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February 6, 2003

A Double Standard on Torture: The U.S. Should Practice What We Preach

The Bush administration has a double standard on torture and human rights violations as it prosecutes the “war on terror.” While trying to convince the American people in his State of the Union address that war with Iraq is necessary, President George W. Bush marshaled accusations that Saddam Hussein has tortured his people to coerce confessions. Yet in the same speech, Bush sanctioned extrajudicial killings by the United States. He said that more than 3,000 suspected terrorists had been arrested but many others had met a “different fate,” so they would no longer cause us problems. Even more recently, Human Rights Watch and other human rights monitoring groups have expressed concern that the United States has actually been using torture to extract information from prisoners.

The evidence of American torture and associated inhumane conduct is especially disturbing. In December of last year, the documentary “Massacre in Afghanistan” was aired on German television, to the consternation of the U.S. State Department. It shows interviews with eyewitnesses to the torture and slaughter of 3,000 Taliban POWs, who surrendered to U.S. and allied Afghan forces. The film demonstrates the complicity of the American army command in the killing of these 3,000 men. Some of the prisoners died from suffocation while being transported in closed containers that lacked any ventilation. An Afghan soldier who traveled with the convoy reported he was ordered by an American commander to fire shots into the containers to provide air, knowing he would hit the men inside. One of the drivers recounted the fate of survivors of the transport – dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers looked on. These allegations suggest evidence of war crimes and crimes against humanity under the statute of the new International Criminal Court. It is precisely liability for actions such as these that Bush sought to escape when he endeavored to remove the United States’ signature on this treaty last year.

A week after the documentary was shown in Germany, the Washington Post reported that “stress and duress” tactics were being used on captured al Qaeda operatives and Taliban commanders who are being interrogated at the CIA’s secret detention center at the U.S.-occupied Bagram air base in Afghanistan. Those who remain uncooperative may be kept standing or kneeling for hours, wearing black hoods and spray-painted goggles. Some are kept in awkward, painful positions and deprived of sleep with a bombardment of lights for 24 hours. According to the Post: “While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary.” At least two prisoners are known to have died at Bagram base, one of a pulmonary embolism, the other of a heart attack. The article quotes “Americans with direct knowledge and others who have witnessed the treatment,” who reported that MPs and U.S. Army Special Forces troops beat captives and confined them in tiny rooms. Many are blindfolded, thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep. They also report prisoners being bound to stretchers with duct tape for transport. This was the treatment that U.S. citizen John Walker Lindh received, which proved the driving force behind the government’s agreement to a plea bargain. Attorney General John Ashcroft sought to avoid testimony about Lindh’s mistreatment while in captivity.

The Post also reported in March that the U.S. government was secretly sending terrorism suspects to countries such as Egypt and Jordan for interrogation, where they would be subjected to torture. This practice is known as “rendition.” One U.S. diplomat is quoted as saying: “These sorts of movements have been occurring all the time. It allows us to get information from terrorists in a way we can’t do on U.S. soil.”

These actions of the U.S. government constitute direct violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights, which also proscribes torture. Both of these treaties, which the U.S. has ratified, forbid torture even in wartime. Alarmed at the Post report about torture undertaken or condoned by the U.S., Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken “to clarify that the use of torture is not US policy.” Roth reminded Bush that, “U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world.” The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven’t ratified the Torture Convention. The U.S. government’s practice of torture is unjustifiable and a clear violation of international law.

The Bush administration has been emboldened to engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: “This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off.” Indeed, in his speech, Bush said: “All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let’s put it this way – they are no longer a problem to the United States and our friends and allies.” Bush was likely referring to the November 2002 assassination of an alleged al Qaeda leader in Yemen by the CIA. Besides violating the Torture Convention and the jus cogens norm prohibiting torture, extrajudical killings, or summary executions, violate the Covenant on Civil and Political Rights.

Many of the detainees at Guantanamo Bay, Cuba and the U.S. mainland have also been victims of torture and other cruel, inhuman or degrading treatment by the U.S. government. In Guanatanamo, prisoners have been locked in 8-foot by 8-foot cells 24 hours a day, with one 15-minute exercise break each week. A class action filed by the Center for Constitutional Rights in April 2002, alleged that prisoners in the U.S. were beaten into unconsciousness, bloodied, pushed, kicked in the face, teeth loosened, head slammed against the wall, thumbs bent back and called terrorists. Likewise, many foreign nationals who came forward to register recently with the Immigration and Naturalization Service pursuant to Ashcroft’s order, reported being forced to sleep standing up, or were hosed down before they went to sleep on cold concrete floors in frigid temperatures, according to the Los Angeles Times. These constitute violations of the Torture Convention. Amnesty International has reiterated the U.S. government’s international obligations to refrain from violating the Torture Convention and the Covenant on Civil and Political Rights in Afghanistan, in Guantanamo and in the United States.

Victims of torture may have a cause of action in U.S. courts under the Alien Tort Claims Act and the Torture Victim Protection Act. There have been 27 cases brought in U.S. federal courts, in five circuits and nine districts, in which the Convention Against Torture was used successfully. Last year, a judge in Georgia awarded compensatory and punitive damages to plaintiffs, based in part on the Covenant on Civil and Political Rights, in a lawsuit brought by four Muslim refugees from Bosnia-Herzegovina against a former Bosnian Serb police officer under the Alien Tort Claims Act and Torture Victim Protection Act.

Thus far, primarily immigration lawyers and attorneys with foreign-born clients have used the Torture Convention in their litigation. There is, however, great potential to assert the treaty to support U.S. client claims as well, particularly under the Torture Victim Protection Act.

The United Nations has taken steps to make countries that engage in torture accountable to the international community. In December 2002, the U.N. General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the UN Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.

While decrying human rights violations in other countries as it furthers Washington’s agenda, the Bush administration refuses to be accountable for its own transgressions. As U.S. Senior District Judge Jack Weinstein (E.D.N.Y.) wrote last year: “The United States cannot expect to reap the benefits of internationally recognized human rights – in the form of greater worldwide stability and respect for people – without being willing to adhere to them itself.” During his speech, Bush celebrated “the cause of human dignity.” His words, however, ring hollow.

December 13, 2002

Oil: Weapon of Mass Destruction

When Dick Cheney was CEO of Halliburton, the world’s largest oil services company, he told the Cato Institute: “The good Lord didn’t see fit to put oil and gas only where there are democratically elected regimes friendly to the United States.” He admitted: “Occasionally, we have to operate in places where, all things considered, one would not normally choose to go…we go where the business is.” After Cheney became vice president, he made hegemony over the world’s oil supply a priority for U.S. foreign policy. The blueprint for this strategy was developed in the 1992 draft Pentagon Defense Planning Guidance on post-Cold War Strategy, at the direction of Deputy Defense Secretary Paul Wolfowitz, when he was Undersecretary of Defense under Cheney in George H.W. Bush’s cabinet.

This 1992 draft, which was strategically leaked to The New York Times, advocated continued U.S. leadership in NATO by discouraging the advanced industrialized nations “from challenging our leadership.” It said: “We must maintain the mechanism for deterring potential competitors from even aspiring to a larger regional or global role.” The overall objective in the Middle East and Southwest Asia, according to the draft, “is to remain the predominant outside power in the region to preserve U.S. and Western access to the region’s oil.” The bombing of Afghanistan, and the impending Iraq war, both serve that goal.

The incessant drumbeat from Washington is that Americans must be protected from Saddam Hussein’s weapons of mass destruction. Notwithstanding CIA Director George Tenet’s unambiguous declaration that Hussein does not pose an imminent threat to the United States, media commentators postulate unremittingly how many and what types of weapons Hussein must have. George W. Bush has manipulated and cajoled Congress and the Security Council into jumping on his WMD bandwagon. Yet, Bush’s war on Iraq is merely the next step in a concerted strategy to secure control over valuable oil deposits in the Middle East and Central Asia.

Bush’s agenda to reincarnate NATO, inspired by the Wolfowitz document, is key to this oil strategy. NATO was created as a defensive alliance during the Cold War to protect Western Europe from a perceived threat from the Soviet Union. After World War II, the countries of Western Europe were unable to defend themselves. Now they have the resources to provide for their own security, yet NATO has expanded eastward, added several former Soviet bloc countries to its ranks, and redefined its strategic purpose. Bush’s abandonment of containment in favor of preemption is a brazen manifestation of the Wolfowitz theology embodied in the 1992 draft. Indeed, Wolfowitz has been systematically bribing NATO countries to assist with Bush’s impending invasion of Iraq.

The U.S. bombing of Afghanistan, justified as a response to the September 11 attacks, was part of the U.S. oil strategy. Afghanistan never attacked the U.S. and most of the hijackers hailed from Saudi Arabia, a strategic U.S. oil partner. Yet, U.S. and U.K. warplanes ousted the Taliban and secured Afghanistan for the construction of an oil pipeline from Turkmenistan, south through Afghanistan, to the Arabian Sea. The Bush administration had been uncritical of the Taliban’s human rights record when Unocal oil company was negotiating for the pipeline rights before September 11. After assuming control of Afghanistan, Bush conveniently installed Hamid Karzai, a former Unocal official, as interim president of Afghanistan.

Bush likewise seeks to install a U.S.-friendly replacement for Hussein after conquering Iraq. Although couched as a battle against weapons of mass destruction, the U.S. allied with Iraq when it used chemical weapons on the Kurds; indeed, the U.S. furnished Iraq with its WMD technology, according to an Associated Press report. The U.S. played Iraq off against Iran for years, to ensure access to Middle East oil. Bush’s war with Iraq, and ultimate occupation of that country, will clinch that control. With the lives of thousands of Americans and Iraqis at stake, oil may prove to be the most terrible weapon of mass destruction.

December 7, 2002

Three Strikes: Bad Cases Make Bad Law

When former governor Pete Wilson signed California’s three strikes law, he compared the construction of new prisons which would be required to house the increased inmate population to building the University of California system: “We’re producing … capital improvements for future generations, and they rightly can be called upon to help pay for it.”

Following the tragic murder of Polly Klaas by two-time felon Richard Allen Davis, California voters and the legislature enacted the “three strikes and you’re out” law in 1994. It requires a sentence of 25-years-to-life in prison when a defendant commits a third felony (“three strikes”), and a doubling of the sentence after the commission of a second felony (“two strikes”). Although the law was supposed to deter violent crime, it has had no significant effect on the reduction of crime in California. It has actually increased the number and severity of sentences for non-violent offenses, and has contributed to the aging of the prison population, at considerable cost to California’s taxpayers.

The most recent study, “Aging Behind Bars: ‘Three Strikes’ Seven Years Later” by Ryan S. King and Marc Mauer of the non-profit Washington-based Sentencing Project confirms prior studies which dispel the myth that the law has led to a drop in California’s crime rate. Since the beginning of the 1990s, crime has been on a steady downturn both in California and nationwide. But criminologists attribute this to an improved economy, changes in drug markets, demographic changes and strategic policing.

Moreover, in June of this year, the FBI announced a 2 percent upswing in serious crime nationwide, with a 6 percent increase in California. This is not surprising, as a recent article published in the Journal of Legal Studies documented studies in 24 states, which found three strikes laws associated with 10 to 12 percent more homicides in the short run and 23 to 29 percent more in the long run.

Most of the three strikes convictions in California are for non-violent crimes, according to the California Department of Corrections. It reported that 57.9% of third strike cases and 69% of second strike cases are for property, drug or other non-violent offenses. Indeed, the skewed use of the law has caused Polly’s brother, Marc Klaas, to conclude the three strikes law is not working as anticipated: “In the depth of despair which all Californians shared with my family immediately following Polly’s murder, we blindly supported the [three strikes] initiative in the mistaken belief that it dealt only with violent crimes. Instead, three of the four crimes it addresses are not violent.”

The U.S. Ninth Circuit Court of Appeals is also concerned about the severity of sentences for minor offenses under California’s three strikes law. In Andrade v. Attorney General, the court struck down a sentence of 50-years-to-life as cruel and unusual punishment, where Andrade’s third and fourth strikes were petty thefts of nine videotapes from K-Mart.

The Ninth Circuit also overturned 25-years-to-life sentences in Brown v. Mayle and Bray v. Ylst, where the third strikes were petty thefts. The United States Supreme Court has granted certiorari in Andrade, which has been set for argument in tandem with Ewing v. California. In Ewing, the Court of Appeal upheld a 25-years-to-life sentence where the third strike arose from the theft of three golf clubs.

California’s three strikes law is singular in the country in permitting misdemeanor conduct both to enhance a petty theft to a felony, and to constitute a third strike which triggers a life sentence, an anomaly the Andrade court decried as a “unique quirk” in the California law. The Ninth Circuit was also concerned about other features of California’s three strikes law that “combine to make it particularly severe,” including: (1) a defendant may be considered to have two prior strikes even though he was convicted of both in a single judicial proceeding; (2) prior strikes need not be violent, as long as they qualify as “serious”; (3) serious or violent felony convictions imposed prior to the law’s enactment in 1994, foreign convictions, and juvenile true findings can be charged as strikes; (4) there is no “washout” period after which prior qualifying convictions will no longer be counted as strikes; (5) defendants with prior strikes who are convicted of current multiple felonies committed on different occasions must serve consecutive sentences; and (6) a defendant sentenced under the three strikes law cannot have his term reduced by credit for good time or work time. Andrade must serve a minimum of 50 years in prison before he is eligible for parole. He will be 87 years old.

The three strikes law also targets older people who had serious criminal problems much earlier in life, reformed in their later years, but committed a minor offense which counts as a third strike. Crime rates peak in the late teens or early twenties for most offenses, and decline rapidly after that. A law designed to reduce crime should thus be aimed at younger offenders. But the Sentencing Project found that in the first five years of the implementation of California’s three strikes law, the proportion of new felony prison admissions above age 40 increased from 15.3 percent in 1994 to 23.1 % in 1999, while there has been a consistent decline in admissions for age groups between 20 and 35 years of age. King and Mauer project that 83 percent of three strikes prisoners by the year 2026 will be forty years or older.

It costs $25,607 to incarcerate an inmate in California. At the current intake rate of 1,200 three strikes cases per year, approximately 30,000 inmates will be serving sentences of 25-years-to-life by the year 2026. King and Mauer estimate the cost of maintaining these prisoners at $750 million annually. Moreover, it will cost $1.5 million to incarcerate an elderly prisoner for the minimum 25 years, because he will generally require greater expenditures for health care.

Higher court costs have also ensued from the three strikes law. Whereas more than 90 percent of all criminal cases used to be resolved by pleas, now many second and third strike candidates are demanding trials because of the lengthy prison terms they face.

California’s three strikes law has exacerbated racial disparities in the prison system. African-Americans have higher arrest rates due in part to racial profiling, and consequently have higher rates of prior convictions. Although African-Americans constitute 20 percent of felony defendants, they comprise 43 percent of offenders sentenced under the three strikes law.

Six years after the enactment of the three strikes law, California’s legislature passed a bill calling for a thorough review of the law. But Democratic Governor Gray Davis, fearing a voter backlash if he appeared soft on crime, vetoed the bill.

Although 93 percent of people surveyed in California support mandatory sentences for those convicted of three violent, serious felonies, only 65 percent support this sentencing scheme for three serious drug violations, only 46 percent support it for serious property crimes, and just 13 percent support three strikes for less serious property offenses.

Indeed, Proposition 36, the “Substance Abuse and Crime Prevention Act” was approved by 61 percent of California voters in November 2000, and took effect July 1, 2001. Proposition 36 has been diverting low-level, non-violent offenders convicted solely of possession of drugs for personal use into community-based treatment programs instead of incarceration. Early indications suggest that the law has been fulfilling its promise to reduce drug addiction and crime rates, and save California taxpayers millions of dollars by reducing the jail and prison population.

Forty states have habitual criminal statutes, and 26 of them have a three-strikes provision. But only California mandates the imposition of 25-years-to-life for a third felony, whether or not serious or violent. There have been attempts in both the legislature and the citizenry to amend the three strikes law, by voter initiative, to require the third felony be a serious or violent one. AB 1790 passed the Assembly Public Safety Committee and is currently pending in the Assembly Committee on Appropriations. And the Citizens Against Violent Crime, chaired by Polly Klaas’s grandfather Joe, have been collecting signatures for a similar initiative.

What is the face of three strikes? It’s the face of Freddie, who walked into Sears one day and stole a $99.99 pair of binoculars. Freddie had suffered two robbery convictions 14 years before. As he was 51 when he committed this “third strike,” Freddie will be 76 when he’s eligible for parole. The California Court of Appeal rejected my argument that Freddie’s sentence violated the Eighth Amendment’s ban on cruel and unusual punishment.

In Andrade, the Supreme Court has an opportunity to eliminate petty thefts as eligible offenses for third strike treatment. The voters can amend the law to forbid non-violent and drug-related offenses from constituting third strikes. But we must explore alternatives to the draconian prison sentences established as political responses to a climate of fear. Until we devise more effective rehabilitation programs, such as Proposition 36, people like Freddie will spend the rest of their lives in prison, at a considerable cost to our society.

November 21, 2002

UN Resolution 1441: Blackmailing the Security Council

In 1990, George H.W. Bush “persuaded” the members of the Security Council to authorize Desert Storm by bribing them with cheap Saudi oil, new arms packages and development aid. But when Yemen refused to capitulate, a U.S. diplomat immediately warned, “that will be the most expensive ‘no’ vote you ever cast.” Indeed, the United States punished Yemen, the poorest country in the Arab world, by cutting off its entire U.S. foreign aid package of $70 million.

Twelve years later, George W. Bush’s administration has used similar tactics to persuade members of the Security Council to sign onto Resolution 1441, dealing with Iraq. The current Security Council has attempted to save face by changing a few words, such as “or” to “and,” and “restore” to “secure.” Those changes made the resolution palatable for Russia and France. But in adopting the resolution, it seems certain the Security Council was ever mindful of Yemen’s fate when it defied the United States in 1990. Members of the Security Council have opted to jump onto the speeding U.S. train rather than be crushed under its mighty wheels.

Bush the Younger has exercised power politics throughout his crusade to obtain authority to attack Iraq. Bush first threatened and cajoled a majority in Congress to declare Saddam Hussein Public Enemy Number One, despite Hussein’s failure to attack any country for 12 years, and the absence of any evidence linking him to Al Qaeda. All that remained was to secure Security Council “authorization” to conduct Bush’s new preemptive military strategy, change Iraq’s regime and clinch U.S. corporate control of Middle East oil.

The passage of Resolution 1441 gives the Bush Regime the tools it needs to carry out that mission. Although couched as a means for disarmament, this resolution is really a “set up” that will be used to justify the U.S. military takeover of Iraq. Paragraph 8 states that “ . . . Iraq shall not take or threaten hostile acts directed against any representative or personnel of the United Nations or of any Member State taking action to uphold any Council resolution.” Although the “no-fly-zones” have never been sanctioned by the Security Council, under Paragraph 8, the U.S. could justify its use of military force against Iraq, if Iraq fired on a U.S. airplane which was unlawfully violating Iraq’s airspace within these zones.

The resolution further declares that “false statements or omissions in the declarations submitted by Iraq” and “failure by Iraq at any time to comply with, and cooperate fully with the implementation of this resolution shall constitute a further material breach of Iraq’s obligations . . .” The U.S. will, as it has in the past, take it upon itself to judge whether Iraq has complied with this provision, in spite of the Security Council’s exclusive authority to declare when a country is in material breach.

Iraq responded to Resolution 1441 by denying it has weapons of mass destruction, indicating its intention to cooperate with the weapons inspectors, and stating it would later issue an analysis of why this resolution violates the United Nations Charter, prior Security Council resolutions, and other provisions of international law.

It would be very difficult for any sovereign nation to comply with Resolution 1441, which in effect authorizes the occupation of Iraq. A particularly onerous provision grants weapons inspectors the unrestricted right to interview all Iraqi officials and all other persons inside or outside Iraq. That provision would give inspectors power to act as de facto asylum officers and transport anyone, including high ranking Iraqi officials, with or without his permission.

Finally, in a direct invitation for non-compliance, the resolution sets a 30-day deadline for Iraq to declare not only its weapons programs, but all chemical, biological and nuclear programs unrelated to weapon production. Even Hans Blix, Executive Chairman of UNMOVIC, told the Security Council that this was an unrealistic deadline.

If Iraq misses this deadline, thousands of U.S. troops already poised at its border are likely to invade, resulting in the massive loss of Iraqi and American lives. The invasion is likely to occur without further authorization from the U.N. Indeed, Colin Powell said on CNN’s “Late Edition,” that if the U.N. isn’t willing to authorize the use of “all necessary means” to disarm Hussein, “the United States, with like-minded nations, will go and disarm him forcefully.”

But only the Security Council can authorize the use of armed force. Since 1990, the Council has not authorized the use of force in Iraq. No country can unilaterally use military means to enforce a U.N. resolution without violating the U.N. Charter. It remains to be seen when and how the United States will unilaterally decide that Iraq has breached the terms of Resolution 1441, and use that as a pretext to strike. The lives of a quarter million U.S. soldiers and millions of Iraqi people are at stake.

September 2, 2002

Invading Iraq Would Violate U.S. and International Law

Despite opposition by many prominent Republicans, Dick Cheney and George W. Bush are mounting an intensive public relations campaign to justify their pre-ordained invasion of Iraq. A preemptive strike against Iraq would violate the Constitution and the United Nations Charter.

Article I, section 8 of the Constitution empowers Congress, not the president, to debate and decide to declare war on another country. The War Powers Resolution provides that the “constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories, or possessions or its armed forces.”

Congress has not declared war on Iraq, no statute authorizes an invasion and Iraq has not attacked the United States, its territories, possessions or armed forces. President Bush’s lawyers have concluded that he needs no new approval from Congress. They cite a 1991 Congressional resolution authorizing the use of force in the Persian Gulf, and the September 14, 2001 Congressional resolution authorizing the use of force against those responsible for the Sept. 11 attacks.

These two resolutions do not provide a basis to circumvent Congressional approval for attacking Iraq. The January 12, 1991 Persian Gulf Resolution authorized the use of force pursuant to U.N. Security Council Resolution 678, which was directed at ensuring the withdrawal of Iraq from Kuwait. That license ended on April 6, 1991, when Iraq formalized a cease-fire and notified the Security Council. The September 14, 2001 resolution authorized the use of armed force “against those responsible for the recent [Sept. 11] attacks against the United States.” There is no evidence that Iraq was responsible for the Sept. 11 attacks.

A preemptive invasion of Iraq would also violate the United Nations Charter, which is a treaty and part of the supreme law of the United States under Article 6, clause 2 of the Constitution. It requires the United States to settle all disputes by peaceful means and not use military force in the absence of an armed attack. The U.N. Charter empowers only the Security Council to authorize the use of force, unless a member state is acting in individual or collective self-defense. Iraq has not attacked this country, or any other country in the past 11 years. None of Iraq’s neighbors have appealed to the Security Council to protect them from an imminent attack by Iraq, because they do not feel threatened.

Cheney and Bush cite the possibility that Iraq is developing weapons of mass destruction as the rationale for a preemptive strike. Iraq is in violation of Security Council Resolution 687, which requires full cooperation with U.N. weapons inspectors. But this issue involves the Iraqi government and the United Nations. The Security Council did not specify any enforcement mechanisms in that or subsequent resolutions. Only the Security Council is empowered to take “further steps as may be required for the implementation of the resolution.” Although the Security Council warned Iraq, in Resolution 1154, of the “severest consequences” if it continued its refusal to comply, the Council declared that only it had the authority to “ensure implementation of this resolution and peace and security in the area.”

Articles 41 and 42 of the U.N. Charter declare that no member state has the right to enforce any resolution with armed force unless the Security Council decides there has been a material breach of it resolution, and determines that all nonmilitary means of enforcement have been exhausted. Then, the Council must specifically authorize the use of military force, as it did in November 1990 with Resolution 678, in response to Iraq’s occupation of Kuwait in violation of Security Council resolutions passed the previous August. The Security Council has not authorized any use of force for subsequent violations involving Iraq.

Moreover, the claim by Cheney and Bush that Iraq has developed weapons of mass destruction is spurious. Scott Ritter, who spent seven years in Iraq with the UNSCOM weapons inspection teams, has said, “There is absolutely no reason to believe that Iraq could have meaningfully reconstituted any element of its [weapons of mass destruction] capabilities.” Ritter, a twelve-year Marine Corps veteran who served under General Norman Schwarzkopf in the Gulf War, maintains that the Iraqis never succeeded in developing their chemical and biological agents to enable them to be sprayed over a large area. It is undisputed that Iraq has not developed nuclear capabilities.

There is no legal justification for a preemptive attack on Iraq. Only Congress can authorize the use of United States armed forces, and only the Security Council can sanction the use of force by a U.N. member state. Both are necessary; neither has been forthcoming.

August 19, 2002

War on Civil Liberties Hits a Speed Bump

“Watch out for well-meaning men of zeal!” These words penned 74 years ago by U.S. Supreme Court Justice Louis Brandeis are no less relevant today. Brandeis was dissenting from a ruling that exempted wiretapping from the protections of the Fourth Amendment. The Supreme Court later reversed its decision, holding that the government must follow the Fourth Amendment when it electronically seizes our conversations. But under the guise of the “war on terror,” the zealous men in Washington have launched a major new assault on our constitutional rights.

One of the most recent manifestations of this dangerous zeal is the new TIPS program. Under the Terrorism Information and Prevention System, Attorney General John Ashcroft seeks to recruit millions of Americans to spy on each other. TIPS is designed to ask volunteers, including letter carriers, utility employees, truck drivers and train conductors, to report “suspicious activity” to the government. TIPS was originally slated to be initiated this month in the nation’s ten largest cities, and the Department of Justice hopes to recruit 1 million informants for a total population of almost 24 million.

Informant reports will then enter databases from which the government can create dossiers on its citizens. TIPS is reminiscent of the East German stasi, or secret police, who maintained files on millions of people. When asked how the data will be stored and used, Ashcroft has been less than forthcoming.

Operation TIPS will not only help the government spy on us more effectively. It will encourage neighbors to snitch on neighbors, and won’t distinguish between real and fabricated tips. Anyone with a grudge or vendetta against another can provide false information to the government, which will then enter the national database.

Shortly after TIPS was unveiled, there came a public hue and cry. The United States Postal Service stated categorically it would refuse to allow its mailpersons to participate. Even the Washington Post, in a recent editorial, was alarmed by the prospect of TIPS: “Americans should not be subjecting themselves to law enforcement scrutiny merely by having cable lines installed, mail delivered or meters read.” The government seeks to use private citizens to circumvent the dictates of the Fourth Amendment. As the Post editorial says, “Police cannot routinely enter people’s houses without either permission or a warrant. They should not be using utility workers to conduct surveillance they could not lawfully conduct themselves.”

The House Select Committee on Homeland Security, headed by Rep. Dick Armey (R-Tex.), shelved the repressive program. In response to the public and congressional backlash, the Bush administration announced on August 9 that it would no longer solicit tips from persons with access to our homes. Laura W. Murphy, head of the American Civil Liberties Union in Washington, hailed the administration’s “backpedaling” on TIPS, saying, “It’s quite a relief . . . knowing that even the Ashcroft adminstration is not immune to public criticism.” But the government still intends to enlist a multitude of workers to participate in TIPS this fall, leading Murphy to question whether the government has truly backed down or simply seeks to neutralize the criticism. The administration may be attempting to derail legislation which proposes to gut the program. And the Senate is scheduled to take up the TIPS program in the fall.

TIPS is just the latest manifestation of a steady dragnet by Attorney General John Ashcroft and the FBI to intimidate Americans and emasculate their civil liberties. Since the horrific attacks on September 11, Ashcroft has:

  • rammed the USA PATRIOT Act, which significantly lowers the standards for surveillance of telephone and computer communications, through a timid Congress;

  • inaugurated a new program of COINTELPRO-style surveillance activities, which were banned by Congress in the 1970s after civil rights leaders like Martin Luther King Jr. were targeted;

  • urged federal agencies to resist Freedom of Information Act requests, a vehicle for citizens to hold the government accountable by allowing them to request, receive and publicize public records;

  • ordered his agents to eavesdrop on conversations between attorneys and their clients, defying the oldest and one of the most important privileges in our society;

  • indefinitely detained hundreds of men of Arab, Muslim and South Asian descent in the United States and Guantanamo, Cuba, with no charges or suspicion of terrorist ties;

  • determined to set up internment camps to hold U.S. citizens in indefinite detention, and deny them their constitutional rights including the right to counsel and access to the courts;

  • and, in what New York Times columnist William Safire characterized as “the new Ashcroft-Mueller diktat,” the FBI has been granted sweeping new surveillance powers, to conduct investigations for up to a year without the necessity of showing any suspicion of criminal activity.

It is essential that people feel safe and secure in these perilous times. But we cannot have confidence that turning ordinary Americans into snitches or relaxing limitations on the FBI’s spying activities will make us any safer. We must be vigilant to safeguard the liberties and freedoms under gird a democracy. That means speaking out, and writing op-eds, letters to the editor, our congresspersons, the White House and the Department of Justice, to express our concerns. The government’s backpedaling – even if temporary – from TIPS in the face of public criticism, demonstrates that we can affect official policy. If we uncritically succumb to the government’s frightening surveillance campaign, we will find ourselves in the midst of a police state.

June 6, 2002

Civil Liberties: J. Edgar Ashcroft?

On May 30, 2002, the same day America mourned the victims of the September 11 attack and the conclusion of the Ground Zero cleanup, Attorney General John Ashcroft and FBI Director Robert Mueller III unveiled sweeping new surveillance powers for the FBI. In order to cover up its own incompetence in failing to properly analyze the data it already had before September 11, the FBI has now been given wide latitude to more effectively spy on law-abiding citizens.

Under what New York Times columnist William Safire characterized as “the new Ashcroft-Mueller diktat,” the FBI will now be able to conduct investigations for up to a year without the necessity of showing any suspicion of criminal activity. The G-men and G-women can create dossiers on anyone they like, tracking the Internet sites we visit, trips we take, our political and charitable contributions, magazine subscriptions, book purchases, and meetings we attend. Anyone perceived as critical of the government is fair game for an FBI “fishing expedition.” It will discredit and discourage those who seek to exercise their First Amendment right to dissent.

The relaxation of the FBI’s surveillance guidelines will likely return us to the days of J. Edgar Hoover’s dreaded COINTELPRO (counter-intelligence program). 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.”

COINTELPRO was designed, by its own terms, to “disrupt, misdirect, discredit and otherwise neutralize” political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King, Jr. in a program called “Racial Matters.” King’s campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed King’s organization was being infiltrated by communists. In fact, the FBI was really concerned that King’s civil rights campaign “represented a clear threat to the established order of the U.S.” The FBI went after King with a vengeance, wiretapping his telephones and securing very personal information which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of the FBI, in 1972, a congressional committee chaired by Senator Frank Church conducted an investigation of activities of the domestic intelligence agencies in the ’50s, ’60s and early 70s. After documenting the abuses of COINTELPRO, Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering. Those guidelines required the FBI to have a valid factual basis for opening an investigation, i.e., “information or an allegation whose responsible handling required some further scrutiny.” They also mandated the investigations be “performed with care to protect individual rights and to insure that investigations are confined to matters of legitimate law enforcement interest.” Before opening an investigation, the guidelines required that “the danger to privacy and free expression posed by an investigation” be considered.

But even with those protective guidelines, the FBI continued to spy on law-abiding people in the United States. In the 1980s, it conducted intensive surveillance of CISPES, the Committee in Solidarity With the People of El Salvador, which was formed to counter the United States government’s support for the brutal Salvadoran dictatorship.

The National Lawyers Guild, formed in 1937 as an alternative to the American Bar Association which had excluded non-whites, filed a lawsuit against the FBI for unlawful surveillance of the Guild over many decades. Many thousands of pages of documents gained through discovery revealed that the FBI put agents in Guild meetings, wiretapped lawyers’ offices and homes, and built dossiers on those perceived as critical of governmental policies. In 1989, the FBI settled the lawsuit, admitting it had tried to disrupt the Guild even though it had no proof the Guild was a subversive or communist organization.

An additional result of the Church Committee’s investigation was the enactment of the Freedom of Information Act in 1974, in the wake of the Watergate scandal. The FOIA, one of our most significant democratic reforms, enables ordinary citizens to hold the government accountable for its activities, by obtaining public documents and records. Through FOIA requests, journalists, newspapers, historians and public watchdog groups have exposed governmental malfeasance.

Many recent revelations of official misconduct have resulted from FOIA requests. The Charlotte Observer showed that the electric utility, Duke Power Co., engaged in a creative accounting scheme to relieve it from charging lower rates to its 2 million customers in North Carolina and South Carolina. The Environmental Working Group, a Washington-based non-profit organization, published lists of recipients of billions of dollars in farm subsidies, which revealed that federal monies earmarked for small family farmers had instead lined the pockets of the huge agricultural corporations. And USA Today publicized widespread misconduct by higher-ups in the National Guard, including inflation of troop strength, misuse of taxpayer funds, sexual harassment and the theft of life-insurance payments that should have gone to widows and children of guardsmen.

In fact, as the result of three lawsuits brought under the FOIA, and a 17-year legal battle, the San Francisco Chronicle has just obtained thousands of pages of previously secret FBI records detailing surveillance of the University of California. According to those documents, the FBI unlawfully colluded with the head of the CIA to harass faculty, students and members of the Board of Regents. Several federal judges found the FBI had engaged in the unlawful investigation of student protestors, interfered with academic freedom and intruded into internal university affairs. J. Edgar Hoover ordered his agents to turn up derogatory information on UC’s faculty members and top administrators. A 60-page report resulted, which said that 72 students, faculty members and employees were listed in the FBI’s “Security Index,” a secret list of people considered by the FBI as potential threats to national security; they would be detained with no warrants during a crisis.

The Freedom of Information Act should provide a vehicle to determine whether the FBI abuses its new powers by violating civil liberties. But in the post- traumatic stress following September 11, Ashcroft directed his deputies not to honor FOIA requests, effectively preempting the ability of the public to hold the FBI accountable for its actions.

Ashcroft and Mueller justify the new guidelines as a way to prevent additional terrorist attacks like those of September 11. The guidelines themselves, however, belie that claim. All of the changes relate to the FBI’s domestic guidelines, not the international terrorism guidelines under which Osama bin Laden and Al Qaeda are investigated. The FBI is subject to two sets of guidelines. The distinction between them has nothing to do with where the investigation is conducted; both relate to investigations in the United States. The difference is in the nature of the organization being investigated. The foreign guidelines govern investigations inside the United States of foreign powers and international terrorism organizations such as Al Qaeda, which carry out activities in the U.S. The domestic guidelines govern investigations of organized crime and “terrorist” groups that operate and originate in the U.S.

Section 802 of the USA PATRIOT Act, which was rammed through Congress shortly after September 11, creates a new crime of “domestic terrorism.” This section could target civil disobedience by animal rights activists who raid mink farms and set the animals free. Congressman Scott McInnis (R-Co), who convened congressional hearings on domestic “terrorist” organizations, labeled Earth Liberation Front, which was responsible for major property damage in Colorado, as a major domestic terrorist organization. Rep. George Nethercutt (R-Wash) suggested treating Earth Liberation Front like the Taliban: “I propose that we use the model that has worked so well in Afghanistan … Give them no rest and no quarter.” These politicians draw no distinction between human rights and property interests.

The same day the new FBI guidelines were revealed, Mueller outlined the “FBI Priorities” as follows: protect the U.S. from terrorist attack; protect the U.S. against foreign intelligence operations and espionage; protect the U.S. against cyber-based attacks and high-technology crimes; combat public corruption at all levels; protect civil rights; combat transnational and national criminal enterprises; combat major white-collar crime; combat significant violent crime; support federal, state, local and international partners; and upgrade technology to successfully perform the FBI’s mission. But although none of these priorities identify domestic activities as threats to America, the expanded powers of the FBI target domestic, not international, “terrorism.”

We cannot have confidence that relaxing limitations on the FBI’s spying activities will make us any safer, or make the FBI more competent. Giving the FBI more power would not have prevented its specious prosecution of nuclear scientist Wen Ho Lee, its failure to catch spy Robert Philip Hansen, or its failure to “connect the dots” leading to September 11. It will only succeed in making it easier for the FBI to monitor the activities of law-abiding people. The new FBI will pose a threat, not to the terrorists, but to the civil liberties of law-abiding people.

May 21, 2002

Pulling Out of the International Criminal Court is a Bush Administration Blunder

The International Criminal Court will be up and running next year. Although virtually every Western democracy has ratified the treaty under which the Court will operate, the United States will not participate. The Bush Administration’s recent withdrawal from the Court is a significant mistake. On the macro level, it sends a message to the rest of the world that the United States will continue to renounce international obligations, as it has done in with the land mine ban treaty, Kyoto Protocol, biological weapons treaty, comprehensive test ban treaty and ABM treaty. This continuing pattern of unilateralist behavior will interfere with U.S. efforts to maintain its anti-terrorism coalition. On a micro level, the U.S. will not have input into selection of the Court’s judges and prosecutors.

Why did the Bush Administration pull out of the Court? The United States seeks to immunize its officials and soldiers from becoming defendants in war crimes prosecutions. Although many people in this country cannot imagine the Court would prosecute U.S. defendants, the Bush Administration knows there are reasons for concern. During the past 10 years, the United States has conducted intense bombing raids in Iraq, Yugoslavia and Afghanistan without United Nations approval. Many of the bombs dropped from U.S. warplanes contained depleted uranium warheads and cluster bombs, which killed large numbers of civilians, in direct violation of international law. Bush’s likely attack on Iraq does not have support of the international community.

The United States should not fear involvement in the International Criminal Court. The Court’s Statute contains checks and balances designed to ensure fairness. The eighteen judges will be elected by the member states. The powers of the prosecutor are well regulated. Cases can be referred to the Court by: (1) the United Nations Security Council, or (2) individual member countries or the Court’s prosecutor. Referrals under the second track are subject to the principle of “complementarity,” wherein the Court would be a last resort only when a state cannot or will not prosecute one of its nationals. The Court’s prosecutor must notify a state with a prospective interest in a case of the prosecutor’s intent to commence an investigation. If that state notifies the Court within one month that it is investigating the matter, the prosecutor must defer, unless the Pre-Trial Chamber decides the investigation is a sham. The decision of the Pre-Trial Chamber can be reviewed by interlocutory appeal to the Appeals Chamber. And, the Statute provides the Security Council with a collective veto over the Court, by allowing the Council to postpone an investigation or a case for up to twelve months, with provision for renewing that time period.

The United States government claims the Court doesn’t contain the due process protections guaranteed in our Constitution. Yet, the Statute contains Miranda-type warnings, the rights to a speedy and public trial, defense counsel, reciprocal discovery, confrontation of witnesses, and protection against double jeopardy. Although the Statute does not provide for a jury trial, neither do the Bush’s new military tribunals or the ad hoc tribunals spearheaded by the United States in Yugoslavia and Rwanda. And, unlike the military tribunals, there is provision for judicial appeal of convictions.

Washington further objects that the Court can take jurisdiction over nationals of a state that isn’t party to the Statute if that person commits a crime in the territory of a state party. This is nothing new. The United States has taken jurisdiction of foreign nationals in anti-terrorism, anti-narcotic-trafficking, torture, and war crimes cases. And, the core crimes prosecuted by the Court – genocide, war crimes and crimes against humanity – are crimes of universal jurisdiction under well-established principles of international law. Nazi Adolph Eichmann was tried in Israel for crimes he committed during the Holocaust.

At Nuremberg, for the first time, individuals were held criminally accountable for the most heinous crimes. The United States vigorously supported the Nuremberg Tribunal. Ironically, however, the same day Secretary of State Colin Powell paid tribute to the memory of the victims of the Nazi Holocaust, the United States government renounced the International Criminal Court.

Washington’s justification is based on a faulty premise, and opting out of the Court will ultimately harm the interests of the United States. Param Cumaraswamy, the United Nations special rapporteur on judicial independence, said “the U.S. government has effectively forfeited its leadership role in the search for justice and the promotion and the protection of the rule of law and human rights in the international sphere.” By renouncing the International Criminal Court, the United States has cut off its nose to spite its face.

May 18, 2002

It’s Time to Tell the Truth About Cuba

The Bush administration is using former President Jimmy Carter’s historic trip to Cuba as an opportunity to escalate the anti-Cuba rhetoric. But Cubans suffer under the thumb of a vitriolic policy of economic isolation imposed on them by the United States, which has maintained a cruel economic embargo against Cuba for 42 years.

The desperate economic situation in Cuba is largely the result of U.S. policy that caters to the historically powerful lobby of expatriated Cubans in south Florida who fled Cuba after Castro’s socialist revolution in 1959. They have consistently been fixated on a single goal — to overthrow Castro. Since they control a large bloc of electoral votes, they have great political clout; Congress and all U.S. presidents since 1959 have been loathe to cross them. Indeed, Bush plans to deliver a major anti-Cuba address next week in south Florida, aimed to win Cuban-American votes for his brother Jeb’s gubernatorial campaign.

The U.S. trade embargo of Cuba was initiated during the Cold War by President Dwight D. Eisenhower, in response to a 1960 memorandum written by L.D. Mallory, a senior State Department official. Mallory proposed “a line of action that makes the greatest inroads in denying money and supplies to Cuba, to decrease monetary and real wages, to bring about hunger, desperation and the overthrow of the government.”

The Cold War has ended, and the United States has normal relations with China and Vietnam. Nonetheless, we maintain an embargo against Cuba tighter than any other in the world.

Its restriction on the sale of medicine and food is unprecedented. In 1997, the American Association for World Health found the embargo had “caused a significant rise in suffering — and even deaths in Cuba.”

Cuba has access to less than half the new medicines on the world market, and it can’t buy some life-saving medical supplies anywhere. Fatal heart attacks have increased because the U.S. pacemaker monopoly won’t sell to Cuba.

Recently, Radhika Coomaraswamy, special rapporteur on violence against women, reported to the U.N. Commission on Human Rights that the “embargo imposed unilaterally by the U.S. has a particularly serious negative impact on the lives of Cuban women.” Coomaraswamy, like Jimmy Carter, called for an end to the embargo.

Castro did not cause the dire economic conditions in Cuba. In fact, he has done much to improve the standard of living since taking power in 1959. The Cuban constitution enshrines due process rights, the right to work, to education, to medical and dental care, to prenatal care and paid maternity leave, to child care, to participate in the running of the state and the right to a life free of racial or gender discrimination.

It is true that many Cubans recently petitioned their government for economic and political reforms. But many in the United States have likewise marched in opposition to U.S. corporate globalization, cutbacks in civil liberties under the new USA PATRIOT Act, and the procedures used to select Bush as president.

Cuba has the highest literacy rate in the Americas and one of the highest in the world. In fact, former Vice President Al Gore told a Canadian magazine in 1994: “It’s disgraceful that we [in the United States] have this level of illiteracy; countries like Cuba put us to shame when it comes to this problem.”

Life expectancy in Cuba is the longest in Latin America and one of the longest in the world. Even though the U.S. embargo denies Cuba many modern drugs, Cuba’s infant mortality rate is lower that than of the United States. There are more doctors in Cuba per capita than in any other country in the world. Cuba’s universal health care system is a world model; even British Prime Minister Tony Blair sent his health minister to Cuba to study its system.

The U.S. government continues to betray the poor in Cuba, who remain under a state of siege in an undeclared war by the United States. Normalizing U.S.-Cuba relations also would help our economy; many American businesspeople are eager to trade with Cuba. We must lift the embargo of Cuba, not just for the Cuban people and U.S. business interests, but for our own humanity as well.

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April 11, 2002

Scalia’s Schizophrenic Theory Slights Human Rights

United States Supreme Court Justice Antonin Scalia wants to have it both ways. While he claims to have the only objective theory of constitutional interpretation, his theory is internally inconsistent. Scalia calls himself a “textualist” who purports to follow the precise text of the Constitution. But he also labels his theory “originalist,” as he subjectively attempts to divine the original intent of the founders. Whichever method he chooses to employ in any given case, however, he invariably uses it to oppose the application of treaties and customary norms of international law to protect human rights.

Imagine you were one of the authors of the Constitution adopted in Philadelphia in 1787. Fast forward 214 years. Your spirit is now floating around the Supreme Court in Washington D.C. in 2001, listening to arguments about constitutional interpretation. Justice Antonin Scalia is frustrated. After consulting the dictionary, his preferred source for ascertaining the meaning of constitutional text, he tries to divine how you, in 1787, would have interpreted the textual provision at issue.

This is how Scalia described his “originalist” or “textualist” method of constitutional analysis at a program last year at Thomas Jefferson School of Law in San Diego. 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.”

Scalia criticized the “evolutionists” for their lack of a theory. “I have a theory,” he told us. “It is original. If you convince me that this is the way it is in 1791 [when the Bill of Rights was adopted], you got me.” He told us, “Seems to me you have to be limited by whatever is said in the text of the document. . . I look at the text, I say it’s not in the text; it was never the constitutional tradition.”

The Supremacy Clause, Article VI, section 2, of the Constitution says that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

When I cited the Supremacy Clause to Scalia and asked him why the Supreme Court doesn’t use more treaty principles in its decisions, he said that treaties aren’t binding unless they’re implemented, or “executed” by an act of Congress. I went back and read the words in Article VI, section 2, looking in vain for text that said treaties only become the supreme law of the land once they’ve been executed.

Scalia was referring to the doctrine of self-executing versus non-self-executing treaties, established by Chief Justice John Marshall in Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829), 42 years after the Constitutional Convention. Marshall first defined treaties which “are in fact law of the land of their own accord,” now called “self-executing.” But Marshall said other treaties, which create an obligation the United States promises to perform, must be executed like a contract before they become binding.

Scalia apparently has no quarrel with the fact that nowhere in the text of the Supremacy Clause do the words “self-executing” appear. Nevertheless, this doctrine has become an accepted part of our jurisprudence. But while non-self-executing or executed treaties don’t create a private cause of action, they can be raised as defenses in civil or criminal cases.

Another source of international law besides treaties is customary international law, or the law of nations. I asked Scalia whether he thought customary international law is part of our jurisprudence. He said, “International customary law is irrelevant to the meaning of the U.S. Constitution and to American jurisprudence in general, except to the extent that it’s been adopted by Congress as part of a statute of the U.S. or through a self-executing treaty.”

Apparently, Scalia has forgotten The Paquete Habana, 175 U.S. 677, 700 (1900), where the Supreme Court ruled that customary international law is “part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”

It is well-settled that customary international law has the same status as treaty law. The Restatement of the Foreign Relations Law of the United States recognizes: “Matters arising under customary international law also arise under ‘the laws of the United States,’ since international law is ‘part of our law’ . . . and is federal law.”

Customary international law is part of our domestic law in the absence of contrary subsequent federal statutes, not, as Scalia maintains, only when it’s been implemented through a federal statute or a self-executing treaty. Under well-settled principles, courts must construe federal statutes to avoid conflict with the law of nations wherever possible.

Scalia’s disdain for the human rights law of nations pervades his decisions. When he was on the U.S. Circuit Court of Appeals for the District of Columbia, he scornfully referred to “the law of nations—the so-called ‘customary international law.’” Sanchez-Espinoza v. Reagan, 770 F.2d 202, 206 (1985). Scalia’s dissent in Thompson v. Oklahoma, where the plurality struck down capital punishment for 15 year-olds, dismissed the international customary law of human rights. When Scalia wrote the decision in Stanford v. Kentucky, 492 U.S. 361 (1989), allowing the execution of a 16 year-old, he rejected the contention “that the sentencing practices of other countries are relevant” to American standards of decency.

While in San Diego, Scalia repeatedly mocked the well-settled doctrine that the human rights provisions of the Bill of Rights should be analyzed in light of “the evolving standards of decency that reflect a maturing society,” first enunciated by the Supreme Court in Trop v. Dulles, 356 U.S. 86, 101 (1958). Scalia ridiculed his colleagues who follow that doctrine for being evolutionist, i.e., subjective. His “scientific” analysis, however, requires him to divine the intent of the founders, an equally subjective determination.

Unlike Scalia, many other members of the Court take our international human rights obligations seriously. Both Justice John Paul Stevens’ plurality decision and Justice Sandra Day O’Connor’s concurrence in Thompson cited the Court’s commitment to consider international human rights instruments in determining constitutional standards.

Also, in Farmer v. Brennan, 511 U.S. 825 (1994), Justice David H. Souter referred to evolving standards of decency in finding a prison official’s “deliberate indifference” to the substantial risk of serious harm to a transsexual inmate to be cruel and unusual punishment. And O’Connor, over Scalia’s dissent, looked to contemporary standards of decency in determining a handcuffed and shackled inmate’s beating by two prison guards was cruel and unusual punishment in Hudson v. McMillan, 503 U.S. 1 (1992). Justice Stephen Breyer has also cited practices of other countries to judge the constitutionality of long delays in capital cases.

Citing U.S. treaty obligations is an additional weapon in the arsenal of a criminal defense lawyer. When we challenge the admissibility of a coerced confession under the due process clause, we should also cite the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States has ratified. It forbids public officials to use coercion to obtain confessions.

We must educate judges about our treaty and customary international legal obligations. Raising these provisions will influence some members of the Supreme Court, if not the duplicitous Scalia.