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July 29, 2003

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

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

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

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

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

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

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

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

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

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

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

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

July 17, 2003

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

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

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

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

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

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

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

So why did we go into Iraq?

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

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

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

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

What else has Bush lied about?

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

July 10, 2003

Affirmative Action Counteracts Centuries of Racism

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

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

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

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

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

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

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

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

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

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

Affirmative Action Counteracts Centuries of Racism

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

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

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

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

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

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

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

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

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

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

June 17, 2003

Terrorism or National Liberation Struggle?

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

Individual Terrorism

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

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

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

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

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

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

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

State Terrorism by a Regime or Government

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

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

State-Sponsored/Supported Terrorism

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

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

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

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

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

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

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

Conclusion

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

June 11, 2003

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 23, 2003

The War Profiteers: Tax Corporations on Excess War Profits

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 27, 2003

Why the U.N. General Assembly has Authority to Speak on the War on Iraq in the Event of Security Council Stalemate

As was widely reported, the current war on Iraq followed on the heels of contentious deliberations among the members of the U.N. Security Council. The U.S. – along with the U.K. and Spain – tried to convince the Security Council to pass a resolution that would have authorized the use of armed force. But when France threatened to veto any such resolution, and their ability to get a majority seemed dicey at best, the U.S. and U.K. decided to start the war even without Security Council approval.

Nevertheless, the Security Council has not acted further, since the war began. That’s not surprising: The U.S. and U.K. would doubtless veto any resolution denouncing the war, or stipulating that the U.N. or its designee would be the entity to control post-war Iraq. (Interestingly, the deadlock goes both ways: France has said it will veto any proposed resolution that would give the United States and Britain–not the U.N. – the right to govern postwar Iraq.)

Does that mean the U.N.’s hands are tied – due to the U.S.’s and U.K.’s veto powers? Perhaps surprisingly, the answer is no.

The United Nations Charter confers on the Security Council primary responsibility to keep the peace. Yet when the Security Council is unable to act, there is a procedure for the General Assembly to fulfill this role in its stead. It is contained in the “Uniting for Peace Resolution,” Resolution 377.

The Uniting for Peace Resolution

Under the Uniting for Peace Resolution, within 24 hours of a stalemate in the Security Council, the General Assembly can meet to consider the matter. Either seven members of the Security Council or a majority of the members of the General Assembly can invoke the Uniting for Peace Resolution.

Once the Resolution is invoked, the General Assembly can recommend collective measures to “maintain or restore international peace and security.” Thus, even in the face of insoluble disagreement in the Security Council, the General Assembly could act to urge the U.S. and its allies to stop the war – or, for example, to mandate that after the war, the U.N. should be the one to keep the peace and determine what the new Iraq should look like.

The Origins and History of the Uniting for Peace Resolution

It was, ironically, the United States itself that spearheaded the passage of the Uniting for Peace resolution, in 1950. Even more ironically, the resolution’s passage was prompted by the same situation that prompted the war on Iraq: Security Council deadlock due to the exercise or threatened exercise of veto power.

After North Korea invaded South Korea, the United States was unable to obtain Security Council approval for a U.S.-led military operation to invade North Korea, because of the Soviet veto. Thus, Secretary of State Dean Acheson secured the passage of the Uniting for Peace resolution.

Then, that same year, the U.S. used the Uniting for Peace Resolution to pressure the Soviet Union to halt its invasion of Hungary, after the Soviet Union had vetoed an anti-intervention resolution in the Security Council.

Now, countries opposed to the war in Iraq could likewise use the Uniting for Peace Resolution to de-legitimize the use of armed force, and call on Bush to halt it immediately. Many nations have requested the Security Council hold an emergency meeting to urge the U.S. and its allies to stop the war. Failing that, they are advocating the General Assembly convene and take action.

Though they are certain to lose in the Security Council, due to the threat of U.S. and U.K. vetoes, nations in favor of peace may well prevail in garnering a majority in the General Assembly.

The U.S.’s Attempt to Preempt The Use of the Uniting for Peace Resolution

Meanwhile, fearful of a resolution condemning its war in Iraq, the Bush administration has mounted a preemptive campaign to prevent the General Assembly from convening. The campaign is somewhat hypocritical, as the U.S. itself has recognized, in the past, that the Uniting for Peace Resolution is a useful outlet when veto powers deadlock in the Security Council – which is just what happened here.

Nevertheless, General Assembly President Jan Kavan has commented, “The United States is putting pressure on many countries to resist [a General Assembly meeting on the issue].” Indeed, the U.S. government has sent communications to several nations, stating, “Given the current highly charged atmosphere, the United States would regard a General Assembly session on Iraq as unhelpful and as directed against the United States.”

The U.S.’s campaign is unlikely to succeed in the end. Just as many Security Council members refused to put their imprimatur on a resolution that would have authorized the war before it began, myriad countries will likely defy the United States and call for a cessation of the war.

The Need to Stay With the United Nations Process, Even Now

The General Assembly, the democratic body of the U.N., deserves the opportunity to speak the truth: This is an illegal war. The General Assembly also deserves the opportunity to do what it can at this point – ensure that the U.N. administers a peaceful postwar Iraq in the interests of its citizens.

February 6, 2003

A Double Standard on Torture: The U.S. Should Practice What We Preach

The Bush administration has a double standard on torture and human rights violations as it prosecutes the “war on terror.” While trying to convince the American people in his State of the Union address that war with Iraq is necessary, President George W. Bush marshaled accusations that Saddam Hussein has tortured his people to coerce confessions. Yet in the same speech, Bush sanctioned extrajudicial killings by the United States. He said that more than 3,000 suspected terrorists had been arrested but many others had met a “different fate,” so they would no longer cause us problems. Even more recently, Human Rights Watch and other human rights monitoring groups have expressed concern that the United States has actually been using torture to extract information from prisoners.

The evidence of American torture and associated inhumane conduct is especially disturbing. In December of last year, the documentary “Massacre in Afghanistan” was aired on German television, to the consternation of the U.S. State Department. It shows interviews with eyewitnesses to the torture and slaughter of 3,000 Taliban POWs, who surrendered to U.S. and allied Afghan forces. The film demonstrates the complicity of the American army command in the killing of these 3,000 men. Some of the prisoners died from suffocation while being transported in closed containers that lacked any ventilation. An Afghan soldier who traveled with the convoy reported he was ordered by an American commander to fire shots into the containers to provide air, knowing he would hit the men inside. One of the drivers recounted the fate of survivors of the transport – dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers looked on. These allegations suggest evidence of war crimes and crimes against humanity under the statute of the new International Criminal Court. It is precisely liability for actions such as these that Bush sought to escape when he endeavored to remove the United States’ signature on this treaty last year.

A week after the documentary was shown in Germany, the Washington Post reported that “stress and duress” tactics were being used on captured al Qaeda operatives and Taliban commanders who are being interrogated at the CIA’s secret detention center at the U.S.-occupied Bagram air base in Afghanistan. Those who remain uncooperative may be kept standing or kneeling for hours, wearing black hoods and spray-painted goggles. Some are kept in awkward, painful positions and deprived of sleep with a bombardment of lights for 24 hours. According to the Post: “While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary.” At least two prisoners are known to have died at Bagram base, one of a pulmonary embolism, the other of a heart attack. The article quotes “Americans with direct knowledge and others who have witnessed the treatment,” who reported that MPs and U.S. Army Special Forces troops beat captives and confined them in tiny rooms. Many are blindfolded, thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep. They also report prisoners being bound to stretchers with duct tape for transport. This was the treatment that U.S. citizen John Walker Lindh received, which proved the driving force behind the government’s agreement to a plea bargain. Attorney General John Ashcroft sought to avoid testimony about Lindh’s mistreatment while in captivity.

The Post also reported in March that the U.S. government was secretly sending terrorism suspects to countries such as Egypt and Jordan for interrogation, where they would be subjected to torture. This practice is known as “rendition.” One U.S. diplomat is quoted as saying: “These sorts of movements have been occurring all the time. It allows us to get information from terrorists in a way we can’t do on U.S. soil.”

These actions of the U.S. government constitute direct violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights, which also proscribes torture. Both of these treaties, which the U.S. has ratified, forbid torture even in wartime. Alarmed at the Post report about torture undertaken or condoned by the U.S., Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken “to clarify that the use of torture is not US policy.” Roth reminded Bush that, “U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world.” The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven’t ratified the Torture Convention. The U.S. government’s practice of torture is unjustifiable and a clear violation of international law.

The Bush administration has been emboldened to engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: “This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off.” Indeed, in his speech, Bush said: “All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let’s put it this way – they are no longer a problem to the United States and our friends and allies.” Bush was likely referring to the November 2002 assassination of an alleged al Qaeda leader in Yemen by the CIA. Besides violating the Torture Convention and the jus cogens norm prohibiting torture, extrajudical killings, or summary executions, violate the Covenant on Civil and Political Rights.

Many of the detainees at Guantanamo Bay, Cuba and the U.S. mainland have also been victims of torture and other cruel, inhuman or degrading treatment by the U.S. government. In Guanatanamo, prisoners have been locked in 8-foot by 8-foot cells 24 hours a day, with one 15-minute exercise break each week. A class action filed by the Center for Constitutional Rights in April 2002, alleged that prisoners in the U.S. were beaten into unconsciousness, bloodied, pushed, kicked in the face, teeth loosened, head slammed against the wall, thumbs bent back and called terrorists. Likewise, many foreign nationals who came forward to register recently with the Immigration and Naturalization Service pursuant to Ashcroft’s order, reported being forced to sleep standing up, or were hosed down before they went to sleep on cold concrete floors in frigid temperatures, according to the Los Angeles Times. These constitute violations of the Torture Convention. Amnesty International has reiterated the U.S. government’s international obligations to refrain from violating the Torture Convention and the Covenant on Civil and Political Rights in Afghanistan, in Guantanamo and in the United States.

Victims of torture may have a cause of action in U.S. courts under the Alien Tort Claims Act and the Torture Victim Protection Act. There have been 27 cases brought in U.S. federal courts, in five circuits and nine districts, in which the Convention Against Torture was used successfully. Last year, a judge in Georgia awarded compensatory and punitive damages to plaintiffs, based in part on the Covenant on Civil and Political Rights, in a lawsuit brought by four Muslim refugees from Bosnia-Herzegovina against a former Bosnian Serb police officer under the Alien Tort Claims Act and Torture Victim Protection Act.

Thus far, primarily immigration lawyers and attorneys with foreign-born clients have used the Torture Convention in their litigation. There is, however, great potential to assert the treaty to support U.S. client claims as well, particularly under the Torture Victim Protection Act.

The United Nations has taken steps to make countries that engage in torture accountable to the international community. In December 2002, the U.N. General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the UN Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.

While decrying human rights violations in other countries as it furthers Washington’s agenda, the Bush administration refuses to be accountable for its own transgressions. As U.S. Senior District Judge Jack Weinstein (E.D.N.Y.) wrote last year: “The United States cannot expect to reap the benefits of internationally recognized human rights – in the form of greater worldwide stability and respect for people – without being willing to adhere to them itself.” During his speech, Bush celebrated “the cause of human dignity.” His words, however, ring hollow.

December 13, 2002

Oil: Weapon of Mass Destruction

When Dick Cheney was CEO of Halliburton, the world’s largest oil services company, he told the Cato Institute: “The good Lord didn’t see fit to put oil and gas only where there are democratically elected regimes friendly to the United States.” He admitted: “Occasionally, we have to operate in places where, all things considered, one would not normally choose to go…we go where the business is.” After Cheney became vice president, he made hegemony over the world’s oil supply a priority for U.S. foreign policy. The blueprint for this strategy was developed in the 1992 draft Pentagon Defense Planning Guidance on post-Cold War Strategy, at the direction of Deputy Defense Secretary Paul Wolfowitz, when he was Undersecretary of Defense under Cheney in George H.W. Bush’s cabinet.

This 1992 draft, which was strategically leaked to The New York Times, advocated continued U.S. leadership in NATO by discouraging the advanced industrialized nations “from challenging our leadership.” It said: “We must maintain the mechanism for deterring potential competitors from even aspiring to a larger regional or global role.” The overall objective in the Middle East and Southwest Asia, according to the draft, “is to remain the predominant outside power in the region to preserve U.S. and Western access to the region’s oil.” The bombing of Afghanistan, and the impending Iraq war, both serve that goal.

The incessant drumbeat from Washington is that Americans must be protected from Saddam Hussein’s weapons of mass destruction. Notwithstanding CIA Director George Tenet’s unambiguous declaration that Hussein does not pose an imminent threat to the United States, media commentators postulate unremittingly how many and what types of weapons Hussein must have. George W. Bush has manipulated and cajoled Congress and the Security Council into jumping on his WMD bandwagon. Yet, Bush’s war on Iraq is merely the next step in a concerted strategy to secure control over valuable oil deposits in the Middle East and Central Asia.

Bush’s agenda to reincarnate NATO, inspired by the Wolfowitz document, is key to this oil strategy. NATO was created as a defensive alliance during the Cold War to protect Western Europe from a perceived threat from the Soviet Union. After World War II, the countries of Western Europe were unable to defend themselves. Now they have the resources to provide for their own security, yet NATO has expanded eastward, added several former Soviet bloc countries to its ranks, and redefined its strategic purpose. Bush’s abandonment of containment in favor of preemption is a brazen manifestation of the Wolfowitz theology embodied in the 1992 draft. Indeed, Wolfowitz has been systematically bribing NATO countries to assist with Bush’s impending invasion of Iraq.

The U.S. bombing of Afghanistan, justified as a response to the September 11 attacks, was part of the U.S. oil strategy. Afghanistan never attacked the U.S. and most of the hijackers hailed from Saudi Arabia, a strategic U.S. oil partner. Yet, U.S. and U.K. warplanes ousted the Taliban and secured Afghanistan for the construction of an oil pipeline from Turkmenistan, south through Afghanistan, to the Arabian Sea. The Bush administration had been uncritical of the Taliban’s human rights record when Unocal oil company was negotiating for the pipeline rights before September 11. After assuming control of Afghanistan, Bush conveniently installed Hamid Karzai, a former Unocal official, as interim president of Afghanistan.

Bush likewise seeks to install a U.S.-friendly replacement for Hussein after conquering Iraq. Although couched as a battle against weapons of mass destruction, the U.S. allied with Iraq when it used chemical weapons on the Kurds; indeed, the U.S. furnished Iraq with its WMD technology, according to an Associated Press report. The U.S. played Iraq off against Iran for years, to ensure access to Middle East oil. Bush’s war with Iraq, and ultimate occupation of that country, will clinch that control. With the lives of thousands of Americans and Iraqis at stake, oil may prove to be the most terrible weapon of mass destruction.