blog

May 2, 2005

Team Bush Goes Unpunished for Torture

When the torture photographs began to emerge from Iraq’s Abu Ghraib prison one year ago, Bush said, “Those mistakes will be investigated, and people will be brought to justice.” As fingers began to point up the chain-of-command, some prisoners were released and commanders were reassigned. Congress held hearings, investigations were undertaken, and some low-ranking soldiers were prosecuted. But those responsible for setting the policy that led to widespread and systemic torture of prisoners in United States custody remain uninvestigated and un-indicted.

Last week, the Army inspector general cleared four of the five top Army officers who oversaw prison policies and operations in Iraq. Lt. Gen. Ricardo Sanchez, who authorized the use of vicious dogs to exploit “Arab fear of dogs,” was exonerated, as was his deputy, Maj. Gen. Walter Wojdakowki. Col. Marc Warren, the command’s top legal officer who failed to report abuses witnessed by the Red Cross to his boss for more than one month, escaped unscathed. And the report cleared Maj. Gen. Barbara Fast, former chief intelligence officer in charge of the Abu Ghraib intelligence center, who failed to properly advise Sanchez about the management of interrogations.

Only Brig. Gen. Janis Karpinski was reprimanded. Although she was in charge of the prison, Karpinski was discouraged from visiting the cellblock where most of the torture occurred.

In his State of the Union address, Bush said, “Torture is never acceptable, nor do we hand over people to countries that do torture.” Yet former CIA Director George Tenet, who approved the illegal renditions of prisoners to Egypt and Syria where they were formally tortured, has not been charged with any crime.

Secretary of Defense Donald Rumsfeld, the man who, according to Seymour Hersh, personally approved physical coercion and sexual humiliation of prisoners, has not been prosecuted. And Alberto Gonzales, responsible for some of the most egregious torture memos, remains the chief law enforcement officer of the United States. When asked by Senator Richard Durbin at the confirmation hearing in the Senate Judiciary Committee, “Can US personnel legally engage in torture under any circumstances?”, Gonzales refused to give a categorical “no” answer. He waffled, “I don’t believe so, but I’d want to get back to you on that.” The would-be attorney general surely knew that the Convention against Torture prohibits torture at any time, including wartime.

In fact, even if the United States had not ratified the torture treaty, which, under the Supremacy Clause of the Constitution, is part of the supreme law of the land, US personnel would still be legally forbidden from torturing prisoners. The international prohibition against torture is on par with slavery and genocide. It is considered a preemptory norm of international law, which means that torture can never be justified in any circumstances. The first Congress of the United States decided that the law of nations could be directly enforced in US courts. It enacted the Alien Tort Claims Act in 1789, which provides victims the right to sue for a violation of the law of nations. In its recent case of Sosa v. Alvarez-Machain, the Supreme Court upheld the preemptory nature of the ban on torture.

On Thursday, the one-year anniversary of the release of the Abu Ghraib photos, the New York Times reported that the Army is preparing to issue a new interrogations manual that bans interrogation practices that weren’t even in the old manual. Tom Malinowski, Washington advocacy director of Human Rights Watch, said, “The existing manual was clear. It was the exceptions that caused problems.”

Indeed, most of the torture did not occur during interrogations. Sodomy with foreign objects, forced masturbation, stacking of naked prisoners in pyramids, threatening prisoners with dogs, and leading crouching prisoners around with leashes like dogs were not carried out to secure information. They were designed to humiliate the Arabs in captivity.

Just as US soldiers who fought in Vietnam were trained to think of the Viet Cong as “gooks,” making it more palatable to kill and abuse them, so did the US forces objectify their Iraqi prisoners when they sexually abused and sadistically humiliated them. One US official told the Los Angeles Times, “There was a mentality that the people we’re in charge of are not humans.”

When the Abu Ghraib photos first emerged, there was a sense of outrage. But even though allegations of torture, not just in Iraq, but also in Afghanistan, in Guantánamo Bay, and in secret CIA prisons, continue to surface, the indignation has died down. When the subject of torture comes up, Bush’s war on terror is often cited to deflect attention from the disgusting images. Yet a recent Gallup Poll found 60 percent of Americans would not support torture, even against a terrorist who had information about an impending attack.

So why has the revulsion disappeared? If we were confronted with pictures of US personnel torturing Swedes, would demands that the perpetrators be brought to justice have evaporated so easily?

All three branches of our government must take responsibility for addressing these atrocities. The executive should appoint a special independent prosecutor to thoroughly investigate and prosecute those responsible, no matter how high up in the chain-of-command. Because of his role in the preparation of the torture memos, Alberto Gonzales has a conflict of interest and is thus incapable of fairly performing this function.

Congress must convene an independent commission to launch an investigation similar to that of the 9/11 commission. The military has shown it cannot impartially investigate itself.

And human rights and civil liberties organizations will continue to file litigation to bring the perpetrators to justice in the courts. The American Civil Liberties Union and Human Rights First filed a lawsuit on behalf of eight men allegedly tortured by US forces in Iraq and Afghanistan. The defendants are Donald Rumsfeld, Janis Karpinski, Ricardo Sanchez, and Col. Thomas Pappas, head of military intelligence at Abu Ghraib. The suit is based on both the Alien Tort Claims Act and the US Constitution, which guarantees due process prohibits cruel and unusual punishment.

“Brutalization doesn’t work,” said Dan Coleman, a former FBI agent who retired last year. “Besides that,” he added, “you lose your soul.” If we stand by and permit our high government officials to maintain impunity in the face of their torture, we, too, will have lost our soul.

April 26, 2005

Right to Choice under Nuclear Attack

The year before Roe v. Wade was decided, I met a poor, young woman in a rural American town who had five children, born one year apart. Sally’s husband would show up about once a year, beat her up, knock her up, and leave her to fend for herself and the kids. She was a battered woman, trapped in a disastrous marriage. A lawful abortion was not an option for Sally, and she was afraid to go the back alley route.

In 1973, the Supreme Court decided in Roe v. Wade that a Texas law criminalizing abortion was unconstitutional. The due process clause, the Court said, protects the right to privacy, including a woman’s qualified right to terminate her pregnancy. In the late stages of pregnancy, this right was balanced out by a compelling state interest in protecting unborn children. The Roe Court established a trimester scheme that allowed some state regulation in the latter trimesters. Nineteen years later, in Planned Parenthood v. Casey, the Supreme Court rejected Roe’s trimester scheme, and held that any measure that puts an “undue burden” on a woman’s right to abortion is unconstitutional.

The Roe decision galvanized the Christian right in an unprecedented way. In right-wing Evangelical churches throughout the country, a movement was mounted to overturn Roe v. Wade. A movie that referred to abortion in America as the new “holocaust” began to circulate during worship services.

Now, 32 years after Roe was decided, this sentiment has penetrated mainstream politics. It is embodied in a massive campaign to secure the appointment of judges who oppose Roe v. Wade.

Two days ago, the right-wing Evangelical movement organized a cable and Internet virtual church service called “Justice Sunday: Stop the Filibuster against People of Faith,” broadcast from a mega-church in Louisville, Kentucky. Tony Perkins, president of the Family Research Council, estimated that 61 million households witnessed the event. Although cast as merely a campaign to convince senators to stop the Democratic filibuster of some of Bush’s judicial nominees, the main thrust of the 90-minute program was to re-criminalize abortion.

The names, photographs and telephone numbers of senators who have not committed to the “nuclear option” to destroy the filibuster trailed across the bottom of the computer screen. Speakers argued that by blocking judicial nominees who oppose abortion, Democrats are discriminating against them.

James C. Dobson, founder of Focus on the Family, decried “six or eight very squishy Republicans” who oppose the destruction of the filibuster. Dobson, who recently compared the Supreme Court to the KKK and held it responsible for the “biggest holocaust in world history” since Roe v. Wade was decided, called the justices “unelected and unaccountable and arrogant and imperious and determined to redesign the culture according to their own biases and values – and they’re out of control.”

Another featured speaker was Judge Charles Pickering, appointed by Bush to the Fifth Circuit Court of Appeals during a Congressional recess to circumvent Senate opposition. Pickering, who voted for a constitutional convention to overturn Roe v. Wade, defensively cited his “civil rights” record for the crowd.

Behind the pulpit from which the faithful spoke loomed oversized photographs of nominees championed by the Christian right. The likeness of Bill Pryor, also propelled by Bush onto the US Court of Appeals during a Senate recess, was featured prominently. Pryor once called Roe v. Wade “the worst abomination of constitutional law in our history.”

Particularly conspicuous were huge photos of California Supreme Court Justice Janice Rogers Brown and Texas Supreme Court Justice Priscilla Owen. On Thursday, the Senate Judiciary Committee, voting along party lines, sent the nominations of Brown and Owen to the Senate. Both were blocked by a filibuster in the last Congress.

While serving on the California Supreme Court, Brown opposed a minor’s right to obtain an abortion without parental consent. Brown’s previous nomination to the federal court was opposed by 250 law professors.

And in one case, Owen so twisted the law, that Alberto Gonzalez was moved to write, “To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.”

Yet judicial activism is precisely what the right-wing Evangelicals level at the sitting judiciary, including the nine justices on the present Supreme Court, seven of whom were Republican nominees.

Right-wing Evangelicals have attacked US Supreme Court Justice Anthony Kennedy for authoring the majority opinion in Lawrence v. Texas, which struck down an anti-sodomy law. And speakers on Sunday railed against same-sex marriage; laws against school prayer, the words “under God” in the Pledge of Allegiance and the Ten Commandments; and the refusal of judges to intervene in the Terri Schiavo matter. But their eyes were on the big prize: outlawing abortion.

For the first time since Roe v. Wade ushered in a “holocaust,” the right-wing Evangelicals can smell red meat. I think the Republican leaders have promised leaders of the Christian right that, in return for their unflinching support, Bush will replace a Supreme Court justice who supports Roe with someone who will vote to reverse it, if he gets the opportunity. The Christian right may have even presented a list of acceptable replacements. The Republicans feel they must repay their political debt to the Christian right and they can only make it happen with the nuclear option, which Senator Robert Byrd has called “a legislative bomb that threatens the rights to dissent, to unlimited debate, and to freedom of speech.” Dick Cheney, president of the Senate, has vowed to support the nuclear option in case of a 50-50 tie. The Republicans are willing to mortgage the future, if necessary, to repay this debt.

If they can stop the Democrats from using the filibuster to block Bush’s anti-abortion federal court nominees, the right-wing Evangelicals can ultimately tip the balance of the Supreme Court and get Roe v. Wade reversed. Then, the only choice left for women like Sally will be a bloody coat hanger, or a life of misery.

April 18, 2005

Bully Bolton Threatens National Security

John Bolton is the wrong man for the job of US ambassador to the United Nations. His status as an avowed UN-hater, standing alone, disqualifies him. But there are other, stronger reasons to reject his appointment to that important post.

Bolton’s performance in his current position as Under Secretary of State for Arms Control and International Security has made the American people less safe. Bolton has been charged, since 2001, with halting the proliferation of weapons of mass destruction. But on Bolton’s watch, the proliferation problem has gotten worse, not better.

Fewer weapons-grade nuclear materials were secured in the two years after September 11, 2001, than in the preceding two years.

North Korea, which had two nuclear weapons, now has eight. Bolton’s scathing insults of President Kim Jong Ill provoked a dangerous reaction from the North Koreans, who called Bolton “human scum” and a “bloodsucker” who was “not entitled to take part in the [six-nation] talks.. “We have decided,” they declared, “not to consider him as an official of the US administration any longer nor to deal with him.”

On Bolton’s watch, Iran has increased its nuclear program. Alarmingly, Bolton often blocked former Secretary of State Colin Powell from receiving “information vital to US strategies on Iran,” according to today’s Washington Post.

Bolton successfully pushed to cut funding for the Nunn-Lugar program to halt the proliferation of nuclear materials, and failed to conclude a Plutonium Disposition Agreement with Russia to eliminate 70 tons of weapons-grade plutonium.

Bolton has widely been considered responsible for the defeat of the Protocol to the Biological Weapons Convention that would have created an inspection system to protect us against these deadly weapons. This is documented by Nicole Deller and John Burroughs from the Lawyers’ Committee on Nuclear Policy.

In short, Bolton’s resume shows that he has earned a failing grade in arms control.

But the most important reason to reject Bolton’s appointment to the UN post is the brutal way he conducts business. His modus operandi poses a real danger to the future security of the United States. Over and over again, Bolton has bullied his inferiors and even a non-governmental employee to get his way. And his way has led repeatedly to the proliferation of false intelligence that could endanger our national security.

Had Bolton not been reined in by the CIA, his exaggerated claims that Cuba had a biological weapons program, and that Syria had chemical and biological weapons programs, could have proved disastrous for the US.

And it was Bolton who pressed for the inclusion of the lie about Iraq seeking to buy uranium from Niger in Bush’s State of the Union address, a lie that helped build the case for the unnecessary war with Iraq that has killed 1556 American troops.

Bolton retaliated against at least three intelligence officers who disagreed with him about national intelligence policy. The judgments of the analysts ultimately proved correct; Bolton was wrong on all three occasions.

Former Assistant Secretary for Intelligence and Research Carl W. Ford, a conservative Republican and enthusiastic supporter of Bush and Cheney, testified Tuesday before the Senate Foreign Relations Committee. Ford, who called Bolton a “kiss-up, kick-down sort of guy” who “abuses his authority with little people,” characterized Bolton as a “serial abuser.”

Most significantly, Ford told the Senators that Bolton’s treatment of intelligence analyst Christian Westermann, who rightfully disagreed with Bolton about whether Cuba had a biological weapons program, had a chilling effect on intelligence analysis in the State Department. In the present historical period, the use of false intelligence could have catastrophic consequences.

The second official incident involved Fulton Armstrong, a former national intelligence officer for Latin America. After Bolton tried, unsuccessfully, to pressure him to tailor his conclusion about Cuba’s biological weapons program, Bolton sought to have Armstrong removed from his post. John McLaughlin, the Deputy Director of Central Intelligence, told the Senate Foreign Relations Committee that he intervened to prevent Bolton’s unorthodox request. John Gannon, the former chairman of the National Intelligence Council, said he thought Bolton’s behavior had been “inexcusable.”

The third documented abuse of a government official by Bolton occurred in 2003, when Rexon Ryu, a State Department nonproliferation analyst, allegedly failed to produce a document for Bolton’s chief of staff. Bolton charged Ryu with insubordination and concealing information. A former senior State Department official described Ryu as having such a “sharp mind, good analytical skills, and unimpeachable integrity,” that former Deputy Secretary of State Richard Armitage later hired him as a special assistant. Ryu is currently on temporary assignment to the staff of Republican Senator Chuck Hagel of Nebraska.

Another example of Bolton’s inappropriate, and indeed, outrageous, behavior was documented in a letter Melody Townsel sent to the Senator Foreign Relations Committee. Townsel, stationed in Kyrgyzstan on a US AID project, became the object of Bolton’s wrath in 1994. After she complained about the incompetence, poor contract performance, and inadequate funding of the project by a contractor who happened to be represented by John Bolton, Townsel met Bolton. She wrote that Bolton “proceeded to chase me through the halls of a Russian hotel throwing things at me, shoving threatening letters under my door, and generally behaving like a madman.” Townsel also claimed Bolton falsely charged that she was headed for federal prison for misuse of funds, and threatened that other key employees or contractors would also find themselves the target of federal investigations if they refused to cooperate with him. Townsel maintained that Bolton’s behavior “wasn’t just unforgivable, it was pathological.”

The Senate Foreign Relations Committee is still considering whether to send Bolton’s name to the Senate floor for confirmation. Republican Senator Lincoln Chaffee of Rhode Island, who has expressed doubts about Bolton’s suitability, will likely cast the pivotal vote. After Ford testified before the committee last week, Chafee described the Westermann affair as an isolated incident. Now that additional episodes of Bolton’s dangerous bullying have emerged, Chafee might be persuaded to vote against Bolton.

The New York Times editorialized Wednesday, “Trying to tailor intelligence is enough to disqualify Mr. Bolton from this job. With America’s credibility as low as it is, the last thing the nation needs is a United Nations envoy who tried to force intelligence into an ideological construct.”

If John Bolton is confirmed as US ambassador to the United Nations, our national security will be seriously compromised in these already perilous times.

April 12, 2005

Senators Challenge Bolton on Contempt for UN

John Bolton refused to come clean at his confirmation hearing in the Senate Foreign Relations Committee yesterday, playing down his contempt for the UN and for international law. Bolton, who claimed in 1994, “there is no such thing as the United Nations,” pledged to forge a “close partnership” with the UN if confirmed as US Ambassador to the United Nations.

Senator Barbara Boxer (D-Cal) confronted Bolton with a videotape of a 1994 speech in which he said, caustically, “If the U.N. Secretariat building in New York lost 10 stories, it wouldn’t make a bit of difference.” Boxer said, “I see the anger, the hostility. What we saw here was the real John Bolton.”

Boxer then observed, “My overall assessment, Mr. Bolton, is that you have nothing but disdain for the United Nations. It’s hard for me to know why you’d want to work at an institution that you said didn’t even exist.”

Bolton, Bush’s most controversial nominee among many, explained his statement that the UN “does not exist” with his theory of “the fallacy of false concreteness” – the United Nations does not exist apart from the member states which comprise it. Senator Barack Obama (D-Ill) turned Bolton’s characterization back on him, saying it follows that we should not then blame the United Nations for the corruption in the oil-for-food program – the responsibles were member states, not the UN itself. Conservatives have recently used the oil-for-food scandal to discredit the UN.

The major theme that ran throughout the questioning was that Bolton is an ideologue who manipulates intelligence to fit his own analysis, and his acrimonious temperament may pose a threat to our security.

Obama challenged Bolton for his overstatement of Syria’s aggressive capabilities, saying, “The CIA had to reign you in.” He criticized Bolton’s claim that Libya surrendered its weapons of mass destruction program as a result of watching the US get tough with Iraq. Obama contended that diplomacy convinced Libya. Senator John Kerry (D-Mass) pointed out that Bolton may have actually tried to scuttle the diplomatic dialogue between the US and Libya. Bush also shuns diplomacy in favor of bullying less powerful nations.

In North Korea, Iran and Syria “we can’t afford to cry wolf,” Obama told Bolton. “If we gild the lily and overstate our case,” said Obama, it will harm our troops abroad and our national security.

Kerry also zeroed in on whether Bolton might make us less safe, saying, “We’ve just come off the most massive intelligence failure in history.” Kerry maintained it’s vital to the security of the American people to know whether Bolton was a party to that failure.

Much of the questioning focused on Bolton’s allegation that Cuba had a biological weapons program, and his retaliation against two intelligence experts who challenged his now-discredited view. Bolton insisted his differences with the two were procedural, that they had gone behind his back with their suggested changes to his proposed speech. The Senators successfully established that Bolton really quarreled with the content of the criticism.

Bolton had wanted to say, “The United States believes Cuba has a developmental offensive biological warfare program and is providing assistance to other to rogue state programs.” After it was vetted by numerous intelligence agencies, the language was softened to say, “Cuba has at least a limited offensive biological warfare research and development effort. Cuba has provided dual-use biotechnology to other rogue states.” Cuba, which has an advanced biomedical program, adamantly denies it has ever had a biological weapons program of any sort. And ironically, two months after the Sept. 11 attacks, Bolton vehemently opposed the Protocol to the Biological Weapons Convention that would have required member states, including the US, to submit to inspections of their biological weapons.

Bolton denied trying to have the two men who disagreed with him fired. Members of the Senate committee, however, spoke with seven intelligence officials who contradicted Bolton’s assertion. One said Bolton had dismissed the opinion of Christian Westermann, the chief bioweapons analyst at the State Department’s Bureau of Intelligence and Research, as “a midlevel INR munchkin analyst.” Boxer noted that this “midlevel munchkin” was a war hero who served in the US military for 23 years.

The toughest questions didn’t come just from the Democrats on the committee. Republican Senator Chuck Hagel from Nebraska, referring to Iraq, asked Bolton, “How could the UN weapons inspectors be so right and us so wrong?… How could the UN inspectors be right and how did we miss it?” To bolster the case for war with Iraq, Bolton pushed for Bush to include in his State of the Union address the false statement about Iraq seeking uranium from Niger, over the opposition of the State Department.

When Senator Russ Feingold (D-Wis) asked Bolton whether the United States made a mistake by failing to stop the genocide in Rwanda 11 years ago, Bolton had no substantive response. “We don’t know if it was logistically possible to do anything different,” Bolton replied. “Your answer is amazingly passive,” Feingold told Bolton.

Senator Joseph Biden (D-Del), the ranking Democrat on the committee, said he had “grave concern” about Bolton as UN ambassador. “We need a strong voice in New York who knows the UN and who can advance our reform agenda,” Biden asserted. “And I fear that knowing your reputation – and your reputation is known well at the UN – people will be inclined to tune you out.” Biden was concerned that sending Bolton to New York would be “like sending a bull into a China shop.”

Even if all 8 Democrats on the committee vote against the Bolton nomination, it could go to the full Senate unless at least one Republican joins them. Senator Lincoln Chafee, a moderate Republican from Rhode Island, who faces reelection next year, has received tremendous pressure from his heavily Democratic constituency, “overwhelmingly” opposed to Bolton’s nomination. Although Chafee charged that Bolton’s sharp comments about North Korean president Kim Jong Ill “seem to be impeding our progress” in the talks over Pyongyang’s nuclear program, the Senator said he was leaning toward voting for Bolton anyway.

Yesterday’s hearing was interrupted by protestors from Code Pink, a women’s peace group, who carried signs saying “No Bolton – Yes UN” and “Bolton = Proliferation.” They were escorted out of the hearing room.

The hearing continues today with the testimony of other witnesses, including some of the intelligence officials who dispute Bolton’s report of his handling of the Cuba intelligence matter.

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.”

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