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December 18, 2008

Cheney Throws Down Gauntlet, Defies Prosecution for War Crimes

Dick Cheney has publicly confessed to ordering war crimes. Asked about waterboarding in an ABC News interview, Cheney replied, “I was aware of the program, certainly, and involved in helping get the process cleared.” He also said he still believes waterboarding was an appropriate method to use on terrorism suspects. CIA Director Michael Hayden confirmed that the agency waterboarded three Al Qaeda suspects in 2002 and 2003.

U.S. courts have long held that waterboarding, where water is poured into someone’s nose and mouth until he nearly drowns, constitutes torture. Our federal War Crimes Act defines torture as a war crime punishable by life imprisonment or even the death penalty if the victim dies.

Under the doctrine of command responsibility, enshrined in U.S. law, commanders all the way up the chain of command to the commander-in-chief can be held liable for war crimes if they knew or should have known their subordinates would commit them and they did nothing to stop or prevent it.

Why is Cheney so sanguine about admitting he is a war criminal? Because he’s confident that either President Bush will preemptively pardon him or President-elect Obama won’t prosecute him.

Both of those courses of action could be illegal.

First, it is not clear that a president can immunize himself or his subordinates from prosecution for committing crimes that he himself authorized. During the Constitutional convention, George Mason expressed concern that a president could abuse his pardon power to ‘pardon crimes which were advised by himself’ or, before indictment or conviction, ‘to stop inquiry and prevent detection.’

On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which require humane treatment, did not apply to Al Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high level meetings where waterboarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.

Attorney General Michael Mukasey says there’s no need for Bush to issue blanket pardons since there is no evidence that anyone developed the policies “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” But noble motives are not defenses to the commission of crimes.

Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions.

The bipartisan December 11 report of the Senate Armed Services Committee concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Lawyers who wrote the memos that purported to immunize government officials from war crimes liability include John Yoo, Jay Bybee, William Haynes, David Addington and Alberto Gonzales. There is precedent in our law for holding lawyers criminally liable for participating in a common plan to violate the law.

Committee chairman Senator Carl Levin told Rachel Maddow that you cannot legalize what’s illegal by having a lawyer write an opinion.

The committee’s report also found that “Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.” Those techniques migrated to Iraq and Afghanistan, where prisoners in U.S. custody were also tortured.

Pardons or failures to prosecute the officials who planned and authorized torture would also be immoral. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantánamo.”

During the campaign, Obama promised to promptly review actions by Bush officials to determine whether “genuine crimes” were committed. He said, “If crimes have been committed, they should be investigated,” but “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

Two Obama advisors told the Associated Press that “there’s little-if any – chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.”

When he takes office, Obama should order his new attorney general to appoint an independent prosecutor to investigate and prosecute those who ordered and authorized the commission of war crimes.

Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can’t authorize war crimes and get away with it.

December 5, 2008

Obama: Ratify the Women’s Convention Soon

Nearly 30 years after President Jimmy Carter signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the United States remains the only democracy that refuses to ratify the most significant treaty guaranteeing gender equality. One hundred eighty-five countries, including over 90 percent of members of the United Nations, have ratified CEDAW.

U.S. opposition to ratification has been informed not simply by an objective analysis of how CEDAW’s provisions might conflict with U.S. constitutional law. Rather, it reflects the ideological agenda and considerable clout of the religious right and the corporate establishment. Issues of gender equality raise some of the most profound divisions between liberals and conservatives. The right-wing agenda was born again in the Bush administration, which issued numerous directives limiting equality between the sexes. Bush targeted funding for family planning and packed the courts and his administration with anti-choice ideologues.

The parade of horribles trumpeted by ratification opponents includes predictions that it would force the United States to pass an Equal Rights Amendment (ERA). Opposition to the ERA in the 1980s was also grounded in religious fundamentalism. There are fears that ratification may lead to the legalization of same-sex marriage, the abolition of single-sex schools, and create a nation of androgynous children.

Much of the hysteria directed at ratification is based upon false assumptions. One opponent warned: “A messy divorce case shouldn’t end up in the World Court.” This is a reference to the International Court of Justice, which does not even have jurisdiction over marital dissolution cases. An editorial in Hanover, Pennsylvania’s The Evening Sun predicted CEDAW backers will use the International Criminal Court as an enforcement tool. But, the International Criminal Court only has jurisdiction over war crimes, genocide and crimes against humanity.

Cecilia Royals of the National Institute of Womanhood said, “This treaty represents a battering ram against free and democratic societies, and particularly against women with traditional values.” The Weekly Standard charged the treaty “mandates complete sex equality in the military, the overthrow of market wages and implementation of ‘comparable-worth’ pay scales, rigid gender quotas, abortion on demand, and federally mandated child care.” Many opposed to ratification seek to protect the large corporations – the backbone of U.S. capitalism – from having to enact equality provisions that would imperil the bottom line.

Although President Carter signed CEDAW in 1980, the treaty has never been sent to the full U.S. Senate for its advice and consent to ratification. When the president signs a treaty, we are forbidden from taking action inconsistent with the object and purpose of the treaty. But we don’t become a party, with all the treaty obligations, until the president ratifies the treaty with the advice and consent of the Senate.

After Ronald Reagan became president and the Republicans gained control of the Senate, CEDAW languished in the Senate Foreign Relations Committee. Neither Reagan nor President George H.W. Bush sought ratification. Reagan made his contempt for CEDAW perfectly clear when he said that once adopted, the treaty would lead to “sex and sexual differences treated as casually and amorally as dogs and other beasts treat them.”

In 1994, at the behest of the Clinton administration, the Senate Foreign Relations Committee held hearings and recommended full Senate approval of CEDAW. Yet Committee chairman Jesse Helms continued to hold CEDAW hostage by keeping it from a vote in the Senate. In response to a last-minute campaign against ratification fueled by radio talk shows, a “hold” was placed on the treaty, preventing the full Senate from voting on it.

Five years later, 10 female members of the House of Representatives, including Nancy Pelosi, delivered to a hearing of the Senate Foreign Relations Committee (the Committee) a letter supporting ratification, signed by 100 members of Congress. Jesse Helms scolded them with, “Now you please be a lady,” before ordering uniformed officers to “[e]scort them out.”

When the Committee recommended ratification in 1994, it attached proposed reservations, understandings, and declarations (RUDS) to its recommendation, which purported to qualify the terms of ratification. These qualifications, however, would effectively eviscerate the promise of equality enshrined in the treaty. For example, ratification opponents insist that the First Amendment, particularly freedom of religion, trumps a woman’s right to privacy. CEDAW prohibits discrimination by private as well as public entities. States have defined issues of family planning, childcare, marriage, and domestic violence as “private.”

CEDAW, in effect, mandates that states parties take affirmative action to ensure equality for women in the areas of employment, education, health care and family planning, economic, political, cultural, social, and legal relations. CEDAW specifies that temporary measures taken to achieve equality will not constitute discrimination. The U.S. reservation makes clear that notwithstanding the prescriptions of CEDAW to eliminate gender discrimination by any “person, organization or enterprise,” ratification would not mean that the United States would have to ensure that private entities regulate private conduct.

Jesse Helms added an understanding to ratification stating that CEDAW does not create a right to abortion, and that abortion should not be used as a method of family planning. This understanding is unnecessary because CEDAW does not even mention abortion. Opposition to reproductive rights has been a hot button issue for the right-wing evangelicals.

Other reservations specify that the United States undertakes no obligation to enact statutes requiring comparable worth or paid maternity leave. Full-time, year-round, wage-earning American women now earn an average of 75 cents for every dollar earned by men in similar jobs. Women in the United States only enjoy the right to short, unpaid maternity leave, and they can be fired for being late due to pregnancy or maternity-related illness. Women in Canada, Europe and Cuba enjoy greater wage equality and paid maternity rights than women in the United States.

The recommended RUDs purport to ensure that ratification of CEDAW would not require that the United States adopt greater protections than those afforded under the U.S. Constitution. Yet U.S. equal protection jurisprudence falls short of safeguards women would have under CEDAW. Classifications based on race require strict scrutiny and mandate that the government demonstrate a compelling government interest to support them. But classifications based on gender require only intermediate or skeptical scrutiny. Instead of a compelling government interest, there need only be a substantial relationship between the interest and the classification. The Secretary of State even indicated in a 1994 letter to the Senate Foreign Relations Committee that the United States would continue to follow the [lesser] intermediate scrutiny standard after ratification, notwithstanding the treaty’s defining principle prohibiting gender discrimination.

Moreover, CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose” of impairing or nullifying women’s human rights and fundamental freedoms. Yet, U.S. constitutional jurisprudence requires that there be proof of both a discriminatory impact and a discriminatory purpose in order to establish an equal protection violation.

It has been U.S. policy to eschew limitations on speech that reinforce the inferiority of women. Indeed, significant inequality between the sexes persists in the United States in employment and education, and in the economic, political, cultural, and criminal system. Women in the United States do not enjoy guarantees of social welfare rights such as food, clothing, housing, health care and decent working conditions. The refusal to enshrine these rights in U.S. law is the reason our government has also failed to ratify the International Covenant on Economic Social and Cultural Rights (ICESCR). See Obama Spells New Hope for Human Rights.

CEDAW, like the three human rights treaties the United States has ratified – the International Convention on the Elimination of All Forms of Racial Discrimination, the Torture Convention, and the International Covenant on Civil and Political Rights – contains a declaration that the treaty is non-self-executing,which means that it requires implementing legislation to make it effective. Scholars including Professor Louis Henkin maintain that the Senate’s general practice of appending non-self-executing declarations to ratification violates the Supremacy Clause, which mandates that treaties shall be the supreme law of the land. The opposition to ratification stems not only from the belief that the United States should not ratify any treaty with provisions inconsistent with U.S. constitutional jurisprudence; it also demonstrates a refusal to require our government to change or enact laws that comport with the obligations we would undertake by ratifying a treaty.

Finally, there is a declaration that the United States will only submit on a case-by-case basis to the jurisdiction of the International Court of Justice to resolve disputes about the interpretation of CEDAW. According to the Vienna Convention on the Law of Treaties, RUDs which are incompatible with the object and purpose of a treaty are void. The RUDs proposed by the Senate committee are not only incompatible with the mandate of equality in CEDAW, they shun the primary object of the treaty: non-discrimination against women. Professor Cherif Bassiouni has said: “The Senate’s practice of de facto rewriting treaties, through reservations, declarations, understandings, and provisos, leaves the international credibility of the United States shaken and its reliability as a treaty-negotiating partner with foreign countries in doubt.”

Yet, in spite of the RUDs, CEDAW continues to languish in Committee. Early in 2002, President George W. Bush called CEDAW “generally desirable” and said it “should be approved.” Yet once the right-wing pressure geared up, Bush backed down. Five months later and shortly before the Senate Foreign Relations Committee voted 12-7 to approve the treaty, Secretary of State Colin Powell reported that the treaty was “complex” and “vague.” Attorney General John Ashcroft, no champion of women’s rights, was charged with “reviewing” CEDAW. Bush never sent CEDAW to the Senate for advice and consent to ratification.

More than 120 organizations, including AARP, the League of Women Voters, Amnesty International, and the World Federalist Association, support ratification. The city of San Francisco voted in 1998 to adopt the treaty, and its provisions are in force there. City departments have incorporated the treaty into hiring practices as well as budgets for juvenile rehabilitation programs and public transportation.

President-elect Barack Obama has said he supports ratification of CEDAW as well as the Equal Rights Amendment. He has promised increased enforcement by his Office of Civil Rights to ensure effective protection from sex discrimination. President-elect Obama should not hesitate to send CEDAW to the Senate for advice and consent to ratification, without the proposed RUDs that would eviscerate its protections.

It took nearly 150 years for women to gain the right to vote in this country. There is no principled reason our government should resist full equality for women. The United States must climb on board and ratify the Convention on the Elimination of All Forms of Discrimination Against Women.

November 24, 2008

Guantánamo Justice Delayed Seven Years

Since the Bush administration began transporting men and boys to Guantánamo Bay in January 2002, it has tried to prevent them from presenting their cases before a neutral federal judge. Indeed, the naval base was turned into a prison camp precisely to keep the detainees away from impartial courts. The government argued that federal courts had no jurisdiction over men detained on Cuban soil. Twice, the Supreme Court rejected that argument, finding that the United States exercises complete jurisdiction and control over the Guantánamo Bay base.

Finally, on November 20, in a stunning development, U.S. District Court Judge Richard J. Leon ordered the government to release five Guantánamo Bay detainees “forthwith.” Finding that the government failed to prove the men were “enemy combatants,” the judge, in a rare comment, urged senior government leaders not to appeal his ruling. “Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough,” he said.

The five detainees the judge ordered released are Lakhdar Boumediene, Mustafa Ait Idir, Hadj Boudella, Saber Lahmar and Mohammed Nechla. Judge Leon did, however, find that a sixth detainee, Belkacem Bensayah, was properly classified an enemy combatant.

It was the Supreme Court’s June 12, 2008 decision in Boumediene v. Bush (see Supreme Court Checks and Balances in Boumediene) that allowed Judge Leon to review the enemy combatant classifications. The high court upheld the Guantánamo detainees’ constitutional right to habeas corpus and made clear they were “entitled to a prompt habeas corpus hearing.” Judge Leon adopted the definition of “enemy combatant” used by the Combatant Status Review Tribunals, which is “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

The six detainees in this case are native Algerians who were residing in Bosnia and Herzegovina, over a thousand miles from the battlefield in Afghanistan. All six held Bosnian citizenship or lawful permanent residence as well as native Algerian citizenship. Arrested by Bosnian authorities in October 2001 for alleged involvement in a plot to bomb the U.S. Embassy in Sarajevo, they were ordered released from prison on January 17, 2002 and then turned over to U.S. personnel who transported them to Guantánamo on January 20, 2002. They have been there ever since.

President Bush had withdrawn the alleged bomb plot as a basis for their detention. He argued instead that the men planned to travel to Afghanistan in late 2001 and take up arms against the United States and allied forces. Judge Leon found the government had failed to prove these allegations by a preponderance of evidence in the cases of all but Bensayah.

The judge said the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source. He wrote that “while the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it.” He added, “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court’s obligation under the Supreme Court’s decision in Hamdi to protect petitioners from the risk of erroneous detention.”

The government did, however, present additional evidence which persuaded Judge Leon that Bensayah was “an al-Qaida facilitator” who planned to take up arms against the United States and facilitate the travel of unnamed others to do the same. That, wrote the judge, “constitutes direct support of al-Qaida in furtherance of its objectives” and “this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”

Bosnian authorities have indicated they are willing to take the five detainees once they are released.

In October, another federal district judge in Washington, Ricardo M. Urbina, ordered that 17 Uighur detainees be released from Guantánamo. The judge didn’t hold an evidentiary hearing because the government conceded the men were not enemy combatants. But the 17 men from western China languish in custody because the government has appealed Judge Urbina’s ruling.

President-elect Barack Obama has pledged to close the Guantánamo prison when he takes office. The National Lawyers Guild has urged Obama to ensure that the prisoners are released, repatriated, resettled, or brought to trial (if there is probable cause to believe they have committed a crime) in strict accordance with international human rights and humanitarian law, and the principles of fundamental justice pertaining to criminal proceedings. This includes but is not limited to, the Four Geneva Conventions of 1949, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. The United States has ratified all of these treaties which makes their provisions binding U.S. law under the Supremacy Clause of the Constitution.

The Guild opposes the creation of national security courts to try the detainees. Although Obama said in August, “It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” three Obama advisers told the Associated Press that the President-elect is expected to propose a new court system to deal with “sensitive national security cases.”

Concerns have been cited about disclosure of classified information in civilian courts and courts-martial. However, the Classified Information Procedures Act (CIPA) provides an adequate method of protecting classified information in existing U.S. courts. CIPA allows a judge to assess the importance of sensitive evidence before it is disclosed in open court and, if necessary, create a nonclassified substitute for use at trial. Former federal prosecutors Richard B. Zabel and James J. Benjamin, Jr. studied the 107 post-9/11 cases and prepared a 171-page white paper for Human Rights First called In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. They wrote, “[w]e are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.” National security courts, they write, “would give the government more power and make it easier for the government to secure convictions.”

President-elect Obama should send those prisoners he intends to try to U.S. civilian and military courts, which are well-suited to protect national security concerns. He should eschew the creation of a new system of courts with reduced due process, which will raise many of the same concerns as Bush’s dreaded military commissions.

November 12, 2008

NLG Calls on President-elect Obama to Close Guantanamo, Opposes Establishment of National Security Courts

After September 11, 2001, George W. Bush established the Guantánamo Bay prison to enable the United States to imprison non-Americans indefinitely outside the reach and protection of both U.S. and international law. The military commissions and their trial procedures, created under the Military Commissions Act of 2006, have been universally condemned by jurists, scholars and human rights specialists as violating minimum fair trial standards and of being a sham intended to secure convictions.

The National Lawyers Guild (NLG) calls on President-elect Barack Obama to, on the first day of his presidency, issue a presidential order closing Guantánamo Bay prison and ending military commissions.

The NLG also urges President-elect Obama to thereafter, ensure that Guantánamo Bay prisoners are released, repatriated, resettled, or brought to trial (if there is probable cause to believe they have committed a crime) in strict accordance with international human rights and humanitarian law, and the principles of fundamental justice pertaining to criminal proceedings including, but not limited to, the Four Geneva Conventions of 1949, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. The United States has ratified all of these treaties which makes their provisions binding U.S. law under the Supremacy Clause of the Constitution.

The NLG opposes the establishment of special national security courts. Although President-elect Obama said in August, “It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” three Obama advisers told the Associated Press that the President-elect is expected to propose a new court system to deal with “sensitive national security cases.” Concerns have been cited about disclosure of classified information in civilian courts and courts-martial.

However, the Classified Information Procedures Act (CIPA) provides a comprehensive and effective method of protecting classified information in existing U.S. courts. CIPA allows a judge to assess the importance of sensitive evidence before it is disclosed in open court and, if necessary, create a nonclassified substitute for use at trial. Former federal prosecutors Richard B. Zabel and James J. Benjamin, Jr. studied the 107 post-9/11 cases and prepared a 171-page white paper for Human Rights First called In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. They wrote, “[w]e are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.” National security courts, they write, “would give the government more power and make it easier for the government to secure convictions.”

“Guantánamo Bay prison is a legal black hole that has become a symbol of injustice, abuse, and U.S. hypocrisy,” said National Lawyers Guild President Marjorie Cohn. “The National Lawyers Guild called for its closure in 2005 and we are hopeful that President-elect Barack Obama will finally end this disgraceful chapter in U.S. history.”

November 9, 2008

Obama Spells New Hope for Human Rights

Celebrations of Barack Obama’s election as President of the United States erupted in countries around the world. From Europe to Africa to the Middle East, people were jubilant. After suffering though eight years of an administration that violated more human rights than any other in U.S. history, Obama spells hope for a new day.

While George W. Bush was President, I wrote Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, which chronicled his war of aggression, policy of torture, illegal killings, unlawful Guantánamo detentions, and secret spying on Americans. When the book was published, it seemed unimaginable that we could elect a President who would turn those policies around. But the election of Obama holds that potential.

This is the first in a series of articles in which I will suggest how the Obama administration can start undoing some of the damage Bush wrought, by ratifying three of the major human rights treaties and the Rome Statute for the International Criminal Court.

Although the U.S. government frequently criticizes other countries for their human rights transgressions, the United States has been one of the most flagrant violators. We have refused to ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); and the Convention on the Rights of the Child (CRC). And while the United States worked with other countries for 50 years to create the International Criminal Court, it has failed to ratify that treaty as well. When we ratify a treaty, it becomes part of U.S. law under the Supremacy Clause of the Constitution.

In this article, I will explain why the United States should ratify the ICESCR, which is particularly relevant now that we are in the midst of the most serious economic crisis since the Great Depression.

In 1941, President Franklin D. Roosevelt, whose New Deal helped lift us out of the Depression, gave his famous Four Freedoms Speech, focused on freedom of speech and expression, freedom to worship, freedom from want, and freedom from fear. Roosevelt fleshed out the freedom from want and fear principles in his Economic Bill of Rights. It contained equality of opportunity, the right to a job and a decent wage, the end of special privileges for the few, universal civil liberties, and guaranteed old-age pensions, unemployment insurance and medical care.

FDR’s bill of rights formed the basis for the Universal Declaration of Human Rights, which Eleanor Roosevelt helped draft, and which the U.N. General Assembly adopted in 1949. The Declaration embraced two types of human rights: civil and political rights on the one hand; and economic, social and cultural rights on the other.

These rights were codified in two binding treaties: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The United States ratified the ICCPR in 1992. But it has refused to commit itself to the protection of economic, social and cultural rights. Since the Reagan administration, there has been a policy to define human rights in terms of civil and political rights, but to dismiss economic, social and cultural rights as akin to social welfare, or socialism.

Indeed, the United States’ inhumane policy toward Cuba exemplifies this dichotomy. The U.S. government has criticized civil and political rights in Cuba while disregarding Cubans’ superior access to universal housing, health care, education and public accommodations, and its guarantee of paid maternity leave and equal pay rates.

The refusal to enshrine rights such as employment, education, food, housing, and health care in U.S. law is the reason the United States has not ratified the ICESCR. This treaty contains the right to work in just and favorable conditions, to an adequate standard of living, to the highest attainable standards of physical and mental health, to education, to housing, and to enjoyment of the benefits of cultural freedom and scientific progress. It also guarantees equal rights for men and women, the right to work, the right to form and join trade unions, the right to social security and social insurance, and protection and assistance to the family.

In the United States, more than 10 million people are unemployed, 2 to 3 million families are homeless each year, and 46 million have no health care benefits. Untold numbers lost their retirement savings when the stock market crashed. Obama has pledged to give the rebuilding of our economy top priority after he is sworn in as President. He promised to create jobs and to ensure that all Americans are covered by health insurance. When Obama said he would cut taxes for 95 percent of the people but end the tax cuts for the rich, he was criticized for wanting to “spread the wealth.” But Obama’s plan is fully consistent with our progressive income tax system. After the election, 15,000 physicians called for a single-payer health care plan, which Obama and Congress should seriously consider.

The United States’ flouting of the United Nations in its unilateral war on Iraq, and torture of prisoners in Afghanistan, Guantánamo Bay, Cuba, and Iraq, has engendered widespread condemnation in the international community. Yale Law School Dean Harold Koh, citing Professor Louis Henkin, summarized the hypocrisy of the United States in the area of human rights as follows: “In the cathedral of human rights, the U.S. is more like a flying buttress than a pillar – choosing to stand outside the international structure supporting the international human rights system but without being willing to subject its own conduct to the scrutiny of the system.”

We should encourage President Obama to send the ICESCR to the Senate for advice and consent to ratification. Becoming a party to that treaty will help not only the people in this country; it will also engender respect for the United States around the world.

October 29, 2008

What About Constitutional Powers?

Institute for Public Accuracy
915 National Press Building, Washington, D.C. 20045
(202) 347-0020 * http://www.accuracy.org * ipa@accuracy.org
___________________________________________________

Wednesday, October 29, 2008

What About Constitutional Powers? Two Views

MARJORIE COHN, Libertad48@san.rr.com, http://www.marjoriecohn.com
Cohn is the president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law and the author of “Cowboy Republic: Six Ways the Bush Gang Has Defied the Law.” She recently wrote the piece “A Palin Theocracy.”

Cohn said today: “The next president will almost certainly appoint one to three justices to the Supreme Court, which is now delicately balanced politically. The most likely justices to retire are John Paul Stevens, Ruth Bader Ginsburg and David Souter. John McCain, who voted to confirm Robert Bork, Clarence Thomas, John Roberts and Samuel Alito, has vowed to appoint more justices like Roberts and Alito to the high court.

One McCain appointee would tip the balance of the Court to the right which would likely overturn Roe v. Wade and decisions protecting the rights of workers and the environment, and decisions curbing the power of the executive. Barack Obama voted against the confirmation of Roberts and Alito, and has promised to appoint justices like Ginsburg and Stephen Breyer. Even if Obama made three appointments, he would not tip the political balance of the Court to the left, but would maintain the status quo since he would likely be replacing the ‘liberals.'”

BRUCE FEIN, bruce@thelichfieldgroup.com
Author of the new book “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy,” Fein said today: “It’s disgraceful that core constitutional questions have been virtually ignored in this election. Neither McCain nor Obama have indicated that they will move to a constitutional government and away from executive government.

“They have both said they would close Guantanamo, but that’s really meaningless since they both assert the right to hold so-called ‘enemy combatants’ without charge, so they could simply move the people being detained to another facility.

“Both maintain that the executive can initiate war. Both — like Bush now — have said that they would not allow further waterboarding and that it is torture, but neither has said that they would prosecute the conceded waterboarding of the Bush administration. Likewise, neither has said they would prosecute members of the current administration for other criminal conduct, such as well-known criminal violations of the FISA statute. Neither Obama nor McCain has disclaimed the authority claimed by Bush to order current or former White House officials to defy congressional subpoena.”

Fein recently wrote the piece  “Palin vs. Palin.”

For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167

September 11, 2008

A Palin Theocracy

John McCain’s selection of Sarah Palin as his vice presidential running mate has invigorated a lackluster campaign. The media can’t stop talking about her. Given McCain’s age and state of health (his medical file was nearly 1,200 pages long), Palin would indeed be a heartbeat away from becoming President. But what would a Palin administration really look like?

Palin is a radical right-wing fundamentalist Christian who would love to create a theocracy. She believes we are living in the “end times” which will result in a bloody inferno from which only true Christians will be saved. Palin recently attended a service in her Wasilla Bible Church run by David Brickner, who runs Jews for Jesus, a group the Anti-Defamation League criticizes for its “aggressive and deceptive” proselytizing of Jews. Those who don’t accept Jesus as their savior will burn in Hell, according to Palin’s brand of theology.

As Governor of Alaska, Palin asked her congregation to pray for the natural gas pipeline, which she characterized as “God’s will.” She also asked them to pray that the war in Iraq is a “task that is from God.” Palin has pushed for creationism to be taught in schools, and she opposes stem cell research.

Palin’s choice to have a Down syndrome child and her teenage daughter’s choice to continue her pregnancy have made right-wing evangelical Christians ecstatic. But while she chose pregnancy, Palin would deny a woman victimized by rape or incest the right to choose abortion, and then criminally punish both the woman for having one and her doctor for performing it.

McCain would also love to inject a heavy dose of Christianity into his administration. A year ago, he declared, “The Constitution established the United States of America as a Christian nation.” Just about the only issue on which McCain has not flip-flopped is his opposition to abortion rights. The next president will almost certainly make at least one appointment to the Supreme Court. McCain has pledged to appoint judges in the mold of Chief Justice John Roberts and Justice Samuel Alito; these would also be Palin’s preferred judges. Another conservative on the Court would mean that Roe v. Wade will be overruled. That will return us to back alley abortions with coat hangers.

Rick Davis, McCain’s campaign manager, said that “this election is not about issues . . . This election is about a composite view of what people take away from these candidates.” The Republicans know they will lose if they really focus on issues such as the economy, the war, healthcare, education, and the environment. They are hoping that pro-choice women who supported Hillary Clinton will gravitate to Palin because she’s a feisty – albeit anti-choice – woman. They are also banking on support from people who cannot bring themselves to vote for a black man.

But those non-evangelicals who back the McCain-Palin ticket do so at their peril. Not only will they continue to suffer four more years of the disastrous Bush policies; they will also find themselves living in a Christian theocracy.

September 2, 2008

Preemptive Strikes Against Protest at RNC

In the months leading up to the Republican National Convention, the FBI-led Minneapolis Joint Terrorist Task Force actively recruited people to infiltrate vegan groups and other leftist organizations and report back about their activities. On May 21, the Minneapolis City Pages ran a recruiting story called “Moles Wanted.” Law enforcement sought to preempt lawful protest against the policies of the Bush administration during the convention.

Since Friday, local police and sheriffs, working with the FBI, conducted preemptive searches, seizures and arrests. Glenn Greenwald described the targeting of protestors by “teams of 25-30 officers in riot gear, with semi-automatic weapons drawn, entering homes of those suspected of planning protests, handcuffing and forcing them to lay on the floor, while law enforcement officers searched the homes, seizing computers, journals, and political pamphlets.” Journalists were detained at gunpoint and lawyers representing detainees were handcuffed at the scene.

“I was personally present and saw officers with riot gear and assault rifles, pump action shotguns,” said Bruce Nestor, the President of the Minnesota chapter of the National Lawyers Guild, who is representing several of the protestors. “The neighbor of one of the houses had a gun pointed in her face when she walked out on her back porch to see what was going on. There were children in all of these houses, and children were held at gunpoint.”

The raids targeted members of “Food Not Bombs,” an anti-war, anti-authoritarian protest group that provides free vegetarian meals every week in hundreds of cities all over the world. They served meals to rescue workers at the World Trade Center after 9/11 and to nearly 20 communities in the Gulf region following Hurricane Katrina.

Also targeted were members of I-Witness Video, a media watchdog group that monitors the police to protect civil liberties. The group worked with the National Lawyers Guild to gain the dismissal of charges or acquittals of about 400 of the 1,800 who were arrested during the 2004 Republican National Convention in New York. Preemptive policing was used at that time as well. Police infiltrated protest groups in advance of the convention.

Nestor said that no violence or illegality has taken place to justify the arrests. “Seizing boxes of political literature shows the motive of these raids was political,” he said.

Further evidence the political nature of the police action was the boarding up of the Convergence Center, where protestors had gathered, for unspecified code violations. St. Paul City Council member David Thune said, “Normally we only board up buildings that are vacant and ramshackle.” Thune and fellow City Council member Elizabeth Glidden decried “actions that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights.”

“So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protestors who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do,” Greenwald wrote on Salon.

Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with “conspiracy to commit riot,” a rarely-used statute that is so vague, it is probably unconstitutional. Nestor said it “basically criminalizes political advocacy.”

On Sunday, the National Lawyers Guild and Communities United Against Police Brutality filed an emergency motion requesting an injunction to prevent police from seizing video equipment and cellular phones used to document their conduct.

During Monday’s demonstration, law enforcement officers used pepper spray, rubber bullets, concussion grenades and excessive force. At least 284 people were arrested, including Amy Goodman, the prominent host of Democracy Now!, as well as the show’s producers, Abdel Kouddous and Nicole Salazar. “St. Paul was the most militarized I have ever seen an American city to be,” Greenwald wrote, “with troops of federal, state and local law enforcement agents marching around with riot gear, machine guns, and tear gas cannisters, shouting military chants and marching in military formations.”

Bruce Nestor said the timing of the arrests was intended to stop protest activity, “to make people fearful of the protests, but also to discourage people from protesting,” he told Amy Goodman. Nevertheless, 10,000 people, many opposed to the Iraq war, turned out to demonstrate on Monday. A legal team from the National Lawyers Guild has been working diligently to protect the constitutional rights of protestors.

July 30, 2008

End the Occupation of Iraq – and Afghanistan

So far, Bush’s plan to maintain a permanent U.S. military presence in Iraq has been stymied by resistance from the Iraqi government. Barack Obama’s timetable for withdrawal of American troops has evidently been joined by Iraqi Prime Minister Nuri al-Maliki, Bush has mentioned a “time horizon,” and John McCain has waffled. Yet Obama favors leaving between 35,000 and 80,000 U.S. occupation troops there indefinitely to train Iraqi security forces and carry out “counter-insurgency operations.” That would not end the occupation. We must call for bringing home – not redeploying – all U.S. troops and mercenaries, closing all U.S. military bases, and relinquishing all efforts to control Iraqi oil.

In light of stepped up violence in Afghanistan, and for political reasons – following Obama’s lead – Bush will be moving troops from Iraq to Afghanistan. Although the U.S. invasion of Afghanistan was as illegal as the invasion of Iraq, many Americans see it as a justifiable response to the attacks of September 11, 2001, and the casualties in that war have been lower than those in Iraq – so far. Practically no one in the United States is currently questioning the legality or propriety of U.S. military involvement in Afghanistan. The cover of Time magazine calls it “The Right War.”

The U.N. 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. Resolutions 1368 and 1373 condemned the September 11 attacks, and ordered the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urged ratification and enforcement of the international conventions against terrorism.

The invasion of Afghanistan was not legitimate self-defense under article 51 of the Charter because the attacks on September 11 were criminal attacks, not “armed attacks” by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers came from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after September 11, or 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 U.N. General Assembly.

Bush’s justification for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists. Iranians could have made the same argument to attack the United States after they overthrew the vicious Shah Reza Pahlavi in 1979 and he was given safe haven in the United States. The people in Latin American countries whose dictators were trained in torture techniques at the School of the Americas could likewise have attacked the torture training facility in Ft. Benning, Georgia under that specious rationale.

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 is not the answer and will only lead to the deaths of more of our troops and Afghanis.

The hatred that fueled 19 people to blow themselves up and take 3,000 innocents with them has its genesis in a history of the U.S. government’s exploitation of people in oil-rich nations around the world. Bush accused the terrorists of targeting our freedom and democracy. But it was not the Statue of Liberty that was destroyed. It was the World Trade Center – symbol of the U.S.-led global economic system, and the Pentagon – heart of the U.S. military, that took the hits. Those who committed these heinous crimes were attacking American foreign policy. That policy has resulted in the deaths of two million Iraqis – from both Bill Clinton’s punishing sanctions and George W. Bush’s war. It has led to uncritical support of Israel’s brutal occupation of Palestinian lands; and it has stationed more than 700 U.S. military bases in foreign countries.

Conspicuously absent from the national discourse is a political analysis of why the tragedy of 9/11 occurred and 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. You 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.

There are already 60,000 foreign troops, including 36,000 Americans, in Afghanistan. Large increases in U.S. troops during the past year have failed to stabilize the situation there. Most American forces operate in the eastern part of the country; yet by July 2008, attacks there were up by 40 percent. Zbigniew Brzezinski, national security advisor for Jimmy Carter, is skeptical that the answer for Afghanistan is more troops. He warns that the United States will, like the Soviet Union, be seen as the invader, especially as we conduct military operations “with little regard for civilian casualties.” Brzezinski advocates Europeans bribing Afghan farmers not to cultivate poppies for heroin, as well as the bribery of tribal warlords to isolate al-Qaeda from a Taliban that is “not a united force, not a world-oriented terrorist movement, but a real Afghan phenomenon.”

Indeed, on July 29, 2008, the RAND corporation released a report that argues that, “Current U.S. strategy against the terrorist group al Qaida has not been successful in significantly undermining the group’s capabilities.” The United States should pursue a counterterrorism strategy against al Qa’ida that emphasizes policing and intelligence gathering rather than a “war on terrorism” approach that relies heavily on military force, according to RAND.

We might heed Canada’s suggestion that a broader mission, under the auspices of the United Nations instead of NATO, would be more effective. Our policy in Afghanistan and Pakistan should emphasize economic assistance for reconstruction, development and education, not for more weapons. The United States must refrain from further Predator missile strikes in Pakistan, and pursue diplomacy, not occupation.

Nor should we be threatening war against Iran, which would also be illegal and result in an unmitigated disaster. The U.N. Charter forbids any country to use, or threaten to use, military force against another country except in self-defense or when the Security Council has given its blessing. In spite of the U.N. International Atomic Energy Agency’s conclusion that there is no evidence Iran is developing nuclear weapons, the White House, Congress, and Israel have continued to rattle the sabers in Iran’s direction. Nevertheless, the antiwar movement has so far fended off passage of HR 362 in the House of Representatives, a bill that is tantamount to a call for a naval blockade against Iran – considered an act of war under international law. Credit goes to United for Peace and Justice, Code Pink, Peace Action, and dozens of other organizations that pressured Congress to think twice before taking that dangerous step.

We should pursue diplomacy, not war, with Iran; end the U.S. occupation of Iraq; and withdraw our troops from Afghanistan.

June 26, 2008

John Yoo, David Addington Stonewall Congress

JOHN YOO, DAVID ADDINGTON STONEWALL CONGRESS; NATIONAL LAWYERS GUILD URGES SPECIAL PROSECUTOR, CONGRESSIONAL WAR CRIMES COMMISSION

Today the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Civil Liberties continued its investigation into the role played by key administration lawyers in the development of aggressive interrogation techniques. This was the third hearing of this subcommittee on this topic. The witnesses who testified were former Department of Justice lawyer John Yoo; Cheney’s former legal counsel and now chief of staff, David Addington; and Christopher Schroeder, professor at Duke Law School.

NLG President Marjorie Cohn had testified at the first subcommittee hearing on May 6, articulating the law of torture, and stating that torture is never allowed under U.S. law. Today’s hearing was attended by Jeanne Mirer, co-chair of the NLG’s International Committee.

Yoo’s testimony revealed that the guiding principle of his work at the Justice Department was his belief in the overriding power of the President to order anything he thinks necessary in the “war on terror.” When specifically asked, “Is there anything that the President cannot order?” Yoo answered “I believe there are things an American President WOULD not order.” He was asked again, “Are there things the President COULD not order?” Yoo replied that he would “have to know the context.” Dan Mayfield from the NLG Military Law Task Force stated, “This is consistent with Yoo’s previous statement that the President could order torture of a person up to and including the crushing of the testicles of a person’s son in order to make the person talk.” When asked whether a President could order that someone be buried alive, Yoo’s answer was non-responsive: “No American president would ever have to order that,” he said.

While Yoo claimed there was little in the law which helped to define torture, Shroeder pointed out the wealth of guidance that exists in the areas of asylum and immigration law. Yoo admitted that the Convention Against Torture and the U.S. Torture Statute both define torture. Yet he wrote his memos to re-define torture so that those following his re-definition could state, “We do not torture.” Marjorie Cohn said, “Yoo’s memos so vastly narrowed the definition of torture, the interrogator would nearly have to kill someone for it to constitute torture.”

Yoo and Addington were evasive, repeatedly stonewalling members of the subcommittee. The Justice Department evidently placed limitations on what Yoo was allowed to discuss, but he invoked privileges where it did not appear privilege was authorized. This led to Yoo’s refusal to answer several direct questions. Jeanne Mirer stated, “The evasiveness of Yoo and Addington did not earn them credibility with the subcommittee, and frustrated many of the questioners. These tactics prevented the subcommittee from getting answers to the many important questions about the source of legal authority for the positions espoused in the ‘torture memos’ regarding aggressive interrogation techniques.”

The NLG has decried the use of torture techniques as well as efforts by lawyers to try to justify them. The NLG has called for holding accountable those who violated the law. While these hearings have helped to establish the record, there is a need for a full blown investigation which could lead to a call for criminal prosecution. The NLG calls for the appointment of an independent special prosecutor, and the establishment of a congressionally appointed commission to investigate potential wrongdoing, including the commission of war crimes, by high officials and lawyers of the Bush administration.