blog

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.

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.

February 11, 2002

Milosevic Defense Will Put NATO on Trial

The most significant international war crimes trial since Hitler’s henchmen were tried at Nuremberg is scheduled to begin on February 12. Former Yugoslav President Slobodan Milosevic will appear in the dock at the International Criminal Tribunal for the Former Yugoslavia at The Hague to answer charges of war crimes, crimes against humanity and genocide.

But Milosevic, often referred to in Western circles as the “Butcher of the Balkans,” maintains it is really the leaders of NATO who should be tried for their crimes against the people of Yugoslavia. In 1999, thousands of Yugoslavs were killed or wounded by NATO’s bombs, allegedly to stop the ethnic cleansing of the Albanians in Kosovo.

As The New York Times said on February 9: “When Mr. Milosevic sneers at the tribunal here as ‘victor’s justice,’ he is not entirely wrong.” Former President William Clinton, former Secretary of State Madeleine Albright and U.S. military leaders orchestrated the use of laser-guided and cluster bombs and depleted uranium that devastated the people and the land of Yugoslavia. They will never face charges at The Hague.

Milosevic contends he acted in defense of the Serbs against Muslim extremists. He claims he was fighting the same type of terrorism the United States is now battling in Afghanistan and elsewhere. At that time, the United States gave active support to the Kosovo Liberation Army, a Muslim terrorist group financed by the Third World Relief Agency, through which Osama bin Laden and others funneled $350 million. Milosevic insists that his pleas to Clinton to get bin Laden out of Kosovo were ignored; instead, Clinton allied with the Albanian Muslims against the Serbs.

A centerpiece of Milosevic’s defense is that he maintained friendly relations with U.S. and British leaders after the wars in Bosnia and Croatia. He was even called a peacemaker when the Dayton Peace Accords were signed in 1995, ending the war in Bosnia. He reportedly plans to call Western leaders such as Clinton, British Prime Minister Tony Blair, and former NATO Secretary General Javier Solana to testify. It is unlikely they will appear, however, since the tribunal has no subpoena power.

Milosevic has also challenged the legitimacy of the tribunal itself. Because he refuses to recognize it as an independent and impartial court, he has refused to appoint counsel to represent him. Against his will, the judges have appointed three “amici curiae” or friends of the court to help Milosevic with his defense. But these lawyers have filed motions with no supporting documentation, and they sat mute when Milosevic’s microphone was cut off in mid-speech as he tried to address the court. Milosevic has been denied the right to confidential consultation with his unofficial counsel.

The charges against Milosevic stem from incidents in Bosnia, Croatia and Kosovo. They were initially filed in three separate indictments, but Prosecutor Carla Del Ponte successfully convinced the Appeals Chamber to consolidate all three for trial. In December, the Trial Chamber had joined the Bosnia and Croatia indictments, which deal with events that occurred from 1991-1995. But the Trial Chamber had refused to consolidate the Kosovo indictment with the other two.

The events alleged in the Kosovo indictment occurred in 1999, more than three years after the Bosnia and Croatia incidents. Under the tribunal’s statute, two or more crimes may be joined together in one indictment if the underlying events formed the same transaction, which was part of a common scheme, strategy or plan.

In a lengthy opinion, the Trial Chamber rejected the prosecutor’s argument that Milosevic participated in a joint criminal enterprise, a plan to create a Greater Serbia. The Trial Chamber considered the nexus “too nebulous” to constitute a common scheme, strategy or plan. Finally, the Trial Chamber was concerned about prejudice to the fair trial rights of the accused if the Kosovo indictment was joined with the others.

Scheduled to begin the trial on the Kosovo indictment in February, the prosecutor became very concerned about the lack of witnesses to testify about Milosevic’s alleged involvement in the Kosovo atrocities. As a result, she appealed the Trial Chamber’s joinder decision to the Appeals Chamber. Without giving reasons, the Appeals Chamber saved the prosecution’s case from imminent collapse by ordering the Kosovo indictment consolidated with the others in one trial. The Appeals Chamber stated that the acts alleged in all three indictments formed the same transaction.

Ironically, some contend that Milosevic himself effectively argued for joinder when he told the tribunal that the NATO countries formed a joint criminal enterprise with the Albanian Muslim terrorists and the narco-mafia, against the Serbs and other non-Muslim Albanians.

In spite of overwhelming public opinion against Milosevic in the West, the prosecutor faces some significant proof problems in this trial. Under the doctrine of “command responsibility,” she must prove Milosevic knew or had reason to know his subordinates were about to commit the criminal acts, and he failed to prevent them.

This case could set an important precedent if it establishes that a commander is responsible for atrocities that occur far away. Christopher Black, the Canadian lawyer who heads the International Committee to Defend Slobodan Milosevic, told me: “It would be easier to pin command responsibility on President Nixon for the My Lai massacre or President Bush for the mass murder of prisoners by US forces at Mazar e-Sharif.”

Del Ponte hopes to call Milosevic’s close associates to testify against him, but many who are facing criminal indictments will likely refuse to incriminate themselves. The prosecutor may offer them immunity in exchange for their testimony, but it is uncertain whether they would ever agree to testify even in the face of contempt charges. Reportedly, much of the evidence against Milosevic comes from Western intelligence sources, who may be unwilling to compromise their security by revealing the evidence in court.

If convicted, Milosevic faces life in prison, as the tribunal’s statute does not allow for the death penalty. He could serve his sentence in Norway, Sweden, Finland, France, Spain, Italy or Austria, all of which have agreements with the Hague tribunal to incarcerate convicted prisoners.

There is speculation the prosecutor will ask for a postponement on Feb. 12 to secure witnesses for the Kosovo portion, which will comprise the first part of the trial. Whenever the trial ultimately begins, it will likely span two or three years. The tribunal – and the court of public opinion – will hear allegations not just about Milosevic’s atrocities, but those of NATO as well.

February 9, 2002

Bush and The Geneva Convention: Begging the Question

In a striking example of double-talk, President George W. Bush has announced that the United States will apply the Geneva Convention to the captured Taliban fighters in Guantanamo, but won’t classify them as prisoners of war. This is like being half pregnant. The Geneva Convention Relative to the Treatment of Prisoners of War spells out how prisoners of war must be treated. Bush’s statement that he will apply the Geneva Convention to the Taliban prisoners is tantamount to a declaration that they are POWs.

Bush says his decision will result in “no change” in the treatment of the captives, because they’re already generally being treated consistent with the Geneva Convention. Bush’s non-decision is admittedly calculated to remind other rogue nations who might capture U.S. fighters that our soldiers must be granted the protections of the Geneva rules.

The Geneva Convention Relative to the Treatment of Prisoners of War requires that the status of captured persons be determined by a “competent tribunal” should “any doubt arise” about whether they are prisoners of war. Meanwhile, they must be afforded the protections of the Geneva Convention.

Despite widespread doubt around the world, the Pentagon says there is no doubt at all about the status of the Guantanamo captives But White House spokesman Ari Fleisher’s statement that the drafters of the Geneva Convention didn’t contemplate international terrorists belies the Pentagon’s insistence that there is no doubt about their status. The United States can’t have it both ways.

The Pentagon has taken it upon itself to classify the captives as “unlawful combatants” in order to deny them the rights spelled out in the Geneva Convention. These rights include humane treatment and the right not to be interrogated or coerced into providing information. The U.S. government is admittedly interrogating the captives. And from its steadfast refusal to consider them POWs, it is surely using coercion to get them to talk. Moreover, keeping human beings in small outdoor cages does not qualify as humane treatment.

Even if a competent tribunal were to decide that some of the captives are not POWs, then our government is still duty bound to follow two other treaties we’ve ratified – the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. The Torture Convention forbids the use of physical or mental coercion for the purpose of getting information, and the ICCPR prohibits compulsion to get someone to confess guilt. Keeping human beings in cages constitutes inhuman and degrading treatment, which is proscribed by both of these treaties.

George W. Bush and his administration have demonstrated a consistent unwillingness to follow our international treaty obligations. By refusing to ratify the Kyoto Protocol and disavowing the Anti-Ballistic Missile Treaty, our government has sent a strong message to other countries that we have no respect for our legal obligations. The treaties we have ratified are not simply abstract international principles. Under the Constitution, they are part of our domestic law and bind our government to respect them.

In an unprecedented move, the United States was voted off the United Nations Commission on Human Rights last year. It should come as no surprise that other countries are unimpressed with our human rights hypocrisy – demanding that foreign nations uphold human rights while flaunting our own human rights responsibilities. President Bush ended his recent State of the Union address with these words: “We choose freedom and the dignity of every life.” The captives at Guantanamo are human beings, who may or may not have committed crimes. The United States government must adhere to its treaty obligations; it must also take the high road and treat all human beings with dignity and respect.

February 6, 2002

Israel Resisters and Palestinian Rights

The government of Israel faces a serious dilemma. Its population lives in legitimate fear of terrorist suicide bombers. But its reprisals against the Palestinian civilian population have been so heavy-handed that they are creating dissension within the ranks of Israel’s own army.

Indeed, a February 4 editorial in The New York Times, a long-time supporter of Israel, said: “The growing harshness of Israeli military practices in the West Bank and Gaza is creating thousands of potential suicide bombers and Israel haters as well as coarsening a generation of young Israeli soldiers.”

More than 100 Israeli army reservists have declared they will no longer fight in the West Bank and Gaza Strip “with the aim of dominating, expelling, starving and humiliating an entire people.” These Israeli soldiers follow in the tradition of scores of American GI’s who refused to kill Vietnamese civilians during the 1960s and 1970s. After Seymour Hirsch exposed the cover-up of the My Lai Massacre, where U.S. soldiers killed thousands of civilians, Lt. William Calley was tried and convicted of murder. Calley unsuccessfully claimed he was just following orders. That defense theory has been rejected by the Nuremberg Tribunal and the International Criminal Court.

In their declaration, the Israeli resisters said: “The price of occupation is the loss of the Israeli Defense Forces’ semblance of humanity and the corruption of all of Israeli society.” They reported firing at Palestinians who hadn’t endangered them, stopping ambulances at checkpoints, and stripping areas clean of groves and trees necessary to people’s livelihoods. Some fear their treatment of Palestinian civilians constitutes war crimes. Attacks on a civilian population as a form of collective punishment violate Article 50 of the Hague Regulations and Articles 33 and 53 of the Fourth Geneva Convention.

The dissenting Israeli reservists made clear their statements were not aimed at the Israeli army, but rather at the political system. A recent poll conducted by Israel Radio found 30 percent of Israelis supported the reservists’ protest.

Last month, the Israeli army’s demolition of 52 Palestinian homes, which left 411 people homeless, drew rare criticism from Israeli Cabinet ministers and journalists. The demolition was condemned by the United Nations Relief and Works Agency. B’Tselem, an Israeli human rights organization, said: “House demolitions are a blatant violation of human rights and contravene international humanitarian law, which forbids destruction of property, collective punishment and reprisals.”

The Israeli government has called the reservists’ declaration “dangerous and antidemocratic.” Israeli Premier Ariel Sharon threatened to sever all communication with Palestinian Authority President Yasir Arafat after the interception of a shipment of arms that Israel claims were bound for the Palestinians last month. With Arafat out of the picture, however, Israel would have no one with whom to negotiate except the extremists.

The Palestinians live under a system of apartheid, according to a report issued by the National Lawyers Guild delegation to the occupied Palestinian territories and Israel last year. In December, the United Nations General Assembly condemned Israel’s treatment of the Palestinians and called for international observers to be dispatched to the Palestinian territories, which Israel rejects. The U.S. government has consistently opposed U.N. resolutions critical of Israel’s policies. The U.S. staged a walkout from the United Nations World Conference Against Racism last year when it criticized Israel’s treatment of the Palestinians. The National Lawyers Guild report said most of the weapons Israel has used to inflict indiscriminate attacks with excessive force on the Palestinian civilian population were manufactured in the United States.

Lev Grinberg, Director of the Humphrey Institute for Social Research at the Ben Gurion University of the Negev in Israel, says: “Unless we, the Israelis, cast off our arrogant mode of thinking, and our position as an occupying power, the present cycle of bloodshed can only intensify, with Arafat and even more so, in his absence.”

In his op-ed in The New York Times on February 3, Arafat unequivocally condemned terrorist attacks against Israeli civilians. He invoked U.N. resolutions, which call for the return of the Palestinian refugees, and the Oslo Accords, where the Palestinians recognized Israel, renounced their claim to historic Palestine, and settled for 22 percent of the land (the West Bank and Gaza). He described the Palestinian vision, which would have Israel and a Palestinian state co-exist equally with peace and security for both. But, he said, “two peoples cannot reconcile when one demands control over the other…we will only sit down as equals, not as supplicants; as partners, not as subjects.”

The popularity of Sharon, known as “The Bulldozer,” has declined in Israel since his election last year. Resistance to the Israeli government’s occupation of the Palestinian territories is now growing within Israel. Forty-five percent of Israelis polled by Israel Radio said they thought more reservists would join the resistance and refuse service in the West Bank and Gaza. They will do so at great risk to themselves. Many resisters have been disciplined and jailed. But it will take a large resistance movement within Israel to ultimately stop the collective punishment of the Palestinians, end the occupation and halt the killing of both Israelis and Palestinians.

The war between Israel and the Palestinians has claimed too many lives on both sides. It is essential that a neutral international body try to negotiate an end to the bloodshed. International observers should be allowed in, and there should be an emphasis on reconciliation, not cutting Arafat out of the equation.

January 18, 2002

Will Walker’s Statements be Admitted Against Him?

No evidence is more damning than the confession of a defendant in a criminal case. Attorney John Ashcroft has announced that the federal government will charge John Walker, who was found in the company of the Taliban in Afghanistan, with conspiracy and aiding terrorists. Walker’s statements to the government and to CNN, if admitted, will be crucial to the prosecution’s case against him. There are three possible constitutional bases on which the admissibility of his statements can be analyzed.

First, as a suspect in custodial interrogation, Walker had the right to remain silent and the right to counsel present with him during questioning, under Miranda v. Arizona, which protects the Fifth Amendment privilege against self-incrimination. The government interrogated Walker for forty-five days in a custodial setting without his attorney present. Ashcroft claims Walker waived his Miranda rights both orally and in writing, and thus plans to use the fruits of those interrogations against Walker.

Undoubtedly, Walker’s attorneys will argue at trial that, under the circumstances, Walker could not have voluntarily, knowingly and intelligently waived his rights. Isolated with government interrogators on a ship in the ocean, with no opportunity to communicate with a lawyer or his family, he likely felt intense pressure to cooperate with the government, and thus did not voluntarily waive his rights. When Walker was found, he had been wounded and was in a weakened condition. His interrogators were experts, likely to succeed in eliciting statements from him.

Although Walker’s parents retained a lawyer on his behalf, the Supreme Court held in Moran v. Burbine, that the right to counsel is a personal one and can only be asserted by the suspect himself. In that case, the suspect’s sister, unbeknownst to Burbine, had secured counsel for him. The attorney continually tried to see Burbine, but was turned away by police. Without invoking his right to counsel, Burbine waived his Miranda rights and confessed to murder. It took sixty pages for Justice Sandra Day O’Connor, writing for the majority, to justify how the police could keep an attorney from a suspect in custodial interrogation.

Prosecutors may assert the public safety exception to Miranda, by arguing that national security concerns in obtaining intelligence information from Walker about the activities of the Taliban and al Qaeda, trumped their obligations to comply with Miranda. The exception was successfully asserted in New York v. Quarles, where a rape suspect, who ran into a grocery store in the middle of the night, was found with an empty gun holster. Without Mirandizing him, the police asked him where he had hidden the gun. The admission of his statements was justified as necessary to protect the public safety, even though the market was closed and he was in police custody. This exception is rarely used, but national security concerns may present a more compelling case to invoke it in Walker’s case.

The second constitutional basis on which the defense may object to the use of Walker’s statements is the Fifth Amendment’s due process clause, which protects a suspect against being coerced into confessing. In ruling on whether Walker was coerced by the government into confessing, the judge must decide where to draw that fine line between where free will ends and compulsion begins.

Walker may argue he was coerced by being held incommunicado for forty-five days and by forceful tactics by the interrogators themselves. When he appeared on CNN, he was wounded and heavily drugged on morphine. If Walker can show that condition persisted during his interrogation by the government, he may convince the judge his due process rights were violated. Courts, however, are generally hesitant to exclude statements on this ground.

The government will also seek to use statements Walker made on CNN shortly after his capture. Although non-governmental persons are not required to comply with Miranda, their interrogations may be challenged under the Fifth Amendment’s due process clause. Walker objected to the taping of his conversation with CNN; yet, the lights and camera were turned on anyway. He was questioned by CNN personnel and made some very damaging admissions, which were broadcast repeatedly on CNN. It is undisputed that Walker was in great pain and heavily drugged on morphine when he spoke to CNN. That may be sufficient to exclude those statements.

Finally, James Brosnahan, an attorney hired by Walker’s parents, has still not been allowed to speak with Walker. Under the Sixth Amendment, a defendant in a criminal case is entitled to the assistance of counsel once criminal charges have been filed against him. The government waited forty-five days to bring charges against Walker, perhaps in order to avoid an obligation to provide him with counsel.

The decision about whether to allow the jury to consider Walker’s statements will be made by the judge before trial. This determination will take place after hearing testimony by the government interrogators and, perhaps, Walker himself. Unfortunately, when the versions of events surrounding interrogations conflict, judges often believe the government and not the defendant. The case against Walker was intentionally brought in the United States District Court for the Eastern District of Virginia, reputedly one of the most conservative federal courts in the country.

John Walker is charged with conspiracy to murder United States nationals abroad as well as lesser charges. Conspiracy, often based on guilt by association, is not difficult to prove. Walker’s statements to the government and to CNN are crucial to the prosecutor’s case. In spite of intense public pressure to admit them, the judge should make a considered decision based on the law.

December 14, 2001

Don’t Rush to Judgment on John Walker

Don’t label John Walker a traitor yet.

Sen. Hillary Clinton of New York didn’t hesitate to call John Walker a traitor when she was interviewed on Meet the Press. The American was recently found with the Taliban in Mazar-e Sharif, Afghanistan, and was taken into U.S. custody.

The crime of treason requires a prosecutor to prove both an intent to betray the United States and an act of levying war against the United States or giving aid and comfort to the enemy. Our Constitution mandates that the act be proved by the testimony of two witnesses or a confession in open court.

That Walker, 20, was found in the company of the Taliban, without more evidence, is not sufficient, as circumstantial evidence cannot serve as the basis for proving a treasonous act.

Further, the Supreme Court has defined “enemy” as the subject of a foreign power in a state of open hostilities with the United States. Since it is the Northern Alliance, not the Taliban, which has a seat at the United Nations and is recognized as the lawful government of Afghanistan, Walker’s activities might not fit within the legal definition of treason.

When Mr. Walker went to Afghanistan, the United States and the Taliban were still on friendly terms.

In a new book published in Paris, Bin Laden: The Forbidden Truth, former French intelligence officer Jean-Charles Brisard and journalist Guillaume Dasquie document an amicable relationship between George W. Bush, and the Taliban. The book quotes John O’Neill, former director of anti-terrorism for the FBI, who thought the State Department, acting on behalf of U.S. and Saudi oil interests, interfered with FBI efforts to track down Osama bin Laden before Sept. 11.

The State Department and Pakistan’s Inter-Services Intelligence agency financed, armed and trained the Taliban in its civil war against the Northern Alliance to make the region safe for U.S.-based corporate oil interests, according to Ahmed Rashid’s best-selling book, Taliban: Militant Islam, Oil & Fundamentalism in Central Asia. California-based UNOCAL was negotiating for an oil pipeline to run through Afghanistan and Pakistan, but it pulled out of the deal because of feminist opposition to the Taliban’s treatment of women after President Bill Clinton bombed al-Qaida training camps in retaliation for the 1998 U.S. embassy bombings in East Africa.

Deputy Defense Secretary Paul Wolfowitz said earlier this week that Mr. Walker was lucky he was a U.S. citizen and was captured by the United States. The implication was that if the Northern Alliance had captured him or if he were a non-U.S. citizen prisoner of the United States, he wouldn’t have been so humanely treated.

The United States has signed, ratified and implemented the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It prohibits securing information by torture, even in wartime. Mr. Walker is reportedly cooperating with U.S. military authorities; it is hoped he is being treated humanely as required by the torture convention and the Geneva Convention Relative to the Treatment of Prisoners of War.

Mr. Walker does not come under the jurisdiction of a military court under the Uniform Code of Military Justice, as he is not in the U.S. military. He cannot be tried in one of the Bush administration’s new secret military tribunals, as they apply only to noncitizens. Mr. Walker has not renounced his U.S. citizenship.

We don’t know whether Mr. Walker was simply an idealistic kid who joined the Taliban when it was still friendly to the United States in order to help build a pure Islamic state. We don’t know whether he acted voluntarily, or what his mental state was when he was captured.

The U.S. government may decline to file charges against Mr. Walker if he provides sufficient information to help the anti-terrorism effort. But if charges are levied against him, we should wait until the evidence comes out before judging him.