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April 8, 2005

Torture of Prisoners in U.S. Custody

Major General Geoffrey Miller, the American commander in charge of detentions and interrogations at Abu Ghraib prison in Iraq, recently conducted an overnight tour of the facility for journalists.

He proudly displayed “Camp Liberty” and “Camp Redemption,” newly renovated in response to the torture scandal unleashed by the release of the disgusting photographs last spring.

Under the new system in place at Abu Ghraib, an interrogation plan is submitted to a lawyer for approval before any interrogation begins. The time required to process prisoners has been reduced from 120 to 50 days. Since July, 60% of the reviews have lead to releases.

Three hundred Iraqi prisoners were released on one day in September. Each walked away with $25 and a 12-page glossy pamphlet on Iraq’s interim government.

General Miller, the tour guide, oversaw interrogations at the United States prison at Guantánamo Bay, Cuba. He had been sent to Abu Ghraib last fall to transfer his interrogation system from Cuba to Iraq. It was on his watch that the worst mistreatment, depicted in the publicized photos, occurred.

Several official reports were written with more disturbing revelations. The International Committee of the Red Cross documented 70 – 90 % of those held at Abu Ghraib were there by mistake.

The reaction of the Bush administration to the revelations of torture was to prosecute seven low ranking soldiers.

In spite of calls for investigation of Secretary of Defense Donald Rumsfeld and President George W. Bush for complicity in the mistreatment, the prison torture scandal has been on the back burner in the national discourse.

The September release of Seymour Hersh’s book Chain of Command: The Road from 9/11 to Abu Ghraib, however, has put the issue back on the radar screen.

Rumsfeld testified before the Senate Armed Services Committee that his department was alerted to the abuse of prisoners at Abu Ghraib in January 2004. Rumsfeld told Bush in February about an “issue” involving mistreatment of prisoners in Iraq, according to a Senior White House aide.

These claims are disingenuous. The roots of Abu Ghraib, writes Hersh, lie in the creation of the “unacknowledged” special-access program (SAP) established by a top-secret order signed by Bush in late 2001 or early 2002. The presidential order authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a “high-value” Al Qaeda operative, anywhere in the world.

Rumsfeld expanded SAP into Iraq in August 2003. It was Rumsfeld who approved the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld and Bush set this system in motion long before January 2004. The mistreatment of prisoners at Abu Ghraib was part of the ongoing operation.

Hersch quotes a CIA analyst who was sent to the U.S. military prison at Guantánamo in late summer of 2002, to find out why so little useful intelligence had been gathered. After interviewing 30 prisoners, “he came back convinced that we were committing war crimes in Guantánamo.”

By fall 2002, the analyst’s report finally reached General John A. Gordon, the deputy national security adviser for combating terrorism, who reported directly to national security adviser Condoleezza Rice. Gordon was deeply distressed by the report and its implications for the treatment of captured American soldiers. He also thought “that if the actions at Guantánamo ever became public, it’d be damaging to the president.”

Gordon passed the report to Rice, who called a high-level meeting in the White House situation room. Rumsfeld, who had been encouraging his soldiers to get tough with prisoners, was present at the meeting. Yet Rice asked Rumsfeld “what the issues were, and he said he hadn’t looked into it.” Rice urged him to look into it: “Let’s get the story right,” she declared.

A military consultant with close ties to Special Operations told Hersh that war crimes were committed in Iraq and no action was taken. “People were beaten to death,” he said. “What do you call it when people are tortured and going to die and the soldiers know it, but do not treat their injuries?” the consultant asked rhetorically. “Execution,” he replied to his own question.

We should have seen it coming. In Bush’s January 2003 State of the Union Address, he said: “All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate.” He added, “Let’s put it this way. They are no longer a problem for the United States and our friends and allies.”

Bush was admitting he had sanctioned summary execution, in direct violation of international, and United States, law.

The Bush administration has also admittedly engaged in the illegal practice of rendition, where people are sent to other countries to be tortured. The C.I.A. acknowledged in testimony before Congress that prior to 2001, it had engaged in about seventy “extraordinary renditions.”

In December 2001, for example, American operatives kidnapped two Egyptians and flew them to Cairo, where they were subjected to repeated torture by electrical shocks from electrodes attached to their private parts.

Rape, sodomy with foreign objects, the use of unmuzzled dogs to bite and severely injure prisoners, and beating prisoners to death have been documented at Abu Ghraib. Women beg their families to smuggle poison into the prisons so they could kill themselves because of the humiliation they suffered.

Allegations of routine torture have emerged from Mosul and Basra as well. “Some were burnt with fire, others [had] bandaged broken arms,” claimed Yasir Rubaii Saeed al-Qutaji. Haitham Saeed al-Mallah reported seeing “a young man of 14 years of age bleeding from his anus and lying on the floor.” Al-Mallah heard the soldiers say that “the reason for this bleeding was inserting a metal object in his anus.”

The army has charged one Sergeant with assault and other crimes, and is recommending that two dozen other American soldiers face criminal charges, including negligent homicide for mistreatment of prisoners in Afghanistan.

In September, three Americans running a private prison, but reportedly working with the CIA, were convicted of kidnapping and torture and sentenced to 8-10 years in prison by an Afghan court. Afghan police had reportedly found three men hanging from the ceiling, and five others were found beaten and tied in a dark small room.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty ratified by the U.S. and thus part of its binding domestic law, defines torture as follows: the infliction of severe pain or suffering for the purpose of obtaining a confession, discrimination, coercion or intimidation.

Torture, inhuman treatment, and willful killing are grave breaches of the Geneva Conventions, treaties ratified by the United States. Grave breaches of Geneva are considered war crimes under the U.S. War Crimes Act of 1996. American nationals who commit war crimes abroad can receive life in prison, or even the death penalty if the victim dies.

Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to prevent or stop them.

When John Walker Lindh was captured in Afghanistan in December 2001, his American interrogators stripped and gagged him, strapped him to a board, and displayed him to the press. He was writhing in pain from a bullet left in his body. A Navy admiral told the intelligence officer interrogating Lindh that “the secretary of defense’s counsel has authorized him to ‘take the gloves off’ and ask whatever he wanted.”

Although initially charged with crimes of terrorism carrying life in prison, Attorney General John Ashcroft permitted Lindh to plead guilty to lesser crimes that garnered him 20 years. The condition: Lindh make a statement that he suffered “no deliberate mistreatment” while in custody. The cover-up was underway.

Lawyers from the Defense Department and Justice Department penned lengthy memos and created a definition of torture much narrower than the one in the Torture Convention. They advised Bush how his people could engage in torture and avoid prosecution under the U.S. Torture Statute.

More than 300 lawyers, retired judges, and law professors (including this writer), a former FBI director, an ex-Attorney General, and seven past presidents of the American Bar Association, signed a statement denouncing the memos, which, we wrote, “ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law.” The statement condemns the most senior lawyers in the Department of Justice, Department of Defense, White House, and Vice President Dick Cheney’s office, who “have sought to justify actions that violate the most basic rights of all human beings.”

Even the conservative American Bar Association (ABA) criticized what it called “a widespread pattern of abusive detention methods.” Those abuses, according to the ABA, “feed terrorism by painting the United States as an arrogant nation above the law.”

Relying on advice in these memos, Bush issued an unprecedented order that, as commander-in-chief, he has the authority to suspend the Geneva Conventions. In spite of Geneva’s requirement that a competent tribunal decide whether someone qualifies for prisoner of war (POW) status, Bush took it upon himself to decide that Al Qaeda and Taliban prisoners in Afghanistan were not protected by the Geneva Convention on the POWs.

This decision was premised on the reasoning of White House Counsel Alberto Gonzalez [Bush’s current nominee for Attorney General, ed.], that “the war against terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”

A still-secret section of the recently-released U.S. Army’s Fay Report says that “policies and practices developed and approved for use on Al Qaeda and Taliban detainees who were not afforded the protection of the Geneva Conventions, now applied to detainees who did fall under the Geneva Conventions’ protections.”

And Bush didn’t take into account that even prisoners who don’t are not POWs must still be treated humanely under the Geneva Convention on the Treatment of Civilians In Time of War.

The Schlesinger Report that came out within a day of the Fay Report accused the Pentagon’s top civilian and military leadership of failing to exercise sufficient oversight and permitting conditions that led to the abuses. Rumsfeld’s reversals of interrogation policy, according to the report, created confusion about which techniques could be used on prisoners in Iraq.

Rumsfeld has admitted ordering an Iraqi prisoner be hidden from the International Committee of the Red Cross. Pentagon investigators believe the CIA has held as many as 100 “ghost” detainees in Iraq. Hiding prisoners from the Red Cross violates Geneva.

The Schlesinger Report confirmed 5 detainee deaths as a result of interrogation, and 23 more deaths are currently under investigation.

The torture of prisoners in U.S. custody did not begin in Iraq, Afghanistan and Guantánamo. “I do not view the sexual abuse, torture and humiliation of Iraqi prisoners by American soldiers as an isolated event,” says Terry Kupers, a psychiatrist who testifies about human rights abuses in U.S. prisons. “The plight of prisoners in the USA is strikingly similar to the plight of the Iraqis who were abused by American GIs. Prisoners are maced, raped, beaten, starved, left naked in freezing cold cells and otherwise abused in too many American prisons, as substantiated by findings in many courts that prisoners’ constitutional rights to remain free of cruel and unusual punishment are being violated.”

Torture techniques used in Iraq, Afghanistan, and Guantánamo are all too familiar in prisons in the U.S. as well. Hooded, robed figures with electrical wiring attached to them have been seen at the city jail in Sacramento, California. Prisoners in Maricopa County jails in Phoenix, Arizona have been forced to wear women’s underwear. And guards in the Utah prison system have piled naked bodies in grotesque and uncomfortable positions.

The connection between mistreatment of prisoners here and abroad is even more direct than that. For example, John Armstrong ran Connecticut’s Dept. of Corrections from 1995-2003, before being sent to Iraq as a prison adviser in September 2003. On his Connecticut watch, two mentally ill prisoners died while being restrained by guards. Two more inmates died in custody after guards mistreated them. And Armstrong made a remark once that equated the death penalty with euthanasia.

Speaking of the death penalty, the use of the gas chamber was challenged in California as cruel and unusual punishment, before the execution of Robert Alton Harris about 10 years ago. As a result California adopted the use of the lethal injection because it was more “humane” method of killing a person. Lawyers in Kentucky are now challenging the three-chemical cocktail used for lethal injections in many states as cruel and unusual. It took one man in Kentucky 12 minutes to die from the humane lethal injection.

In May 2000, the U.N. Committee Against Torture considered the United States’ initial report on implementation of the Convention Against Torture. It expressed concern at torture and ill-treatment by prison guards – much of it racially motivated–and the sexual abuse of female prisoners by male guards. Human Rights Watch reports that sexual misconduct is rarely investigated, much less punished, and that punishments tend to be light.

Eight prison guards were acquitted of charges they subjected prisoners to cruel and unusual punishment by arranging gladiator-style fights among inmates, and setting up the rape of an inmate by a notoriously violent inmate known as the “Booty Bandit” at Corcoran State Prison in California.

Although Bush signed the Prison Rape Elimination Act of 2003, the law provides for no enforcement mechanism or cause of action for rape victims.

But prison guards have been convicted of organizing assaults on inmates in a federal prison in Florence, Colorado, and at Pelican Bay State Prison in California. The Department of Justice concluded that conditions at prisons in Newport, Arkansas are unconstitutional. And New Jersey prison guards reportedly brutalized over 600 prisoners.

A U.S. District Court Judge in California threatened to place the prisons into receivership if the Department of Corrections (DOC) didn’t overhaul its internal disciplinary system. In response, the DOC has undertaken an independent Bureau of Review to ensure violations do not occur in the future.

In the wake of the September 11 attacks, more than 1200 Arab, Muslim, and South Asian men were rounded up in one of the most extensive incidents of racial profiling in the U.S. since the Japanese were interned during World War II. A December 2003 report by the Department of Justice’s Office of the Inspector General investigated allegations of physical and verbal abuse of non-citizen prisoners by the Federal Bureau of Prisons’ (BOP) Metropolitan Detention Center (MDC) in Brooklyn, NY.

BOP policy prohibits staff members from using brutality, physical violence, intimidation toward inmates, or any force beyond that which is reasonably necessary to subdue an inmate.

The report concluded that several MDC staff members slammed and bounced detainees into the walls, twisted or bent their arms, hands, wrists, or fingers, pulled their thumbs back, tripped them, and dragged them on the floor. It also found violations of BOP policy by verbal abuse as well.

In Estelle v. Gamble, the U.S. Supreme Court applied the Eighth Amendment’s ban on cruel and unusual punishment to conditions of confinement that are incompatible with the evolving standards of decency that mark the progress of a maturing society.

The United Nations’ Economic and Social Council promulgated the Standard Minimum Rules for the Treatment of Prisoners. The Supreme Court in Estelle specified that these rules should be included in the measurement of “evolving standards of decency.”

The rules provide that corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman, or degrading punishments shall be completely prohibited as punishments for disciplinary actions.

Fyodor Dostoevsky once said, “The degree of civilization in a society can be judged by entering its prisons.”

In May, when the Abu Ghraib scandal was on the front pages, there were demands for Rumsfeld to resign. But Cheney told Rumsfeld there would be no resignations. It was blatantly political. We’re going to hunker down and tough it out, Cheney said, so as not to hurt Bush’s chances for election in November.

In spite of George W. Bush’s renunciation of the International Criminal Court, many people around the world are clamoring for Bush and his deputies to be held accountable for the widespread torture of prisoners in Iraq, Afghanistan, Guantánamo, and the CIA’s secret prisons elsewhere. In the words of Yale law professor Bruce Ackerman: “It is one thing to protect the armed forces from politicized justice; quite another, to make it a haven for suspected war criminals.”

Stories of a Charmed Life

Review of “Too Late to Die Young: Nearly True Tales From a Life,” Harriet McBryde Johnson,” Henry Holt & Co., 2005, 272 pp.

Harriet McBryde Johnson does not suffer fools gladly. She regularly protests Jerry Lewis’s telethon for Muscular Dystrophy. She was appalled at the sight of the newly-crippled Christopher Reeve featured as prime time speaker at the 1996 Democratic Convention. Harriet has never been able to walk, dress, or bathe without assistance, due to a congenital neuromuscular disease. Yet this almost-50, feisty Southern belle lawyer and disability rights activist simply refuses to abide Lewis’s patronizing “support” for the disabled, or the use of Reeve out on the DNC stage as a token “crip.”

I first met Harriet at a National Lawyers Guild convention years ago. She doesn’t exactly blend in with the crowd, with her tiny 70-pound frame draped in a shawl, hunched over in her ubiquitous wheelchair, chin resting on a delicate curled-down hand, ample earrings dangling beside her long braid. Harriet rolled on to the national literary stage with her debut on the cover of the New York Times Magazine and the accompanying story of her unlikely debate with Princeton University Professor Peter Singer, advocate of the “genocide” of disabled babies. That article is reprinted in slightly different form as one chapter of Harriet’s book, titled “Unspeakable Conversations.” It begins: “He insists he doesn’t want to kill me. He simply thinks it would have been better, all things considered, to have given my parents the option of killing the baby I once was, and to let other parents kill similar babies as they come along, and thereby avoid the suffering that comes with lives like mine and satisfy the reasonable preferences of parents for a different kind of child. It has nothing to do with me. I should not feel threatened.”

The heart of Harriet’s argument is that disability does not predict quality of life; people are not fungible. She asks, what about mixed-race babies who are as unadoptable as babies with disabilities? Singer, according to Harriet, will not draw the line at race, just at disability.

A self-proclaimed atheist, Harriet objects to Singer’s characterization of his critics with reference to religious terms such as “the doctrine of the sanctity of human life.” One cannot consign Harriet to the same box as the religious right – both pressed for Terri Schiavo’s case to be reviewed by federal courts, but for different reasons. In a recent article, Harriet argued, “Despite the unseemly Palm Sunday pontificating in Congress, the legislation enabling Ms. Schiavo’s parents to sue did not take sides in the so-called culture wars. It did not dictate that Ms. Schiavo be fed. It simply created a procedure whereby the federal courts could decide whether Ms. Schiavo’s federally protected rights have been violated.” Whereas conservatives allegedly premise their position on the “right to life,” the pro-choice Harriet opts for pure self-determination: “If we assume [Ms. Schiavo] is unaware and unconscious, we can’t justify her death as her preference. She has no preference.”

When asked about assisted suicide, Harriet replies, “choice is illusory in a context of pervasive inequality. Choices are structured by oppression. We shouldn’t offer assistance with suicide until we all have the assistance we need to get out of bed in the morning and live a good life.”

Harriet chides those convinced the disabled “suffer” from their disabilities. She loves life. Her day is meticulously organized around how she will get out of bed, bathe, dress, eat, go to the bathroom, and roll down the street to her office. Described in the book as “self-centered, smart, active, funny, argumentative, sociable, engaged, loving, vain, forgiving, and ready for adventure,” the “Harriet character” takes the reader inside her bony skin, on a unique ride.

The memoir begins with three- or four-year-old Harriet playing with dolls on the living room floor. She sees on TV a little boy playing with toy soldiers on the floor. He is in a wheelchair, then a bed, then he’s gone. “Little Billy’s toy soldiers have lost their general,” says the unseen narrator. He had Muscular Dystrophy. Harriet realizes that she, too, will die. In her recurrent dream, a judge sentences her to death. “The death sentence hangs over my childhood like a cloud,” writes Harriet. “Beneath the cloud, I live a happy child’s life. But then and now, life has a certain edge. I know it will not last.” Harriet intones, “I’ve accepted the reality of death so early it’s hard to imagine life without it.”

Living under a sentence of premature death has not slowed Harriet McBryde Johnson one whit. “An awareness of death fosters appreciation for the stuff of life.” She has unexpectedly reached middle age. “In the last twenty years or so, I’ve lost most movement in my arms and several fingers; in the last four years, I’ve lost the ability to swallow most solid foods and so much flesh that I am coming to look like the skeleton I will someday become. Yet, day by day, my physical deterioration has been slow, downright gentle. If the next twenty years are like the last, I’ll be old. It certainly could happen.”

Harriet has always been a force to be reckoned with. In 1983, Ronald Reagan visited her South Carolina law school. Harriet’s sign read, “Ron steals from the poor & gives to the military.” Before the President’s arrival, Harriet refused to consent to a routine security search of her room unless she could be present. The Secret Service was no match for Ms. Johnson. Under the watchful eyes of Harriet, and Karl Marx, the agents conducted the search. Harriet’s mother had given her the Marx poster because she thought a girl in student housing should have a big picture of a man over her bed.

Not one to mince words, Harriet, when told the first President Bush was speaking to foreign leaders in New York when she flew there to appear on NBC, mused, “I think there are still a few foreign leaders he hasn’t thrown up on yet.” His son has evidently taken care of the rest.

Harriet’s character has been shaped by her disability, in spite of her disability. She is a fearless warrior, honest to a fault, tender as a kitten. The Southern charm of her hometown Charleston, and of Harriet herself, colors her stories. A consummate storyteller, this inimitable woman has created a heart-warming page turner.

Last October, Harriet was honored at the National Lawyers Guild convention with the coveted Ernest Goodman Award. It is granted each year to a lawyer engaged in legal struggle against financial, political or social odds to obtain justice on behalf of the poor, powerless or persecuted.

Harriet has been a tireless fighter for the oppressed. The problem, she says, is not disability. It is discrimination and prejudice. She worked to win passage of the landmark Americans with Disabilities Act in 1990, and continues the battle to render its promise a reality.

A woman who prides herself on making waves, Harriet thrives on living and loving. “When I die, I might as well die alive,” she writes. “When I die, I might as well die striving after wind.”

March 23, 2005

Whose Right to Life?

The nation’s attention is riveted on the fate of one poor woman in a Florida hospice. Terri Schiavo has been in a persistent vegetative state, with no upper brain function, for 15 years. Ten state courts have upheld Terri’s husband’s request to remove her feeding tube. Those courts have determined by clear and convincing evidence, a standard set by the United States Supreme Court, that Terri would not have wanted to be kept alive in such a condition.

Nevertheless, Terri’s parents, aided by Republicans in Congress and George W. Bush, are fighting to keep her alive. They have made her case a cause celebre. A memo circulated to GOP senators over the weekend described this as a “great political issue” because it will play to the “pro-life base” of the Republican Party.

The abortion debate has long been framed in terms of “pro-choice” versus “pro-life.” But this dichotomy has always struck me as misleading.

What is the “right to life”? Does it simply include unborn fetuses, stem cells, and people in persistent vegetative states? Or does it also refer to health care for the 40 million Americans who don’t have it; aid to children whose single moms can’t make ends meet; and billions of dollars in Medicaid – a virtual lifeline for millions – that Bush tried to cut? What about the 1524 American soldiers and tens of thousands of innocent Iraqis who have died in a war that never should have happened? Didn’t they have the right to life?

Unprecedented emergency legislation rushed through Congress on the eve of the Easter recess has sent the Schiavo case into the federal courts for a new round of hearings. After he signed the bill in the wee hours of Monday morning, Bush said, “In cases like this one, where there are serious questions and substantial doubts, our society, our laws and our courts should have a presumption in favor of life.”

This statute directly contradicts Bush’s actions while Governor of Texas. Then, Bush signed a bill that allows hospitals to stop feeding a patient whose prognosis is so poor that further care would be futile, if the patient cannot pay his or her medical expenses. Just this past week, a baby was pulled off life support in Texas, against his mother’s wishes.

As Governor, Bush refused to stay executions in numerous death penalty cases. Alberto Gonzales, then counsel to the Governor, provided his boss with “scant summaries” on capital punishment cases that “repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence,” according to the Atlantic Monthly.

Gonzales prepared a summary of the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about Washington’s mental condition. Gonzales’s three-page summary mentioned only that Washington’s defense counsel’s 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush declined to stop executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

In those cases, did Bush follow “a presumption in favor of life”?

Conservatives support the principle of federalism, or states’ rights. Each state should be able to maintain its own legal system, free from federal encroachment, according to this doctrine. But many Republicans have championed states’ rights only when they like the outcome and rejected it when they don’t.

As Congressman John Conyers Jr. (D-Mich) said on the floor of the House during the debate on Monday, “Last month, the Majority passed a class action bill that took jurisdiction away from state courts because they feared they would treat corporate wrongdoers too harshly. Today we are sending a case from the state courts to the federal courts even though it is the most extensively litigated ‘right to die’ case in our nation’s history.”

“By passing legislation which wrests jurisdiction away from a state judge and sends it to a single pre-selected federal court,” Conyers said, “we will abandon any pretense of federalism. The concept of a Jeffersonian Democracy as envisioned by the founders, and the states as ‘laboratories of democracy’ as articulated by Justice Brandeis will lie in tatters.”

One of the most tragic aspects of the Schiavo case is the effect this legislation will have on family decisions for years to come. Although the Democrats agreed to the bill only if it were limited to Terri Schiavo’s situation, it will certainly open the floodgates to litigation which inserts the courts into private matters.

This attempt by Republican leaders to “shamelessly interject the federal government into the wrenching Schiavo family dispute” amounts to a “constitutional coup d’etat,” according to the Los Angeles Times. It is “the new front in what began as the abortion war, an effort to translate religious dogma into law under the right-to-life banner.”

March 21, 2005

Getting Away with Murder

As we walked out of Hotel Rwanda, my teenage son asked me, “So why did we go into Iraq, but not Rwanda?” This youngster was horrified that the United States not only sat on the sidelines during the genocide that killed 800,000 Rwandans in 1994, but then prevented the United Nations from acting to stop it.

What was a little genocide, after all, when the U.S. powers-that-be had no strategic interest in intervening to stop the Hutu from massacring the Tutsi in Rwanda? Bill Clinton, still smarting from the public relations disaster that followed the deaths of 18 American soldiers in Somalia, didn’t want to get involved in Rwanda.

Clinton did, however, engineer NATO’s war in Kosovo five years after the Rwandan genocide. He called it a “humanitarian intervention,” to prevent ethnic cleansing of the Albanians by the Serbs.

Four years later, in the wake of the September 11 attacks, George W. Bush started a war in Afghanistan, justified as “self defense” against Al Qaeda and the Taliban.

After Bush ousted the Taliban and installed former Unocal consultant Hamid Karzai to protect U.S. interests in Afghanistan, he went after Iraq, two years ago yesterday.

Billed as necessary to save us from “weapons of mass destruction,” Bush replaced Saddam Hussein with a U.S.-friendly regime, one that would welcome the 14 permanent military bases we are constructing in Iraq. When the dreaded weapons didn’t materialize, Bush’s rationale morphed into “bringing democracy to the Iraqi people.”

All three wars – Clinton/NATO’s war in Yugoslavia, and Bush’s wars in Afghanistan and Iraq, according to Canadian law professor Michael Mandel – were unlawful. None was undertaken in self-defense, or approved by the Security Council, the only two instances in which the United Nations Charter permits the use of armed force.

In his new book, How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes against Humanity, Canadian law professor Michael Mandel argues that NATO’s Kosovo war set the precedent for the United States’ wars in Afghanistan and Iraq. “It broke a fundamental legal and psychological barrier. When Pentagon guru Richard Perle ‘thanked God’ for the death of the UN,” writes Mandel, “the first precedent he could cite in justification of overthrowing the Security Council’s legal supremacy in matters of war and peace was Kosovo.”

The 1999 war in Kosovo and other parts of Yugoslavia was not a “humanitarian intervention,” but rather a crime against humanity, in the judgment of Mandel. He notes that “of the 385 murders in the original ICTY [International Criminal Tribunal for the Former Yugoslavia] indictment of former Yugoslav President Slobodan Milosevic, 340 were alleged to have occurred after the bombing started.”

In support of his claim that NATO’s bombing constituted a crime against humanity, Mandel cites its use of cluster bombs and depleted uranium, and the targeting of civilians. Between 500 and 1800 civilians of all nationalities were killed during the 78-day bombing campaign, which used “about 25,000 of the world’s most devastating non-nuclear bombs and missiles,” according to Mandel.

A year after the bombing, I visited Belgrade as a participant in an international conference on humanitarian intervention. Between meetings, we toured the surrounding area and saw the bombed out rubble of what were once apartments, schools, bridges, and a television and radio station. As I walked through the rubble, I was cautioned, much to my dismay, that the soil could contain depleted uranium.

Joining together with other Canadian law professors and lawyers and the American Association of Jurists, Mandel filed a complaint against NATO leaders with the ICTY. Although Amnesty International concurred that NATO had committed war crimes, the tribunal dismissed the complaint without serious investigation.

Mandel documents why this tribunal was created and functions in the service of United States interests. “For the first time in history,” writes Mandel, we had “an international criminal tribunal established prior to the war whose criminals it was putting on trial, and therefore capable of playing a role in that war.”

“The point is not that Milosevic was charged with atrocities in Kosovo, it’s that Clinton wasn’t too,” writes Mandel.

NATO intervened militarily in Yugoslavia to assist the Kosovo Liberation Army (KLA) in its struggle against Milosevic. A year before, the United States government had listed the KLA, which had received assistance from Osama bin Laden, as a terrorist organization. After Milosevic’s forces were defeated by NATO, the KLA moved into Kosovo and began a reign of terror against non-Albanians, which Mandel calls “reverse ethnic cleansing.” When I was in Belgrade, I saw documentation of the destruction of 25 of Kosovo’s medieval Serbian Christian Orthodox monasteries.

Mandel points to the Security Council Resolutions passed before the NATO bombing, which “were even-handed in their condemnation of ‘the use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo,’ and ‘all acts of terrorism by the Kosovo Liberation Army.'”

The “Racak massacre,” widely viewed as the event that precipitated NATO’s bombing of Yugoslavia, is the subject of considerable controversy. According to the Serb version, all 45 of the dead ethnic Albanians “were either KLA fighters or civilians caught in the crossfire. There was no massacre of civilians, but the KLA had plenty of time to dress their dead fighters in civilian clothes.” A team of Finnish forensic investigators sent by the European Union to perform autopsies on the Racak bodies “confirmed the Serb version in most respects, though the change-of-clothes hypothesis was discounted,” writes Mandel. In his opinion, Racak was a pretext to begin the bombing.

On the day before the bombing began, Clinton declared, “If we’re going to have a strong economic relationship that includes our ability to sell around the world, Europe has got to be a key. That’s what this Kosovo thing is all about.” Supreme NATO Commander Wesley Clark admitted one month into the bombing campaign that it “was not designed as a means of blocking Serb ethnic cleansing.”

I wrote in a 2002 article that the NATO bombing was about economic hegemony, access to Caspian Sea oil, and the promotion of a global free market economy, not ethnic cleansing. Milosevic’s socialist government, which had tried to stop the market reforms imposed by the International Monetary Fund (IMF) and the World Bank, was in America’s sights early in the 1990s.

Mandel describes “the history of the West’s complicity in the ‘Balkan tragedy,’ which,” he writes, “is a story of the rich countries of Europe and America taking advantage of the sad state of the post-Soviet economies to impose solutions (sometimes known as ‘Shock Therapy’) through powerful credit institutions like the IMF and the World Bank. Part of the goal was to encourage the fragmentation of the old Soviet bloc to create in its place ‘hub and spoke’ arrangements dependent on the West.” This resulted in “the West’s economic strangulation of Yugoslavia.”

Against this backdrop, Milosevic was elected President in 1989. The Albanians employed a campaign of non-violent opposition to Serb rule, boycotting Serb institutions and setting up parallel ones. “The turn to violence came only in 1997, and appears to have had nothing to do with Serb repression,” writes Mandel, but rather with the rise of the KLA.

In the year before NATO’s bombing campaign, “violence dramatically increased in Kosovo, though the 2,000 dead on both sides combined were no more numerous than in many contemporary conflicts where the U.S. chose not to intervene,” in Mandel’s opinion. Rwanda is a prime example.

The key to the U.S./NATO bombing of Yugoslavia can be found in a 1992 draft of the Pentagon Defense Planning Guidance on post-Cold War Strategy, prepared under the direction of Paul Wolfowitz. It advocated discouraging other advanced industrialized nations “from challenging our leadership” or “aspiring to a larger regional or global role.” The document declares, “Our overall objective is to remain the predominant outside power in [the Middle East and Southwest Asia] to preserve U.S. and Western access to the region’s oil.”

Bush’s wars on Afghanistan and Iraq are consistent with this strategy, as are his appointments of Wolfowitz, architect of the Iraq war and “preemptive war” doctrine, as head of the World Bank, and John Bolton, avowed U.N.-hater, as U.S. Ambassador to the United Nations.

After NATO conquered Yugoslavia, Halliburton’s Brown and Root constructed Camp Bondsteel in Kosovo, the largest foreign U.S. military base built since the Vietnam War. Besides the Great Wall of China, the only other earthly thing visible from outer space is Camp Bondsteel. Brown and Root is also building the 14 permanent U.S. military bases in Iraq.

Mandel’s indictment of the United States’ policies in Yugoslavia, Afghanistan, Iraq and Rwanda does not ignore the complicity of the other dark forces in those conflicts. He writes, “The fact that the Americans and their allies have been the supreme criminals in Yugoslavia, Afghanistan and Iraq does not mean their enemies are innocent. The fact that the Americans and the Europeans were directly and indirectly complicit in the atrocities of Rwanda, and the fact that their Tutsi clients in the RPF [Rwandan Patriotic Front] committed them too, does not mean that the Hutu government and militias did not.”

The Nuremberg Tribunal found the greatest sin to be the waging of aggressive war, or war as an instrument of national policy. Mandel characterizes the U.S. wars on Yugoslavia, Afghanistan and Iraq as wars of aggression. “Humanitarian intervention,” he notes, (which violates the U.N. Charter anyway) “is forever doomed to be an ‘asymmetrical right, the right of the powerful to intervene in the affairs of the weak and not vice versa.'” United States support for Croat soldiers in their 1995 ethnic cleansing of 200,000 Serbs from Krajina belies America’s humanitarian motives four years later in Kosovo.

Michael Mandel’s book is finally an indictment of international criminal law, of “victor’s justice,” in which only the vanquished are put on trial. “Exactly like the other elements of ‘globalization,’ the globalization (‘universalization’) of human rights is just a euphemism for the strong calling the shots.”

March 3, 2005

U.S. Finally Outlaws Execution of Children

Today, the Court repudiated the misguided idea that the United States can pledge to leave no child behind while simultaneously exiling children to the death chamber.
Dr. William F. Schulz, Executive Director, Amnesty International

Until March 1, 2005, the United States was the only nation in the world that permitted the execution of children under age 18. Only seven countries besides the U.S. have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then, each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. With the Supreme Court’s monumental ruling in Roper v. Simmons, the United States has finally joined the community of nations that says the state-sanctioned execution of children is wrong.

Christopher Simmons was a 17-year-old junior in high school when he and a friend burglarized Shirley Crook’s home. When Simmons realized Mrs. Crook had recognized him, he and his friend tied her up, and threw her off a bridge to her death. Simmons, who had never even been arrested before, was described by clinical psychologists who evaluated him as “very immature,” “very impulsive,” and “very susceptible to being manipulated or influenced.” Nevertheless, a Missouri jury sentenced Simmons to death.

The Supreme Court concluded in a 5-4 decision that executing children who were not yet 18 at the time of their crimes constitutes cruel and unusual punishment. “By protecting even those convicted of heinous crimes,” Justice Anthony Kennedy wrote for the majority, “the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.”

In determining which punishments are so disproportionate as to be cruel and unusual, the Court considers “the evolving standards of decency that mark the progress of a maturing society,” a test set forth in the 1958 case of Trop v. Dulles.

The Court had prohibited the execution of 15-year-old offenders in Thompson v. Oklahoma in 1988, but the following year, it upheld the execution of 16- and 17-year-olds in Stanford v. Kentucky. The same day it decided Stanford, the Court also refused to mandate a categorical exemption from the death penalty for the mentally retarded in Penry v. Lynaugh.

Three years ago, the Court overruled Penry, and held in Atkins v. Virginia that the standards of decency that had evolved in the intervening 13 years demonstrated the execution of the mentally retarded is cruel and unusual punishment. In so ruling, the Court found a national consensus against capital punishment for the mentally retarded because by 2002, 30 States prohibited it. The Atkins Court also resolved that the impairments of the retarded make it less defensible to impose the death penalty as retribution for past crimes, and less likely that the death penalty will have a real deterrent effect.

Kennedy used the same reasoning in Simmons to find a national consensus against the execution of juveniles under 18. Thirty states now prohibit the juvenile death penalty. That number includes the 12 states that have rejected the death penalty altogether, and 18 that maintain it but expressly exclude juveniles from its reach. The consistent trend, wrote Kennedy, has been toward abolition of the juvenile death penalty.

The International Covenant on Civil and Political Rights (ICCPR) is a treaty ratified by the United States and part of our domestic law under the Supremacy Clause of the Constitution. When the Senate ratified the ICCPR in 1992, it did so subject to a reservation to Article 6(5) of that treaty, which prohibits capital punishment for juveniles.

When Congress enacted the Federal Death Penalty Act in 1994, however, it determined that the death penalty should not extend to juveniles. Kennedy cited that law, as well as the infrequency of the use of capital punishment for juveniles, as further evidence that a national consensus has developed against the juvenile death penalty, notwithstanding the reservation to the ICCPR two years earlier.

Kennedy also took notice of scientific and sociological studies that confirm three general differences between juveniles under 18 and adults, demonstrating that juvenile offenders cannot with reliability be classified among the worst offenders, deserving of the death penalty.

First, youths display a “lack of maturity and an underdeveloped sense of responsibility” that “often result in impetuous and ill-considered actions and decisions.” For that reason, wrote Kennedy, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.

Second, juveniles are more vulnerable or susceptible to negative influences and peer pressure, and, “lack the freedom that adults have to extricate themselves from a criminogenic setting.”

Third, the character of a juvenile is not as well-formed as that of an adult.

“From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed,” wrote Kennedy.

Thus, the Court held: “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”

One of the most notable aspects of its decision in Simmons is the Court’s reference to the law of nations. “Our determination that the death penalty is disproportionate punishment for offenders under 18,” Kennedy wrote, “finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”

The Court cited the United Nations Convention on the Rights of the Child, which every country in the world except the United States and Somalia has ratified. Article 37 contains an express prohibition on capital punishment for crimes committed by juveniles under 18. What Kennedy failed to mention, however, is that the United States has signed that treaty. Under the Vienna Convention on the Law of Treaties, a country that signs a treaty is forbidden from taking action inconsistent with the object and purpose of the treaty.

Justice Antonin Scalia wrote a dissenting opinion joined by the Chief Justice and Justice Clarence Thomas. Scalia, who fashions himself an “originalist,” interprets the Constitution the way he thinks it would have been interpreted in 1791, when the Bill of Rights was adopted.

When Scalia spoke at Thomas Jefferson School of Law a few years ago, he chided the “evolutionists” on the Court, who would likely agree with Justice Thurgood Marshall’s words: “I do not believe that the meaning of the Constitution was forever fixed at the Philadelphia convention. The true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making.”

In his Simmons dissent, Scalia, still stuck in 1791, characteristically mocked the well-settled doctrine that the ban on cruel and unusual punishment should be analyzed in light of “the evolving standards of decency that reflect a maturing society.” Yet, Scalia noted: “At the time the Eighth Amendment was adopted, the death penalty could theoretically be imposed for the crime of a 7-year-old.”

Scalia disagreed with the majority’s analysis of a “national consensus” against the execution of 16- and 17-year-olds because he omitted the 12 States that have outlawed the death penalty altogether from the total number of States that have shunned the juvenile death penalty. Instead of a total of 30 States found by the majority, Scalia counted only 18, less than 50% of the 50 States.

The majority’s reference to international law drew perhaps the strongest rebuke from Scalia, who has never hidden his contempt for the law of nations. “Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage,” he wrote. Indeed, in a D.C. Circuit Court of Appeals decision Scalia authored as a judge on that court in 1985, he scornfully referred to “the law of nations – the so-called ‘customary international law.'” Scalia disregards well-settled case law and the Restatement of the Foreign Relations Law of the United States, which both recognize customary international law as part of our federal law.

Scalia eschews international contempt for the execution of juveniles in the United States. He also overlooks the refusal of European countries, all of which have abolished the death penalty, to turn over prisoners suspected of terrorism to the United States for fear they will be executed. And, Scalia apparently ignores the disgust felt throughout the world for the torture committed by U.S. forces in Iraq, Afghanistan and Guantánamo Bay.

As a result of Roper v. Simmons, the lives of 72 people who had not attained age 18 when they committed their crimes will be saved. Forty percent of them were sentenced to death in Bush’s home state. A study in Texas found that the current capital punishment system is an outgrowth of the “legacy of slavery.”

The Supreme Court fortuitously issued its landmark juvenile death penalty decision on the National Day for the Abolition of the Death Penalty, which falls each year on March 1. By outlawing the death penalty for the mentally retarded, and now for juveniles under 18, the Court may be taking small steps toward the eventual abolition of capital punishment.

With ever-increasing numbers of death row inmates being exonerated, public sentiment favoring the death penalty is waning. The Marquis de Lafayette said nearly 200 years ago, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.”

We can hope that one day soon, the United States, which remains the only Western democracy that still sanctions capital punishment, will abolish it. As Supreme Court Justice Arthur J. Goldberg wrote in 1976: “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”

February 21, 2005

Negroponte: Director of Intelligence Manipulation

With much fanfare, Bush announced on Thursday his nomination of John D. Negroponte as the director of national intelligence. “John’s nomination comes in an historic moment for our intelligence services,” Bush proclaimed ceremoniously. Intelligence, he said, is now “the first line of defense” in the war on terrorism.

Bush failed to mention that when Negroponte was United States ambassador to Honduras in the early 1980s, he provided false intelligence to Congress about the Honduran “death squads.”

In those days, the Reagan administration was using Honduras as its base for covert military operations against the Sandinista government of Nicaragua. Negroponte oversaw the buildup of military positions and training of the anti-Sandinista Contra rebels inside the Honduran border.

As a gesture of appreciation for the use of its territory, the U.S. gave Honduras generous military aid. On Negroponte’s watch, that aid rose from $4 million to $77.4 million. In order to keep the aid coming, Congress required annual reassurances from the U.S. embassy in Tegucigalpa that Honduras was respecting the human rights of its people.

Negroponte’s embassy provided annual reports to the Senate Foreign Relations Committee. Those reports sugar-coated Honduras’s human rights record, which Negroponte knew to be atrocious.

The 1983 report, for example, said the “Honduran government neither condones nor knowingly permits killings of a political or nonpolitical nature” and reassured the Committee that there were “no political prisoners in Honduras.”

In fact, the Honduran government was “disappearing,” torturing, and killing hundreds of political opponents.

This was confirmed by the Inter-American Court of Human Rights in the famous Velásquez Rodríguez Case. It concluded that “a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984.” The court found, “The kidnappers blindfolded the victims, took them to secret, unofficial detention centers and moved them from one center to another. They interrogated the victims and subjected them to cruel and humiliating treatment and torture. Some were ultimately murdered and their bodies were buried in clandestine cemeteries.”

“It was public and notorious knowledge in Honduras,” added the court, “that the kidnappings were carried out by military personnel or the police, or persons acting under their orders.”

The Baltimore Sun conducted an 14-month investigation into the Honduran atrocities. The findings were published in a 1995 Pulitzer prize-winning series of articles by Gary Cohn and Ginger Thompson. They wrote, “The Honduran press was full of reports about military abuses, including hundreds of newspaper stories in 1982. There were also direct pleas from Honduran officials to U.S. officials, including Negroponte.”

“Time and again during his tour of duty in Honduras from 1981 to 1985, Negroponte was confronted with evidence that a Honduran army intelligence unit, trained by the CIA, was stalking, kidnapping, torturing and killing suspected subversives,” according to the Sun.

Jaime Rosenthal, former vice president of Honduras and owner of the newspaper El Tiempo, said, “There is no way United States officials in Honduras during the early 1980s can deny they knew about the disappearances. There were stories about it in our newspaper and most other newspapers almost every day.”

Negroponte’s predecessor, Ambassador Jack Binns, had been profoundly troubled by the actions of the Honduran military when he served as U.S. ambassador from 1980-1981. “I reported these abuses repeatedly, and urged that we take action to try and turn it around,” Binns said.

Binns warned in a 1981 cable, “I am deeply concerned at increasing evidence of officially sponsored/sanctioned assassinations of political and criminal targets, which clearly indicate [that Honduran government] repression has built up a head of steam much faster than we anticipated.”

How was Binns rewarded for his candor? He was summoned to Washington. “I was told to stop human rights reporting except in back channel. The fear was that if it came into the State Department, it will leak,” Binns told the Sun. “They wanted to keep assistance flowing. Increased violations by the Honduran military would prejudice that.”

Binns was replaced by John Negroponte, to manipulate the flow of information.

What did Negroponte, our newly nominated intelligence czar, do in response to reports of these atrocities in Honduras on his watch? He covered them up, and lied to Congress by sending it false intelligence.

A junior political officer in the U.S. Embassy in Tegucigalpa was ordered to delete from the State Department’s annual human rights report to Congress substantial evidence of the abuses by the Honduran military in 1982, according to the Sun.

“Under my leadership,” Negroponte said disingenuously, “the embassy worked to promote the restoration and consolidation of democracy in Honduras, including the advancement of human rights.”

In 1982, former Honduran military intelligence chief Col. Leonidas Torres Arias told reporters at a news conference in Mexico City about a “death squad operating in Honduras led by armed forces chief General Gustavo Alvarez.” (Alvarez was trained at the U.S. Army School of the Americas.) Negroponte wrote in an Oct. 16, 1982 article, “I have a lot of difficulty taking those kinds of accusations seriously.”

United States support of Honduran aid to the Contras violated the 1982 Boland amendment, which prohibited the use of U.S. funds for “military equipment, military training or advice, or other support for military activities, to any group or individual not part of a country’s armed forces, for the purpose of overthrowing the government of Nicaragua or provoking a military exchange between Nicaragua and Honduras.”

In the now infamous Iran-Contra scandal, the Reagan administration illegally sold weapons to Iran in violation of an embargo on those sales. It also covertly and illegally transferred money, through Honduras, to the Contras in their efforts to overthrow the Nicaraguan government.

Not only did Negroponte’s embassy reports cover up the human rights violations being committed by the Honduran government; they also falsely stated that the Nicaraguan Sandinista government was committing myriad atrocities, in order to galvanize U.S. public opinion against the Sandinistas.

In fact, it was the U.S.-backed Contras who were wreaking terrorism. Former Contra PR official Edgar Chamorro wrote in a 1986 letter to the New York Times: “During my four years as a ‘contra’ director, it was premeditated policy to terrorize civilian noncombatants to prevent them from cooperating with the [Sandinista] government.” Chamorro admitted, “Hundreds of civilian murders, tortures and rapes were committed in pursuit of this policy, of which the contra leaders and their CIA superiors were well aware.”

The U.S. government, in the 1980s, supported vicious dictatorships in several Latin American countries which engaged in the disappearances, torture and murder of thousands of people who questioned their policies.

“I think it’s extremely important that the State Department be right on human rights,” Sen. Patrick J. Leahy (D-Vt.) said in an interview with the Sun. “If we told the truth about Honduras and the whole Central American policy, … billions of dollars of American tax dollars would have been saved, a large number of lives would have been saved, and the governments would have moved toward democracy quicker.”

When Bush nominated Negroponte for intelligence director, the president noted, “He understands the power centers in Washington.” Indeed, Negroponte has been around for 40 years. He was political officer at the U.S. embassy in Vietnam from 1964-1968, during a period of extra-judicial executions and gross human rights abuses, including massacres by the notorious “Tiger Force” of the Army’s 101st Airborne Division.

After his stint in Honduras, Negroponte served as U.S. ambassador to Mexico, where he shepherded the signing of NAFTA. As a result, one million Mexican farmers have lost their land and livelihoods, and NAFTA has undermined labor and environmental protections in Mexico, the United States and Canada.

From September 2001 during the run-up to the Iraq war, Negroponte was U.S. ambassador to the United Nations. He avoided a withering interrogation at his confirmation hearing about his record in Honduras, in a Senate stunned by the 9/11 attacks. During his tenure, Negroponte lied to the UN about the justifications for the war, and successfully pressured Mexico and Chile to fire their UN ambassadors for not supporting the war.

Negroponte’s last stepping stone to intelligence czar was his appointment as U.S. ambassador to Iraq in June of last year, on the day “sovereignty” was transferred to the Iraqis. The last seven months have seen some of the bloodiest fighting of the war, as well as continued reports of torture of Iraqis by U.S. forces.

The position Negroponte will hold was created in response to intelligence failures perceived to have enabled the September 11 attacks. Negroponte’s sordid past does not inspire confidence in his qualifications for that post. In fact, Negroponte was likely chosen because he will tell Bush & Co. exactly what they want to hear. And that won’t make us any safer.

Former CIA official Melvin Goodman summed it up nicely: “I think of the Negroponte of the 1980s covering up human rights abuses, and then I think of the role of intelligence in telling truth to power, and it doesn’t fit.”

February 15, 2005

First They Came for Lynne Stewart

First they came for the communists, and I did not speak out–
because I was not a communist;
Then they came for the socialists, and I did not speak out–
because I was not a socialist;
Then they came for the trade unionists, and I did not speak out–
because I was not a trade unionist;
Then they came for the Jews, and I did not speak out–
because I was not a Jew;
Then they came for me–
and there was no one left to speak out for me.
-Pastor Martin Niemöller, 1945

Now they’re coming for the lawyers, and we must all speak out.

Last Thursday, after 13 days of deliberations, prominent New York civil rights attorney Lynne Stewart was convicted of conspiracy, providing material support to terrorists, and defrauding the United States government. Her 7-month trial was held in the same federal courthouse where the Rosenbergs were tried for conspiracy to commit espionage more than 50 years ago. Stewart faces between 35 and 45 years in prison.

Stewart was indicted in March 2002. The indictment was based on governmental monitoring of conversations between Stewart and her client, Shiek Omar Abdel Rahman, which occurred two and a half years before the terrorist attacks of September 11, 2001.

Rahman is serving a life plus 65-year sentence for conspiring to bomb several New York City landmarks and soliciting crimes of violence against the U.S. military and Egyptian President Hosni Mubarak.

Beginning in 1997, the Bureau of Prisons, at the direction of the Attorney General, imposed special administrative measures (SAMs) on Rahman, limiting his access to the mail, the media, the telephone and visitors.

Stewart was obliged to sign an affirmation agreeing to be bound by the SAMs, before being allowed to see her client. She agreed “only to be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters” and not to “use my meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman.”

The government charged that Stewart allowed the Arabic translator to read letters to Rahman regarding Islamic Group matters, and to conduct a discussion with Rahman regarding whether Islamic Group should continue to comply with a cease-fire in Egypt. It also alleged that Stewart concealed those discussions from prison guards, and announced to the media that Rahman had withdrawn his support for the cease-fire, in violation of the SAMs.

Stewart denied these allegations, and testified that she believed in good faith that relaying Rahman’s statement calling for more consultation about the Egyptian cease-fire did not violate the SAMs. She said she was trying to have Rahman transferred to Egypt to serve his sentence by keeping him visible. Rahman is old, blind, does not speak English, and has been kept virtually incommunicado in a federal prison in Minnesota.

Her good-faith belief, Stewart tesfitied, was based on actions of former U.S. Attorney General Ramsey Clark, another of Rahman’s attorneys. Clark also signed these SAMs, held press conferences, and conveyed Rahman’s statements about Egyptian politics to the press. Yet, Clark was never prosecuted.

Clark, who testified for Stewart at her trial, told Amy Goodman of Democracy Now!, “I don’t know of anything that Lynne did that I didn’t do.” He said, “This case would never have been brought except for the fear generated, and the advantage that the Bush administration was taking of it, by the events of September 11, 2001. In ordinary times and circumstances, it would be recognized that everything that Lynne did was exactly what an effective attorney representing a client zealously would be obligated to do.”

At a 2002 conference, Stewart noted, “Usually if one breaks a Bureau of Prisons edict, one is told one can’t visit the prison again, or one gets some sort of administrative slap on the wrist of some kind. One does not usually get indicted for aiding a terrorist organization.”

Why did the government wait so long before indicting Lynne Stewart? According to Heidi Boghosian, executive director of the National Lawyers Guild, Stewart was a “prime target for the Attorney General, who needed desperately to show that the Justice Department was actively fighting terrorism.”

When Stewart was indicted, John Ashcroft had arrested only one person since September 11 – John Walker Lindh. “By indicting Stewart,” noted Boghosian, “Ashcroft effectively sent the dual message that he could indict other lawyers who represented clients with unpopular beliefs and that such clients do not deserve defense.”

The same day Bush signed the USA Patriot Act into law, General Ashcroft announced an interim amendment to the Bureau of Prisons regulation, which took effect five days later, without the usual public comment period. It permits the Department of Justice (DOJ) unlimited and unreviewable discretion to eavesdrop on confidential attorney-client conversations of persons in custody, with no judicial oversight and no meaningful standards. It applies not only to convicted inmates, but to all persons in the custody of the DOJ, including pretrial detainees, material witnesses, and immigration detainees who have not been accused of any crime.

At a 2002 convention of the National Lawyers Guild, Stewart expressed alarm at what her indictment portends for the future of the attorney-client privilege and criminal defense. She said, “This is about protecting the right to defend. Once the attorney-client privilege is lost, there is no right to defend as we know it.” Speaking about the government’s monitoring of her conversations with her client, Stewart stated, “The question you should be asking is not what I was doing in that room, but what was the government doing in that room?”

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in “red-baiting.”

Since September 11, those who question government policy have been, and will continue to be, branded “terrorist.” Even though “terrorism” was not an element of any of the offenses with which Lynne Stewart was charged, and Osama bin Laden was not part of any of the charges, the prosecution was permitted to bring bin Laden’s name into the trial.

A written threat from the Jewish Defense Organization was posted on the door to Stewart’s home after 10 ½ days of jury deliberations in the trial. It referred to a message purporting “to reach out so the jurors understand what she is. And that’s been done.” The message gave Stewart’s home address and said she “needs to be put out of business legally and effectively.” It threatened to “drive her out of her home and out of the state.” If this message did reach any jurors who were sitting on the fence, it may have pushed them over to the guilty side.

Stewart told Amy Goodman, “These SAMs said you know, ‘If you break these regulations, you may be cut off from your client.’ That was our greatest concern, that we would be cut off from the client. The idea of prosecution never entered our minds.” Stewart continued, “I believe with my mind and heart that it was the right thing to do.”

Lynne Stewart’s indictment, and conviction, will also chill attorneys from taking on cases of unpopular clients. “The purpose of this prosecution,” said Michael Ratner, president of the Center for Constitutional Rights, “was to send a message to lawyers who represent alleged terrorists that it’s dangerous to do so.”

Stewart’s attorney, Michael Tigar, does not blame the jury for this injustice. “We have all in our lifetimes seen well-meaning juries get caught up in the media-dominated government rhetoric of their time, based mostly on fear,” Tigar said after the verdicts were announced. “I do not criticize these jurors. I have every confidence this verdict will be set aside.”

Lawyers representing Guantánamo detainees are being asked to sign agreements that their consultations with their clients will not be confidential. Tigar told Amy Goodman, “The only way that we will ever get to the bottom of the American concentration camp abuses at Gitmo and Abu Ghraib is if the lawyers for these prisoners are permitted to tell their stories to the world. If the government can shut off that communication, which they have attempted to do over and over and over again, these activities will continue in secret.”

It is essential that people feel safe in these perilous times. But, as Supreme Court Associate Justice Sandra Day O’Connor wrote in a 1995 opinion, “It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis.” The confidential relationship between attorney and client sits at the heart of our criminal justice system. We must zealously guard it or we will all be at risk.

February 9, 2005

Lady Liberty Under Attack

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me.
I lift my lamp beside the golden door.
– Emma Lazarus, The New Colossus,
Quoted on base of Statue of Liberty

The House of Representatives today is debating the REAL ID Act of 2005 (HR 418). This bill threatens the very principles upon which this country was founded. It resurrects several anti-immigrant and anti-refugee provisions dropped from the final version of the “Intelligence Reform and Terrorism Prevention Act of 2004” in December 2004 due to widespread opposition.

Although purporting to enhance our nation’s security, the REAL ID Act does absolutely nothing to make us safer. Instead, it targets the world’s most vulnerable group – refugees fleeing persecution, including torture, rape and other atrocities.

Under section 208 of the US Immigration and Nationality Act, a refugee may be granted asylum if she has been persecuted or has a well-founded fear of persecution if she is returned to her home country. The persecution must be based on her race, religion, nationality, membership in a particular social group, or political opinion.

The REAL ID Act would require a refugee to prove her persecutor’s “central” reasons for harming her – essentially penalizing a refugee who cannot prove with unrealistic precision what is going on in her persecutor’s mind. It would give an immigration officer or judge broad leeway to deny a refugee asylum based on her perceived “demeanor” and alleged “statements” taken in unreliable circumstances, ignoring the fact that survivors of rape or torture, suffering from post traumatic stress disorder, may appear lacking in emotion or have difficulty making eye contact.

This bill will allow the wives and children of victims of extortion by alleged terrorists to be deported or barred from asylum based on overly broad definitions of what constitutes “supporting” terrorism. It would require that non-citizens meet a virtually impossible burden of proof to convince the government they did not knowingly support terrorism. Current immigration law makes foreign nationals inadmissible if they knew or should have known that the support they provided to a group would further the group’s terrorist activity.

Under the REAL ID Act, a person would be deportable unless she could show “by clear and convincing evidence” that she did not know the group she was supporting was a terrorist organization under the law’s extremely broad definition of that term. Since it is almost impossible to prove lack of knowledge, this standard would make it nearly impossible for an innocent immigrant to defend herself against deportation. This would, for example, allow the deportation of an immigrant who donated money for tsunami disaster relief in the Aceh province of Indonesia, not knowing the organization that received funds had a subgroup the Department of Homeland Security considered terrorist.

The REAL ID Act would also establish extensive federal control over state issuance of driver’s licenses and state identification cards. If someone is undocumented or has overstayed a visa, he could not get a license or identification card under this scheme. It would undermine the states’ efforts to create a driver’s license system that assures all drivers are certified to drive, are insured, and are carrying valid licenses. This would drive undocumented people further into the shadows and undermine rather than improve security.

One of the most heinous parts of this bill is section 102, which would empower the Secretary of Homeland Security to suspend any and all laws in order to ensure the “expeditious” construction of a set of barriers and roads to keep illegal immigrants out. Then, it prohibits any judicial review of the Secretary’s decision to suspend any law.

What laws could the Secretary of Homeland Security suspend? Environmental and labor laws, such as the Endangered Species Act, National Forest Management Act, and the Davis-Bacon prevailing wage laws and the right to organize and bargain collectively. Defenders of Wildlife warns that section 102 could be used to waive all laws in all areas in the vicinity of the US borders with both Mexico and Canada, nearly 7,500 miles in total. Many of our borders run near or through national parks, forests and monuments, wildlife refuges, wilderness areas and other environmentally sensitive areas.

The American Immigration Lawyers Association cautions that the REAL ID Act will be detrimental to the welfare of the country in that it will actually increase the number of uninsured, unlicensed drivers; limit the critical law enforcement utility of Department of Motor Vehicle databases; make it difficult for people fleeing persecution to obtain refugee status in the United States; undermine free speech and association; and waste valuable resources, both economic and environmental, on false border security solutions.

Recall that the USA Patriot Act, which resurrected several formerly rejected anti-civil liberties provisions, was rammed through a timid Congress in the month following September 11, 2001. Likewise, the substance of the REAL ID Act will be tacked on to a “must pass” emergency spending bill, such as the financing of the Iraq war or tsunami relief, making it much more difficult for the Democrats to block its odious provisions.

The REAL ID Act of 2005 is opposed by myriad religious and civil liberties organizations, including the Anti-Defamation League, Episcopal Migration Ministries, Lutheran Immigration and Refugee Service, American Immigration Lawyers Association, Amnesty International USA, Center for Victims of Torture, Kurdish Human Rights Watch, Inc., National Council of La Raza, and Human Rights First.

Bush’s second term will be characterized by this and other attacks on our liberty and security. It is up to us to challenge these assaults or we will all face the wrath of what is increasingly becoming a police state.

February 2, 2005

Another World Is Possible

The Fifth Annual World Social Forum (WSF) held in Porto Alegre, Brazil from January 26-31 garnered almost no media coverage in the United States. Timed to coincide with the World Economic Forum in Davos, Switzerland, the WSF drew 155,000 activists from 135 countries, who assembled to challenge Bush’s agenda.

The weeklong happening, called “Another World Is Possible,” kicked off with a “march for peace.” An estimated 200,000 people, many with turbans or indigenous clothing, carried bright flags and marched to the beat of omnipresent drums. Several bore posters with pictures of Bush (“The World’s No. 1 Terrorist”). The mood was festive but purposeful as old and young, black, brown, yellow and white, prepared to strategize about how to create a just and peaceful world.

One of the most compelling speakers at the WSF was John Perkins, a former CIA operative and self-described economic hit man for U.S. imperialism. It was Perkins’ job to meet with a leader of a targeted country and encourage him to accept a large loan for a project that both the CIA and the leader knew the country could not afford. The money would go to a bank in the United States and U.S. corporations would get the contract to do the job. The country was then beholden to the United States, manipulated to support U.S. policy and make its natural resources available to U.S. corporations. This is the model of “neo-liberalism.”

Where a head of state refused to accept the CIA’s offer, Perkins would remind him that several leaders had been assassinated or become the victims of a coup and removed from office (e.g., Chile, Haiti). In such a situation, the CIA would back opposition movements within the target country, support corrupt military leaders, or undermine the country’s economy. The CIA often sent in “jackals,” or “hit men,” who plied their trade when other methods failed. Omar Torrijos, former president of Panama, was one victim of these jackals.

When both the economic hit men and the jackals were unsuccessful in bringing the country under U.S. domination, the tactic of last resort was war. This is what happened in Iraq after the U.S. was unable to convince Saddam to support its policies.

Notwithstanding Bush’s rhetoric about creating democracies throughout the world, the United States has tried mightily to facilitate the overthrow of twice democratically-elected Venezuelan president Hugo Chavez. But it has thus far failed. (See my editorial, Chavez Victory: Defeat for Bush Policy). There was talk last week at the WSF that the U.S. is attempting to get Colombia to invade Venezuela, but Chavez and other Latin American leaders are trying to defuse the situation. Likewise, Dick Cheney lobbed out the possibility that Israel might attack Iran (thereby using Israel as a U.S. surrogate to enable the installation of an Iranian government more receptive to U.S. policies).

Hugo Chavez, who also spoke at the WSF, received a hero’s welcome. He highlighted the Bolivarian Alternative for the Americas (ALBA), a proposal made by Venezuela as an alternative to the Free Trade of the Americas. The ALBA emphasizes social and cultural exchanges over profit-based economic deals. Chavez noted, “We can’t wait for a sustained economic growth of 10 years in order to start reducing poverty through the trickledown effect, as the neoliberal economic theories propose.”

Chavez criticized Condoleezza Rice’s recent assertion that Chavez was “a negative force in the region.” He said relations between the U.S. and Venezuela will remain unhealthy as long as the United States continues its policy of aggression. “The most negative force in the world today is the government of the United States,” Chavez said.

Significantly, Chavez maintained, “We must start talking again about equality. The U.S. government talks about freedom and liberty, but never about equality.” Indeed, Bush told the Congressional Black Caucus a few days ago that he was “unfamiliar” with the Voting Rights Act.

Walden Bello, executive director of Focus on the Global South and professor of sociology and public administration at the University of the Philippines, analyzed the role that cultural oppression played in the U.S. presidential election. Bello said that although neo-liberalism and militarism are significant problems, “the cultural dimension is what led the Bush administration to victory by drawing its support largely based on white people in the U.S.” He noted, “The Bush administration in fact appeals to traditional forms of cultural oppression through traditional forms of cultural ethnocentrism and of traditional and old forms of racism.” The people who voted for Bush, according to Bello, “were voting against blacks, they were voting against immigrants, the feminist movement, foreign imports and foreign ideas that are not American.”

The American Association of Jurists (AAJ), in association with the Latin American Association of Labor Lawyers, sponsored three days of panel discussions on Law, Public Order and Social Integration at the WSF. As the U.S. representative to the AAJ, I gave a presentation on Human Rights and the New World Order, in which I noted that Bush told his advisors on the evening of September 11, 2001, that the terrorist attacks provided a “great opportunity” for the United States. Likewise, when the tsunami devastated Asia, Condoleezza Rice used almost the same words. She said the tsunami was a “wonderful opportunity” for the U.S. I presented an analysis of how the neoconservatives have hijacked United States foreign policy and the resulting decimation of human rights, including the torture of prisoners in U.S. custody.

Another speaker at the AAJ conference was Arnel Medina Cuenca, president of the National Union of Cuban Jurists. Discussing the U.S. policy of neo-liberalism, he said, “Matan a los pobres pero no a la pobresa” (“They kill the poor but not the poverty.”)

The AAJ passed a resolution in support of the five Cuban political prisoners incarcerated in New York for what was, in effect, their anti-terrorist actions against terrorists in the U.S. who sought to overthrow the Cuban government. Another AAJ resolution calls for the return of Vieques, a United States military installation on the land of the U.S. colony Puerto Rico. The resolution also calls on the U.S. government to finance the decontamination of Vieques, which has been poisoned by depleted uranium and heavy metals from U.S. weapons testing and military training exercises. As a result the people of Vieques have the highest incidence of cancer in Puerto Rico.

Programs at the WSF advocated sustainable development, cancellation of Third World debt, an end to corporate abuse, struggle against United States imperialism, and termination of the occupation of Iraq.

In Bush’s State of the Union address this evening, we can expect to hear more rhetoric about “freedom,” “liberty” and “spreading democracy throughout the world.” For most of the people of the world, however, Bush’s words signal the spread of neo-liberalism, aggression and regime change, to their detriment. The World Social Forum is one small step toward uniting progressives from around the world to defy Bush’s agenda which threatens us all.

January 24, 2005

The Struggle for the Health and Legal Protection of Farm Workers: El Cortito

The Death of El Cortito
The Struggle for the Health and Legal Protection of Farm Workers: El Cortito
Maurice “Mo” Jourdane
Arte Publico Press, 2004
$34.95.
By Marjorie Cohn

When Cesar Chvez died in 1995, perched atop his wooden coffin was el cortito – the short-handled hoe. Until it was banned in California in 1975, the short hoe was responsible for the excruciating pain and permanent disfigurement of hundreds of thousands farm workers. Forced to stoop in the fields as they used the deadly tool to weed and thin the crops that yielded huge profits for agribusiness employers, laborers were required to work as many as ten to twelve hours a day, often in blazing heat.

It was through the relentless, and ultimately successful, efforts of Mo Jourdane that farm workers now stand tall in the fields, not required to use the short hoe.Read more

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The Struggle for the Health and Legal Protection of Farm Workers: El Cortito

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