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June 5, 2008

NLG Says Politics Motivated Decision in Cuban Five Case

Two Judges on Three-Judge Panel Uphold Conspiracy to Commit Murder Conviction Despite Government’s Lack of Evidence

New York. The National Lawyers Guild (NLG) believes that politics influenced yesterday’s federal appeals court decision upholding the convictions of five Cuban patriots accused of spying in the United States. The so-called Cuban Five were gathering information on U.S.-based exile groups planning terrorist actions against their island nation.

The court did, however, vacate the sentences of three of the Five, including two serving life terms. A three-judge panel of the 11th U.S. Circuit Court of Appeals returned the three cases to a federal judge in Miami for re-sentencing based on findings that the three men had gathered no classified information.

The full 11th Circuit court in August 2006 upheld the convictions of the Five: Gerardo Hernández , Fernando González , René González , Ramon Labañino, and Antonio Guerrero. It rejected claims that their federal trial should have been moved out of Miami because widespread opposition to the Cuban government among Cuban-Americans would make it impossible to get a fair and impartial jury.

In the appeal ruled on yesterday, the Five challenged rulings on the suppression of evidence from searches conducted under the Foreign Intelligence Surveillance Act, sovereign immunity, discovery procedures, jury selection, prosecutorial and witness misconduct, jury instructions, sufficiency of the evidence to support their convictions, and sentencing.

In this latest decision, the panel voted 2-1 to affirm the life sentence for Gerardo Hernández, who was convicted of conspiracy to commit murder in the deaths of four Miami-based pilots shot down by Cuban jets in 1996. In her 16-page dissent, Judge Phyllis Kravich wrote that the government failed to present evidence sufficient to prove beyond a reasonable doubt that Hernández agreed to participate in a conspiracy to shoot down planes over international airspace, resulting in the deaths of four pilots from an anti-Castro organization, Brothers to the Rescue. The panel also affirmed Rene González’s 15-year sentence for acting as a non-registered foreign agent and conspiracy to act as a non- registered foreign agent.

The panel vacated the life terms of Labañino and Guerrero, agreeing with their contentions that their sentences were improperly configured because no “top secret information was gathered or transmitted.” The judges also vacated Fernando González’s 19-year sentence because he was not a manager or supervisor of the network. The panel remanded these cases to the district court for re-sentencing.

After a trial that lasted six months, the Five were convicted in 2001 of acting as unregistered Cuban agents in the United States and of conspiracy to commit espionage for attempting to penetrate U.S. military bases. A three-judge panel of the 11th Circuit overturned the convictions in 2005, saying there should have been a change of venue. But the full court reversed that decision, 10-2.

“Conspiracy has always been the charge used by the prosecution in political cases,” said NLG attorney Leonard Weinglass, who represents Guerrero. “In the case of the Five, the Miami jury was asked to find that there was an agreement to commit espionage. The government never had to prove that espionage actually happened. It could not have proven that espionage occurred. None of the Five sought or possessed any top secret information or US national defense secrets,” Weinglass added. “The sentence for the conspiracy charge is the same as if espionage were actually committed and proven. That is how three got life sentences. The major charges in this case were all conspiracy related, the most serious being conspiracy to commit murder levied against Gerardo Hernández.”

“Anti-Cuba sentiment has tainted all possibility of a fair trial for the Five since their original arrest and confinement, which the UN Rapporteur on Torture described as violating the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment,” said NLG Executive Director Heidi Boghosian. “During the original trial, the Bush administration paid journalists to write unfavorable stories about Cuba. Anti-Cuban extremists tried to intimidate the jurors, and even prospective jurors admitted that they would be afraid to return not-guilty verdicts against the Five.”

“For nearly 50 years, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba,” said NLG President Marjorie Cohn. “In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba.”

NLG Urges United States to Sign and Ratify Treaty Banning Use of Cluster Bombs

NLG Also Renews Its Call for the U.S. to Ratify Land Mine Treaty

New York. The National Lawyers Guild is disturbed to see that, once again, the rhetoric of the United States government about building peace and security is directly contradicted by its actions. While more than 100 countries met in Dublin and signed a treaty banning the use of cluster bombs, the United States, along with Russia, China and Israel, refused to participate in the conference that led to the treaty and have refused to sign it. The Guild calls on the United States to immediately sign and ratify the treaty, and also renews its call for the United States to ratify the land mine treaty as well.

Cluster bombs are particularly insidious munitions. First, they litter an area with hundreds of submunitions, known as “bomblets,” which both kill and maim. Many of the bomblets do not explode on impact and, like land mines, lurk undetected until unfortunate civilians, often children, stumble on them or pick them up. While the State Department’s Stephen D. Mull had said that removing unexploded ordnance from a battlefield is “an absolute moral obligation,” he did not explain how that was to be accomplished. He also maintained that, for some unexplained reason, the United States needed to utilize cluster bombs as part of its national defense, as inconceivable as it may be to imagine the use of such bombs on U.S. soil. If countries that do not have enormous stockpiles of nuclear weapons, massive land, sea and air power, laser-guided smart bombs and missiles, drone planes and countless other weapons of death and destruction can agree to give up their cluster bombs, there is no reason the United States cannot also agree to cease using them.

In the interest of world peace, and as a means of gaining back a measure of its lost credibility in the international community, the National Lawyers Guild calls on the United States to sign and ratify the treaty banning the use of cluster bombs, and renews its call for the United States to ratify the land mine treaty.

May 24, 2008

Hillary Invokes Assassination

For weeks, pundits have speculated about why Hillary Clinton insists on remaining in the primary race when Barack Obama has all but clinched the Democratic presidential nomination. On Friday, Clinton answered that question. It appears she’s waiting in the wings for something dreadful to befall Obama.

When asked by the editorial board of South Dakota’s Sioux Falls Argus-Ledger why she is still running, Clinton replied, “My husband did not wrap up the nomination in 1992 until he won the California primary somewhere in the middle of June, right? We all remember Bobby Kennedy was assassinated in June in California. I don’t understand it.”

It’s astounding that a presidential candidate could verbalize such a thing when the collective American psyche still aches from the assassinations of John F. Kennedy, Malcolm X, Martin Luther King Jr., and Robert F. Kennedy. Many of us remember where we were when these heroes were shot. The pain we felt is palpable. We still suffer from their absence.

Clinton, evidently surprised at the ferocity of the reaction to her statement, made a half-baked non-apology a few hours later. She expressed regret that anything she said could have offended the Kennedy family. But she uttered not a word of repentance for her suggestion that Barack Obama’s death could inure to her benefit.

The response to Clinton’s invocation of the “A” word was swift and strong. The New York Times called it an “inexcusable outburst.” Keith Olbermann characterized it as “crass and low and unfeeling and brutal.” Noting that “the politics of this nation is steeped in blood,” he admonished Clinton: “You cannot and must not invoke that imagery, anywhere, at any time.”

Clinton’s remarks offer a look into her character. In Olbermann’s words, they “open a door wide into the soul of somebody who seeks the highest office in this country and through that door shows something not merely troubling but frightening.”

Before Friday, a groundswell of support for an Obama-Clinton ticket appeared to be building. But as New York state Sen. Bill Perkins, an Obama supporter, said when he heard Clinton’s comments, “My jaw just dropped — I think she just basically shattered her hopes of being named as vice president. To use the example of an assassination,” Perkins added, “I think, leads one to believe that she may be talking about something unfortunate happening to Barack Obama. Couple that with the other remarks she made recently about winning the white vote and her husband’s statements and I’d say something is seriously amiss.”

How, after Clinton’s ominous remarks, could Obama ever turn his back on her if she became his vice-president?

Anyone who “might be sticking around on the off-chance the other guy might get shot has no business being the president of the United States,” Olbermann declared. As Newsweek’s Howard Fineman noted, Clinton’s is “a campaign that probably needs to be put out of its misery real soon.”

Representative James E. Clyburn of South Carolina, an uncommitted superdelegate, commented that Clinton’s remarks were “beyond the pale.” Indeed, the remaining uncommitted superdelegates should stop the bleeding now and allow us to move on with the election.

 

May 12, 2008

National Lawyers Guild Calls for Special Prosecutor, Issues White Paper on Torture Liability

New York. The National Lawyers Guild (NLG) calls on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute high Bush officials and lawyers including John Yoo for their role in the torture of prisoners in U.S. custody.

The NLG has issued a White Paper explaining why the memos, which purported to give objective legal advice, subject all those involved to prosecution under international and U.S. domestic law. This includes people who ordered the torture, approved it or gave advice to justify it.

Guild President Marjorie Cohn testified on May 6 before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee, that some lawyers in the Department of Justice were “part of a common plan to violate U.S. and international laws outlawing torture.”

The 14-page White Paper details the ways in which the lawyers, including Yoo, Jay Bybee, David Addington, and William Haynes, counseled the White House on how to get away with war crimes. The lawyers said that the Department of Justice would not enforce federal laws against torture, maiming, assault and stalking. “Just because the statute says,” John Yoo explained in a recent Esquire interview, “that doesn’t mean you have to do it.”

Professor Cohn told the congressmen it was “reasonably foreseeable” the lawyers’ advice “would result in great physical and mental harm or death to many detainees”; more than 100 have died, many from torture. Torture, like genocide, slavery and wars of aggression, is absolutely prohibited at all times. No country can ever pass a law that would allow them.

Professor Philippe Sands, a British international litigator and author of the new book, “Torture Team,” also testified at the congressional hearing. He said that after his extensive interviews with many Bush officials, including John Yoo, “it became clear to me that the Administration has spun a narrative that is false, claiming that the impetus for the new interrogation techniques came from the bottom-up. That is not true; the abuse was a result of pressure and actions driven from the highest levels of government.”

It was recently revealed that Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and personally oversaw and approved the torture by authorizing specific torture techniques including waterboarding. President Bush admitted he knew and approved of their actions.

“They are all liable under the War Crimes Act and the Torture Statute,” Professor Cohn testified. “Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander-in-chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.”

The National Lawyers Guild calls on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute the high officials of the Bush administration and the lawyers who advised them, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes.

White Paper can be read at http://nlg.org/news/statements/mcohn_testify2008.php.

May 8, 2008

Congressional Testimony of Marjorie Cohn on Torture Policy

Testimony of Marjorie Cohn

“From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules”

Subcommittee on the Constitution, Civil Rights, and Civil Liberties
House Judiciary Committee

May 6, 2008

What does torture have in common with genocide, slavery, and wars of aggression? They are all “jus cogens.” That’s Latin for “higher law” or “compelling law.” This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a “jus cogens” prohibition.

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.

The US War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.

Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

The maiming statute makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb, or any member of another person” or throw or pour upon another person any scalding water, corrosive acid, or caustic substance.

Yoo said, “just because the statute says — that doesn’t mean you have to do it.” In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person’s child. It depends on the President’s motive, Yoo said, notwithstanding the absolute prohibition on torture.

Yoo twisted the law and redefined torture much more narrowly than the Torture Convention and the Torture Statute. Under Yoo’s definition, you have to nearly kill the person to constitute torture.

Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the Torture Convention’s absolute prohibition against torture in all circumstances.

After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo’s definition of torture, and admitted that a defendant’s motives to protect national security won’t shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners.

Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently he knew interrogators would take action based on what he advised.

Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding. Bush admitted he knew and approved of their actions.

They are all liable under the War Crimes Act and the Torture Statute. Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander in chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.

The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government, and the lawyers who advised them, should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws.

Click here for the complete testimony.

May 1, 2008

National Lawyers Guild President toTestify on Torture Liability Before House Subcommittee on Constitution, Civil Rights and Civil Liberties

On Tuesday, May 6, 2008, National Lawyers Guild President Marjorie Cohn will provide testimony at a hearing titled “From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules,” before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Judiciary Committee. The hearing will begin at 10:00 a.m. at 2141 Rayburn House Office Building in Washington DC.

Cohn is a Professor of Law at Thomas Jefferson School of Law and the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, in which she documents the illegal policy of torture established by high officials of the Bush administration and lawyers in the Department of Justice’s Office of Legal Counsel, including former Deputy Assistant Attorney General John Yoo.

Yoo was also invited to testify at Tuesday’s hearing but declined the invitation.

Testimony will also be provided by Philippe Sands, Professor of Law and Director of the Centre on International Courts and Tribunals at the University College London. Sands authored the book, Lawless World, in which he accuses George W. Bush and Tony Blair of conspiring to invade Iraq in violation of international law.

On April 9, 2008 the National Lawyers Guild called for John Yoo to be tried as a war criminal and for the University of California Berkeley’s Boalt Hall School of Law to dismiss him for conspiring to facilitate the commission of war crimes. The Guild also called on Congress to repeal the provision of the Military Commissions Act that would give Yoo immunity from prosecution for torture committed from September 11, 2001 to December 30, 2005.

Cohn said, “John Yoo’s complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the U.S. War Crimes Act.” See Cohn’s article at http://marjoriecohn.com/2008/04/center- … ghts.html.

The National Lawyers Guild was founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

April 17, 2008

Center for Constitutional Rights Supports National Lawyers Guild Call for Dismissal and Prosecution of John Yoo

On April 1, a secret 81-page memo written by former Deputy Assistant Attorney General John Yoo in March 2003 was made public. In that memo, Yoo advised the Bush administration that the Department of Justice’s Office of Legal Counsel would not enforce U.S. criminal laws, including federal statutes against torture, assault, maiming and stalking in the detention and interrogation of enemy combatants. The week after the publication of Yoo’s memo, the National Lawyers Guild issued a press release calling for the Boalt Hall Law School at the University of California to dismiss Yoo, who is now a professor of law there. The NLG also called for the prosecution of Yoo for war crimes and for his disbarment.

Two days later, the Center for Constitutional Rights released a letter supporting the NLG’s call for Yoo’s dismissal and prosecution. CCR Executive Director Vincent Warren wrote, “The ‘Torture Memo’ was not an abstract, academic foray. Rather, it was crafted to sidestep U.S. and international laws that make coercive interrogation and torture a crime. It was written with the knowledge that its legal conclusions were to be applied to the interrogations of hundreds of individual detainees… And it worked. It became the basis for the CIA’s use of extreme interrogation methods as well the basis for DOD interrogation policy… Yoo’s legal opinions as well as the others issued by the Office of Legal Counsel were the keystone of the torture program, and were the necessary precondition for the torture program’s creation and implementation.”

The day after the NLG issued its press release, Boalt Hall Dean Christopher Edley, Jr. posted a statement on the Boalt Hall website, responding to “the New York Times (editorial April 4), the National Lawyers’ Guild, and hundreds of individuals from around the world” who had criticized or questioned Yoo’s continuing employment at Boalt Hall.

Dean Edley cited the University of California’s Academic Personnel Manual sec. 015, which lists under “Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty.” Edley said he was not convinced Yoo had engaged in “clear professional misconduct – that is, some breach of the professional ethics applicable to a government attorney – material to Professor Yoo’s academic position.” Edley was likewise not convinced “the writing of the memoranda, and [Yoo’s] related conduct, violate[d] a criminal or comparable statute.”

Edley felt Yoo’s conduct was not “morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank, and place.” Edley wrote, “Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.”

Indeed, ABC News reported last week that Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. George W. Bush, the decider-in-chief, admitted, “yes, I’m aware our national security team met on this issue. And I approved.”

These top U.S. officials are liable for war crimes under the U.S. War Crimes Act, and for violation of the Convention Against Torture and the Geneva Conventions, which are all part of U.S. law. They ordered the torture which was carried out by the interrogators.

But John Yoo and the other Justice Department lawyers, including David Addington, Jay Bybee, William Haynes and Alberto Gonzales, are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate U.S. laws. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to “legally” disappear political suspects to special detention camps. The United States charged that since they were lawyers, “not farmers or factory workers,” they should have known their technical justifications for circumventing the Hague and Geneva Conventions were illegal.

The cases of Altstoetter and those of the Bush lawyers share common aspects. Both dealt with people detained during wartime who were not POWs; in both, it was reasonably foreseeable that the advice they gave would result in great physical or mental harm or death to many detainees; and in both, the advice was legally erroneous. More than 108 people have died in U.S. detention since 9/11, many from torture. And the Department of Justice’s Office of Legal Counsel later withdrew the memoranda, an admission that the advice in them was defective.

Furthermore, the Bush lawyers have engaged in ethical violations which should result in their disbarment. As New York University School of Law Professor Stephen Gillers wrote in The Nation, H. Marshall Jarrett, counsel for the Justice Department’s Office of Professional Responsibility, who is examining the legal advice these lawyers provided, “should find that this work is not ‘consistent with the professional standards that apply to Department of Justice attorneys.'”

Even Dean Edley appears to recognize that the case of John Yoo is not a simple issue of academic freedom, such as “merely some professor vigorously expounding controversial and even extreme views.”

As CCR President Michael Ratner wrote in the forthcoming book, The Trial of Donald Rumsfeld, “Had these various opinions been written as a law school or academic exercise, they could be merely condemned and their authors would fail their class, but they would not be held criminally accountable. But they were not an academic exercise. They were written by high-level attorneys [such as John Yoo] in a context where the opinions represented the governing law and were to be employed by the President in setting detainee policy. This was more than bad lawyering; this was aiding and abetting their clients’ violation of the law by justifying the commission of a crime using false legal rhetoric.”

It is inconceivable that Attorney General Michael Mukasey, who has served as a rubber stamp for Bush’s illegal policies, will bring any of these leaders or lawyers to justice. There is a chance that a future Attorney General will do so. Barack Obama has pledged to have his Justice Department and Attorney General “immediately review the information that’s already there and to find out are there inquiries that need to be pursued . . . if crimes have been committed, they should be investigated . . . Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law.” Congress should repeal the provision of the Military Commissions Act that would give these deciders and lawyers immunity from prosecution for torture and other mistreatment committed from September 11, 2001 to December 30, 2005.

In addition to criminal prosecutions, disbarments, and the dismissal of John Yoo from the Boalt Hall faculty, Jay Bybee, who was rewarded for his illegal advice with a federal judgeship, should be removed from the bench by impeachment.

It is time for the impunity enjoyed by the Bush administration to come to an end.

April 9, 2008

National Lawyers Guild Calls on Boalt Hall to Dismiss Law Professor John Yoo, Whose Torture Memos Led to Commission of War Crimes

New York. In a memorandum written the same month George W. Bush invaded Iraq, Boalt Hall law professor John Yoo said the Department of Justice would construe US criminal laws not to apply to the President’s detention and interrogation of enemy combatants. According to Yoo, the federal statutes against torture, assault, maiming and stalking do not apply to the military in the conduct of the war.

The federal maiming statute, for example, makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person.” It further prohibits individuals from “throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance” with like intent.

Yoo also narrowed the definition of torture so the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result; Yoo’s definition contravenes the definition in the Convention Against Torture, a treaty the US has ratified which is thus part of the US law under the Constitution’s Supremacy Clause.

Yoo said self-defense or necessity could be used as a defense to war crimes prosecutions for torture, notwithstanding the Torture Convention’s absolute prohibition against torture in all circumstances, even in wartime. This memo and another Yoo wrote with Jay Bybee in August 2002 provided the basis for the Administration’s torture of prisoners.

“John Yoo’s complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act,” said National Lawyers Guild President Marjorie Cohn.

Congress should repeal the provision of the Military Commissions Act that would give Yoo immunity from prosecution for torture committed from September 11, 2001 to December 30, 2005. John Yoo should be disbarred and he should not be retained as a professor of law at one of the country’s premier law schools. John Yoo should be dismissed from Boalt Hall and tried as a war criminal.

The National Lawyers Guild was founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

March 24, 2008

National Lawyers Guild Welcomes Discussion of Racism Occasioned by Senator Barack Obama’s Historic Speech

In response to highly-publicized sound-bites from sermons by Rev. Jeremiah Wright of Trinity United Church of Christ in Chicago, Sen. Barack Obama delivered an historic speech on racism, titled “A More Perfect Union.”

Rev. Wright had strongly criticized the U.S. government for putting Indians on reservations, Japanese in internment camps, and Africans into slavery. He said, “We bombed Hiroshima, we bombed Nagasaki, and we nuked far more than the thousands in New York and the Pentagon, and we never batted an eye. We have supported state terrorism against the Palestinians and black South Africans, and now we are indignant. Because the stuff we have done overseas has now brought right back into our own front yards. America’s chickens are coming home to roost.” Rev. Wright did not justify the 9/11 attacks; he explained they were blowback for a vicious U.S. foreign policy.

Rev. Wright’s words were not unlike those uttered by Rev. Martin Luther King Jr. about the Vietnam War in 1968: “God didn’t call America to engage in a senseless, unjust war. . . . And we are criminals in that war. We’ve committed more war crimes almost than any nation in the world, and I’m going to continue to say it. And we won’t stop it because of our pride and our arrogance as a nation. But God has a way of even putting nations in their place.”

In his speech, Sen. Obama credited the civil rights movement for the progress we have made in overcoming racism. “But race is an issue that I believe this nation cannot afford to ignore right now,” he said, citing segregated, inferior schools that continue to exist 50 years after Brown v. Board of Education.

Yet last term, the Supreme Court, in Parents Involved in Community Schools v. Seattle School District No. 1, limited the ability of public school districts to address segregation by prohibiting the use of race-conscious measures as a tool to promote integration. Chief Justice John Roberts based his plurality opinion on the myth of “colorblindness,” equating the exclusion and segregation of children by race with the inclusion of different races in the same schools. He ignored the decades of racial discrimination caused in part by segregated schools. Roberts ended his opinion with the flip comment, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Vast disparities with respect to race continue to pervade every aspect of American life. Latinos and African Americans are disproportionately concentrated in poor residential areas with sub-standard housing conditions, limited employment opportunities, inadequate access to health care, under-resourced schools and high exposure to crime and violence.

Racial profiling from the initial police stop to the charging process and trial through the sentencing procedure has been widely documented. Mandatory sentences of life imprisonment are imposed disproportionately on minority defendants. Non-whites are much more likely than whites to be charged with and sentenced to death for substantially similar crimes.

In his 1963 Letter from a Birmingham Jail, Dr. King wrote, “Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.”

Sen. Barack Obama has injected this critical discussion into the national discourse as a means of tackling the problems of inferior schools, health care, jobs and economic opportunities for all races. He said, “It requires all Americans to realize that your dreams do not have to come at the expense of my dreams; that investing in the health, welfare, and education of black and brown and white children will ultimately help all of America prosper.”

The National Lawyers Guild welcomes this long overdue opportunity for a national dialogue on the pernicious racism and class oppression that the U.S. government continues to perpetuate.

March 17, 2008

Beware an Attack on Iran

Is the Bush administration ramping up for an attack on Iran? The signs seem to point in that direction. On March 11, Navy Adm. William Fallon, commander of the U.S. forces in the Middle East, retired early because of differences with Washington on Iran policy. And now, Dick Cheney’s current Middle East tour may be designed to prepare our Arab allies for an imminent “preemptive” war against Iran.

Bush and Cheney have long been rattling the sabers in Iran’s direction. The disaster they created in Iraq isn’t going well, no matter how they spin it. They may feel that engaging the United States militarily in Iran would make it harder to elect anyone other than the seasoned military man, John McCain. The Republican presidential candidate just happens to be touring Iraq with Sen. Joe Lieberman, one of the strongest advocates of a U.S. military strike on Iran. Lieberman is likely on McCain’s short list for a vice-presidential running mate.

Admiral Fallon took early retirement after making comments that contradicted the Bush administration’s aggressive stance on Iran. Fallon told the Arab television station Al Jazeera last fall that a “constant drumbeat of conflict” from the administration against Iran was “not helpful and not useful.” After Fallon announced his retirement, the New York Times reported a senior administration official as saying Fallon’s comments about U.S. Iran policy “left the perception he had a different foreign policy than the president.” If Fallon wants to talk to Iran rather than attack it, then his policy differs from Bush’s.

Chairman of the Joint Chiefs of Staff Adm. Mike Mullen, however, has downplayed the significance of Admiral Fallon’s abrupt retirement. Admiral Mullen proclaimed recently, “In my view, this should not be seen as a sign – at all – towards any kind of conflict with Iran.” Perhaps the chairman doth protest too much.

The White House has been spewing pugilistic rhetoric toward Iran. In spite of the unanimous conclusion of the 16 U.S. intelligence agencies that Iran is not developing nukes, Bush immediately declared, “I have said Iran is dangerous, and the NIE estimate doesn’t do anything to change my opinion about the danger Iran poses to the world – quite the contrary.” (http://marjoriecohn.com/2007/12/bush-still-spinning-nukes-in-iran.html).

News reports this morning announced that Dick Cheney is on a surprise weeklong visit to Iraq, Israel, the occupied Palestinian territories, Saudi Arabia, Oman and Turkey. High on Cheney’s agenda is the topic of U.S. policy toward Iran.

Connect the dots. They paint a very frightening picture.

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