture to elicit statements from Martinez.

Three justices – John Paul Stevens, Anthony Kennedy, and Ruth Bader Ginsburg – discussed this case with reference to torture. Stevens felt so strongly that Chavez’s conduct rose to the level of torture, he began his separate opinion with the following words: “As a matter of fact, the interrogation of respondent was the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods.”

Kennedy wrote separately: “A constitutional right is traduced the moment torture or its close equivalents are brought to bear. Constitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place. These are the premises of this separate opinion.” In Kennedy’s words, Martinez’s “blinding facial wounds made it impossible for him visually to distinguish the interrogating officer from the attending medical personnel. The officer made no effort to dispel the perception that medical treatment was being withheld until Martinez answered the questions put to him … Martinez begged the officer to desist and provide treatment for his wounds, but the questioning persisted despite these pleas and despite Martinez’s unequivocal refusal to answer questions.”

Justices Stevens and Ginsburg agreed with Kennedy, who wrote that “severe compulsion or even torture” violates the right against compelled self-incrimination, and that the “use of torture or its equivalent in an attempt to induce a statement violates an individual’s fundamental right to liberty of the person,” a violation of due process.

In her separate opinion, Ginsburg cited with approval Stevens’s characterization of “Martinez’s interrogation as ‘the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods’.” She also quoted E. Griswold in The Fifth Amendment Today, who analogized “the struggle to eliminate torture as a governmental practice” with the privilege against self-incrimination, “one of the great landmarks in man’s struggle to make himself civilized.”

None of the justices mentioned the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention is an international treaty ratified by the United States and therefore part of our supreme law under the Supremacy Clause of the Constitution. The Convention’s definition of torture includes any act of a public official, by which severe mental suffering is intentionally inflicted on a person to obtain information or a confession, or to coerce him. Chavez’s conduct fits the Convention’s definition of torture.

The justices should not have hesitated to underscore our duties under the Torture Convention. Indeed, Justices Stevens, O’Connor, and Souter have advanced international law to support their opinions in other cases.

The Supreme Court’s failure to definitively resolve this case is disturbing. The Court must face the difficult issues arising from the “war on terror” without trepidation. The same day the Court announced its decision in Chavez v. Martinez, it refused to review whether the hundreds of secret deportation hearings since September 11, 2001, violated the First Amendment, and indeed, the International Covenant on Civil and Political Rights, another treaty ratified by the United States.

Litigators must educate judges about the international jurisprudence that has been incorporated into our domestic law. Jurists must incorporate treaty principles into their decisions. And hopefully, Oliverio Martinez, who was subjected to incomprehensible anguish in that ambulance and emergency room, will receive some relief for his suffering.

April 23, 2003

The War Profiteers: Tax Corporations on Excess War Profits

Basking in his high ratings from the Iraq war, George W. Bush turned his attention on April 15 to selling his tax-cut plan. Bush’s proposal to cut taxes by $550 billion over the next decade has been roundly criticized as corporate welfare at its best.

Bush’s timing could scarcely be labeled serendipitous. His tax-cut campaign coincides with USAID and Army Corps of Engineers awards of massive reconstruction contracts to corporations that have filled Republican Party coffers with hefty campaign donations. The most egregious aspect of these contracts is that they will result in windfall profits for the corporations that have landed them.

The list of companies that will profit handsomely from the contracts reads like a Who’s Who of Republican loyalists. Topping the list is Kellogg Brown & Root, a subsidiary of Halliburton Co., headed by Dick Cheney before he was tapped for vice president, which was initially awarded the most lucrative Iraq reconstruction contract. The pact for emergency oil-field services may be worth $7 billion over the next two years. It could earn as much as 7 percent profit, or $490 million.

Strikingly, this contract was bestowed upon Kellogg Brown & Root without sending it out for bids, to the consternation of many in Congress. After the General Accounting Office, Congress’s investigative arm, launched a wide-ranging inquiry into the award, the Army Corps of Engineers announced it would send the Halliburton contract out for competitive bids. It remains to be seen whether the Corps’ about-face is simply a perfunctory move to forestall criticism, in which Halliburton will walk away with the contract in the end. Months before the Iraq war, Kellogg Brown & Root had been granted a separate Army logistics contract, which has the unprecedented distinction of carrying no price tag.

Another fat Iraq reconstruction contract for $680 million was awarded to Bechtel Group, which donated most of its $1.3 million worth of political campaign contributions since 1999 to the Republican Party. Bechtel has close ties to the Bush administration.

Donald Rumsfeld once served as a liaison between Bechtel and the Iraqi government to finesse the building of an oil pipeline. And former Secretary of State George Shultz, a member of the board of directors of Bechtel, is also chairman of the advisory board of the Committee for the Liberation of Iraq, a strongly pro-war organization with influence in the White House.

An accused human rights violator, DynCorp, a firm which provides security services and which has donated nearly $70,000 to the Republican Party, won a multi-million dollar contract to police post-war Iraq. DynCorp has been accused of engaging in the prostitution business in Bosnia, and it is being sued in a class action by a group of Ecuadorean peasants for spraying herbicides in Colombia that drifted across the border, killing children and crops.

Many in Congress are miffed because the bidding process for these reconstruction contracts has taken place in secret. Sens. Susan Collins (R-Maine), Hillary Rodham Clinton (.) and Ron Wyden (D-Ore.) have cosponsored the Sunshine in the Iraq Reconstruction Contracting Act of 2003, to bring transparency to the awarding of these contracts.

Tony Blair must also be seething. Notwithstanding Blair’s unwavering loyalty to Bush, Iraq reconstruction contracts will go exclusively to U.S. firms. Foreign corporations can only subcontract for these lucrative jobs.

Moreover, after the Bush administration succeeds in privatizing Iraq’s oil, U.S. corporations will likely be first in line to do business. The hundreds of protestors chanting “No blood for oil” at ChevronTexaco’s world headquarters in San Ramon the day before Bush launched his tax-cut campaign understood this well.

Defense contractors are also profiting handily from the war. SY Coleman, a key company connected to the U.S. Patriot missile system, is headed by Lt. Gen. Jay Garner, the new “sheriff of Baghdad.” And Northrop Grumman, which won $8.5 billion in contracts last year, has ties with the neoconservatives who provided the blueprint for Bush’s doctrine of preemptive war, beginning with Iraq.

It is wrong for huge corporations to profit from war. During the Civil War, there was a public outcry in Georgia against profiteering from that national tragedy. Georgia’s General Assembly responded by enacting a special profits tax.

Congress itself enacted “excess-profits taxes” during World Wars I and II and the Korean War, to prevent firms from making windfall profits from these conflicts. Democratic Rep. Clement C. Dickinson of Missouri eloquently stated the rationale for an excess-profits tax on the floor of Congress in 1917. He said that “those who reap large war profits in times of distress should help to bear the burdens of government, increased by reason of the very conditions that add to the wealth of those who flourish and fatten on the misfortunes of the country.”

President Franklin D. Roosevelt, in his first radio address following the outbreak of World War II, declared that “no American has the moral right to profiteer at the expense either of his fellow-citizens or of the men, women and children who are living and dying in the midst of war in Europe.” The U.S. had not yet entered the war at that point.

In a message to Congress in 1940, Roosevelt sought “a steeply graduated excess-profits tax” to ensure “that a few do not gain from the sacrifices of the many.” The members of the U.S. armed forces who have served in the war on Iraq are not making excess wages for their sacrifices. Many will suffer for the rest of their lives with injuries and, likely, with Gulf War II Syndrome.

On Feb. 13, 2003, former Sen. George McGovern suggested on MSNBC’s “Buchanan & Press” that Congress impose an excess-profits tax. “I don’t think people ought to be making money out of young American blood in Iraq,” McGovern said.

Excess-profits taxes are generally calculated in one of two ways. Any return on capital over a fixed percent may be considered excess profits. Or they might be defined as net income in excess of prewar levels.

In his farewell speech to America in 1961, President Dwight D. Eisenhower warned: “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex.”

George W. Bush has cited the lofty ideal of bringing freedom to the Iraqi people as justification for this war. He should not then oppose the imposition of an excess-profits tax on corporations that have secured contracts to rebuild Iraq.