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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.

April 27, 2010

Arizona Legalizes Racial Profiling

The conservative “states’ rights” mantra sweeping our country has led to one of the most egregious wrongs in recent U.S. history. New legislation in Arizona requires law enforcement officers to stop everyone whom they have “reasonable suspicion” to believe is an undocumented immigrant and arrest them if they fail to produce their papers. What constitutes “reasonable suspicion”? When asked what an undocumented person looks like, Arizona Governor Jan Brewer, who signed SB 1070 into law last week, said, “I don’t know what an undocumented person looks like.” The bill does not prohibit police from relying on race or ethnicity in deciding who to stop. It is unlikely that officers will detain Irish or German immigrants to check their documents. This law unconstitutionally criminalizes “walking while brown” in Arizona.

Former Arizona attorney general Grant Woods explained to Brewer that SB 1070 would vest too much discretion in the state police and lead to racial profiling and expensive legal fees for the state. But the governor evidently succumbed to racist pressure as she faces a reelection campaign. Woods said, “[Brewer] really felt that the majority of Arizonans fall on the side of, ‘Let’s solve the problem and not worry about the Constitution.’” The polls Brewer apparently relied on, however, employed questionable methodology and were conducted before heavy media coverage of the controversial legislation. No Democrats and all but one Republican Arizona legislator voted for SB 1070.

Undocumented immigrants in Arizona now face six months in jail and a $500 fine for the first offense – misdemeanor trespass – and an additional $1,000 fine for the second offense, which becomes a felony. By establishing a separate state crime for anyone who violates federal immigration law, the new Arizona law contravenes the Supremacy Clause of the Constitution, which grants the federal government exclusive power to regulate U.S. borders.

SB 1070 creates a cause of action for any person to sue a city, town or county if he or she feels the police are not stopping enough undocumented immigrants. Even if a municipality is innocent, it will still be forced to rack up exorbitant legal fees to defend itself against frivolous lawsuits.

The bill also makes it a misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver impedes the normal flow of traffic, albeit briefly. How many New York taxi drivers impede the flow of traffic when they pick up fares? The law also criminalizes the solicitation of work by an undocumented immigrant in a public place, who gestures or nods to a would-be employer passing by. This part of the legislation is also unconstitutional as courts have held that the solicitation of work is protected speech under the First Amendment.

The new law effectively compels Arizona police to make immigration enforcement their top priority. Indeed several law enforcement groups oppose SB 1070. The Law Enforcement Engagement Initiative, an organization of police officials who favor federal immigration reform, condemned the law, saying it would probably result in racial profiling and threaten public safety because undocumented people would hesitate to come forward and report crimes or cooperate with police for fear of being deported. The Arizona Association of Chiefs of Police also criticized the legislation, saying it will “negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner;” the group believes the immigration issue is best addressed at the federal level.

Many civil rights and faith-based organizations also oppose SB 1070. The Mexican American Legal Defense & Educational Fund (MALDEF) called the law “tantamount to a declaration of secession.” The National Coalition of Latino Clergy and Christian Leaders Legal Defense Fund – which represents 30,000 evangelical churches nationwide – as well as MALDEF, the National Day Laborer Organizing Network (NDLON), and the American Civil Liberties Union (ACLU), are preparing federal lawsuits challenging the constitutionality of SB 1070.

Cardinal Roger M. Mahony of Los Angeles called the ability of officials to demand documents akin to “Nazism.” Former Arizona Senate majority leader Alfredo Gutierrez said, “This is the most oppressive piece of legislation since the Japanese internment camp act” during World War II. Representative Raul M. Grijalva (Dem.-AZ) called for a convention boycott of Arizona. The American Immigration Lawyers Association (AILA) complied. AILA is moving its fall 2010 conference, scheduled for Arizona, to another state.

Even though SB 1070 will not take effect for at least 90 days, undocumented immigrants in Arizona are terrorized by the new law. A man in Mesa, Arizona looked around nervously as he stood on a street corner waiting for work. “We shop in their stores, we clean their yards, but they want us out and the police will be on us,” Eric Ramirez told the New York Times.

Ironically, expelling unauthorized immigrants from Arizona would be costly. The Perryman Group calculated that Arizona would lose $26.4 billion in economic activity, $11.7 billion in gross state product, and approximately 140,324 jobs if all undocumented people were removed from the state.

“This bill does nothing to address human smuggling, the drug cartels, the arms smuggling,” according to Democratic Senator Rebecca Rios. “And, yes, I believe it will create somewhat of a police state,” she added. “Police in Arizona already treat migrants worse than animals,” said Francisco Loureiro, an immigration activist who runs a shelter in Nogales, Mexico. “There is already a hunt for migrants, and now it will be open season under the cover of a law.”

SB 1070 is the latest, albeit one of the worst, racist attacks on undocumented immigrants. The federal program called 287(g) allows certain state and local law enforcement agencies to engage in federal immigration enforcement activities. But a report released earlier this month by the Department of Homeland Security Office of Inspector General found a lack of oversight and training without adequate safeguards against racial profiling.

We can expect SB 1070 to be replicated around the country as the ugly wave of immigrant-bashing continues. Lawmakers from four other states have sought advice from Michael Hethmon, general counsel for the Immigration Reform Law Institute, who helped draft the Arizona law.

“SB 1070 is tearing our state into two,” said Phoenix Mayor Phil Gordon, who called the bill “bitter, small-minded and full of hate.” He thinks “it humiliates us in the eyes of America and threatens our economic recovery.” More than 50,000 people signed petitions opposing SB 1070 and 2,500 students from high schools across Phoenix walked out of school and marched to the state Capitol to protest the bill before it passed. On Sunday, about 3,500 people gathered at the Capitol, chanting, “Yes we can,” “We have rights,” and “We are human.”

President Obama criticized SB 1070 as “misguided,” saying it will “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” He called on Congress to enact federal immigration reform.

But Isabel Garcia, co-chair of the Coalition of Human Rights in Tucson, told Democracy Now! that there have been more deportations under the Obama administration than in any other administration. “This administration continues to follow the flawed concept that migration is somehow a law enforcement or national security issue,” she noted. “And it is not. It is an economic, social, political phenomenon.” She mentioned that NAFTA has displaced millions of workers in Mexico who flood into the United States.

Instead of expressing gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that targets non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a “states rights” approach where each state is free to enact its own racist law.

Let us join the voices of compassion and oppose the mean-spirited actions that aim to scapegoat immigrants. Laws like SB 1070 demean us all.

January 15, 2010

Keeping Same-Sex Marriage in the Dark

On Wednesday, a conservative majority of the Supreme Court overturned a ruling made by a federal trial judge that would have allowed limited television coverage of a trial that will decide the fate of California’s Proposition 8. The trial, which is currently proceeding in San Francisco, is one of the most significant civil rights cases of our time. The plaintiffs are seeking to overturn a ballot initiative that makes same-sex marriage illegal in California.

It was unusual that the Supreme Court even decided to hear this case. The high court takes very few cases. It generally decides issues about which the state or federal courts are in conflict or cases that raise important questions of federal law. Yet relying on the Supreme Court’s “supervisory power” over the lower courts, the five conservative justices – Roberts, Scalia, Thomas, Alito and Kennedy – joined in an unsigned 17-page decision and chided Chief Judge Vaughn Walker for seeking to broadcast the trial without a sufficient notice period for public comment.

Justice Breyer wrote in the dissent joined by Justices Stevens, Ginsburg and Sotomayor that he could find no other case in which the Supreme Court had intervened in the procedural aspects of local judicial administration. Indeed, Breyer cited a case in which Scalia wrote, “I do not see the basis for any direct authority to supervise lower courts.”

Moreover, in the comment period that Walker did allow, he received 138,574 comments, and all but 32 favored transmitting the proceedings.

The majority concluded that the same-sex marriage opponents would suffer “irreparable harm” if the trial were broadcast to five other federal courts around the country. But all the witnesses who allegedly might be intimidated by the camera were experts or Prop 8 advocates who had already appeared on television or the Internet during the campaign.

No one presented empirical data to establish that the mere presence of cameras would negatively impact the judicial process, Breyer wrote. He cited a book that I authored with veteran broadcast journalist David Dow, “Cameras in the Courtroom: Television and the Pursuit of Justice.” It describes studies that found no harm from the camera, and one which found that witnesses “who faced an obvious camera, provided answers that were more correct, lengthier and more detailed.”

The five justices who denied camera coverage noted at the outset that they would not express “any view on whether [federal] trials should be broadcast.” Toward the end of their decision, however, they stated that since the trial judge intended to broadcast witness testimony, “[t]his case is therefore not a good one for a pilot program.”

In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?

Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”

The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.

In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.

There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.

This piece first apeared on Jurist.

December 21, 2009

Obama’s Af-Pak War is Illegal

President Obama accepted the Nobel Peace Prize nine days after he announced he would send 30,000 more troops to Afghanistan. His escalation of that war is not what the Nobel committee envisioned when it sought to encourage him to make peace, not war.

In 1945, in the wake of two wars that claimed millions of lives, the nations of the world created the United Nations system to “save succeeding generations from the scourge of war.” The UN Charter is based on the principles of international peace and security as well as the protection of human rights. But the United States, one of the founding members of the UN, has often flouted the commands of the charter, which is part of US law under the Supremacy Clause of the Constitution.

Although the U.S. invasion of Afghanistan was as illegal as the invasion of Iraq, many Americans saw it as a justifiable response to the attacks of September 11, 2001. The cover of Time magazine called it “The Right War.” Obama campaigned on ending the Iraq war but escalating the war in Afghanistan. But a majority of Americans now oppose that war as well.

The UN Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense or when authorized by the Security Council. After the 9/11 attacks, the council passed two resolutions, neither of which authorized the use of military force in Afghanistan.

“Operation Enduring Freedom” was not legitimate self-defense under the charter because the 9/11 attacks were crimes against humanity, not “armed attacks” by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers hailed from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after 9/11, or President Bush would not have waited three weeks before initiating his October 2001 bombing campaign. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the UN General Assembly.

Bush’s justification for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists, even though bin Laden did not claim responsibility for the 9/11 attacks until 2004. After Bush demanded that the Taliban turn over bin Laden to the United States, the Taliban’s ambassador to Pakistan said his government wanted proof that bin Laden was involved in the 9/11 attacks before deciding whether to extradite him, according to the Washington Post. That proof was not forthcoming, the Taliban did not deliver bin Laden, and Bush began bombing Afghanistan.

Bush’s rationale for attacking Afghanistan was spurious. Iranians could have made the same argument to attack the United States after they overthrew the vicious Shah Reza Pahlavi in 1979 and the U.S. gave him safe haven. If the new Iranian government had demanded that the U.S. turn over the Shah and we refused, would it have been lawful for Iran to invade the United States? Of course not.

When he announced his troop “surge” in Afghanistan, Obama invoked the 9/11 attacks. By continuing and escalating Bush’s war in Afghanistan, Obama, too, is violating the UN Charter. In his speech accepting the Nobel Peace Prize, Obama declared that he has the “right” to wage wars “unilaterally.” The unilateral use of military force, however, is illegal unless undertaken in self-defense.

Those who conspired to hijack airplanes and kill thousands of people on 9/11 are guilty of crimes against humanity. They must be identified and brought to justice in accordance with the law. But retaliation by invading Afghanistan was not the answer. It has lead to growing U.S. and Afghan casualties, and has incurred even more hatred against the United States.

Conspicuously absent from the national discourse is a political analysis of why the tragedy of 9/11 occurred. We need to have that debate and construct a comprehensive strategy to overhaul U.S. foreign policy to inoculate us from the wrath of those who despise American imperialism. The “global war on terror” has been uncritically accepted by most in this country. But terrorism is a tactic, not an enemy. One cannot declare war on a tactic. The way to combat terrorism is by identifying and targeting its root causes, including poverty, lack of education, and foreign occupation.

In his declaration that he would send 30,000 additional U.S. troops to Afghanistan, Obama made scant reference to Pakistan. But his CIA has used more unmanned Predator drones against Pakistan than Bush. There are estimates that these robots have killed several hundred civilians. Most Pakistanis oppose them. A Gallup poll conducted in Pakistan last summer found 67% opposed and only 9% in favor. Notably, a majority of Pakistanis ranked the United States as a greater threat to Pakistan than the Taliban or Pakistan’s arch-rival India.

Many countries use drones for surveillance, but only the United States and Israel have used them for strikes. Scott Shane wrote in the New York Times, “For the first time in history, a civilian intelligence agency is using robots to carry out a military mission, selecting people for targeted killings in a country where the United States is not officially at war.”

The use of these drones in Pakistan violates both the UN Charter and the Geneva Conventions, which prohibit willful killing. Targeted or political assassinations—sometimes called extrajudicial executions—are carried out by order of, or with the acquiescence of, a government, outside any judicial framework. As a 1998 report from the UN Special Rapporteur noted, “extrajudicial executions can never be justified under any circumstances, not even in time of war.” Willful killing is a grave breach of the Geneva Conventions, punishable as a war crime under the U.S. War Crimes Act. Extrajudicial executions also violate a longstanding U.S. policy. In the 1970s, after the Senate Select Committee on Intelligence disclosed 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 there have been exceptions to this policy, every succeeding president until George W. Bush reaffirmed that order.

Obama is trying to make up for his withdrawal from Iraq by escalating the war on Afghanistan. He is acting like Lyndon Johnson, who rejected Defense Secretary Robert McNamara’s admonition about Vietnam because LBJ was “more afraid of the right than the left,” McNamara said in a 2007 interview with Bob Woodward published in the Washington Post.

Approximately 30% of all U.S. deaths in Afghanistan have occurred during Obama’s presidency. The cost of the war, including the 30,000 new troops he just ordered, will be about $100 billion a year. That money could better be used for building schools in Afghanistan and Pakistan, and creating jobs and funding health care in the United States.

Many congressional Democrats are uncomfortable with Obama’s decision to send more troops to Afghanistan. We must encourage them to hold firm and refuse to fund this war. And the left needs to organize and demonstrate to Obama that we are a force with which he must contend.