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.

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.

April 5, 2002

Invading Iraq Would Compound the Terror

Since September 11, the Bush administration has mounted a concerted campaign to prepare the American people for an attack on Iraq. Striking Iraq would further destabilize the Middle East, and would have disastrous consequences for the United States. Moreover, there is no legitimate justification for invading Iraq.

The CIA has been unable to tie Iraq to the Sept. 11 attacks. Vice President Dick Cheney speculates about a “potential marriage” between terrorist organizations such as al-Qaeda and Iraq. But no concrete evidence of a link has been forthcoming.

Cheney, who recently went to the Middle East to prime the Arab countries for a military strike against Iraq, found the Arabs much more concerned with ending the bloodshed in Israel. On March 28, the Arab League proposed a political settlement of the Palestinian-Israeli conflict. At the same time, the Arabs warned of the danger an invasion of Iraq would pose to the region and, indeed, to the world. The League unanimously declared that an attack on Iraq would be considered an attack against all Arab states.

Without support from the Arab countries, it would be difficult for the United States to mount an invasion of Iraq, as neither Saudi Arabia nor Kuwait will allow themselves to be used as bases for U.S. troops. The killing of Iraqis would result in even more virulent anti-American sentiment in the Arab world. If Iraq responded by attacking Israel, a world war pitting all Arab states against Israel and its supporters might well erupt.

Thousands of American soldiers would be killed, which is precisely what ex-President George H.W. Bush sought to avoid when he stopped short of Baghdad in 1991. John Nichol, of the British Royal Air Force, who was an Iraqi prisoner-of-war during the Gulf War, says “the death toll would have been massive” if the Western forces had marched into Baghdad to capture Saddam Hussein.

Analysts say 100,000 or more American troops would be needed to carry out an operation in Iraq. “Anything short of a ground invasion would run a high risk of failure,” says Philip Gordon of the Brookings Institution. “Removing Saddam will be opening a Pandora’s box, and there might not be an easy way to close it back up,” according to Gordon.

A recent Time-CNN poll shows 36 percent of Americans would support bombing, 25 percent favor continuing economic sanctions, 18 percent would like to see Iraqi opposition troops do the fighting, and just 10 percent would endorse a ground war involving thousands of U.S. troops. Moreover, only a handful in Congress would support an attack on Iraq. This is underwhelming American support for Bush’s Iraqi war.

An invasion of Iraq would have a potentially disastrous effect on the U.S. economy. Saudi Arabia, the world’s largest supplier of oil, could lead the OPEC countries in an oil embargo, or the price of oil could rise sharply, causing a recession. As the result of saber-rattling by President George W. Bush and British Prime Minister Tony Blair aimed at Iraq, the price of crude has already risen to nearly $25 a barrel, a third higher than last fall. We can no longer count on Saudi Arabia to keep the more militant OPEC members in line by agreeing to pump enough additional oil to keep the price down.

The alleged motivation for an attack on Iraq is to destroy its weapons of mass destruction. However, Scott Ritter, a former weapons inspector in Iraq has said, “There is absolutely no reason to believe that Iraq could have meaningfully reconstituted any element of its WMD capabilities.” Ritter maintains the Iraqis never succeeded in weaponizing their chemical and biological agents to enable them to be sprayed over a large area. Nor has Iraq developed nuclear capabilities, according to Rosemary Hollis, head of the Middle East programme at the Royal Institute of International Affairs.

In spite of U.N. Security Council Resolution 687, which calls for the creation of a weapons of mass destruction-free zone throughout the Middle East, the United States ignores Israel’s stockpile of nuclear weapons. Ali Muhsin Hamid, the Arab League’s ambassador in London, points to the United States’ double standard regarding Iraq and Israel. “If the Israeli weapons are looked at,” Hamid says, “the Arabs will feel that the U.S. is serious, fair, even-handed and objective.” The Arab countries are mindful that the weapons used by Israel against the Palestinians were made in the USA.

A U.S.-U.K. invasion of Iraq would also violate international law. Under the U.N. Charter and Security Council Resolution 687, only the Council is empowered to authorize the use of force in Iraq. No mandate for an invasion of Iraq has been forthcoming from the Security Council, whose veto-wielding members include Russia, China and France, all opposed to military action against Iraq.

A preemptive strike against Iraq could not be justified as legitimate self-defense under the U.N. Charter, as Iraq has not attacked a U.N. country. Nor could it be rationalized as a humanitarian intervention. The precipitating factor for the Gulf War in 1991, Iraq’s invasion of Kuwait, is absent in 2002. At the recent Arab summit, Iraq recognized Kuwait as an independent state and vowed not to invade it again.

An attack on Iraq would exacerbate an already volatile situation in the Middle East. The United States must heed the admonition of the Arab countries and help to achieve peace in Israel, not seek to make war on Iraq.

March 8, 2002

The Patriotic Duty to Dissent

Reichmarshall Hermann Goering of the Third Reich once said: “It is always a simple matter to drag the people along” to do “the bidding of the leaders,” regardless of the form of government. “All you have to do,” he said, “is to tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country.”

Indeed, this strategy is working in the United States. Attorney General John Ashcroft painted the defenders of civil liberties as anti-American fear-mongerers when he said in December: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends.”

This is the same John Ashcroft who rammed the “USA PATRIOT Act” through a timid Congress, urged federal agencies to resist Freedom of Information Act requests, and plans to engage in new COINTELPRO-style surveillance activities.

Ashcroft’s PATRIOT Act creates a new crime of domestic terrorism so broad it will cover civil disobedience and target environmental and anti-globalization activists. Representative Scott McInnis (R-CO) has already subpoenaed a spokesperson for Earth Liberation Front, which McInnis has dubbed an “eco-terrorist” organization, to appear before the House Subcommittee on Forests and Forest Health.

No wonder Ashcroft has instructed all federal agencies to resist Freedom of Information Act requests. The FOIA, enacted in 1974 in the wake of the Watergate scandal, is one of our most significant democratic reforms. It permits citizens to hold the government accountable by requesting and publicizing public records and documents. Pursuant to FOIA requests, the Charlotte Observer recently uncovered records detailing how the Duke Power Co. manipulated its books to avoid exceeding profit limits that would have mandated a rate cut, and USA Today exposed a widespread pattern of misconduct among the upper echelon of the National Guard, including the inflation of troop strength, misuse of taxpayer money, sexual harassment and the theft of life-insurance payments.

Ashcroft also seeks to resurrect the counterintelligence programs, known as COINTELPRO, which were responsible for intensive FBI surveillance in the 50’s, 60’s and 70’s. The spying, which targeted Martin Luther King, Jr. and other civil rights leaders, was so horrendous that Congress put a halt to it.

The new “patriotic” act will permit the government to spy on all of us more easily through its aptly named Carnivore surveillance system. Carnivore devours all of the communications flowing through an internet service provider’s network, not just those of the target of the surveillance.

In mid-December, the FBI announced it is developing another new internet spying software called “Magic Lantern.” It will surreptitiously enter an individual’s personal computer, record every keystroke and zap all of that data back to the G-men and G-women, in violation of the federal wiretapping statute and the Fourth Amendment.

Many people oppose the direction of the government’s war on terror, which, Vice President Dick Cheney warns, will last 50 years and extend to 50 or 60 countries. There is opposition to President George W. Bush’s request of an additional $48 billion to enhance an already engorged military budget, at the expense of social services. Yet many fear they will be harassed for speaking out against the government in this time of xenophobic flag-waving.

Those who seek to curb the excesses of governmental repression do so at great risk. Human rights activist Benjamin Prado, who tried to document the U.S. Border Patrol’s racial profiling on the San Diego Trolley, was savagely beaten, assaulted and detained by 12 Border Patrol agents for 25 hours with no charges, after his video camera was confiscated and destroyed.

Hundreds of other people of color, particularly those of Middle Eastern descent, are currently detained in U.S. prisons. Most, like Rabih Haddad, are suspected of no crime or connection to the events of September 11; yet they are being held incommunicado, in indefinite, preventative detention, in violation of the Constitution. In a recent letter, Haddad, a Lebanese immigrant who has been in custody for 76 days in Ann Arbor, Michigan, detailed his conditions of confinement. Strangely reminiscent of the prisoners in Guantanamo, he described his 6’ by 9’ solitary cell, the camera permanently fixed on him, his lack of exercise and “waves of cockroaches” in his cell at night.

Mr. Haddad’s story brings back memories of the excesses of our government during World War II, when it interned thousands of Japanese-Americans, in a shameful and racist overreaction. In a similar dragnet, federal agents have announced they will soon begin apprehending and interrogating thousands of Middle Eastern immigrants who have ignored deportation orders.

President Bush has accused the terrorists of attacking our democratic way of life. The foundation of a democracy is the right and duty to dissent against misconduct by governmental leaders. Dissent, also unpopular in the early stages of the Vietnam War, was later voiced by a majority of Americans.

We are responsible for the actions of our government. When it fails to act in a moral and lawful manner, we must speak out and educate our fellow citizens about the abuses. If we fail to dissent for fear of governmental retaliation, we will have confirmed the truth of Hermann Goering’s frightening prediction.

February 12, 2002

Televise Moussaoui’s Trial

U.S. District Court Judge Leonie M. Brinkema has denied Court TV’s request to broadcast the trial of accused terrorist Zacarias Moussaoui, citing security and procedural concerns. She determined that the public benefit from televising this noteworthy trial is “heavily outweighed” by the “significant dangers… [it] would pose to the orderly and secure administration of justice.” Although cameras have been excluded from federal criminal courts for 56 years, this trial should be televised.

In 1963, the Warren Court held that televising a trial denies the defendant due process. Twenty-one years later, the Burger Court ruled that a state judge may allow cameras into the courtroom unless the defendant demonstrates that televising the trial would deny due process by interfering with the ability of the jury to be fair. That case assigned the defendant a burden, which was almost impossible to meet, consistent with the Burger Court’s steady evisceration of the rights of criminal defendants.

Today, all 50 states allow some type of camera coverage; 38 permit cameras in criminal courts. Federal courts, however, have forbidden courtroom cameras since Rule of Criminal Procedure 53 was enacted in 1946. Although there have been limited experiments with televising civil proceedings, federal judges, like Brinkema, have held fast to the ban in criminal cases.

Jury pools and evening news

Moussaoui’s lawyers favor broadcasting the trial but not the pretrial proceedings. They rightly fear that the jury pool might be tainted by exposure to evidence that may be ruled inadmissible later at trial. They’re also concerned that snippets from the trial could be played and replayed on the evening news, which would distort the proceedings in the eyes of the viewing public. But the defense wants Moussaoui’s trial broadcast in order to show the world-and indeed to ensure-that his trial is being conducted fairly.

The brutality of the Sept. 11 attacks has shaken our country and the world. Although a strong response is warranted, the government has overreacted with an alarming erosion of civil liberties.

With almost no dissent, Congress enacted Attorney General John Ashcroft’s USA Patriot Act, which makes it easier for the government to read our e-mail and see the Web sites we’ve visited. Ashcroft has announced the return of government surveillance of political and religious organizations. And President Bush has established a mechanism for military tribunals that doesn’t comply with basic standards of due process.

In our haste to bring the culprits to justice, we must ensure that we do not sacrifice our basic constitutional rights. Anyone who comes before our courts is entitled to the presumption of innocence and the right to a fair trial, which is enshrined in the Constitution.

The Sunshine in the Courtroom Act was approved by the Senate Judiciary Committee late last year and is pending in the Senate. The bill would give judges in federal trials and appeals discretion to permit cameras in their courtrooms, but it would require them to accord witnesses the option of having their faces and voices obscured.

Security could be protected by broadcasting the trial without showing the faces of the jurors, so as to shield them from possible retaliation. Witnesses’ faces could be obscured by covering them with blue dots.

Because of the overwhelming public interest in Moussaoui’s trial, millions of people would watch it on television. The defense motion to broadcast only the trial should have been granted, in order to protect the impartiality of the jury panel.

The Supreme Court has upheld the public’s right of access to the judicial system, but has stopped short of saying the right to a public trial means the right to a televised one. It has also refused to prioritize between the defendant’s Sixth Amendment right to a fair trial and the public’s First Amendment right to access to the criminal system. Whether these rights can be protected involves a case-by-case determination. In Zacarias Moussaoui’s case, both rights could be safeguarded by televising it.