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May 22, 2006

The Hayden Charade

In his testimony before the Senate Intelligence Committee on Thursday, General Michael Hayden promised to promote autonomy and objectivity in the CIA if confirmed as its new director. Hayden assured the senators he would provide “hard-edged assessments” and be tolerant of dissenting views on intelligence matters. “When it comes to speaking truth to power,” Hayden declared, “I will lead CIA analysts by example. I will … always give our nation’s leaders the best analytic judgment.”

The evidence, however, suggests precisely the opposite. As head of the National Security Agency, this 4-star general walked in lockstep with his commander in chief, George W. Bush. Hayden helped designed the illegal program of spying on our telephone calls and emails and then repeatedly defended it when interrogated by the senators at his hearing, citing “legal” opinions of Bush’s hired guns in the Justice Department.

Rather than providing the White House with a neutral assessment of Iran’s nuclear capabilities, we can expect Hayden to give Bush the “intelligence” the president seeks to justify his war on Iran. Things did not run as smoothly as Bush would have wished under the last two CIA directors. He had to dispatch Dick Cheney to the CIA several times to furnish the “intelligence” he needed to rationalize his war on Iraq.

Senator Carl Levin (D-Mich.) asked Hayden if he was “comfortable” with under secretary of defense for policy Douglas Feith’s personal
intelligence-analysis cell, which hyped a link between Iraq and Al Qaeda. Hayden said he wasn’t comfortable with it and protested that he wasn’t aware of a lot of the activity going on leading up to the Iraq war.

But when questioned about Colin Powell’s use of false WMD information to support his infamous appearance before the United Nations in the run-up the war, Hayden made a telling admission.

In response to Levin’s question about the legal standard for declassifying information in the public interest, Hayden said, “We used that in Powell’s speech. George [Tenet] had to call me for three tapes.” Hayden was right in the middle of the preparation for Powell’s disingenuous presentation.

Hayden, who will be the third director of the CIA in two years, will salute and march to Bush’s agenda. The nation’s chief spook will shape the “intelligence” to fit Bush’s policy of regime change in Iran.

Hayden vowed to “reaffirm CIA’s proud culture of risk-taking and excellence.” Not one of the senators, from either party, interrogated Hayden about the CIA’s checkered past.

There was no mention of the CIA’s 1953 coup that ousted Iran’s democratically-elected president Mohammed Mosadeq and replaced him with the US-friendly tyrant, the Shah Reza Pahlavi. The 1979 Iranian revolution lead to the overthrow of the Shah’s regime and the rise of Islamic fascism under the leadership of the Ayatollah Khomeini, providing a model of theocracy for much of the Muslim world.

Absent was any reference in the hearing to the CIA’s support for Osama bin Laden in his fight against the Soviet Union in Afghanistan. The defeat of the USSR there, and the rise of the Mujahedin, enabled the Taliban to come to power. Then, Bin Laden used his CIA training to orchestrate the 9/11 attacks.

Today we are reaping what the CIA sowed in Iran and Afghanistan.

None of the senators asked Hayden about the CIA’s torture manuals, which have been utilized by myriad Latin American dictators to repress their people.

Much of the CIA’s risk-taking is nothing to be proud of. There is no indication that Hayden will bring new integrity to the CIA.

Hayden’s defense of the NSA’s warrantless surveillance program was incredible. When questioned about the Fourth Amendment’s standard for searches and seizures, Hayden assured the senators that he had consulted with his relatives who are in law school for legal advice.

The Fourth Amendment says the people shall be secure from unreasonable searches and seizures, and that no warrant shall issue but upon probable cause. For more than a century, the Supreme Court has held that in order to be reasonable, a search or seizure must be supported by a search warrant based on probable cause and issued by a judge. Only when certain narrowly-defined exceptions apply can the government dispense with a warrant.

Hayden and his law student relatives have reversed that presumption. He told the senators that only reasonableness, not a warrant, is necessary to intercept our private communications. Hayden said the NSA uses a probable cause standard. But the Supreme Court has consistently declared that a judge must determine whether probable cause exists.

When confronted with USA Today’s report that the NSA is collecting data on tens of millions of Americans, monitoring the calls we make and receive, Hayden refused to confirm or deny it.

Two of the long-distance companies named in that article, Verizon Communications and BellSouth, both facing lawsuits for invasion of privacy, have denied giving the government these records. AT&T has refused comment.

Interestingly, Bush issued an executive order on May 5 that allows Director of Intelligence John Negroponte – Michael Hayden’s boss – to authorize a company to conceal activities related to “national security.” Thus, we cannot trust the denials by Verizon and BellSouth.

Like Bush’s warrantless eavesdropping on calls where one party is abroad, the NSA’s massive data collection is illegal.

Both of these programs violate the Foreign Intelligence Surveillance Act, or FISA, which clearly requires a warrant issued by a FISA court judge.

It is illegal for the NSA to collect phone numbers from phone companies unless the FISA court authorizes it.

Telephone records that show what numbers have called a specific telephone are captured by a “trap and trace” device. A “pen register” shows what number a specific telephone has called.

The law on pen registers and trap and trace devices requires that a court order be obtained either under FISA or Title III, the criminal wiretap law.

In order to intercept communications, the NSA would have to demonstrate to the court that the person whose calls are being targeted is an agent of a foreign power or that the information is relevant to an ongoing terrorism investigation.

The Patriot Act allows the FBI to use a national security letter – a kind of administrative subpoena – to obtain these records. But Congress specifically withheld this subpoena power from the NSA, which must convince the FISA court that the information is relevant.

There is no evidence that NSA has obtained court orders before obtaining the phone records of millions of Americans.

There is evidence, however, that the FBI is using national security letters to go after journalists critical of the administration. Brian Ross from ABC News told Amy Goodman on Democracy Now! that the government’s methods are changing the way he operates. It makes his work “very, very difficult,” he said. “And, you know, you sort of have to start thinking, I guess, like some sort of Mafia capo,” Ross noted. “You make your phone calls with bags of quarters at pay phones, if you can find them anymore. It’s chilling to say the least.” So much for a free press.

Last year, the FBI issued a total of 9,254 national security letters, targeting 3,500 citizens and legal residents.

In October 2002, while serving as NSA director, Hayden misled Congress about the extent of the NSA’s warrantless domestic surveillance. Senator Ron Wyden (D-Ore.) told Hayden at the hearing, “I now have a difficult time with your credibility.”

Earlier this year, Hayden made more misleading statements in an appearance before the National Press Club. He said, “The intrusion into privacy is also limited: only international calls.” In fact, the NSA is collecting data on millions of purely domestic calls.

Hayden ducked several questions, deferring his answers to the closed session that followed the public hearing on Thursday. Senators who hear his secret testimony are forbidden to publicize it. Hayden refused to publicly answer seven questions posed by Senator Dianne Feinstein (D-Calif.) about whether the NSA has sought FISA warrants for pen register and trap and trace devices; whether terror suspects in secret CIA prisons are likely to remain incommunicado until the war on terror ends; whether there is periodic review of what useful intelligence can be gathered by interrogations of terrorists held for years with no contact with Al Qaeda; whether “water boarding,” recently classified as torture by the UN, is acceptable; whether the CIA will obey laws and treaties in light of the Detainee Treatment Act; whether Hayden agreed with the CIA inspector general’s conclusion that certain interrogation techniques constitute cruel, inhuman or degrading treatment prohibited by the Convention Against Torture; whether Hayden agreed with estimates that Iran is some years away from nuclear weapons capability; and whether the CIA has received new guidance from the Justice Department about acceptable interrogation techniques since the passage of the Detainee Treatment Act.

Although Hayden pledged objectivity in his opening statement, he let slip his real intention under questioning by Levin. Hayden said the war on terror “is fundamentally a war of ideas. And we have to skew our intelligence to support the other elements of national power as well.” Hayden admitted he will skew the intelligence to fit Bush’s agenda.

During the hearing, Wyden nailed it. He asked Hayden, “Where is the independent check, General, the independent check that can be verified on these programs that the newspapers are reporting on?”

James Madison wrote in 1822: “A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors must arm themselves with the power which knowledge gives.”

General Michael Hayden as CIA director will see to it that we continue to be kept in the dark about how our liberties are swiftly vanishing. The future of our democracy is at stake.

May 21, 2006

UN to US: Close Guantánamo

For the second time this year, a United Nations body has chastised the United States for its torture of prisoners and told it to close its prison camp at Guantánamo Bay, Cuba. In February, the UN Human Rights Commission criticized the US government for force-feeding hunger strikers there – calling it torture – and urged the United States to “close the Guantánamo Bay detention facilities without further delay.”

Yesterday, the Committee Against Torture said that the United States “should cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured.”

When the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it became part of US law under the Supremacy Clause of the Constitution. All parties to the Convention are required to file reports documenting their progress in implementing their obligations under the Convention.

The Committee Against Torture is charged with evaluating those compliance reports. In an 11-page document released yesterday, the committee evaluated the United States’ report, which was filed three and one-half years late.

In its evaluation, the committee stated it was “concerned by reliable reports of acts of torture or cruel, inhuman and degrading treatment or punishment committed by certain members of the [United States’] military or civilian personnel in Afghanistan and Iraq,” some of which resulted in death.

The committee called on the US to rescind any interrogation technique – including sexual humiliation, water boarding, short shackling and using dogs to induce fear – that constitutes torture or cruel, inhuman or degrading treatment or punishment.

Detaining persons indefinitely without charge, as the United States has done with most of the 500 or so prisoners at Guantánamo, constitutes a per se violation of the Convention, the committee noted.

The committee was particularly concerned that the Detainee Treatment Act of 2005, which Congress passed last December, aims to strip US federal courts of jurisdiction to hear habeas corpus petitions filed by or on behalf of Guantánamo detainees. This issue is pending in the Supreme Court in Hamdan v. Rumsfeld, which will be decided by the end of June.

Other concerns included forced disappearances, which are considered to be torture; the practice of rendition of prisoners to countries where they face a real risk of torture; and the establishment of secret detention facilities which are not accessible to the International Committee of the Red Cross.

The United States “should promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to acts of torture committed by their subordinates,” the committee declared.

It noted with disapproval that there have been no prosecutions initiated under the federal torture statute.

Last week, a district court judge in Virginia dismissed an “extraordinary rendition” lawsuit brought by the American Civil Liberties Union on behalf of a German citizen against former CIA director George Tenet and 10 other CIA employees. Khaled el-Masri alleged that he was beaten and injected with drugs after being seized near the Macedonian border with Albania, then taken to Afghanistan and held for five months.

In dismissing the suit, Judge T.S. Ellis said Mr. el-Masri’s “private interests must give way to the national interest in preserving state secrets.”

On Thursday, three or four Guantánamo prisoners attempted suicide. Early reports indicated that when the guard force tried to intervene and save the life of one prisoner, other prisoners attempted to prevent them from rescuing the suicidal prisoner.

By the end of the day, the story provided by the US military had changed. In the later report, the military claimed that a group of prisoners had lured guards into the compound by staging a suicide attempt and then attacked the guards.

May 17, 2006

What Will it Take?

Recent revelations indicate that the President of the United States continues to flout the law.

In December, we learned that Bush signed a secret order in 2002 authorizing the National Security Agency to violate the Foreign Intelligence Surveillance Act by wiretapping without a warrant. Two weeks ago, the Boston Globe revealed that Bush has claimed authority to disobey more than 750 laws passed by Congress. And last week, USA Today reported that he has been secretly collecting the domestic telephone records of tens of millions of Americans.

This is nothing new.

In 2003, Bush invaded a sovereign country in violation of the United Nations Charter. His administration routinely tortures prisoners, rendering some to countries that have perfected the art of torture. The US laws prohibiting torture are absolute; torture is never permitted, even in time of war.

What will it take for Congress to exercise its Constitutional authority to stop the president when he has gone too far?

Every time another instance of Bush’s lawbreaking emerges, a handful of lawmakers express indignation. Senator Arlen Specter (R-Pa.) talked tough when the secret NSA program became public a few months ago. But when Bush mouthpiece Alberto Gonzales appeared before the Senate Judiciary Committee, Specter skillfully threw him softballs to dilute the thrust of the administration’s illegal spying.

“Maverick” John McCain (R-Ariz.) is busy defending Bush’s Iraqi disaster and pandering to Jerry Falwell at “Liberty University.”

The Republicans aren’t the only ones in Congress who are asleep at the wheel. When Senator Russell Feingold (D-Wis.) made a motion to censure Bush for his illegal NSA spying, all Democratic senators, with a couple of exceptions, ran for cover.

Edward Kennedy (D-Mass.), Barack Obama (D-Ill.), John Kerry (D-Mass.) and Hillary Clinton (D-NY) sat on their hands.

Clinton, the likely 2008 Democratic presidential candidate, is a major Bush ally when it comes to foreign policy. As our brave soldiers continue to die in his illegal, gratuitous war, Clinton opposes withdrawal any time soon. “Nor do I believe that we can or should pull out of Iraq immediately,” she said. Clinton advocates leaving behind “a small contingent in safer areas with greater intelligence and quick strike capabilities” – in other words, the 14 “enduring bases” Bush is building in Iraq.

And as Bush ramps up his dangerous rhetoric against Iran, following the same game plan he used in the run-up to his Iraq war, Clinton eggs him on.

In January, Clinton challenged Bush to get tough with Iran. In a line from Bush’s playbook, she told an audience at Princeton University’s Woodrow Wilson School, “We cannot take any option off the table in sending a clear message to the current leadership of Iran – that they will not be permitted to acquire nuclear weapons.”

Never mind the absence of any evidence that Iran is actually acquiring nukes.

To grease the wheels for his impending attack on Iran, Bush has nominated yes-man General Michael Hayden to head the CIA. Hayden was in charge of the NSA while it was keeping track of our phone calls. A Senate confirmation of Hayden will ensure that Bush receives the intelligence he wants to fit his policy of regime change in Iran.

Where’s the accountability?

Since George W. Bush took the reins of government more than five years ago and began to systematically unravel the separation of powers and the rule of law, Congress has opened no investigations with subpoena power to hold the president accountable.

The Justice Department’s “inquiry” into Bush’s NSA spying program ended abruptly last week when the National Security Agency refused to grant DOJ lawyers necessary security clearances.

Bush justifies his warrantless surveillance programs as essential to keep America safe. Yet, as Frank Rich pointed out in Sunday’s New York Times, these programs “may have more to do with monitoring ‘traitors’ like reporters and leakers than with tracking terrorists.”

In an attempt to neuter the press, Team Bush has been tracking the phone numbers reporters at ABC News, the New York Times and the Washington Post call.

“What we have here is a clandestine surveillance program of enormous size, which is being operated by members of the administration who are subject to no limits or scrutiny beyond what they deem to impose on one another,” the Times wrote in an editorial last week.

In response to a suit filed by the Electronic Frontier Foundation against AT&T for its alleged participation in the government’s electronic surveillance program, the Bush administration filed secret statements in a motion to dismiss. Bush contends that allowing the case to proceed would jeopardize national security.

With Bush’s popularity at an all-time low, the Democrats are in a prime position to take back both houses of Congress. But even if the gerrymandering by Delay & Co. doesn’t prevent a shift in Congressional power, there is no guarantee that the new power brokers in Congress would stand up to Bush. Indeed, House Democratic leader Nancy Pelosi has ruled out impeachment of the president.

As we witness the deployment of 6,000 precious National Guard troops to the border in a photo-op designed to boost support for Republicans in the November election, we can take solace in a recent suggestion going around:

The members of Congress should resign and undocumented immigrants should take over because they will do jobs that Americans won’t do.

What will it take for Congress to do its job?

May 9, 2006

Bush Setting up Attack on Iran

Now that the mission – whatever it was – has not been accomplished in Iraq, Bush is setting up a potentially bigger disaster in Iran.

Last month, Seymour Hersh revealed that the US military is making preparations for an attack on Iran. Recent events confirm Hersh’s report.

The Bush administration is stepping up the pressure on the Security Council to pass a resolution that the US will use to justify an invasion. John Bolton, the US ambassador to the United Nations, is pushing Council members to vote on a resolution this week.

Hersh wrote, “There is a growing concern among members of the United States military, and in the international community, that President Bush’s ultimate goal in the nuclear confrontation with Iran is regime change.”

A former defense official who still advises the Bush administration told Hersh that the military planning is grounded in the belief that “a sustained bombing campaign in Iran will humiliate the religious leadership and lead the public to rise up and overthrow the government.”

This reasoning is counter-intuitive. Iranians who become the victims of US aggression are much more likely to rally around the Islamic fundamentalist regime in Iran and fight to expel the foreign infidels.

“Air Force planning groups are drawing up lists of targets, and teams of American combat troops have been ordered into Iran, under cover, to collect targeting data and to establish contact with anti-government ethnic-minority groups,” Hersh learned from current and former American military and intelligence officials.

One of the military proposals calls for the use of bunker-buster tactical nuclear weapons against underground nuclear sites. That would mean “mushroom clouds, radiation, mass casualties, and contamination over years,” a former senior intelligence official informed Hersh.

A Pentagon adviser said the Air Force would strike many hundreds of targets in Iran, 99 percent of which have nothing to do with nuclear proliferation.

It would not just be Iranians who take the hits, the Pentagon adviser told Hersh. “If we go [into Iran],” he said, “the southern half of Iraq will light up like a candle.” Our troops in Iraq would be at risk of retaliation from Iran and the Muslim world, according to the Washington Post.

Mohammad Ebrahim Dehghani, an Iranian Revolutionary Guards commander, said Tuesday that in response to an invasion of Iran by the United States, Iran’s first target would be Israel.

Once again, Team Bush is whipping the media – and its consumers – into a frenzy of fear, this time against a nuclear Iran.

Two weeks ago, Condoleezza Rice said that Bush administration officials “have to be concerned when there are statements from Iran that Iran would not only like to have this technology but would share it, share technology and expertise.” Rice also said, “We can’t let this continue.”

Never mind that Western nuclear scientists said last month that Iran lacks the skill, material and equipment to fulfill its immediate nuclear ambitions, the New York Times reported.

Once again, a “preventive” war initiated by Bush would violate the United Nations Charter, which forbids the use of armed force against another country unless it poses an imminent threat, or when the Security Council authorizes an attack.

Bush is following the same route he took on the way to regime change in Iraq. He pressured members of the Security Council for a resolution threatening Iraq. The Council passed Resolution 1441. France, Russia and China issued a joint statement specifying, “Resolution 1441 (2002) adopted today by the Security Council excludes any automaticity in the use of force.” In other words, the US would have to return to the Council to secure authorization to invade Iraq.

Bush was unable to secure a second resolution from the Council that would authorize an attack on Iraq. So Bush rationalized his invasion by cobbling together Resolution 1441 and two prior Council resolutions from the Gulf War. None of these, separately or collectively, provided a legal basis for Bush’s war on Iraq.

A draft Security Council resolution on Iran, which is supported by Britain, France and the US, was circulated on Wednesday. The next day, French Prime Minister Dominique de Villepin said, “My conviction is that military action is certainly no solution.” Russia and China, the other two permanent members of the Security Council, concur with de Villepin’s sentiments.

But, as it did in Iraq, the British government would likely support Bush if he decides to attack Iran.

Tony Blair has signaled his support of a US military strike, warning that ruling out military action would send a “message of weakness” to Iran.

Last month, Britain’s then foreign secretary, Jack Straw, branded the idea of a nuclear strike on Iran as “completely nuts.” He said military action against Iran was “inconceivable,” and warned his Cabinet colleagues that it would be illegal for Britain to support US military action against Iran.

On Friday, Straw was rewarded for his candor with removal from his position as foreign secretary. Both the Independent and the Guardian in London wrote that Straw’s “fate was sealed” after an angry call from the White House to Blair. The Independent reported that friends of Straw believe Bush was extremely upset at Straw’s comment that the use of nukes against Iran was “nuts.”

When asked a few days ago about the possibility of a nuclear strike on Iran, Bush stated unequivocally, “All options are on the table.”

The Bush administration is undoubtedly pushing the draft resolution as a step along the way to its unilateral use of armed force against Iran.

The draft states that the Council would be “acting under Chapter VII” of the UN Charter. This means that it would be based on a finding of a threat to international peace and security, would be legally binding, and could be the basis for the later imposition of sanctions or the authorization of force.

Yury Fedotov, the Russian ambassador in London, explained that Russia opposed the Chapter VII reference because it is reminiscent of past resolutions on Iraq and Yugoslavia that led to US-led military action which had not been authorized by the Security Council.

“We have serious doubts sanctions would work,” Fedotov said. “[They] could pave the way to a military action. The military option is a nonsense. It’s [an] adventure that could threaten international stability in this region and beyond.”

Indeed, there is no basis for a finding that Iran poses a threat to international peace and security, according to John Burroughs, Executive Director of the Lawyers’ Committee on Nuclear Policy.

Although the International Atomic Energy Agency found Iran to be in non-compliance with some requirements of the non-proliferation and disarmament regime, the IAEA has clearly said there is no evidence that Iran has diverted its declared nuclear materials to weapons.

President Mahmoud Ahmedinajad, who is not necessarily the controlling power in Iran, has engaged in belligerent rhetoric. “This is deplorable,” says Burroughs, “but it does not establish a threat to the peace. There has also been belligerent rhetoric coming from Israel and the United States.”

Given the stakes, it would seem logical that the Bush administration would pursue a diplomatic solution and avoid another disastrous conflagration in the Middle East.

Hugh Porter reported in Asia Times that even Ahmedinajad is amenable to negotiation. The Iranians, he writes, are willing to compromise on enrichment if they can achieve security guarantees against attack.

But Bush refuses to talk to Iran’s leadership. Richard Armitage,deputy secretary of state in Bush’s first term, warns that “diplomacy is not simply meant for our friends. It is meant for our enemies.”

When he inaugurated Iran into his “axis of evil,” Bush defined Iran as our enemy. Sanctions, or an attack, on Iran would hurt the Iranian moderates, whom the US should view as allies.

Moreover, invading Iran may well achieve precisely the opposite of what it portends to do. Joseph Cirincione of the Carnegie Endowment for International Peace maintains it would strengthen Iran’s resolve to develop nukes. It “is almost certain to accelerate a nuclear bomb program rather than destroy it.” Cirincione said, “It’s clear to me there’s no military solution to the Iran problem.”

Bush’s threatened aggression against Iran is no more about nuclear weapons than Iraq was about weapons of mass destruction. It is propelled by an agenda of the neo-conservatives and Washington’s pro-Israel lobby. The US seeks to control the entire Middle East and its valuable oil deposits by changing Iran’s regime, installing a US-friendly government, and building permanent US military bases.

It’s deja vu with the 1953 CIA coup that removed the democratically-elected Mossadeq and installed the tyrannical Shah of Iran. After 25 years of tyranny, the Iranian people rose up and removed the Shah from power, replacing him with Ayatollah Khomeini’s theocracy. The chickens came home to roost.

Bolton said Saturday, “We are still working to achieve unanimity [in the Security Council] … but we’re prepared to go to a vote without it.”

It is time to take the military option against Iran off the table.

May 5, 2006

Moussaoui Jurors Choose Life

The Bush administration’s four-year crusade to kill Zacarias Moussaoui for whatever role he played in the September 11 attacks ended Wednesday when the jury declared Moussaoui will live. Seekers of vengeance are furious that the jury did not opt for death. But the verdict reveals that justice has been done.

Moussaoui, a mentally ill wannabe terrorist, pleaded guilty to conspiracy charges in connection with the 9/11 attacks. At his sentencing hearing, the jury heard heart-wrenching testimony that brought the reality of September 11 into the courtroom. Prosecutors were confident the jury would say that Moussaoui must die to avenge the worst terrorist attack on US soil in our history.

The jury struggled for seven days before deciding Moussaoui would spend the rest of his life in prison. Jurors could not agree that Moussaoui caused the deaths of nearly 3,000 people. Nine of the 12 jurors considered the circumstances of Moussaoui’s early life to be mitigating factors. His father physically and emotionally abused his family, and Moussaoui spent much of his childhood in orphanages.

Perhaps most significant was the testimony of family members of the 9/11 victims. Twelve testified for the defense. Although the rules forbade them from telling the jury that they favored life over death for Moussaoui, their intent was clear. This is the first time victim family members who oppose capital punishment have ever testified in a federal death penalty trial.

These family members gave the jury permission to let Moussaoui live.

Although they did not speak out during the trial, they are now expressing relief at the jury’s verdict.

Robin Theurkauf, whose husband died in the World Trade Center, testified for the defense. A divinity student at Yale, Theurkauf said, “We may have given them [the jurors] permission to free themselves from an obligation to respond to the massive grief with vengeance. We allowed them to view the case dispassionately.”

“More than anyone, we understand why the jury chose the sentence they did,” said Terry Rockefeller, whose sister Laura Rockefeller was in the North Tower of the World Trade Center on September 11, 2001. “As a long-time opponent of the death penalty, a belief even this devastating personal tragedy has not altered, I am relieved by the jury’s decision not to sentence Zacarias Moussaoui to death.” Rockefeller is a member of the Board of Directors of Murder Victims’ Families for Reconciliation.

Antonio Aversano also testified for the defense. His father, Louis Aversano Jr., was a World Trade Center victim. Aversano believes “that our best personal defense against terrorism is to not let the fear and hatred of terror consume our lives but to take whatever steps are necessary to reclaim our hearts, to honor each other and to live life well.”

Other family members also spoke of the importance of modeling a compassionate society for our children.

“Beyond the verdict in this trial, I oppose using the death penalty to demonstrate to citizens that murder is so wrong that we will kill to prove it wrong,” said Patricia Perry. Her son John William Perry was a member of the New York Police Department who died at the World Trade Center. “State killing teaches our children that we do not mean what we say and inures us as a society to the horror of killing.”

Loretta Filipov’s husband Al was on the first plane to the hit the World Trade Center. She feels that “killing Zacarias Moussaoui will not bring my husband back. It will not change the life my family and I now have without my husband and their father. But what killing will do,” she said, “is to continue the cycle of violence, hate and revenge. This is not the face we want for our future, for our children and grandchildren.”

Both Andrea LeBlanc and her husband Robert, who was a passenger on the second plane that crashed into the World Trade Center, opposed the death penalty. “For me, now, this particular case is no exception,” she said. “Violence takes many forms and killing another human being will never undo the harm that has been done.” LeBlanc observed, “Killing Zacarias Moussaoui would not have helped us understand those things that lead to 9/11. Nor would it have helped create the kind of compassionate world I want to live in.”

After Judge Leonie Brinkema pronounced the official sentence of life imprisonment without the possibility of parole for Zacarias Moussaoui, she told him he would “die with a whimper” without ever speaking publicly again.

Moussaoui got the worst of the two possible punishments, in the opinion of Abraham J. Bonowitz, co-founder and director of Citizens United for Alternatives to the Death Penalty. Now that Moussaoui has been sentenced, he “will be effectively silenced, and he’ll lose the soapbox that he would have gotten if he were sent to death row.” Bonowitz noted that Moussaoui “also loses the power to sustain the pain of victims’ families – a fact seemingly lost on the pro-deathies of the world.”

May 1, 2006

Scapegoats in Terror War

The Moussaoui jury today enters its fifth day of deliberations on whether to execute the self-avowed conspirator in the September 11 attacks. After hours of graphic testimony and videotapes of the horrors on 9/11, as well as Moussaoui’s confession, this should have been an open-and-shut case.

Yet the jury cannot ignore the fact that Zacarias Moussaoui is a paranoid schizophrenic. Moussaoui testified that he and would-be shoe-bomber Richard Reid were slated to fly a fifth airplane into the White House on September 11. But the FBI admitted there was no evidence that Reid had prior knowledge of 9/11, or that al-Qaeda had told him to work with Moussaoui.

Defense psychologist Xavier Amador testified that Moussaoui has firmly held delusional beliefs that George W. Bush will free him from prison and that his attorneys are conspiring to kill him.

In fact, Bush is surely delighted that it is Moussaoui, and not the real culprits responsible for the 9/11 attacks, who is on trial. If Bush’s hired gun Alberto Gonzales were to charge Khalid Sheikh Mohammed or Mohammad al-Qahtani, both now in US custody, with crimes for their responsibility for those attacks, their statements would be inadmissible, because they were obtained by torture. Mohammed is the reputed mastermind of 9/11 and al-Qahtani is the alleged “20th hijacker.”

So the best the Bush administration can do to seek justice is to prosecute a mentally ill marginal bit player who was in a Minnesota jail on September 11, 2001.

This is not the first time Team Bush has hidden behind a scapegoat.

Even though the prosecution had no direct evidence tying the Lackawanna Six to terrorist crimes, all six defendants pleaded guilty to crimes that brought them 6 1/2 years to 9 years in prison. The attorney general had threatened to charge them with being “enemy combatants” and ship them to Guantánamo, to be held indefinitely, with no trials and no access to lawyers or courts.

Bush & Co. has suffered a string of defeats in the “terror” cases it has attempted to prosecute.

Last year, a Florida jury acquitted a former professor charged with supporting Palestinian groups. The year before, an Idaho jury refused to convict a college student accused of aiding terrorists in Chechnya and Israel.

An Oregon lawyer arrested by the FBI two years ago was released after being held in custody for nearly three weeks. The FBI had linked him to the Madrid train bombings with a faulty fingerprint identification.

And a judge reversed the convictions of two Detroit men arrested the week after September 11, 2001, for planning a terrorist incident. The prosecutor had covered up the fact that its key witness admitted lying to the FBI.

After Jose Padilla had languished in custody with no charges for nearly three years, Bush finally charged him with a conspiracy unrelated to 9/11 or the “dirty bombing” that former Attorney General John Ashcroft had ceremoniously proclaimed shortly after Padilla’s arrest. Afraid the Supreme Court would slap down the president for designating US citizens “enemy combatants,” the Department of Justice sought to pre-empt an unfavorable ruling by charging Padilla with a crime.

On Friday, a federal judge rejected requests by the Justice Department to further limit the defense’s use of the secret evidence the prosecution plans to employ against Padilla.

What about the so-called Bush “victory” in prosecuting Hamid Hayat of Lodi, California? The day after the jury’s guilty verdict last week, one of the jurors said she had never believed that Hayat was guilty, and that she was pressured by other jurors into changing her vote. The case against Hayat relied on a paid FBI informant whose credibility was undermined at trial and on statements made by Hayat without his lawyer present. The interrogations were conducted in English, which Hayat does not fully understand. Hayat’s lawyers said that detectives used leading questions and his statements were made under duress.

Hayat was prosecuted for providing material support to terrorists by attending a training camp in Pakistan. But the government presented no evidence that Hayat had planned or participated in any terrorist act, or that he had ever been in Pakistan.

Moreover, the material support statute under which Hayat was convicted has twice been declared unconstitutionally vague by the United States Court of Appeals for the Ninth Circuit, because it does not require proof of any overt act.

The federal judge who presided over Hayat’s case declared a mistrial in the case of Hayat’s father, who had been charged with lying to investigators in order to conceal his son’s actions. After eight days of deliberations, jurors were unable to agree on his guilt.

Georgetown University law professor David Cole affirmed, “The government in the war on terrorism has generally swept broadly and put a high premium on convictions at any cost. That puts pressure on prosecutors – to overcharge, to coach witnesses, to fail to disclose exculpatory evidence.”

The judge in Moussaoui’s trial barred the government from seeking the death penalty after prosecutors refused to give the defense access to detained al Qaeda leaders to exonerate Moussaoui. Judge Leonie Brinkema’s decision was overturned by the appeals court. Judge Brinkema nearly dropped the death penalty again after prosecutors improperly coached several witnesses.

Bush frequently declares that his administration is bringing the terrorists to justice. Yet his systematic use of torture on prisoners, a series of botched prosecutions, and pathetic scapegoats hardly inspire confidence in our chief executive.

Indeed, on Friday, the Justice Department admitted for the first time that it issued 9,254 subpoenas to banks, telephone companies and Internet providers last year, seeking information on 3,501 US citizens and legal residents. This should give us all pause. You or I could be next.

April 27, 2006

Taking Reparations Seriously

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law in San Diego says that although reparations for African-American slavery remain an elusive goal due largely to misconceptions about what they might entail, meaningful reparations could in practice come in different forms in different contexts…

The reparations movement is grounded in the civil rights movement and the social justice movements of the 1960s – 1980s.
– Congressman John Conyers, keynote address, March 18, 2006

One hundred and forty years after the end of legalized slavery and 40 years after the passage of civil rights legislation, the legacy of slavery persists. In employment, education, healthcare, and criminal justice, African-Americans suffer from institutionalized racism. The movement to secure reparations for slavery has gained new traction with recent successes of Holocaust litigants. But it remains an elusive goal, due, in large part, to common misconceptions about what reparations would really mean.

Last month, Congressman John Conyers and scholars from around the country participated in an historic gathering to address the myriad issues arising from the debate over reparations. Held at Thomas Jefferson School of Law, the two-day conference focused on slavery and reparations as well as other instances of mass injustice in relation to the themes of justice, causation, group responsibility, moral culpability, racism and forgiveness.

Thomas Jefferson School of Law professor Kaimipono Wenger described reparations as “an acknowledgement of the displacement of the rule of law under slavery.” He noted that Blacks were denied civil and political rights even after slavery ended. “Not only are reparations consistent with the rule of law,” he said. “They are in fact a product of the rule of law.”

Conyers told the conference, “After slavery ended, a new form of subjugation kicked in. There is a continuing, traceable, uninterrupted connection of racial subjugation that explains why there are ghettos today.”

The first reparations for slavery came in the form of land. Titles to 40-acre tracts were distributed to the head of each family of freedmen. Animals that were no longer useful to the military – mules and horses – were given to each household.

In 1989, Conyers introduced a bill which would establish a federal commission to study reparations. It was named HR 40, in honor of the now-famous phrase “40 acres and a mule.” But Congress has still not passed HR 40.

Conyers noted that on February 13, 2006, the American Bar Association adopted a resolution urging the US Congress to 1) create and appropriate funds for a commission to study and make findings relating to the present day social, political and economic consequences of both slavery and the denial thereafter of equal justice under law for persons of African descent living in the United States; and 2) authorize the commission to propose public policies or governmental actions, if any, that may be appropriate to address such consequences.

In adopting this resolution, the ABA cited Congress’s establishment in 1980 of the Commission on Wartime Relocation and Internment of Civilians. Congress directed the commission to review the facts and circumstances surrounding the impact of the internment during World War II on American citizens and permanent resident aliens.

Margaret Chon, a professor at Seattle University School of Law, told the audience that “the Japanese American reparations experience teaches us about the capacity as well as the limits of law to address injustice, not only for this particular group, but also for all groups that have and continue to be harmed by group discrimination.” She said, “If the primary purpose of reparations is to repair past harm, then reparations should include mechanisms to correct past harm that has ‘hardened’ into present everyday practices. That is, reparations requests should anticipate ways to effect long-term structural change.”

Chon cited the 2000 Civil Liberties Public Education Act. Its purpose is to provide competitive grants for public educational activities and the development of educational materials to ensure that the events surrounding the exclusion, forced removal and incarceration of civilians and permanent resident aliens of Japanese ancestry will be remembered and so that causes and circumstances of this and similar events may be illuminated and understood.

Rebecca Tsosie, a professor at Arizona State University College of Law, spoke about reparations for Native Americans. “There is no ‘uniform’ theory of reparations that fits all cultures, all nations, all people. Part of the process is telling the truth,” she said. “That’s why apology is so important.” Tsosie maintained that “’reconciliation’ constitutes a process of ‘healing’ between groups who have experienced bitter and painful relations.”

Professor KJ Greene, from Thomas Jefferson, cited the mass appropriation of Black cultural production as unjust enrichment. He advocated atonement as reparations, not only for the victims, but also for the perpetrators of cultural theft and distortion.

Linda Keller, another Thomas Jefferson professor, discussed reparations for victims of massive human rights violations, with particular emphasis on the compensation system in the new International Criminal Court. “It has the potential to be a comprehensive reparations regime with truly global reach, covering victims of the international crimes of genocide, war crimes and crimes against humanity,” she said.

In the United States, “reparations advocacy has recently shifted from legislative efforts to the courtroom,” Theodore Kornweibel, a professor at San Diego State University, explained. He detailed the way in which the railroads “employed” over 10,000 slaves yearly, making them the largest example of industrial slavery. Kornweibel said that corporate defendants in recent suits seeking reparations include banks, insurance companies and railroads.

The week before the September 11, 2001 attacks, the United States delegation walked out of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durbin, South Africa. Although framed as opposition to resolutions condemning Israel for its treatment of the Palestinians, the Bush administration opposed the demand that the US pay reparations to African-Americans for the damage they suffered from slavery. Conyers reported at the time that other delegates from the Congressional Black Caucus alleged the US was using the Middle East issue as a smoke screen to avoid discussion of reparations.

But this unique conference at Thomas Jefferson took the issue of reparations head-on. The thread that wove the broad range of scholarly views together was the notion that one size doesn’t fit all when it comes to reparations. “Different types of injury proclaim different relationships with disparate national, local, and private entities,” St. Louis University School of Law professor Eric Miller told the gathering. “Each requires a different form of reparations and permits a different critique of structural and individual discrimination. Some forms of reparations are appropriate as between nations; others as between discrete groups within a particular society. Some are directed towards government entities, some towards private actors. Some require monetary damages and some require other forms of remediation.”

Whether apology, atonement, education, or 40 acres and a mule, the solution must fit the problem. And the problem is racism, which, unfortunately, is still very much with us today.

April 26, 2006

The Perfect Storm

Here, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references.
– Eleventh Circuit US Court of Appeals, three-judge panel opinion reversing the convictions of the Cuban Five, August 9, 2005

Many of our leaders seem to view Florida’s Cuban conservatives, including the assassins and terrorists among them, as People Who Vote.
– Alice Walker, introduction, The Sweet Abyss

Since September 11, 2001, George W. Bush has made “the war on terror” the centerpiece of his policy. He uses this mantra to justify his wars on Afghanistan and Iraq, his warrantless surveillance of American citizens, and his escalating threats against Iran.

But Bush defines “terrorist” selectively. When it comes to Cuba, the Bush administration harbors the terrorists and punishes the anti-terrorists. The 700,000 Cuban-Americans in Miami are “people who vote,” as evidenced by their critical role in both the 2000 and 2004 US elections.

On June 8, 2001, five Cuban men known as the Cuban Five were convicted of criminal charges in US district court in Miami. Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González are serving four life sentences and 75 years collectively for crimes including conspiracy to commit espionage and conspiracy to commit murder.

In a 93-page decision, a three-judge panel of the 11th Circuit US Court of Appeals unanimously overturned their convictions on August 9, 2005, because the anti-Cuba atmosphere in Miami, extensive publicity, and misconduct by the prosecutor denied them the right to a fair trial.

Attorney General Alberto Gonzales appealed the panel’s ruling. The case is now pending before the whole, or en banc, Court of Appeals. The court will decide whether the district court wrongly denied the defendants’ motions to change venue and move the trial out of Miami because an impartial jury could not be selected there.

The three-judge panel said that its review of the evidence at trial was “more extensive than is typical for consideration of an appeal involving the denial of motion for change of venue … because the trial evidence itself created safety concerns for the jury which implicate venue considerations.”

For more than 40 years, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba and anyone who advocates the normalization of relations between the US and Cuba.

Terrorist groups including Alpha 66, Omega 7, Comandos F4, Cuban American National Foundation (CANF), Independent and Democratic Cuba (CID) and Brothers to the Rescue (BTTR), operate with impunity in the United States – with the knowledge and support of the FBI and CIA.

Ruben Dario Lopez-Castro, associated with a number of anti-Castro organizations, and Orlando Bosch, who planted a bomb on a Cubana airliner in 1976, killing all 73 persons aboard, “planned to ship weapons into Cuba for an assassination attempt on Castro,” one witness testified at the trial.

The panel noted that “Bosch had a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-related activities in the United States and in other countries.”

Luis Posada Carriles, the other man responsible for downing the Cubana airliner, has never been criminally prosecuted in the United States.

Percy Francisco Alvarado Godoy and Juan Francisco Fernandez Gomez described in depositions attempts between 1993 and 1997 by affiliates of CANF to recruit them to engage in violent activities against several Cuban targets. They both said they were asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction.

The panel found:

Alpha-66 ran a paramilitary camp training participants for an invasion of Cuba, had been involved in terrorist attacks on Cuban hotels in 1992, 1994, and 1995, had attempted to smuggle hand grenades into Cuba in March 1993, and had issued threats against Cuban tourists and installations in November 1993. Alpha-66 members were intercepted on their way to assassinate Castro in 1997. Brigade 2506 ran a youth paramilitary camp. BTTR flew into Cuban air space from 1994 to 1996 to drop messages and leaflets promoting the overthrow of Castro’s government. CID was suspected of involvement with an assassination attempt against Castro. Comandos F4 was involved in an assassination attempt against Castro. Commandos L claimed responsibility for a terrorist attack in 1992 at a hotel in Havana. CANF planned to bomb a nightclub in Cuba. The Ex Club planned to bomb tourist hotels and a memorial. PUND planned to ship weapons for an assassination attempt on Castro.
Several terrorist acts in Havana were documented in the panel’s decision, including explosions at eight hotels and the Cuban airport. An Italian tourist was killed, people were injured and all locations sustained property damage. Posada has twice publicly admitted responsibility for these bombings.

The panel characterized Posada as “a Cuban exile with a long history of violent acts against Cuba.”

In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba. Former high-ranking US military and security officials testified that Cuba posed no military threat to the United States. Although none of the five men had any classified material in their possession or engaged in any acts to injure the United States, and there was no evidence linking any of them to Cuba’s shooting down of two small aircraft flown by Cuban exiles, the Cuban Five were nonetheless convicted of all charges.

A survey conducted before trial showed that 69 percent of all respondents and 74 percent of Hispanic respondents were prejudiced against persons charged with engaging in the activities alleged in the indictment.

Legal psychologist Dr. Kendra Brennan characterized the results of a poll of Miami Cuban-Americans as reflecting “an attitude of a state of war … against Cuba” which had a “substantial impact on the rest of the Miami-Dade community.” She found that 49.7 percent of the local Cuban population strongly favored direct US military action to overthrow the Castro regime.

Dr. Lisandro Pérez, Director of the Cuban Research Institute, concluded that “the possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero … even if the jury were composed entirely of non-Cubans, as it was in this case.”

One prospective juror stated that he “would feel a little bit intimidated and maybe a little fearful for my own safety if I didn’t come back with a verdict that was in agreement with what the Cuban community [in Miami] feels, how they think the verdict should be.”

A banker and senior vice president in charge of housing loans was “concern[ed] how … public opinion might affect [his] ability to do his job” which could “affect his ability to generate loans.”

David Buker stated he believed that “Castro is a communist dictator and I am opposed to communism so I would like to see him gone and a democracy established in Cuba.” Buker became the foreperson of the jury.

During deliberations, “some of the jurors indicated that they felt pressured.” They “expressed concern that they were filmed ‘all the way to their cars and [that] their license plates had been filmed,'” according to the panel’s opinion.

The change of venue motion occurred during the Elian Gonzalez matter. “It is uncontested,” wrote the panel, “that the publicity concerning Elian Gonzalez continued during the trial, ‘arousing and inflaming’ passions within the Miami-Dade community.” The panel noted “the various Cuban exile groups and their paramilitary camps that continue to operate within the Miami area.” It concluded, “The perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable.”

The panel found: “Despite the district court’s numerous efforts to ensure an impartial jury in this case, we find that empaneling such a jury in this community was an unreasonable probability because of pervasive community prejudice.”

Noted criminal defense attorney and long-time National Lawyers Guild member Leonard Weinglass represents Antonio Guerrero. Weinglass told me, “In seeking a review of the panel decision, the government has asked the en banc court to convert the finding of a ‘perfect storm’ of prejudice (reached unanimously after a 16-month scrupulous review of the record on venue) into a ‘sunny day’ of placid tolerance.”

The US government’s 47-year economic blockade of Cuba was mirrored by the US media’s blockade of press coverage of the trial. In spite of the avalanche of coverage in Miami, it was hardly mentioned in the national media.

“It is inexplicable that the longest trial in the United States at the time it occurred, hearing scores of witnesses, including three retired generals and a retired admiral, as well as the President’s Advisor on Cuban Affairs (all called by the defense) and a leading military expert from Cuba, all the while considering the dramatic and explosive 40-year history of US-Cuba relations, did not qualify for any media attention outside of Miami,” Weinglass said.

The Cuban Five were placed in solitary confinement for 17 months, in tiny cells where they could barely stand, until the start of their trial. Two have been denied visits from their wives for the last seven years in violation of US laws and international norms.

Hopefully, the Court of Appeals will agree with its three-judge panel that the poisonous atmosphere surrounding the trial of the Cuban Five in Miami warrants a new trial.

April 1, 2006

The New Civil Rights Movement

In a wave of mass protest not seen since the 1960s, hundreds of thousands of people have taken to the streets to demand justice for the undocumented. An unprecedented alliance between labor unions, immigrant support groups, churches, and Spanish-language radio and television has fueled the burgeoning civil rights movement.

The demonstrations were triggered by the confluence of a draconian House bill that would make felons out of undocumented immigrants and HBO’s broadcast of Edward James Olmos’s film, “Walkout.” But the depth of discontent reflects a history of discrimination against those who are branded “illegal aliens.”

Since September 11, 2001, immigrants have become the whipping boys for the “war on terror.” Calls for enhanced militarization of the southern US border – including a 700-mile-long Sisyphean fence – reached a crescendo in the bill passed by the House of Representatives.

Under its terms, three million US-citizen children could be separated from their parents, who would be declared felons and be subject to immediate detention and deportation. Those who employ them, and churches and nonprofits that support them, could face fines or even prison.

Cardinal Roger Mahony called it a “blameful, vicious” bill, and vowed to continue serving the undocumented even if it were outlawed.

Immigrants comprise one-third of California’s labor force. But claims that immigrants take jobs away from Americans are overblown. Last summer, California suffered from labor shortages in spite of the high percentage of undocumented workers who labor in the fields.

As a likely result of pressure from business dependent on cheap labor and the escalating protests around the country, the Senate Judiciary Committee passed a bill that strikes a more reasonable balance. It would legalize the nation’s 11 million undocumented immigrants, and provide them with the opportunity to become citizens. They would have to remain employed, pass criminal background checks, learn English and civics, and pay fines and back taxes. A temporary worker program would allow about 400,000 foreign nationals to enter the United States each year; they too could be granted citizenship.

The current debate in the full Senate has focused on accusations and denials of “amnesty” and threats to national security. But the “immigration problem” is more complex than the sound bytes that proliferate. Seventy-eight percent of the 11 million undocumented immigrants are from Mexico or other Latin American countries.

According to Michael Lettieri, a Research Fellow with the Council on Hemispheric Affairs, “The free trade accords that the Bush administration so tirelessly promotes do little to remedy such maladies, as both NAFTA and CAFTA-DR leave regional agricultural sectors profoundly vulnerable, as well as disadvantaged, in the face of robustly subsidized US agribusiness that enables Iowa to undersell Mexico when it comes to corn.”

The US was instrumental in the passage of NAFTA, which protects the rights of employers and investors but not workers. As a result of NAFTA, wages in Mexico, Canada and the United States have fallen. US food exports have driven millions of poor Mexican peasants from their communities. They come north to find work.

Seventeen-year-old Carlos Moreno was among the thousands of students in Los Angeles who walked out of their high schools to protest the attack on immigrants. “I was born here,” he said, “but I’m doing it for my parents, and for my family, and for all the Latinos, because I know what the struggle is.”

Sergio, an undocumented tenth grader from San Diego High School, attended a rally in San Diego’s historic Chicano Park. “My parents are proud of me,” he said. “They told me that I should help every time I can.”

A few years ago, San Diego filmmakers Issac and Judith Artenstein released “A Day Without a Mexican.” In the film, all of the Mexicans in California disappeared one day. Gone were the cooks, gardeners, nannies, policemen, doctors, farm and construction workers, entertainers, athletes, as well as the largest growing market of consumers. The world’s fifth largest economy was paralyzed.

Today we celebrate the birthday of César Chávez, one of the most influential labor leaders this country has ever known. In the 1970s, when undocumented workers crossed the border and went to work in California’s fields for lower wages than employers had to pay union members, the United Farm Workers began to call the migra to have them deported. Eventually, César realized that a much better solution was to organize those immigrants into the union.

The answer is not to shut out those who work for less than minimum wage, without workers’ compensation, occupational safety protections, and overtime pay. “It is a common-sense solution to bring an underground economy above ground,” Senator Edward Kennedy (D-Mass.) said, “with strong labor protections to improve working conditions for all.”

March 27, 2006

Supremes Consider Kangaroo Courts

Today the Supreme Court is hearing oral arguments in the most significant case to date on the limits of George W. Bush’s authority in his “war on terror.” In the first two cases it heard, the high court reined in Bush for his unprecedented assertion of executive power. It held in Rasul v. Bush that the Guantánamo prisoners could challenge their confinement in US federal courts. In Hamdi v. Rumsfeld, the Court said that “a state of war is not a blank check for the President when it comes to rights of the Nation’s citizens.”

Salim Ahmed Hamdan, Osama bin Laden’s chauffeur, is facing trial in one of the military commissions that Bush created on November 13, 2001. The case pending in the high court will determine the legality of those military commissions, and will decide whether Hamdan and other Guantánamo detainees can challenge their detention in US federal courts.

The importance of Hamdan v. Rumsfeld is evident from the sheer number of amicus briefs it has garnered. Of the 42 amici in this case, 37 – including one filed by 280 law professors, this writer among them – support Hamdan’s position.

Afghani militia forces captured Hamdan in Afghanistan in November 2001. They turned him over to the United States military, which transported him to the Guantánamo Bay naval base in Cuba, where he continues to be detained.

In 2004, the US government designated Hamdan an “enemy combatant” and charged him with conspiracy to commit the following crimes: attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism. Hamdan has not been charged with committing the underlying substantive crimes. The military commissions only have jurisdiction to try war crimes. Conspiracy is not a war crime.

In November 2004, the US District Court for the District of Columbia granted Hamdan’s petition for habeas corpus. That court held that Hamdan could not be tried by a military commission unless a competent tribunal first determined that he was not a prisoner of war under the Third Geneva Convention. The district court also forbade the military commission from trying Hamdan unless the rules for those commissions are amended to be consistent with and not contrary to the Uniform Code of Military Justice (UCMJ).

The Third Geneva Convention requires that if there is a doubt about whether someone is a POW, a “competent tribunal” shall make the determination; meanwhile, the prisoner must be treated as a POW.

Geneva III also provides that prisoners of war shall be tried in the same types of courts as members of the armed forces of the detaining power. It says, “In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized.”

Article 3 common to the Geneva Conventions prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

Bush crafted the military commissions to deny the accused due process protections the UCMJ guarantees. The accused can be convicted and sentenced to death based on evidence he never sees, in proceedings where he cannot be present. Hearsay is admissible and the standard for admissibility of evidence falls below that required by US military and civilian courts.

In July 2005, the US Court of Appeals for the DC Circuit overturned the district court’s ruling. The appellate court held that the Geneva Convention is unenforceable in court, and that Geneva does not apply to al Qaeda. Chief Justice John Roberts, who voted against Hamdan in the Court of Appeals, will not take part in the Supreme Court decision.

Meanwhile, on December 30, 2005, Congress passed the Detainee Treatment Act of 2005, which codifies US law against cruel, inhuman and degrading treatment. But the act also purports to strip our federal courts of jurisdiction to hear the Guantánamo detainees’ habeas corpus petitions, including those that complain of mistreatment.

The Bush administration then moved to dismiss Hamdan’s petition, but the Supreme Court kept the case alive and will hear it today.

Hamdan’s brief challenges the Supreme Court to stop “this unprecedented arrogation of power.” It warns that “if in the interest of ‘national security,’ this Court concludes that the President has such authority, it will be hard pressed to limit, in any principled manner, the President’s assertion of similarly unprecedented powers in other areas of civil society, so long as they purport to serve the same objective. Indeed, it is not hard to imagine a future President invoking this case as precedent, and asserting the need to subject American citizens to military commissions for any offense somehow connected to the ‘war on terror.'”

“In the end,” the Hamdan brief says, “the President cannot claim that the criminal offenses of the laws of war apply to the war on terror, and at the same time deny the accused the right to invoke any of the protections of the laws of war [the Geneva Conventions].”

Steve Clemons, of The Washington Note, recently quoted Sonia Picado, former Costa Rican ambassador to the US, and the first and only woman judge on the Inter-American Court of Human Rights. Picado said that Bush’s military commissions sent “a cold chill” through democracies around the world, which had suffered historically from oppressive secret military tribunals.

Justice Antonin Scalia, who has already pre-judged this case, should recuse himself. In a March 8 talk at the University of Freiberg in Switzerland, Scalia denied that the detainees have legal rights. “War is war,” he declared, “and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts.” Scalia, who flipped his middle finger at reporters in Boston on Sunday, will give the finger to Salim Ahmed Hamdan and the rule of law if he remains on the case.