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.