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November 24, 2009

Lynne Stewart: Casualty of the ‘War on Terror’

In a decision that reflects the post-911 terrorism hysteria, a three-judge panel of the Second Circuit Court of Appeals has affirmed prominent civil rights attorney Lynne Stewart’s convictions and remanded her case to district court Judge John G. Koeltl to reconsider her sentence. The appellate panel directed Koeltl to remand Stewart to custody and the 70-year-old woman is now in prison.

Stewart was convicted of conspiracy to provide and conceal material support to the conspiracy to murder persons in a foreign country (18 U.S.C. sec. 2339A and 18 U.S.C. sec. 2), conspiring to provide and conceal such support (18 U.S.C. sec. 371), and knowingly and willfully making false statements (18 U.S.C. sec. 1001). The majority opinion states that Stewart was convicted “principally with respect to [her] violations of those measures by which [she] had agreed to abide,” namely, Special Administrative Measures (SAMs).

The SAMs were placed on Stewart’s client, Sheikh Omar Ahmad Ali Abdel Rahman, who is serving a life sentence for terrorism-related crimes. They restrict his ability to communicate with persons outside of the prison. Stewart and Abdel Rahman’s other attorneys, Ramsey Clark and Abdeen Jabara, signed statements saying they wouldn’t forward mail from Abdel Rahman to a third person or use their communications with Abdel Rahman to pass messages between him and third persons, including the media. Stewart violated her agreement to abide by the SAMs. Clark and Jabara allegedly did as well. Lawyers who violate SAMs expect to suffer administrative consequences, such as being denied visiting privileges. Yet Stewart was indicted for federal crimes. Clark and Jabara were not.

Judge Koeltl presided over the nine-month trial. Stewart was precluded from arguing that a prosecution for conspiring to commit a conspiracy (an inchoate offense) raises serious dangers. Koeltl sentenced Stewart to 28 months. The maximum sentence under the federal sentencing Guidelines is 30 years but the Supreme Court held in United States v. Booker, 543 U.S. 220 (2005) that the guidelines are advisory, not mandatory.

Koeltl concluded that the terrorism enhancement, “while correct under the guidelines, would result in an unreasonable result.” He cited “the somewhat atypical nature of Stewart’s case” and “the lack of evidence that any victim was harmed as a result of the charged offense.” The result of the terrorism enhancement, according to Koeltl, was “dramatically unreasonable in [her] case” because it “overstate[d] the seriousness of [her] past conduct and the likelihood that [she would] repeat the offense.”

Stewart, Koeltl concluded, “has no criminal history and yet is placed in the highest criminal history category [under the terrorism enhancement] equal to that of repeat felony offenders for the most serious offenses including murder and drug trafficking.” Koeltl found that Stewart’s opportunity to repeat “the crimes to which she had been convicted will be nil” because she “will lose her license to practice law” [“itself a punishment”] and “will be forever separated from any contact with Sheikh Omar Abdel Rahman.”

Koeltl viewed Stewart’s personal characteristics as “extraordinary” and determined that they “argue[d] strongly in favor of a substantial downward variance” from the guidelines. He described her as a dedicated public servant who had, throughout her career, “represented the poor, the disadvantaged and the unpopular, often as a Court-appointed attorney,” thereby providing a “service not only to her clients but to the nation.”

Koeltl also considered that Stewart had suffered from cancer – undergoing surgery and radiation therapy – and found a significant chance of recurrence. At age 67, Koeltl observed, prison would be “particularly difficult” for Stewart.

Although the appellate majority stated that the district court judge is “in the best position to make an individual determination about the ‘history and characteristics’ of a particular defendant, and to adjust the individualized sentence accordingly,” the panel second-guessed Koeltl by ordering that he reconsider Stewart’s sentence. Specifically, the panel directed Koeltl to consider whether Stewart committed perjury at trial by testifying “that she understood that there was a bubble built into the SAMs whereby the attorneys could issue press releases containing Abdel Rahman’s statements as part of their representation of him.” The panel also directed Koeltl to consider Stewart’s possibly perjured testimony about “her purported lack of knowledge” of Taha, a leader of the Islamic Group, who had solicited a statement from Abdel Rahman opposing the continuation of a ceasefire between the Islamic Group and Egyptian President Hosni Mubarak’s government.

In fact, Koeltl noted there was “evidence to indicate that [Stewart’s] statements were false statements.” But he concluded it was “unnecessary to reach [the question] whether the defendant knowingly gave false testimony with the intent to obstruct the proceedings” because (1) the Guidelines calculation already provided for the statutory maximum, and (2) a non-Guidelines sentence was, in Koeltl’s estimation, “reasonable and most consistent with the factors set forth in Section 3553(a).” Thus, Koeltl did consider whether Stewart committed perjury in his initial sentencing decision. Michael Tigar, Stewart’s trial counsel, told me he is “convinced that there is ample independent corroboration for Lynne’s version of events.”

Judge Calabresi, who joined the majority panel decision, noted in his separate opinion that Koeltl was “a judge of extraordinary ability [with] a well-earned reputation for exceptional judgment.” Calabresi wrote that “for us – who have not been involved in the case and do not know all the backs and forths, . . . to second guess the district court’s judgment seems to me be precisely what both the Supreme Court and our court sitting en banc . . . have said we should not do.”

According to Tigar, Koeltl’s sentence decision was “well-argued.” Tigar said, “For any court of appeals judge to write in a hostile vein about [Koeltl’s] decision is an arrogation to the appellate court of a power that the rules of procedure and long legal tradition vest in trial judges. In addition,” he added, “the sentence reflected the reality of this case, a reality that seems to have escaped the court of appeals panel.”

Calabresi thought it “not . . . entirely irrelevant” that Stewart was the only lawyer criminally charged even though two others also violated the SAMs. Noting that “while prosecutorial discretion may be salutary in a wide variety of cases,” Calabresi wrote, “when left entirely without any controls it will concentrate too much power in a single set of government actors, and they, moreover, may on occasion be subject to political pressure.” Calabresi observed that the district court’s exercise of its sentencing discretion “may provide the only effective way to control and diminish unjustified disparities.”

Judge Walker, concurring and dissenting, wrote separately that Stewart’s sentence was “breathtakingly low” and “extraordinarily lenient.” He would go further than the majority and vacate Stewart’s sentence as “substantively unreasonable.”

Both Calabresi and the majority thought it significant that all of the acts for which Stewart was convicted occurred before the September 11, 2001 attacks. Calabresi would “take judicial notice of their timing,” and “recognize that our attitudes about her conduct have inevitably been influenced by the tragedy of that day.” Notably, he added: “We must be careful then in judging Stewart based on lessons that we learned only after her – very serious – crimes were committed.” Stewart was indicted in 2002 and convicted in 2005.

“Lynne’s representation of the sheik was in the best traditions of advocacy,” Tigar said. “She was brought into the case by Ramsey Clark, and her actions on behalf of her client never went farther than Ramsey had already gone. The government’s conduct towards her when the SAMs issue first erupted validated that belief.”

The clear message of the 125-page majority appellate panel opinion is that attorneys who zealously represent their clients in the post-9/11 era beware. This result will undoubtedly chill the willingness of criminal defense attorneys to handle terrorism cases. Moreover, the Court of Appeals fortuitously released its opinion just as Attorney General Eric Holder announced his intent to try Khalid Sheikh Mohammed in federal court for his alleged role in the 9/11 attacks.

National Lawyers Guild, Other Human Rights Groups Send Open Letter to Eric Holder

Seventeen human rights and civil rights organizations and 45 prominent lawyers and civic leaders have sent a letter to Attorney General Eric Holder last week urging him to appoint a special independent prosecutor to investigate and prosecute Bush officials and lawyers involved in setting illegal interrogation policies.

Holder had expanded the mandate of Justice Department lawyer John Durham to include a preliminary investigation but limited Durham’s focus to a handful of interrogators who exceeded the limits set by the “torture memos.”

The groups and individuals stressed that the special prosecutor should come from outside the Department of Justice and not limit the investigation to low-level operatives, but “should investigate and prosecute all those who ordered, approved, justified, abetted or carried out the torture and abuse.”

The letter cites “political pressure” which has “led to [Holder’s] office taking too narrow an approach to the investigation.”

Signatories of the letter include the National Lawyers Guild, Center for Constitutional Rights, U.S. Human Rights Network, and Psychologists for Social Responsibility, as well as prominent torture survivor Sister Dianna Ortiz. Also signing is the International Association of Democratic Lawyers, the American Association of Jurists and many other international bar associations. They urge Holder to “hold firm against any attempts by former Vice President Dick Cheney, the CIA directors, and the media to silence those who demand that the United States hold accountable those who have committed and authorized torture.”

Both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions “expressly require the United States to either extradite or initiate prosecution of persons who are reasonably accused,” the letter says, adding “this is a legal obligation.”

“Whether actionable intelligence was gained is not the issue,” the letter in conclusion reminds the Attorney General, and says that he cannot “pick and choose those laws you will enforce.”

If you or your organization wish to sign the letter, contact Marjorie Cohn at libertad48 ‘at’ san.rr.com.

August 16, 2009

Legendary Lawyer Doris Brin Walker Dies; Represented Angela Davis, Smith Act Defendants

Doris “Dobby” Brin Walker, the first woman president of the National Lawyers Guild, died on August 13 at the age of 90. Doris was a brilliant lawyer and a tenacious defender of human rights. The only woman in her University of California Berkeley law school class, Doris defied the odds throughout her life, achieving significant victories for labor, and political activists.

Doris’ legal and political activism spanned several decades and some of the most turbulent but significant periods in US history. She organized workers, fought against Jim Crow and McCarthyism, was active in the civil rights and anti-Vietnam War movements, and actively opposed the current wars in Iraq and Afghanistan.

At UCLA, Doris became a Marxist. After she was sworn in as a member of the California State Bar, Doris joined the Communist Party USA, remaining a member until her death. Upon graduation from law school, Doris began practicing labor law; but a few years later, she went to work in California canneries as a labor organizer. When Cutter Labs fired Doris in 1956, the case was appealed all the way to the Supreme Court. Although the Court refused to hear the case, Justice Douglas, joined in dissent by Chief Justice Warren and Justice Black, wrote, “The blunt truth is that Doris Walker is not discharged for misconduct but either because of her legitimate labor union activities or because of her political ideology or belief. Belief cannot be penalized consistently with the First Amendment . . . The Court today allows belief, not conduct, to be regulated. We sanction a flagrant violation of the First Amendment when we allow California, acting through her highest court, to sustain Mrs. Walker’s discharge because of her belief.”

Doris returned to the practice of law and represented people charged under the Alien Registration Act of 1940 (the Smith Act) in California. The Act required all resident aliens to register with the government, enacted procedures to facilitate deportation, and made it a crime for any person to knowingly or willfully advocate the overthrow of the government by force or violence. The work of Doris and other NLG lawyers led to Yates v. United States, in which the Supreme Court overturned the convictions of Smith Act defendants in 1957. After Yates, the government never filed another prosecution under the Smith Act.

During the McCarthy era, Doris was called to testify before the House Un-American Activities Committee and she also represented several HUAC witnesses. From 1956 to 1961, Doris successfully defended William and Sylvia Powell, who faced the death penalty, against Korean War sedition charges. The US government charged that articles Powell had written reporting and criticizing US biological weapons use in Korea were false and written with intent to hinder the war effort. When a mistrial ended the sedition case, the government charged the Powells with treason. Attorney General Robert Kennedy dismissed the case in 1961.

A partner with the NLG firm of Treuhaft & Walker in Oakland, California from 1961 to 1977, Doris’ practice focused on civil rights, free speech and draft cases during the Vietnam War. She also defended death penalty cases. Perhaps best known for her defense of Angela Davis, Doris was part of a legal team that secured Angela’s acquittal on charges of murder, kidnapping and conspiracy. In that case, which Harvard Professor Charles Ogletree in 2005 called “clearly the trial of the 20th century, and one that exemplified the vast and diverse talents of the true Dream Team of the legal profession,” the defense pioneered the use of jury consultants.

Doris was elected president of the NLG in 1970 after a bruising battle during which one opponent labeled her “a man in a woman’s skirt.” She paved the way for the election of six women NLG presidents in the ensuing years.

Serving as Vice President of the International Association of Democratic Lawyers from 1970 to 1978, Doris supported the struggles of victims of U.S. imperialism throughout the world and was instrumental in the development of international human rights law. In 1996, Doris served as one of eight international observers at the South African Truth and Reconciliation Commission hearings led by Desmond Tutu.

In 2004, Doris submitted a resolution on behalf of the NLG Bay Area Chapter to the Conference of Delegates of the California Bar Association asking for an investigation of representations the Bush administration used to justify the war in Iraq, for possible impeachment.

Noted writer Jessica Mitford and Doris were close friends for years; Jessica was married to Robert Truehaft, Doris’ law partner. When Doris invited Jessica to join the Communist Party, the latter replied, “We thought you’d never ask!” There is speculation that author J.K. Rowling, who cited Jessica as her main literary influence, named her Harry Potter house elf “Dobby” after seeing Dobby Walker’s name in Jessica’s books. On a recent visit to her home, Doris showed me the Dobby references in works by Jessica on her bookshelf.

Doris frequently called me with her concerns and opinions about the issues of the day and in the NLG. She remained intensely engaged in politics until the day she died.

Doris “Dobby” Walker inspired generations of progressive lawyers, law students and legal workers to struggle unrelentingly for justice and equality. She was a friend, comrade and role model to scores of people in and out of the NLG. We will never see the likes of her again.

Doris is survived by her daughter Emily Roberson and her granddaughter Iris Feldman. The family requests that contributions in Doris’ name be sent to the National Lawyers Guild, 132 Nassau St., Room 922, New York, NY 10038.

June 14, 2009

Agent Orange Continues to Poison Vietnam

From 1961 to 1971, the U.S. military sprayed Vietnam with Agent Orange, which contained large quantities of Dioxin, in order to defoliate the trees for military objectives. Dioxin is one of the most dangerous chemicals known to man. It has been recognized by the World Health Organization as a carcinogen (causes cancer) and by the American Academy of Medicine as a teratogen (causes birth defects).

Between 2.5 and 4.8 million people were exposed to Agent Orange. 1.4 billion hectares of land and forest – approximately 12 percent of the land area of Vietnam – were sprayed.

The Vietnamese who were exposed to the chemical have suffered from cancer, liver damage, pulmonary and heart diseases, defects to reproductive capacity, and skin and nervous disorders. Children and grandchildren of those exposed have severe physical deformities, mental and physical disabilities, diseases, and shortened life spans. The forests and jungles in large parts of southern Vietnam have been devastated and denuded. They may never grow back and if they do, it will take 50 to 200 years to regenerate. Animals that inhabited the forests and jungles have become extinct, disrupting the communities that depended on them. The rivers and underground water in some areas have also been contaminated. Erosion and desertification will change the environment, contributing to the warming of the planet and dislocation of crop and animal life.

The U.S. government and the chemical companies knew that Agent Orange, when produced rapidly at high temperatures, would contain large quantities of Dioxin. Nevertheless, the chemical companies continued to produce it in this manner. The U.S. government and the chemical companies also knew that the Bionetics Study, commissioned by the government in 1963, showed that even low levels of Dioxin produced significant deformities in unborn offspring of laboratory animals. But they suppressed that study and continued to spray Vietnam with Agent Orange. It wasn’t until the study was leaked in 1969 that the spraying of Agent Orange was discontinued.

U.S. soldiers who served in Vietnam have experienced similar illnesses. After they sued the chemical companies, including Dow and Monsanto, that manufactured and sold Agent Orange to the government, the case settled out of court for $180 million which gave few plaintiffs more than a few thousand dollars each. Later the U.S. veterans won a legislative victory for compensation for exposure to Agent Orange. They receive $1.52 billion per year in benefits.

But when the Vietnamese victims of Agent Orange sued the chemical companies in federal court, U.S. District Judge Jack Weinstein dismissed the lawsuit, concluding that Agent Orange did not constitute a poison weapon prohibited by the Hague Convention of 1907. Weinstein had reportedly told the chemical companies when they settled the U.S. veterans’ suit that their liability was over and he was making good on his promise. His dismissal was affirmed by the Second Circuit Court of Appeals and the Supreme Court refused to hear the case. The chemical companies admitted in their filing in the Supreme Court that the harm alleged by the victims was foreseeable although not intended. How can something that is foreseeable be unintended?

On May 15 and 16 of this year, the International Peoples’ Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange convened in Paris and heard testimony from 27 victims, witnesses and scientific experts. Seven people from three continents served as judges of the Tribunal, which was sponsored by the International Association of Democratic Lawyers (IADL).

Testimony given by the witnesses showed the following:

Mai Giang Vu, a member of the Army of South Vietnam, carried barrels of the chemicals on his back. His two sons could not walk or function normally, their limbs gradually “curled up” and they could only crawl. They died at the ages of 23 and 25.

Pham The Minh, whose parents also served in the South Vietnamese Army, showed the Tribunal his severely deformed, crooked, skinny legs; he has great difficulty walking, as well as digestive and pulmonary diseases.

To Nga Tran is a French Vietnamese who worked as a journalist during the spraying. Her daughter weighed 6.6 pounds at the age of three months. Her skin began shredding and she could not bear to have skin contact or simple demonstrations of love. She died at 17 months, weighing 6.6 pounds. Ms. To described a woman who gave birth to a “ball” with no human form. Many children are born without brains; others make inhuman sounds.

Rosemarie Hohn Mizo is the widow of George Mizo, who served in the U.S. Army in Vietnam in 1967. He slept on contaminated ground and consumed food and drink that were also contaminated. George refused to serve after he was wounded for the third time; he was court-martialed and sentenced to 2-1/2 years in prison and a dishonorable discharge. George helped found the Friendship Village where Vietnamese victims live in a supportive environment. He died from conditions related to his exposure to Agent Orange.

Georges Doussin, co-founder of the Friendship Village, visited a dormitory where he saw 50 highly deformed “monsters,” who produced inhuman sounds. One man whose parent had been exposed to Agent Orange had four toes on each foot. Doussin said Agent Orange creates “total anarchy in evolution.”

Dr. Nguyen Thi Ngoc Phuong, from Tu Du Hospital in Ho Chi Minh City (Saigon), sees many children born without arms and/or legs, without heads or faces, and without a brain chamber. According to the World Health Organization, only 1 – 4 parts per trillion (PPT) of Dioxin in breast milk can cause severe deformities in fetuses and even death. But up to 1450 PPT are found in maternal milk in Vietnam.

Dr. Jeanne Stellman, who wrote the seminal article about Agent Orange in the magazine Nature, testified that “this is the largest unstudied environmental disaster in the world (except for natural disasters).”

Dr. Jean Grassman, from Brooklyn College at City University of New York, testified that Dioxin is a potent cellular disregulator which alters a variety of pathways to disrupt many systems. Children, she said, are very sensitive to Dioxin; the intrauterine or post natal exposure to Dioxin may result in altered immune, neurobehavioral, and hormonal functioning. Women pass their exposure to their children both in utero and through the excretion of Dioxin in breast milk.

Many ecosystems have been destroyed and Dioxin continues to poison Vietnam, especially in the several “hot spots.”

Chemist Dr. Pierre Vermeulin testified that it was estimated that $1 billion would be required to restore one hectare of land in Vietnam. The cost of caring for the victims, many of whom need 24-hour care, is enormous.

In 1973, President Richard Nixon promised $3.25 billion in reconstruction aid to Vietnam “without any preconditions.” That aid was never granted.

There are only 11 Friendship Villages in Vietnam; 1000 are needed to care for the child victims of Agent Orange.

Last week, the Bureau of the IADL, meeting in Hanoi, presented President Nguyen Minh Triet of the Socialist Republic of Vietnam with the final decision of the Tribunal. The judges found the U.S. government and the chemical companies guilty of war crimes, crimes against humanity, and ecocide during the illegal U.S. war of aggression in Vietnam. We recommended that the Agent Orange Commission be established in Vietnam to assess the damages suffered by the people and destruction of the environment, and that the U.S. government and the chemical companies provide compensation for the damage and destruction.

I told the President that it always struck me that even as U.S. bombs were dropping on the people of Vietnam, they always distinguished between the American government and the American people. The President responded, “We fought the forces of aggression but we always reserved our love for the people of America . . . because we knew they always supported us.”

An estimated 3 million Vietnamese people were killed in the war, which also claimed 58,000 American lives. For many other Vietnamese and U.S. veterans and their families, the war continues to take its toll.

Several treaties the United States has ratified require an effective remedy for violations of human rights. It is time to make good on Nixon’s promise and remedy the terrible wrong the U.S. government perpetrated on the people of Vietnam. Congress must pass legislation to compensate the Vietnamese victims of Agent Orange as it did for the U.S. Vietnam veteran victims.

Our government must know that it cannot continue to use weapons that target and harm civilians. Indeed, the U.S. military is using depleted uranium in Iraq and Afghanistan, which will poison those countries for incalculable decades.

Marjorie Cohn, a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild, served as a judge on the International Peoples’ Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange. She is a member of the Bureau of the International Association of Democratic Lawyers.

May 30, 2009

National Lawyers Guild Calls for Reasoned Analysis of Sotomayor Nomination

New York–In the wake of President Obama’s nomination of Judge Sonia Sotomayor to the United States Supreme Court, the National Lawyers Guild (NLG) encourages a reasoned analysis of Sotomayor’s candidacy. Critics are focusing on accusations of judicial activism and identity politics rather than engaging in sound examination of her legal qualifications. Comments of this nature serve only to distract from meaningful discussion surrounding the judicial confirmation process.

“When Judge Sotomayor was nominated, conservative pundits immediately leveled allegations of judicial activism against her. That charge is not only hypocritical, but is also disingenuous. Bush v. Gore, supported by these same commentators in 2000, is the most vivid example of judicial activism ever displayed by the highest court,” said Marjorie Cohn, President of the National Lawyers Guild.

Critics have increasingly questioned the role that Sotomayor’s race and gender played in her nomination. Changing the discourse from one of judicial qualifications to one of identity politics detracts from a proper evaluation of her suitability for the job.

The Guild encourages an analysis that focuses on Sotomayor’s credentials and ability to interpret the Constitution of the United States. These are the criteria by which any judicial nominee should be evaluated.

May 25, 2009

Obama’s Guantánamo Appeasement Plan

Two days after his inauguration, President Obama pledged to close Guantánamo within one year. The Republicans, led by Senators John McCain, Mitch McConnell and Pat Roberts, immediately launched a concerted campaign to assail the new president. They claimed his plan would release dangerous terrorists into U.S. communities and allow released terrorists to resume fighting against our troops. Fox News agitator Sean Hannity and Bush team players like torture-memo lawyer John Yoo filled the airwaves and print media with paranoia.

The Republican attacks were bogus. A 2008 McClatchy investigation revealed that the overwhelming majority of Guantánamo detainees taken into custody in 2001 and 2002 in Afghanistan and Pakistan were innocent of wrongdoing or bit players with little intelligence value. A substantial number of those prisoners were literally sold to U.S. officials in exchange for bounty payments offered by the U.S. military. A Seton Hall Law Center report has debunked Pentagon claims that many released detainees have “returned to the fight.” And no one has ever escaped from one of the U.S. super-max prisons, which house hundreds of people convicted of terrorist offenses.

The Republicans have continued to oppose the effort to close Guantánamo. In an attempt to burnish his image and forestall war crimes charges, Dick Cheney now leads the charge, making ubiquitous attacks on Obama. Keeping Guantánamo open is “important,” Cheney declares. He claims that closing Guantánamo would endanger Americans, and warns that if detainees are brought to the United States, they would “acquire all kinds of legal rights.” Obama is also taking heat from the intelligence community. Those officials, like Cheney, seek to justify what they did under the Bush regime.

And now even the Democrats are piling on the bandwagon. Reacting defensively to the Republican attack campaign, the Senate voted 90 to 6 to deny Obama funds to close Guantánamo until he comes up with a “plan” for relocating the detainees there. “We spent hundreds of millions of dollars building an appropriate facility with all security precautions on Guantánamo to try these cases,” said Democratic Senator Jim Webb on ABC News. “I do not believe they should be tried in the United States,” he added.

The pressure has caused Obama to buckle. Timed to coincide with a Cheney speech to the right-wing American Enterprise Institute, Obama announced an appeasement plan to deal with the 240 remaining Guantánamo detainees. Parts of his plan would threaten the very foundation of our legal system – that no one should be held in custody if he has committed no crime. These are Obama’s five categories for disposition of detainees once Guantánamo is closed:

1) Those who violated the laws of war will be tried in military commissions.

Obama’s plan would backtrack on an early promise to shut down the military commissions. Obama now claims that such commissions can be fair because they will no longer permit the use of evidence obtained by cruel, inhuman or degrading interrogation methods. He fails to mention, however, that the Pentagon is using “clean teams” to re-interrogate people who were previously interrogated using the prohibited methods. When they once again give the same information, it miraculously becomes untainted. Obama also fails to acknowledge that those tried in the military commissions are forbidden from seeing all the evidence against them, a violation of the bedrock principle that the accused must have an opportunity to confront his accusers.

Even the U.S. Supreme Court has disagreed with this part of Obama’s proposed plan of action. In Ex parte Milligan, the Supreme Court declared military trials of civilians to be unconstitutional if civil courts are available.

Prisoners falling in this category should be tried in the courts of the United States, because the laws of war are actually part of U.S. law. The Supremacy Clause of the Constitution says that treaties shall be the supreme law of the land. The Geneva Conventions and the Hague Convention, which the United States has ratified, contain the laws of war.

2) Those who have been ordered released from Guantánamo will remain in custody.

Seventeen Uighurs from China were ordered released after they were found not to be enemy combatants. But they continue to languish in custody because they would be imperiled if returned to China, which considers them enemies of the state. Suggestions that they be brought to the United States have been met with paranoid NIMBY (not in my backyard!) protestations. So, under Obama’s plan they will remain incarcerated in a state of legal limbo.

3) Those who cannot be prosecuted yet “pose a clear danger to the American people” will remain in custody with no right to legal process of any kind.

These are people who have never been charged with a crime. Obama did not say why they cannot be prosecuted. Secretary of Defense Robert Gates claims as many as 100 people may fall into this category. Included in this group are those who have “expressed their allegiance to Osama bin Laden.” They will suffer “prolonged detention.”

Obama’s plan for “prolonged detention” is nothing more than a newly-coined phrase for “preventive detention,” a policy that harks back to the bad old days of the Alien and Sedition Acts of 1798 and the internment of people of Japanese extraction in the 1940’s. If Obama succeeds in convincing Congress to legalize “prolonged detention,” the United States will continue to be a pariah state among justice-loving nations. The U.S. Congress, still rendered catatonic by post-9/11 rhetoric, will probably capitulate along with Obama.

Michael Ratner, president of the Center for Constitutional Rights, noted that Obama’s new system of preventive detention will just “move Guantánamo to a new location and give it a new name.”

4) Those who can be safely transferred to other countries will be transferred.

Obama noted that 50 men fall into this category. It is unclear what will happen to them when they reach their destinations.

5) Those who violated U.S. criminal laws will be tried in federal courts.

Obama cited the examples of Ramzi Yousef, who tried to blow up the World Trade Center, and Zacarias Moussaoui, who was identified as the 20th 9/11 hijacker. Both were tried and convicted in U.S. courts and both are serving life sentences.

This is the only clearly acceptable part of Obama’s plan. All detainees slated to remain in custody should be placed into this category. The federal courts provide due process as required by the Fifth Amendment to the Constitution, which does not limit due process rights to U.S. citizens: “No person . . . shall be deprived of life, liberty, or property without due process of law.”

The federal courts are well suited to deal with accused terrorists. Indeed, federal judges who have presided over such cases say that the Classified Information Procedures Act can effectively protect classified intelligence in federal court trials.

If Mr. Obama proceeds with the plan he announced this week he will empower those who point to U.S. hypocrisy on human rights as a justification to do us harm. Obama’s capitulation to the intelligence gurus and the right-wing attack dogs will not only imperil the rule of law; it will actually make us more vulnerable to future acts of terrorism.

May 6, 2009

Stanford Anti-War Alumni, Students Call for Condi War Crimes Probe

During the Vietnam War, Stanford students succeeded in banning secret military research from campus. Last weekend, 150 activist alumni and present Stanford students targeted Condoleezza Rice for authorizing torture and misleading Americans into the illegal Iraq War.

Veterans of the Stanford anti-Vietnam War movement had gathered for a 40th anniversary reunion during the weekend. The gathering featured panels on foreign policy, the economy, political and social movements, science and technology, media, energy and the environment, and strategies for aging activists.

On Sunday, surrounded by alumni and students, Lenny Siegel and I nailed a petition to the University President’s office door. The petition, circulated by Stanford Says No to War, reads:

“We the undersigned students, faculty, staff, alumni, and other concerned members of the Stanford community, believe that high officials of the U.S. Government, including our former Provost, current Political Science Professor, and Hoover Institution Senior Fellow, Condoleezza Rice, should be held accountable for any serious violations of the Law (included ratified treaties, statutes, and/or the U.S. Constitution) through investigation and, if the facts warrant, prosecution, by appropriate legal authorities.”

I stated, “By nailing this petition to the door of the President’s office, we are telling Stanford that the university should not have war criminals on its faculty. There is prima facie evidence that Rice approved torture and misled the country into the Iraq War. Stanford has an obligation to investigate those charges.”

After the petition nailing, I cited the law and evidence of Condoleezza Rice’s responsibility for war crimes – including torture – and for selling the illegal Iraq War:

As National Security Advisor, Rice authorized waterboarding in July 2002, according to a newly released report of the Senate Intelligence Committee. Less than two months later, she hyped the impending U.S. invasion of Iraq, saying, “We don’t want the smoking gun to be a mushroom cloud.” Her ominous warning was part of the Bush administration’s campaign to sell the Iraq war, in spite of the UN International Atomic Energy Agency’s assurances that Saddam Hussein did not possess nuclear weapons.

A week before the nailing of the petition, Rice made some Nixonian admissions in response to questions from Stanford students during a campus dinner designed to burnish Rice’s image on campus.

In October 1968, Stanford anti-war activists had nailed a document to the door of the trustees’ office which demanded that Stanford “halt all military and economic projects concerned with Southeast Asia.”

If you have had any affiliation with Stanford, please sign the petition at http://www.stanford.edu/group/antiwar/crpetition.html.