David Cole
On January 21, in its first decision of this term, Citizens United v. Federal Election Commission, the Supreme Court’s five-member conservative majority announced that the First Amendment bars Congress from imposing even mild constraints on the ways corporations can employ their vast financial resources to drown out the voices of ordinary people in federal election campaigns. On June 21, in one of its last decisions of the term, Holder v. Humanitarian Law Project, the same majority, this time joined by Justice John Paul Stevens, ruled that the First Amendment permits Congress to imprison human rights activists for up to fifteen years merely for advising militant organizations on ways to reject violence and pursue their disputes through lawful means. The two decisions purported to apply the same First Amendment standard, but in fact the Court applied that standard in radically different ways. In the Roberts Court’s world, corporations’ freedom to spend unlimited sums of money apparently deserves substantially greater protection than human rights advocates’ freedom to speak.
Ronald Dworkin has cogently identified the errors in the Court’s legal reasoning in Citizens United, a decision President Obama himself has criticized. But you won’t see the President condemning the decision in Humanitarian Law Project, the first Supreme Court case to pit free speech rights against national security since the September 11 attacks. At issue was a federal law banning “material support” to “foreign terrorist organizations” even when the “support” consists only of speech advocating peace and human rights. The lower courts had repeatedly declared the provisions that prohibit speech unconstitutional, but the Obama administration—represented by Elena Kagan, the Solicitor General and now Supreme Court nominee—appealed to the Supreme Court. (I argued the case for the Humanitarian Law Project, an organization that works to promote human rights and peace in conflict-ridden regions.)
The material-support law, enacted as part of the 1996 Antiterrorism and Effective Death Penalty Act and expanded by the 2001 Patriot Act, gives the Secretary of State virtually unchecked authority to place organizations on a list of “foreign terrorist organizations.” The list includes, among others, Hamas, Hezbollah, and the Kurdistan Workers’ Party of Turkey. It is a crime to provide “material support” to listed groups, not only in the form of money or weapons, but also in the form of speech; the law specifically prohibits anyone from providing them with “expert advice,” “training,” and “services.” According to the government the law prohibits even speech that advocates only lawful, nonviolent activity, including speech designed to discourage violence by encouraging lawful alternatives.
Under this law, when President Jimmy Carter monitored the June 2009 elections in Lebanon, and met with all of the parties to advise them on fair election practices, he could have been prosecuted for providing “material support,” in the form of “expert advice” to a designated group, because he advised Hezbollah. It means that when the New York Times, Los Angeles Times, and Washington Post published op-eds by Hamas leaders in recent years, they were engaging in the crime of providing “material support” to a designated terrorist group, because doing so provided Hamas a “service.” And it means that my clients, a retired judge and a human rights group, cannot continue to work for peace and human rights on behalf of the Kurds in Turkey, as they had been doing before the law took effect, without risking long prison terms.
In the past, the Supreme Court has ruled that the First Amendment protected the right to advocate even criminal activity, including overthrow of the government, so long as one’s advocacy was not intended or likely to produce an imminent crime. In the Humanitarian Law Project case, however, the Court ruled—for the first time in its history—that speech advocating only lawful, nonviolent activity can be subject to criminal penalty, even where the speakers’ intent is to discourage resort to violence.
The Court’s decision is all the more disturbing when contrasted with Citizens United. The campaign finance law that the Court struck down did not prohibit speech, but merely required corporations to use segregated funds to engage in political campaign speech. The material-support law, by contrast, criminalized speech outright—consulting with, advising, or speaking on behalf of, disfavored groups. The Court treated both as laws that restrict speech based on its content, which can be sustained only if they are narrowly tailored to serve a compelling government interest. Stanford Law Professor Gerald Gunther once described this speech-protective standard as “strict in theory, but fatal in fact,” because so few laws have ever survived it.
In both cases, there was no dispute that the government had a compelling goal; the question was whether the means chosen were necessary. Thus, in Humanitarian Law Project the Court asked whether barring peaceful communication with listed groups intended only to further nonviolent ends was necessary to protect our national security. In Citizens United, the question was whether requiring corporations to use segregated funds for campaign spending was necessary to guard against corruption of the political process.
In Citizens United, the Court imposed a heavy burden of justification on the government, and required solid evidentiary support for all justifications that the government offered. For example, the Court rejected the government’s argument that unrestricted corporate expenditures could lead to corruption of politicians because it deemed it unsupported by evidence of such corruption. By contrast, in Humanitarian Law Project, the Court upheld the material-support law based on justifications that were unsupported by evidence, and in some instances were not even advanced by the government. The Court reasoned that even if speech did not directly lead to violence, it might “legitimate” the group, thereby interfering with US foreign policy. And Chief Justice Roberts speculated that advising an organization on how to file human rights complaints with the United Nations might help the group use the law to “threaten, manipulate, and disrupt,” and that helping a group pursue peace might give it cover to prepare for its next attack.
The Court demanded no evidence that any of these hypothetical dangers had ever come to pass. Instead, the Court explained that, because the material-support statute’s goals were “preventive,” no evidentiary support was required. But of course, the campaign finance law was equally preventive, as it sought to forestall corruption and distortion of the political process. Indeed, virtually all laws restricting speech are “preventive,” inasmuch as they seek to avoid future harm.
Moreover, in permitting the government to suppress speech on the ground that it might make people think better of designated groups, the Court endorsed a “viewpoint-based” rationale directly antithetical to the First Amendment. The Court has reserved its most skeptical review for viewpoint-based laws which prohibit speech on one side of a particular issue, but not the other. In fact, until the current decision no viewpoint-based law had ever survived Supreme Court review. The government’s interest in barring speech because it might “legitimate” an organization is, by definition, “viewpoint-based”: It prohibits speech because it sends a message—that a group is “legitimate”—of which the government disapproves. Yet Chief Justice Roberts never even addressed this critique.
Roberts stressed that the Court’s decision addressed only speech “coordinated” with foreign organizations engaged in terrorism, not independent advocacy or speech coordinated with domestic groups. By “coordinated,” the Court seemed to mean speech that involves some kind of direct contact with the group in question. But coordinated speech is just as protected as independent speech; the right to speak necessarily implies the right to speak with and to others. Roberts never explained why, in an increasingly interconnected world, an American’s right to speak with a group should vary if the group is domestic or foreign. An American writing for the Guardian is no less protected from US criminal prosecution for his speech than one writing for the New York Times. And the Court has repeatedly upheld the right of US citizens to speak and associate with the Communist Party as long as they intended to further only lawful ends—even though Congress formally found that the Communist Party was an international conspiracy that used terrorism and other violent means to seek the overthrow of the United States by force and violence.
In short, while the Court ostensibly applied the same stringent standard of review in both Citizens United and Humanitarian Law Project, in the latter case it accepted arguments that would never have survived the scrutiny employed in Citizens United. Once the government invoked national security and the war on terror, the Court simply deferred to rank speculation, rather than requiring the government to meet the heavy burden of hard evidence and narrow tailoring that speech prohibitions based on content have heretofore required. History shows that it is in moments of great fear that governments are most likely to target speech and association. Such overreaching not only compromises the fundamental freedoms that undergird our democracy, but is likely to backfire, by targeting innocents and breeding resentment. When the Court allows unsupported speculation about “terrorism” and disapproval of a speaker’s viewpoint to justify making advocacy of human rights a crime, the First Amendment as we know it is in serious jeopardy.
Monday, November 29, 2010
Thursday, November 25, 2010
Chalmers Johnson Dies at 79; Criticized U.S. Role in World
By DENNIS HEVESI
Chalmers Johnson, an Asian studies scholar who stirred controversy with books contending that the United States was trying to create a global empire and was paying a stiff price for it, died Saturday at his home in Cardiff-by-the Sea, Calif. He was 79.
The cause was complications of rheumatoid arthritis, his wife, Sheila, said.
Dr. Johnson, who considered himself a longtime cold warrior, was a consultant to the Central Intelligence Agency for many years. But after the collapse of the Soviet Union he became concerned that the United States was increasingly using its military presence to gain power over the global economy.
In “Blowback: The Costs and Consequences of American Empire” (Metropolitan Books, 2000), Dr. Johnson wondered why America’s military spending continued to rise after the cold war had ended. He concluded that through a network of more than 700 strategic bases around the world, the United States was committed to creating global hegemony. And he worried about the consequences for American democracy.
It was a theme he expanded upon in three subsequent books, “The Sorrows of Empire” (2004), “Nemesis” (2006) and “Dismantling the Empire” (2010).
Summarizing the series in “Dismantling the Empire,” Dr. Johnson said that “blowback” means more than a negative, sometimes violent reaction to United States policy. “It refers to retaliation for the numerous illegal operations we have carried out abroad that were kept totally secret from the American public,” he wrote.
“This means that when the retaliation comes, as it did so spectacularly on Sept. 11, 2001, the American public is unable to put the events in context. So they tend to support acts intended to lash out against the perpetrators, thereby most commonly preparing the ground for yet another cycle of blowback.”
To maintain its empire, he said, the United States “will inevitably undercut domestic democracy.”
In a review of “The Sorrows of Empire” in The New York Times, Ronald Asmus, a deputy assistant secretary of state under President Bill Clinton, wrote that the book was “a cry from the heart of an intelligent person who fears that the basic values of our republic are in danger.” He added that it “conveys a sense of impending doom rooted in a belief that the United States has entered a perpetual state of war that will drain our economy and destroy our constitutional freedoms.”
E. B. Keehn, past president of the Japan Society of Southern California and a former lecturer at Cambridge University, said in an interview on Monday that Dr. Johnson “did not go into his work with an agenda.”
“If the data pointed to a conclusion that made people uncomfortable, including himself,” Dr. Keehn said, “he would never shy away from it.”
That was true not only of the “blowback” series, Dr. Keehn said, but of Dr. Johnson’s studies of Chinese Communism and of the role Japan’s government played in its economy.
His 1982 book, “MITI and the Japanese Miracle” (MITI stands for the Ministry of International Trade and Industry), challenged conventional wisdom with its premise that Japan was a “capitalist developmental state” that combined government industrial strategy with free-market forces. His ideas contradicted those of economists who insisted that Japan’s economic rise was almost entirely based on the free market.
The heavily state-influenced economic model that Dr. Johnson elucidated can now be seen in South Korea, Taiwan, Singapore and China. “This,” Dr. Keehn said, “is how you can have a contradiction that the world’s last remaining powerful Communist country is also the world’s greatest rising capitalist success.”
Born in Phoenix on Aug. 6, 1931, Chalmers Ashby Johnson was one of two children of Katherine and David Johnson Jr. After graduating from the University of California, Berkeley, in 1953, with a degree in economics, he served in the Navy in the Korean War; it was the start of his fascination with Asia. “His assault boat landing craft was constantly being repaired in Yokohama,” his wife said, “so he started to study Japanese.”
After receiving his master’s degree in 1957 and his doctorate in 1961, both from Berkeley, he joined the university’s political science faculty. He headed the China Center at Berkeley from 1967 to 1972 and was chairman of the political science department from 1976 to 1980. In 1988 he moved to the University of California, San Diego, to teach at its new School of International Relations and Pacific Studies. He retired in 1992.
Besides his wife, the former Sheila Knipscheer, he is survived by his sister, Barbara Johnson.
==
Chalmers Johnson: 10 Steps Toward Liquidating the Empire
Dismantling the American empire would, of course,
involve many steps. Here are ten key places to begin:
1. We need to put a halt to the serious environmental
damage done by our bases planet-wide. We also need to
stop writing SOFAs that exempt us from any
responsibility for cleaning up after ourselves.
2. Liquidating the empire will end the burden of
carrying our empire of bases and so of the "opportunity
costs" that go with them -- the things we might
otherwise do with our talents and resources but can't
or won't.
3. As we already know (but often forget), imperialism
breeds the use of torture. In the 1960s and 1970s we
helped overthrow the elected governments in Brazil and
Chile and underwrote regimes of torture that prefigured
our own treatment of prisoners in Iraq and Afghanistan.
(See, for instance, A.J. Langguth, Hidden Terrors
[Pantheon, 1979], on how the U.S. spread torture
methods to Brazil and Uruguay.) Dismantling the empire
would potentially mean a real end to the modern
American record of using torture abroad.
4. We need to cut the ever-lengthening train of camp
followers, dependents, civilian employees of the
Department of Defense, and hucksters -- along with
their expensive medical facilities, housing
requirements, swimming pools, clubs, golf courses, and
so forth -- that follow our military enclaves around
the world.
5. We need to discredit the myth promoted by the
military-industrial complex that our military
establishment is valuable to us in terms of jobs,
scientific research, and defense. These alleged
advantages have long been discredited by serious
economic research. Ending empire would make this
happen.
6. As a self-respecting democratic nation, we need to
stop being the world's largest exporter of arms and
munitions and quit educating Third World militaries in
the techniques of torture, military coups, and service
as proxies for our imperialism. A prime candidate for
immediate closure is the so-called School of the
Americas, the U.S. Army's infamous military academy at
Fort Benning, Georgia, for Latin American military
officers. (See Chalmers Johnson, The Sorrows of Empire
[Metropolitan Books, 2004], pp. 136-40.)
7. Given the growing constraints on the federal budget,
we should abolish the Reserve Officers' Training Corps
and other long-standing programs that promote
militarism in our schools.
8. We need to restore discipline and accountability in
our armed forces by radically scaling back our reliance
on civilian contractors, private military companies,
and agents working for the military outside the chain
of command and the Uniform Code of Military Justice.
(See Jeremy Scahill, Blackwater:The Rise of the World's
Most Powerful Mercenary Army [Nation Books, 2007]).
Ending empire would make this possible.
9. We need to reduce, not increase, the size of our
standing army and deal much more effectively with the
wounds our soldiers receive and combat stress they
undergo.
10. To repeat the main message of this essay, we must
give up our inappropriate reliance on military force as
the chief means of attempting to achieve foreign policy
objectives.
Unfortunately, few empires of the past voluntarily gave
up their dominions in order to remain independent,
self-governing polities. The two most important recent
examples are the British and Soviet empires. If we do
not learn from their examples, our decline and fall is
foreordained.
Chalmers Johnson is the author of Blowback (2000), The
Sorrows of Empire (2004), and Nemesis: The Last Days of
the American Republic (2006), and editor of Okinawa:
Cold War Island (1999).
Chalmers Johnson, an Asian studies scholar who stirred controversy with books contending that the United States was trying to create a global empire and was paying a stiff price for it, died Saturday at his home in Cardiff-by-the Sea, Calif. He was 79.
The cause was complications of rheumatoid arthritis, his wife, Sheila, said.
Dr. Johnson, who considered himself a longtime cold warrior, was a consultant to the Central Intelligence Agency for many years. But after the collapse of the Soviet Union he became concerned that the United States was increasingly using its military presence to gain power over the global economy.
In “Blowback: The Costs and Consequences of American Empire” (Metropolitan Books, 2000), Dr. Johnson wondered why America’s military spending continued to rise after the cold war had ended. He concluded that through a network of more than 700 strategic bases around the world, the United States was committed to creating global hegemony. And he worried about the consequences for American democracy.
It was a theme he expanded upon in three subsequent books, “The Sorrows of Empire” (2004), “Nemesis” (2006) and “Dismantling the Empire” (2010).
Summarizing the series in “Dismantling the Empire,” Dr. Johnson said that “blowback” means more than a negative, sometimes violent reaction to United States policy. “It refers to retaliation for the numerous illegal operations we have carried out abroad that were kept totally secret from the American public,” he wrote.
“This means that when the retaliation comes, as it did so spectacularly on Sept. 11, 2001, the American public is unable to put the events in context. So they tend to support acts intended to lash out against the perpetrators, thereby most commonly preparing the ground for yet another cycle of blowback.”
To maintain its empire, he said, the United States “will inevitably undercut domestic democracy.”
In a review of “The Sorrows of Empire” in The New York Times, Ronald Asmus, a deputy assistant secretary of state under President Bill Clinton, wrote that the book was “a cry from the heart of an intelligent person who fears that the basic values of our republic are in danger.” He added that it “conveys a sense of impending doom rooted in a belief that the United States has entered a perpetual state of war that will drain our economy and destroy our constitutional freedoms.”
E. B. Keehn, past president of the Japan Society of Southern California and a former lecturer at Cambridge University, said in an interview on Monday that Dr. Johnson “did not go into his work with an agenda.”
“If the data pointed to a conclusion that made people uncomfortable, including himself,” Dr. Keehn said, “he would never shy away from it.”
That was true not only of the “blowback” series, Dr. Keehn said, but of Dr. Johnson’s studies of Chinese Communism and of the role Japan’s government played in its economy.
His 1982 book, “MITI and the Japanese Miracle” (MITI stands for the Ministry of International Trade and Industry), challenged conventional wisdom with its premise that Japan was a “capitalist developmental state” that combined government industrial strategy with free-market forces. His ideas contradicted those of economists who insisted that Japan’s economic rise was almost entirely based on the free market.
The heavily state-influenced economic model that Dr. Johnson elucidated can now be seen in South Korea, Taiwan, Singapore and China. “This,” Dr. Keehn said, “is how you can have a contradiction that the world’s last remaining powerful Communist country is also the world’s greatest rising capitalist success.”
Born in Phoenix on Aug. 6, 1931, Chalmers Ashby Johnson was one of two children of Katherine and David Johnson Jr. After graduating from the University of California, Berkeley, in 1953, with a degree in economics, he served in the Navy in the Korean War; it was the start of his fascination with Asia. “His assault boat landing craft was constantly being repaired in Yokohama,” his wife said, “so he started to study Japanese.”
After receiving his master’s degree in 1957 and his doctorate in 1961, both from Berkeley, he joined the university’s political science faculty. He headed the China Center at Berkeley from 1967 to 1972 and was chairman of the political science department from 1976 to 1980. In 1988 he moved to the University of California, San Diego, to teach at its new School of International Relations and Pacific Studies. He retired in 1992.
Besides his wife, the former Sheila Knipscheer, he is survived by his sister, Barbara Johnson.
==
Chalmers Johnson: 10 Steps Toward Liquidating the Empire
Dismantling the American empire would, of course,
involve many steps. Here are ten key places to begin:
1. We need to put a halt to the serious environmental
damage done by our bases planet-wide. We also need to
stop writing SOFAs that exempt us from any
responsibility for cleaning up after ourselves.
2. Liquidating the empire will end the burden of
carrying our empire of bases and so of the "opportunity
costs" that go with them -- the things we might
otherwise do with our talents and resources but can't
or won't.
3. As we already know (but often forget), imperialism
breeds the use of torture. In the 1960s and 1970s we
helped overthrow the elected governments in Brazil and
Chile and underwrote regimes of torture that prefigured
our own treatment of prisoners in Iraq and Afghanistan.
(See, for instance, A.J. Langguth, Hidden Terrors
[Pantheon, 1979], on how the U.S. spread torture
methods to Brazil and Uruguay.) Dismantling the empire
would potentially mean a real end to the modern
American record of using torture abroad.
4. We need to cut the ever-lengthening train of camp
followers, dependents, civilian employees of the
Department of Defense, and hucksters -- along with
their expensive medical facilities, housing
requirements, swimming pools, clubs, golf courses, and
so forth -- that follow our military enclaves around
the world.
5. We need to discredit the myth promoted by the
military-industrial complex that our military
establishment is valuable to us in terms of jobs,
scientific research, and defense. These alleged
advantages have long been discredited by serious
economic research. Ending empire would make this
happen.
6. As a self-respecting democratic nation, we need to
stop being the world's largest exporter of arms and
munitions and quit educating Third World militaries in
the techniques of torture, military coups, and service
as proxies for our imperialism. A prime candidate for
immediate closure is the so-called School of the
Americas, the U.S. Army's infamous military academy at
Fort Benning, Georgia, for Latin American military
officers. (See Chalmers Johnson, The Sorrows of Empire
[Metropolitan Books, 2004], pp. 136-40.)
7. Given the growing constraints on the federal budget,
we should abolish the Reserve Officers' Training Corps
and other long-standing programs that promote
militarism in our schools.
8. We need to restore discipline and accountability in
our armed forces by radically scaling back our reliance
on civilian contractors, private military companies,
and agents working for the military outside the chain
of command and the Uniform Code of Military Justice.
(See Jeremy Scahill, Blackwater:The Rise of the World's
Most Powerful Mercenary Army [Nation Books, 2007]).
Ending empire would make this possible.
9. We need to reduce, not increase, the size of our
standing army and deal much more effectively with the
wounds our soldiers receive and combat stress they
undergo.
10. To repeat the main message of this essay, we must
give up our inappropriate reliance on military force as
the chief means of attempting to achieve foreign policy
objectives.
Unfortunately, few empires of the past voluntarily gave
up their dominions in order to remain independent,
self-governing polities. The two most important recent
examples are the British and Soviet empires. If we do
not learn from their examples, our decline and fall is
foreordained.
Chalmers Johnson is the author of Blowback (2000), The
Sorrows of Empire (2004), and Nemesis: The Last Days of
the American Republic (2006), and editor of Okinawa:
Cold War Island (1999).
Wednesday, November 24, 2010
U.S.-sponsored torture must end
In recent years, it has been reported that the administration of former President George W. Bush condoned the use of torture by U.S. military personnel and the CIA. The photos and stories from Abu Ghraib, Bagram and Guantanamo are seared into the memory of many both here in the U.S. and abroad. Just recently, President Bush, in his new memoir, “Decision Points,” claims he responded with “damn right” when asked if the CIA should torture Khalid Sheikh Mohammed by waterboarding him.
In June 2010, the Physicians for Human Rights released a report highlighting the participation of CIA health professionals in medical experimentation intended to make torture more efficient. Sadly, the Department of Health and Human Services, which oversees the Office of Human Research Protections, and the CIA have declined to investigate PHR’s findings.
Such reports are troubling. Believing that all forms of torture are morally wrong, we add our voices to the growing number of people calling for the creation of a bipartisan Commission of Inquiry to investigate the use of U.S.-sponsored torture. We especially call on our legislators, Congressman-elect Robert Dold, Sen. Richard Durbin, and Sen.-elect Mark Kirk in supporting this effort. Any and all reports of this commission must be made public so that the American people will know what has been done in our name, to help ensure that such acts will never again be repeated.
If we simply ignore what has taken place, what message will this send to our youth?
Fr. Corey Brost, CSV
Br. Michael Gosch, CSV Fr. Thomas von Behren, CSV
Arlington Heights
In June 2010, the Physicians for Human Rights released a report highlighting the participation of CIA health professionals in medical experimentation intended to make torture more efficient. Sadly, the Department of Health and Human Services, which oversees the Office of Human Research Protections, and the CIA have declined to investigate PHR’s findings.
Such reports are troubling. Believing that all forms of torture are morally wrong, we add our voices to the growing number of people calling for the creation of a bipartisan Commission of Inquiry to investigate the use of U.S.-sponsored torture. We especially call on our legislators, Congressman-elect Robert Dold, Sen. Richard Durbin, and Sen.-elect Mark Kirk in supporting this effort. Any and all reports of this commission must be made public so that the American people will know what has been done in our name, to help ensure that such acts will never again be repeated.
If we simply ignore what has taken place, what message will this send to our youth?
Fr. Corey Brost, CSV
Br. Michael Gosch, CSV Fr. Thomas von Behren, CSV
Arlington Heights
Monday, November 22, 2010
No immunity for torture
By Anthony D. Romero
Sunday, November 21, 2010; 7:43 PM
Contrary to your assertions [editorial, Nov. 16], our country's laws prohibiting torture are clear. As you pointed out, the State Department has characterized waterboarding as torture when used by other countries, and Americans have been prosecuted for waterboarding. That is why the American Civil Liberties Union wrote to Attorney General Eric H. Holder Jr. this month urging him to include President George W. Bush in an ongoing criminal investigation into detainee interrogations. The former president's admission that he directly authorized waterboarding - torture - cannot be ignored, and the case against him and other high-level officials is strong, bolstered by Mr. Bush's own admissions.
Furthermore, the legal opinions upon which Mr. Bush says he relied were improper and dangerous misinterpretations of the law. They certainly do not provide immunity.
If our nation is truly committed to the rule of law, we cannot ignore the evidence that those in power committed crimes by authorizing torture. In the United States, no one is above the law - even former presidents.
The Obama administration must take concrete action and pursue accountability for these criminal acts. "Looking forward" will not suffice and will not prevent a repetition of one of the darkest chapters in our nation's history.
Anthony D. Romero, New York
The writer is executive director of the American Civil Liberties Union.
Sunday, November 21, 2010; 7:43 PM
Contrary to your assertions [editorial, Nov. 16], our country's laws prohibiting torture are clear. As you pointed out, the State Department has characterized waterboarding as torture when used by other countries, and Americans have been prosecuted for waterboarding. That is why the American Civil Liberties Union wrote to Attorney General Eric H. Holder Jr. this month urging him to include President George W. Bush in an ongoing criminal investigation into detainee interrogations. The former president's admission that he directly authorized waterboarding - torture - cannot be ignored, and the case against him and other high-level officials is strong, bolstered by Mr. Bush's own admissions.
Furthermore, the legal opinions upon which Mr. Bush says he relied were improper and dangerous misinterpretations of the law. They certainly do not provide immunity.
If our nation is truly committed to the rule of law, we cannot ignore the evidence that those in power committed crimes by authorizing torture. In the United States, no one is above the law - even former presidents.
The Obama administration must take concrete action and pursue accountability for these criminal acts. "Looking forward" will not suffice and will not prevent a repetition of one of the darkest chapters in our nation's history.
Anthony D. Romero, New York
The writer is executive director of the American Civil Liberties Union.
Friday, November 19, 2010
Rep. McKeon’s Detention Bill
by Benjamin Wittes
In his speech yesterday, incoming House Armed Services chairman Buck McKeon promised that his committee would work in the coming Congress on a “legal framework” for detention. Here’s hoping he is more serious about it this coming year than his work this past year might suggest. As Spencer Ackerman points out, McKeon has introduced detention legislation before; in March, he introduced H.R. 4892, the Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010–a cousin of which was earlier introduced in the Senate by John McCain. Ackerman quotes what is, alas, in many respects the bill’s least objectionable major provision:
An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(b)(1) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.
While the application of non-criminal detention authority to citizens is a touchy subject and any legislative scheme will no doubt need to offer more process than that contemplated by Article 5 of the Third Geneva Conventions, I certainly agree that Congress should affirm the authority to detain non-criminally belligerents in this conflict while hostilities continue. So my differences with the bill on that point are minor.
Unfortunately, that’s about the only thing in this bill to which I have no fundamental objection. Here are its major provisions–most of which, quite frankly, to merely describe is also to criticize:
■Section 2 requires that any “individual . . . captured or [who] otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners though an act of terrorism” or material support for such activity and who “may be an unprivileged enemy belligerent . . . shall be placed in military custody for purposes of initial interrogation and determination of status.” That’s right. Any terrorist suspect–citizen or alien, arrested domestically or abroad–who might be detainable as an unprivileged belligerent must be detained as unprivileged belligerent.
■Section 3 places the Director of National Intelligence in charge of all interrogations of “high value detainees” and requires the DNI to approve any reading of Miranda rights to high value detainees. This power is not delegatable. Nor does the bill offer a clear definition of a high value detainee–just a list of criteria for evaluation, which helpfully includes “such other matters as the president considers appropriate.” In other words, the bill isn’t sure who counts as a high value detainee, but it’s happy to micromanage the reading of his Miranda rights.
■Section 4 provides that “No funds appropriated or otherwise made available . . . may be used to prosecute in an Article III court in the United States . . . any alien who has been determined to be an unprivileged enemy belligerent.” Put another way, not only must someone suspected of terrorism be held in military custody as an initial matter, he cannot ever be tried in civilian court–not even if, say, he could be charged only with crimes cognizable in federal court but not in military commissions.
This is an uncommonly silly bill–one that would have tied the hands of the Bush administration almost as tightly as it would now tie the hands of the Obama administration. It would, for example, have prohibited the many material support prosecutions the prior administration brought by forcing it to place those defendants in military custody and then, lobster-trap like, prohibiting their transfer to federal court. It would have prevented the eventual disposition of the Jose Padilla case–which was predicated on his return to the criminal system–and thereby dramatically increased the likelihood of Supreme Court intervention in his case and setback to the administration. I could go on.
If Rep. McKeon is serious about creating a viable legal framework for terrorism detentions, he has an enormous and honorable role to play in the coming few years. The administration is so scared of its shadow on this issue and so internally divided that it could never manage to muster a response to Sen. Lindsey Graham on his proposal. And very few others in Congress have been willing to approach it seriously. But if McKeon is serious about legislating something useful, he is going to have to tear up his playbook entirely. This bill is flawed not merely in execution but in its very purpose. The goal of a non-criminal detention framework law should be to provide a clear and viable option for the executive, not a straitjacket that impedes its use of viable criminal options. The availability of this option should enhance presidential flexibility, not restrict it. The goal, in other words, should be to help the president, not to frustrate him. There is little sign either in this bill or in McKeon’s speech yesterday that he understands that.
In his speech yesterday, incoming House Armed Services chairman Buck McKeon promised that his committee would work in the coming Congress on a “legal framework” for detention. Here’s hoping he is more serious about it this coming year than his work this past year might suggest. As Spencer Ackerman points out, McKeon has introduced detention legislation before; in March, he introduced H.R. 4892, the Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010–a cousin of which was earlier introduced in the Senate by John McCain. Ackerman quotes what is, alas, in many respects the bill’s least objectionable major provision:
An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(b)(1) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.
While the application of non-criminal detention authority to citizens is a touchy subject and any legislative scheme will no doubt need to offer more process than that contemplated by Article 5 of the Third Geneva Conventions, I certainly agree that Congress should affirm the authority to detain non-criminally belligerents in this conflict while hostilities continue. So my differences with the bill on that point are minor.
Unfortunately, that’s about the only thing in this bill to which I have no fundamental objection. Here are its major provisions–most of which, quite frankly, to merely describe is also to criticize:
■Section 2 requires that any “individual . . . captured or [who] otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners though an act of terrorism” or material support for such activity and who “may be an unprivileged enemy belligerent . . . shall be placed in military custody for purposes of initial interrogation and determination of status.” That’s right. Any terrorist suspect–citizen or alien, arrested domestically or abroad–who might be detainable as an unprivileged belligerent must be detained as unprivileged belligerent.
■Section 3 places the Director of National Intelligence in charge of all interrogations of “high value detainees” and requires the DNI to approve any reading of Miranda rights to high value detainees. This power is not delegatable. Nor does the bill offer a clear definition of a high value detainee–just a list of criteria for evaluation, which helpfully includes “such other matters as the president considers appropriate.” In other words, the bill isn’t sure who counts as a high value detainee, but it’s happy to micromanage the reading of his Miranda rights.
■Section 4 provides that “No funds appropriated or otherwise made available . . . may be used to prosecute in an Article III court in the United States . . . any alien who has been determined to be an unprivileged enemy belligerent.” Put another way, not only must someone suspected of terrorism be held in military custody as an initial matter, he cannot ever be tried in civilian court–not even if, say, he could be charged only with crimes cognizable in federal court but not in military commissions.
This is an uncommonly silly bill–one that would have tied the hands of the Bush administration almost as tightly as it would now tie the hands of the Obama administration. It would, for example, have prohibited the many material support prosecutions the prior administration brought by forcing it to place those defendants in military custody and then, lobster-trap like, prohibiting their transfer to federal court. It would have prevented the eventual disposition of the Jose Padilla case–which was predicated on his return to the criminal system–and thereby dramatically increased the likelihood of Supreme Court intervention in his case and setback to the administration. I could go on.
If Rep. McKeon is serious about creating a viable legal framework for terrorism detentions, he has an enormous and honorable role to play in the coming few years. The administration is so scared of its shadow on this issue and so internally divided that it could never manage to muster a response to Sen. Lindsey Graham on his proposal. And very few others in Congress have been willing to approach it seriously. But if McKeon is serious about legislating something useful, he is going to have to tear up his playbook entirely. This bill is flawed not merely in execution but in its very purpose. The goal of a non-criminal detention framework law should be to provide a clear and viable option for the executive, not a straitjacket that impedes its use of viable criminal options. The availability of this option should enhance presidential flexibility, not restrict it. The goal, in other words, should be to help the president, not to frustrate him. There is little sign either in this bill or in McKeon’s speech yesterday that he understands that.
Sunday, November 14, 2010
US Justice Department Prepares For Ominous Expansion Of Law Prohibiting 'Material Support' For Terrorism
By Michael Deutsch
In late September the FBI carried out a series of raids of homes and anti-war offices of public activists in Minneapolis and Chicago. Following the raids the Obama Justice Department subpoenaed 14 activists to a grand jury in Chicago and also subpoenaed the files of several anti-war and community organizations. In carrying out these repressive actions, the Justice department was taking its lead from the Supreme Court’s 6-3 opinion last June in Holder v. the Humanitarian Law Project which decided that non-violent First Amendment speech and advocacy “coordinated with” or “under the direction of” a foreign group listed by the Secretary of State as “terrorist” was a crime.
The search warrants and grand jury subpoenas make it quite clear that the federal prosecutors are intent on accusing public non-violent political organizers, many affiliated with Freedom Road Socialist Organization (FRSO), of providing “material support,” through their public advocacy, for the Popular Front for the Liberation of Palestine (PFLP) and the Revolutionary Armed Forces of Colombia (FARC). The Secretary of State has determined that both the PLFP and the FARC “threaten US national security, foreign policy or economic interests,” a finding not reviewable by the Courts, and listed both groups as foreign terrorist organizations (FTO).
In 1996, Congress made it a crime then punishable by 10 years, later increased to 15 years, to anyone in the U.S. who provides “material support or resources to a foreign terrorist organization or attempts or conspires to do so.” The present statute defines “material support or resources” as:
any property, tangible or intangible, or service, including currency or monetary instruments or financial services, lodging training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel and transportation except medicine or religious materials.
In the Humanitarian Law Project case, human rights workers wanted to teach members of the Kurdistan PKK, which seeks an independent Kurdish state, and the Liberation Tigers of Tamil Eelam (LTTE), which sought an independent state in Sri Lanka, how to use humanitarian and international law to peacefully resolve disputes, and to obtain relief from the United Nations and other international bodies for human rights abuses by the governments of Turkey and Sri Lanka. Both organizations were designated as FTOs by the Secretary of State in a closed hearing, in which the evidence is heard secretly.
Despite the non-violent, peacemaking goal of this speech and training, the majority of the Supreme Court nonetheless interpreted the law to make such conduct a crime. Finding a whole new exception to the First Amendment, the Court decided that any support, even if it involves non-violent efforts towards peace, is illegal under the law since it “frees up other resources within the organization that may be put to violent ends,” and also helps lend “legitimacy” to foreign terrorist groups. Writing for the majority, Chief Justice Roberts, despite the lack of any evidence, further opined that the FTO, could use the human rights law to “intimidate, harass or destruct” its adversaries, and that even peace talks themselves could be used as a cover to re-arm for further attacks. Thus, the Court’s opinion criminalizes efforts by independent groups to work for peace if they in anyway cooperate or coordinate with designated FTOs.
The Court distinguishes what it refers to “independent advocacy” which it finds is not prohibited by the statute, from “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization, which is for the first time found to be a crime under the statute. The exact line as to where independent advocacy becomes impermissible coordination is left open and vague.
Seizing on this overbroad definition of “material support,” the U.S. government is now moving on political groups and activists who are clearly exercising fundamental First Amendment rights in vocally opposing the government’s branding of foreign liberation movements as terrorist and support their struggles against U.S. backed repressive regimes and illegal occupations.
Under the new definition of “material support,” the efforts of President Jimmy Carter to monitor the elections in Lebanon and coordinate with the political parties there including the designated FTO, Hezbollah, could well be prosecuted as a crime. Similarly, the publication of op-ed articles by FTO spokesmen from Hamas or other designated groups by the New York Times or Washington Post, or the filing by human rights attorneys of amicus briefs arguing against a group’s terrorist designation or the statute itself could also now be prosecuted. Of course, the first targets of this draconian expansion of the material support law will not be a former president or the establishment media, but members of a Marxist organization and vocal opponents of the governments of Israel and Colombia and the U.S. policies supporting these repressive governments.
President Obama in his foreword to the recent autobiography of Nelson Mandela, Conversations with Myself, wrote that “Mandela’s sacrifice was so great that it called upon people everywhere to do what they could on behalf of human progress. [and] . . . [t]he the first time I became politically active was during my college years, when I joined a campaign on behalf of divestment, and the effort to end apartheid in South Africa.” At the time of Mr. Obama’s First Amendment advocacy, Mr. Mandela and his organization the African National Congress (ANC) were denounced as terrorist by the U.S. government. The “material support” law, if in effect back then, would have opened Mr. Obama up to potential criminal prosecution. It is ironic, and the height of hypocrisy, that this same man who speaks with such reverence for Mr. Mandela and recalls his own support for the struggle against apartheid, now allows the Justice Department under his command to criminalize similar First Amendment advocacy against Israeli apartheid and repressive foreign governments.
To provide financial support for the legal expenses those under attack contact: tax deductible checks can be sent to the National Lawyers Guild Foundation. c/o National Lawyers Guild, 132 Nassau St. Room 922, New York, N.Y. 10038
Michael Deutsch is a lawyer with the People's Law Office in Chicago and has been representing political activists and victims of government repression for the past 40 years.
In late September the FBI carried out a series of raids of homes and anti-war offices of public activists in Minneapolis and Chicago. Following the raids the Obama Justice Department subpoenaed 14 activists to a grand jury in Chicago and also subpoenaed the files of several anti-war and community organizations. In carrying out these repressive actions, the Justice department was taking its lead from the Supreme Court’s 6-3 opinion last June in Holder v. the Humanitarian Law Project which decided that non-violent First Amendment speech and advocacy “coordinated with” or “under the direction of” a foreign group listed by the Secretary of State as “terrorist” was a crime.
The search warrants and grand jury subpoenas make it quite clear that the federal prosecutors are intent on accusing public non-violent political organizers, many affiliated with Freedom Road Socialist Organization (FRSO), of providing “material support,” through their public advocacy, for the Popular Front for the Liberation of Palestine (PFLP) and the Revolutionary Armed Forces of Colombia (FARC). The Secretary of State has determined that both the PLFP and the FARC “threaten US national security, foreign policy or economic interests,” a finding not reviewable by the Courts, and listed both groups as foreign terrorist organizations (FTO).
In 1996, Congress made it a crime then punishable by 10 years, later increased to 15 years, to anyone in the U.S. who provides “material support or resources to a foreign terrorist organization or attempts or conspires to do so.” The present statute defines “material support or resources” as:
any property, tangible or intangible, or service, including currency or monetary instruments or financial services, lodging training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel and transportation except medicine or religious materials.
In the Humanitarian Law Project case, human rights workers wanted to teach members of the Kurdistan PKK, which seeks an independent Kurdish state, and the Liberation Tigers of Tamil Eelam (LTTE), which sought an independent state in Sri Lanka, how to use humanitarian and international law to peacefully resolve disputes, and to obtain relief from the United Nations and other international bodies for human rights abuses by the governments of Turkey and Sri Lanka. Both organizations were designated as FTOs by the Secretary of State in a closed hearing, in which the evidence is heard secretly.
Despite the non-violent, peacemaking goal of this speech and training, the majority of the Supreme Court nonetheless interpreted the law to make such conduct a crime. Finding a whole new exception to the First Amendment, the Court decided that any support, even if it involves non-violent efforts towards peace, is illegal under the law since it “frees up other resources within the organization that may be put to violent ends,” and also helps lend “legitimacy” to foreign terrorist groups. Writing for the majority, Chief Justice Roberts, despite the lack of any evidence, further opined that the FTO, could use the human rights law to “intimidate, harass or destruct” its adversaries, and that even peace talks themselves could be used as a cover to re-arm for further attacks. Thus, the Court’s opinion criminalizes efforts by independent groups to work for peace if they in anyway cooperate or coordinate with designated FTOs.
The Court distinguishes what it refers to “independent advocacy” which it finds is not prohibited by the statute, from “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization, which is for the first time found to be a crime under the statute. The exact line as to where independent advocacy becomes impermissible coordination is left open and vague.
Seizing on this overbroad definition of “material support,” the U.S. government is now moving on political groups and activists who are clearly exercising fundamental First Amendment rights in vocally opposing the government’s branding of foreign liberation movements as terrorist and support their struggles against U.S. backed repressive regimes and illegal occupations.
Under the new definition of “material support,” the efforts of President Jimmy Carter to monitor the elections in Lebanon and coordinate with the political parties there including the designated FTO, Hezbollah, could well be prosecuted as a crime. Similarly, the publication of op-ed articles by FTO spokesmen from Hamas or other designated groups by the New York Times or Washington Post, or the filing by human rights attorneys of amicus briefs arguing against a group’s terrorist designation or the statute itself could also now be prosecuted. Of course, the first targets of this draconian expansion of the material support law will not be a former president or the establishment media, but members of a Marxist organization and vocal opponents of the governments of Israel and Colombia and the U.S. policies supporting these repressive governments.
President Obama in his foreword to the recent autobiography of Nelson Mandela, Conversations with Myself, wrote that “Mandela’s sacrifice was so great that it called upon people everywhere to do what they could on behalf of human progress. [and] . . . [t]he the first time I became politically active was during my college years, when I joined a campaign on behalf of divestment, and the effort to end apartheid in South Africa.” At the time of Mr. Obama’s First Amendment advocacy, Mr. Mandela and his organization the African National Congress (ANC) were denounced as terrorist by the U.S. government. The “material support” law, if in effect back then, would have opened Mr. Obama up to potential criminal prosecution. It is ironic, and the height of hypocrisy, that this same man who speaks with such reverence for Mr. Mandela and recalls his own support for the struggle against apartheid, now allows the Justice Department under his command to criminalize similar First Amendment advocacy against Israeli apartheid and repressive foreign governments.
To provide financial support for the legal expenses those under attack contact: tax deductible checks can be sent to the National Lawyers Guild Foundation. c/o National Lawyers Guild, 132 Nassau St. Room 922, New York, N.Y. 10038
Michael Deutsch is a lawyer with the People's Law Office in Chicago and has been representing political activists and victims of government repression for the past 40 years.
Thursday, November 11, 2010
US must begin criminal investigation of torture following Bush admission
Amnesty International today urged a criminal investigation into the role of former US President George W. Bush and other officials in the use of "enhanced interrogation techniques" against detainees held in secret US custody after the former president admitted authorizing their use.
Amnesty International today urged a criminal investigation into the role of former US President George W. Bush and other officials in the use of "enhanced interrog ation techniques" against detainees held in secret US custody after the former president admitted authorizing their use.
In his memoirs, published yesterday, and in an interview on NBC News broadcast on 8 November 2010, the former President confirmed his personal involvement in authorising "water-boarding" and other techniques against "high value detainees".
"Under international law, the former President's admission to having authorized acts that amount to torture are enough to trigger the USA's obligations to investigate his admissions and if substantiated, to prosecute him," said Claudio Cordone, Senior Director at Amnesty International.
"His admissions also highlight once again the absence of accountability for the crimes under international law of torture and enforced disappearance committed by the USA."
In his memoirs, former President Bush focused on the cases of two detainees held in the secret program.
Abu Zubaydah was held at various undisclosed locations from April 2002 to September 2006, In August 2002, he was subjected to "water-boarding," in which water is used to begin the process of drowning, more than 80 times.
Khalid Sheikh Mohammed was arrested on 1 March 2003 in Pakistan and transferred to secret CIA custody. That same month he was "water-boarded" 183 times, according to a report by the CIA Inspector General.
After three and a half years being held incommunicado in solitary confinement in secret locations, Khalid Sheikh Mohammed was transferred to military custody in Guantánamo, where he and Abu Zubayhdah remain held without trial, along with more than 150 others.
Water-boarding was far from the only technique alleged to have been used against Khalid Sheikh Mohammed, Abu Zubayhdah and others held in the secret program that violated the international prohibition of torture and other cruel, inhuman or degrading treatment.
Other techniques included prolonged nudity, threats, exposure to cold temperatures, stress positions, physical ass aults, prolonged use of shackles, and sleep.
"Under international law, anyone involved in torture must be brought to justice, and that does not exclude former President George W. Bush. If his admission is substantiated, the USA has the obligation to prosecute him," said Claudio Cordone.
"In the absence of a US investigation, other states must step in and carry out such an investigation themselves," said Claudio Cordone.
Background
The USA ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1994. Under UNCAT, in every case where there is evidence against a person of their having committed or attempted to commit torture, or of having committed acts which constitute complicity or participation in torture, the case must be submitted to its competent authorities for the purpose of prosecution.
Failing to proceed with a prosecution on the basis that the accused held public office of any rank, or citing justifications based in "exceptional circumstances", whether states of war or other public emergencies, is not permitted by UNCAT.
In another development yesterday, the US Department of Justice announced that no one will face criminal charges for the destruction by the CIA in 2005 of nearly 100 videotapes made of interrogations of Abu Zubaydah and 'Abd al-Nashiri, another detainee held in the secret CIA program.
Twelve of the tapes depicted use of "enhanced interrogation techniques", including "water-boarding". 'Abd al-Nashiri was subjected to waterboarding in late November 2002.
Again, torture and enforced disappearance are crimes under international law. As such, the destruction of the tapes may have concealed government crimes.
In a brief statement released on 9 November 2010, however, the Department of Justice announced that after an "exhaustive investigation" into the matter a federal prosecutor had concluded that he would "not pursue criminal charges for the destruction of the interrogation tapes".
Amnesty International today urged a criminal investigation into the role of former US President George W. Bush and other officials in the use of "enhanced interrog ation techniques" against detainees held in secret US custody after the former president admitted authorizing their use.
In his memoirs, published yesterday, and in an interview on NBC News broadcast on 8 November 2010, the former President confirmed his personal involvement in authorising "water-boarding" and other techniques against "high value detainees".
"Under international law, the former President's admission to having authorized acts that amount to torture are enough to trigger the USA's obligations to investigate his admissions and if substantiated, to prosecute him," said Claudio Cordone, Senior Director at Amnesty International.
"His admissions also highlight once again the absence of accountability for the crimes under international law of torture and enforced disappearance committed by the USA."
In his memoirs, former President Bush focused on the cases of two detainees held in the secret program.
Abu Zubaydah was held at various undisclosed locations from April 2002 to September 2006, In August 2002, he was subjected to "water-boarding," in which water is used to begin the process of drowning, more than 80 times.
Khalid Sheikh Mohammed was arrested on 1 March 2003 in Pakistan and transferred to secret CIA custody. That same month he was "water-boarded" 183 times, according to a report by the CIA Inspector General.
After three and a half years being held incommunicado in solitary confinement in secret locations, Khalid Sheikh Mohammed was transferred to military custody in Guantánamo, where he and Abu Zubayhdah remain held without trial, along with more than 150 others.
Water-boarding was far from the only technique alleged to have been used against Khalid Sheikh Mohammed, Abu Zubayhdah and others held in the secret program that violated the international prohibition of torture and other cruel, inhuman or degrading treatment.
Other techniques included prolonged nudity, threats, exposure to cold temperatures, stress positions, physical ass aults, prolonged use of shackles, and sleep.
"Under international law, anyone involved in torture must be brought to justice, and that does not exclude former President George W. Bush. If his admission is substantiated, the USA has the obligation to prosecute him," said Claudio Cordone.
"In the absence of a US investigation, other states must step in and carry out such an investigation themselves," said Claudio Cordone.
Background
The USA ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1994. Under UNCAT, in every case where there is evidence against a person of their having committed or attempted to commit torture, or of having committed acts which constitute complicity or participation in torture, the case must be submitted to its competent authorities for the purpose of prosecution.
Failing to proceed with a prosecution on the basis that the accused held public office of any rank, or citing justifications based in "exceptional circumstances", whether states of war or other public emergencies, is not permitted by UNCAT.
In another development yesterday, the US Department of Justice announced that no one will face criminal charges for the destruction by the CIA in 2005 of nearly 100 videotapes made of interrogations of Abu Zubaydah and 'Abd al-Nashiri, another detainee held in the secret CIA program.
Twelve of the tapes depicted use of "enhanced interrogation techniques", including "water-boarding". 'Abd al-Nashiri was subjected to waterboarding in late November 2002.
Again, torture and enforced disappearance are crimes under international law. As such, the destruction of the tapes may have concealed government crimes.
In a brief statement released on 9 November 2010, however, the Department of Justice announced that after an "exhaustive investigation" into the matter a federal prosecutor had concluded that he would "not pursue criminal charges for the destruction of the interrogation tapes".
Tuesday, November 9, 2010
Obama Administration Claims Unchecked Authority to Kill Americans Outside Combat Zones
ACLU and CCR Statement
WASHINGTON - The Obama administration today argued before a federal court that it should have unreviewable authority to kill Americans the executive branch has unilaterally determined to pose a threat. Government lawyers made that claim in response to a lawsuit brought by the American Civil Liberties Union and the Center for Constitutional Rights (CCR) charging that the administration's asserted targeted killing authority violates the Constitution and international law. The U.S. District Court for the District of Columbia heard arguments from both sides today.
"If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case."Not only does the administration claim to have sweeping power to target and kill U.S. citizens anywhere in the world, but it makes the extraordinary claim that the court has no role in reviewing that power or the legal standards that apply," said CCR Staff Attorney Pardiss Kebriaei, who presented arguments in the case. "The Supreme Court has repeatedly rejected the government's claim to an unchecked system of global detention, and the district court should similarly reject the administration's claim here to an unchecked system of global targeted killing."
The ACLU and CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi. The lawsuit asks the court to rule that, outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety. The lawsuit also asks the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.
"If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case. "It's the government's responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution."
The government filed a brief in the case in September, claiming that the executive's targeted killing authority is a "political question" that should not be subject to judicial review. The government also asserted the "state secrets" privilege, contending that the case should be dismissed to avoid the disclosure of sensitive information.
The lawsuit was filed against CIA Director Leon Panetta, Defense Secretary Robert Gates and President Barrack Obama in the U.S. District Court for the District of Columbia. Attorneys on the case are Jaffer, Ben Wizner, Jonathan Manes and Jennifer Turner of the ACLU; Kebriaei, Maria LaHood and Bill Quigley of CCR; and Arthur B. Spitzer of the ACLU of the Nation's Capital. Co-counsel in Yemen is Mohammed Allawo of the Allawo Law Firm and the National Organization for Defending Human Rights (HOOD).
WASHINGTON - The Obama administration today argued before a federal court that it should have unreviewable authority to kill Americans the executive branch has unilaterally determined to pose a threat. Government lawyers made that claim in response to a lawsuit brought by the American Civil Liberties Union and the Center for Constitutional Rights (CCR) charging that the administration's asserted targeted killing authority violates the Constitution and international law. The U.S. District Court for the District of Columbia heard arguments from both sides today.
"If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case."Not only does the administration claim to have sweeping power to target and kill U.S. citizens anywhere in the world, but it makes the extraordinary claim that the court has no role in reviewing that power or the legal standards that apply," said CCR Staff Attorney Pardiss Kebriaei, who presented arguments in the case. "The Supreme Court has repeatedly rejected the government's claim to an unchecked system of global detention, and the district court should similarly reject the administration's claim here to an unchecked system of global targeted killing."
The ACLU and CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, U.S. citizen Anwar Al-Aulaqi. The lawsuit asks the court to rule that, outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety. The lawsuit also asks the court to order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.
"If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case. "It's the government's responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution."
The government filed a brief in the case in September, claiming that the executive's targeted killing authority is a "political question" that should not be subject to judicial review. The government also asserted the "state secrets" privilege, contending that the case should be dismissed to avoid the disclosure of sensitive information.
The lawsuit was filed against CIA Director Leon Panetta, Defense Secretary Robert Gates and President Barrack Obama in the U.S. District Court for the District of Columbia. Attorneys on the case are Jaffer, Ben Wizner, Jonathan Manes and Jennifer Turner of the ACLU; Kebriaei, Maria LaHood and Bill Quigley of CCR; and Arthur B. Spitzer of the ACLU of the Nation's Capital. Co-counsel in Yemen is Mohammed Allawo of the Allawo Law Firm and the National Organization for Defending Human Rights (HOOD).
Monday, November 8, 2010
NSC Study Shows You are More Likely to Killed By a Cop Than a Terrorist
After 9/11, the fear of another attack on U.S. soil cleanly supplanted the fear of having one`s penis chopped off by a vengeful lover in the pantheon of irrational American fears.
While we`re constantly being told that another attack is imminent and that radical Islamic fundamentalists are two steps away from establishing a caliphate in Branson, Missouri, just how close are they? How do the odds of dying in a terrorist attack stack up against the odds of dying in other unfortunate situations?
The following ratios were compiled using data from 2004 National Safety Council Estimates, a report based on data from The National Center for Health Statistics and the U.S. Census Bureau. In addition, 2003 mortality data from the Center for Disease Control was used.
-- You are 17,600 times more likely to die from heart disease than from a terrorist attack
-- You are 12,571 times more likely to die from cancer than from a terrorist attack
-- You are 11,000 times more likely to die in an airplane accident than from a terrorist plot involving an airplane
-- You are 1048 times more likely to die from a car accident than from a terrorist attack
--You are 404 times more likely to die in a fall than from a terrorist attack
-- You are 87 times more likely to drown than die in a terrorist attack
-- You are 13 times more likely to die in a railway accident than from a terrorist attack
--You are 12 times more likely to die from accidental suffocation in bed than from a terrorist attack
--You are 9 times more likely to choke to death on your own vomit than die in a terrorist attack
--You are 8 times more likely to be killed by a police officer than by a terrorist
--You are 8 times more likely to die from accidental electrocution than from a terrorist attack
-- You are 6 times more likely to die from hot weather than from a terrorist attack
SOURCE: The Progressive Review
While we`re constantly being told that another attack is imminent and that radical Islamic fundamentalists are two steps away from establishing a caliphate in Branson, Missouri, just how close are they? How do the odds of dying in a terrorist attack stack up against the odds of dying in other unfortunate situations?
The following ratios were compiled using data from 2004 National Safety Council Estimates, a report based on data from The National Center for Health Statistics and the U.S. Census Bureau. In addition, 2003 mortality data from the Center for Disease Control was used.
-- You are 17,600 times more likely to die from heart disease than from a terrorist attack
-- You are 12,571 times more likely to die from cancer than from a terrorist attack
-- You are 11,000 times more likely to die in an airplane accident than from a terrorist plot involving an airplane
-- You are 1048 times more likely to die from a car accident than from a terrorist attack
--You are 404 times more likely to die in a fall than from a terrorist attack
-- You are 87 times more likely to drown than die in a terrorist attack
-- You are 13 times more likely to die in a railway accident than from a terrorist attack
--You are 12 times more likely to die from accidental suffocation in bed than from a terrorist attack
--You are 9 times more likely to choke to death on your own vomit than die in a terrorist attack
--You are 8 times more likely to be killed by a police officer than by a terrorist
--You are 8 times more likely to die from accidental electrocution than from a terrorist attack
-- You are 6 times more likely to die from hot weather than from a terrorist attack
SOURCE: The Progressive Review
Friday, November 5, 2010
Interrogation techniques at 'Britain's Abu Ghraib' revealed
Evidence of systematic and brutal mistreatment of Iraqi prisoners at a secret British military interrogation centre that is being described as the UK's Abu Ghraib emerged today during high court proceedings brought by more than 200 former inmates.
The court was informed that there is evidence detainees were starved, deprived of sleep, subjected to sensory deprivation and threatened with execution at the shadowy facilities near Basra operated by the Joint Forces Interrogation Team (JFIT).
It also received allegations that JFIT's prisoners were beaten and forced to kneel in stressful positions for up to 30 hours at a time, and that some were subjected to electric shocks. Some of the prisoners say they were subjected to sexual humiliation by female soldiers, while others allege that they were held for days in cells as small as one metre square.
The evidence of abuse is emerging just weeks after defence officials admitted that British soldiers and airmen are suspected of being responsible for the murder and manslaughter of a number of Iraqi civilians in addition to the high-profile case of Baha Mousa, the hotel receptionist tortured to death by troops in September 2003. One man is alleged to have been kicked to death aboard an RAF helicopter, while two others died after being held for questioning.
Last month, the Guardian disclosed that for several years after the death of Mousa, the British military continued training interrogators in techniques that include threats, sensory deprivation and enforced nakedness, in an apparent breach of the Geneva conventions. Trainee interrogators were told that they should aim to provoke humiliation, disorientation, exhaustion, anxiety and fear in the prisoners they are questioning.
Lawyers representing the former JFIT inmates now argue that there needs to be a public inquiry to establish the extent of the mistreatment, and to discover at which point ultimate responsibility lies, along the chain of military command and political oversight. Today's hearing marked the start of a judicial review intended to force the establishment of an inquiry. Michael Fordham QC, for the former inmates, said: "It needs to get at the truth of what happened in all these cases. It needs to deal with the systemic issues that arise out of them, and it needs to deal with the lessons to be learned."
Fordham said the question needs to be asked: "Is this Britain's Abu Ghraib?"
The Ministry of Defence is resisting an inquiry, however. In a statement to the Commons on Monday, Nick Harvey, the Liberal Democrat armed forces minister, said the MoD should be allowed to investigate the matter itself, adding: "A costly public inquiry would be unable to investigate individual criminal behaviour or impose punishments. Any such inquiry would arguably therefore not be in the best interests of the individual complainants who have raised these allegations."
Harvey said an inquiry would not be ruled out, "should serious and systemic issues" emerge as a result of the MoD's own investigations.
Among the most startling evidence submitted to the high court in London today were two videos showing the interrogation of a suspected insurgent who was taken prisoner in Basra in April 2007 and questioned about a mortar attack on a British base.
The recordings – among 1,253 made by the interrogators themselves – show this man being forced to stand to attention while two soldiers scream abuse at him and threaten him with execution. They ignore his complaints that he is not being allowed to sleep and that he has had nothing to eat or drink for two days. At the end of each session, he is forced to don a pair of blackened goggles, ear muffs are placed over his head, and he is ordered to place the palms of his hands together so that a guard can grasp his thumbs to lead him away.
At the end of one session, an interrogator can be heard ordering the guard to "rough the fucker off", or possibly "knock the fucker off". The guard then runs down a corridor, dragging the prisoner behind him by his thumbs. This man's lawyers say he was then severely beaten: they allege that the initial blows, and their client's moans, can be heard faintly at the end of the video.
An investigation by the army in January 2008, which examined just six cases of alleged abuse by British troops, described them as cause for "professional humility", but concluded that such incidents were not "endemic". However, the report did not address the possibility that some mistreatment was systematic, with those responsible acting under orders and in accordance with a pre-war training regime that called for repeated use of abusive techniques.
The court was informed that there is evidence detainees were starved, deprived of sleep, subjected to sensory deprivation and threatened with execution at the shadowy facilities near Basra operated by the Joint Forces Interrogation Team (JFIT).
It also received allegations that JFIT's prisoners were beaten and forced to kneel in stressful positions for up to 30 hours at a time, and that some were subjected to electric shocks. Some of the prisoners say they were subjected to sexual humiliation by female soldiers, while others allege that they were held for days in cells as small as one metre square.
The evidence of abuse is emerging just weeks after defence officials admitted that British soldiers and airmen are suspected of being responsible for the murder and manslaughter of a number of Iraqi civilians in addition to the high-profile case of Baha Mousa, the hotel receptionist tortured to death by troops in September 2003. One man is alleged to have been kicked to death aboard an RAF helicopter, while two others died after being held for questioning.
Last month, the Guardian disclosed that for several years after the death of Mousa, the British military continued training interrogators in techniques that include threats, sensory deprivation and enforced nakedness, in an apparent breach of the Geneva conventions. Trainee interrogators were told that they should aim to provoke humiliation, disorientation, exhaustion, anxiety and fear in the prisoners they are questioning.
Lawyers representing the former JFIT inmates now argue that there needs to be a public inquiry to establish the extent of the mistreatment, and to discover at which point ultimate responsibility lies, along the chain of military command and political oversight. Today's hearing marked the start of a judicial review intended to force the establishment of an inquiry. Michael Fordham QC, for the former inmates, said: "It needs to get at the truth of what happened in all these cases. It needs to deal with the systemic issues that arise out of them, and it needs to deal with the lessons to be learned."
Fordham said the question needs to be asked: "Is this Britain's Abu Ghraib?"
The Ministry of Defence is resisting an inquiry, however. In a statement to the Commons on Monday, Nick Harvey, the Liberal Democrat armed forces minister, said the MoD should be allowed to investigate the matter itself, adding: "A costly public inquiry would be unable to investigate individual criminal behaviour or impose punishments. Any such inquiry would arguably therefore not be in the best interests of the individual complainants who have raised these allegations."
Harvey said an inquiry would not be ruled out, "should serious and systemic issues" emerge as a result of the MoD's own investigations.
Among the most startling evidence submitted to the high court in London today were two videos showing the interrogation of a suspected insurgent who was taken prisoner in Basra in April 2007 and questioned about a mortar attack on a British base.
The recordings – among 1,253 made by the interrogators themselves – show this man being forced to stand to attention while two soldiers scream abuse at him and threaten him with execution. They ignore his complaints that he is not being allowed to sleep and that he has had nothing to eat or drink for two days. At the end of each session, he is forced to don a pair of blackened goggles, ear muffs are placed over his head, and he is ordered to place the palms of his hands together so that a guard can grasp his thumbs to lead him away.
At the end of one session, an interrogator can be heard ordering the guard to "rough the fucker off", or possibly "knock the fucker off". The guard then runs down a corridor, dragging the prisoner behind him by his thumbs. This man's lawyers say he was then severely beaten: they allege that the initial blows, and their client's moans, can be heard faintly at the end of the video.
An investigation by the army in January 2008, which examined just six cases of alleged abuse by British troops, described them as cause for "professional humility", but concluded that such incidents were not "endemic". However, the report did not address the possibility that some mistreatment was systematic, with those responsible acting under orders and in accordance with a pre-war training regime that called for repeated use of abusive techniques.
In new memoir, Bush makes clear he approved use of waterboarding
By R. Jeffrey Smith
Washington Post Staff Writer
Human rights experts have long pressed the administration of former president George W. Bush for details of who bore ultimate responsibility for approving the simulated drownings of CIA detainees, a practice that many international legal experts say was illicit torture.
In a memoir due out Tuesday, Bush makes clear that he personally approved the use of that coercive technique against alleged Sept. 11 plotter Khalid Sheik Mohammed, an admission the human rights experts say could one day have legal consequences for him.
In his book, titled "Decision Points," Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was "Damn right" and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.
Bush previously had acknowledged endorsing what he described as the CIA's "enhanced" interrogation techniques - a term meant to encompass irregular, coercive methods - after Justice Department officials and other top aides assured him they were legal. "I was a big supporter of waterboarding," Vice President Richard B. Cheney acknowledged in a television interview in February.
The Justice Department later repudiated some of the underlying legal analysis for the CIA effort. But Bush told an interviewer a week before leaving the White House that "I firmly reject the word 'torture,' " and he reiterates that view in the book. Reuters and the New York Times first published accounts of the book's contents Tuesday evening.
Since the 2003 waterboarding of Mohammed and similar interrogations of two other CIA detainees in 2002 and 2003, the agency has forsworn the technique, which involves pouring water onto someone's face while strapped to a board, to convince them they will shortly drown.
President Obama and Attorney General Eric H. Holder Jr. have both said waterboarding is an act of torture proscribed by international law, a viewpoint supported by a handful of Republican lawmakers on Capitol Hill and opposed by other Republicans. But the Obama administration has not sought to punish former Bush administration officials for approving it.
The 26-year-old United Nations Convention Against Torture requires that all parties to it seek to enforce its provisions, even for acts committed elsewhere. That provision, known as universal jurisdiction, has been cited in the past by prosecutors in Spain and Belgium to justify investigations of acts by foreign officials. But no such trials have occurred in foreign courts.
Tom Malinowski, the Washington advocacy director for Human Rights Watch, said, "Waterboarding is broadly seen by legal experts around the world as torture, and it is universally prosecutable as a crime. The fact that none of us expect any serious consequences from this admission is what is most interesting."
M. Cherif Boussiani, an emeritus law professor at DePaul University who co-chaired the U.N. experts committee that drafted the torture convention, said that Bush's admission could theoretically expose him to prosecution. But he also said Bush must have presumed that he would have the government's backing in any confrontation with others' courts.
Georgetown University law professor David Cole, a long-standing critic of Bush's interrogation and detention policies, called prosecution unlikely. "The fact that he did admit it suggests he believes he is politically immune from being held accountable. . . . But politics can change."
Washington Post Staff Writer
Human rights experts have long pressed the administration of former president George W. Bush for details of who bore ultimate responsibility for approving the simulated drownings of CIA detainees, a practice that many international legal experts say was illicit torture.
In a memoir due out Tuesday, Bush makes clear that he personally approved the use of that coercive technique against alleged Sept. 11 plotter Khalid Sheik Mohammed, an admission the human rights experts say could one day have legal consequences for him.
In his book, titled "Decision Points," Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was "Damn right" and states that he would make the same decision again to save lives, according to a someone close to Bush who has read the book.
Bush previously had acknowledged endorsing what he described as the CIA's "enhanced" interrogation techniques - a term meant to encompass irregular, coercive methods - after Justice Department officials and other top aides assured him they were legal. "I was a big supporter of waterboarding," Vice President Richard B. Cheney acknowledged in a television interview in February.
The Justice Department later repudiated some of the underlying legal analysis for the CIA effort. But Bush told an interviewer a week before leaving the White House that "I firmly reject the word 'torture,' " and he reiterates that view in the book. Reuters and the New York Times first published accounts of the book's contents Tuesday evening.
Since the 2003 waterboarding of Mohammed and similar interrogations of two other CIA detainees in 2002 and 2003, the agency has forsworn the technique, which involves pouring water onto someone's face while strapped to a board, to convince them they will shortly drown.
President Obama and Attorney General Eric H. Holder Jr. have both said waterboarding is an act of torture proscribed by international law, a viewpoint supported by a handful of Republican lawmakers on Capitol Hill and opposed by other Republicans. But the Obama administration has not sought to punish former Bush administration officials for approving it.
The 26-year-old United Nations Convention Against Torture requires that all parties to it seek to enforce its provisions, even for acts committed elsewhere. That provision, known as universal jurisdiction, has been cited in the past by prosecutors in Spain and Belgium to justify investigations of acts by foreign officials. But no such trials have occurred in foreign courts.
Tom Malinowski, the Washington advocacy director for Human Rights Watch, said, "Waterboarding is broadly seen by legal experts around the world as torture, and it is universally prosecutable as a crime. The fact that none of us expect any serious consequences from this admission is what is most interesting."
M. Cherif Boussiani, an emeritus law professor at DePaul University who co-chaired the U.N. experts committee that drafted the torture convention, said that Bush's admission could theoretically expose him to prosecution. But he also said Bush must have presumed that he would have the government's backing in any confrontation with others' courts.
Georgetown University law professor David Cole, a long-standing critic of Bush's interrogation and detention policies, called prosecution unlikely. "The fact that he did admit it suggests he believes he is politically immune from being held accountable. . . . But politics can change."
Monday, November 1, 2010
Let's Rally to Restore Peace
By Marjorie Cohn
In their Rally to Restore Sanity and/or Fear, Jon Stewart and Stephen Colbert effectively demonstrated how the media hypes fear. They brought out Kareem Abdul Jabbar to show that not all Muslims are terrorists. A couple of musical numbers dealt with the wars we are fighting. But neither Stewart nor Colbert mentioned Iraq or Afghanistan and how they are allowed to continue by the hyping of fear.
Like his predecessor, President Obama also hypes fear - by connecting his war in Afghanistan to keeping us safe, even though CIA director Leon Panetta recently admitted that only 50 to 100 al Qaeda fighters are there. Hoping to put the unpopular Iraq war behind him, Obama declared combat operations over, although 50,000 U.S. troops and some 100,000 mercenaries remain.
Tragically, both wars have largely disappeared from the national discourse. On October 22, Wikileaks released nearly 400,000 previously classified U.S. military documents about the Iraq war. They contain startling evidence of more than 1,300 incidents of torture, rape, abuse and murder by Iraqi security forces while the U.S. government looked the other way. During this time the Bush administration issued a "fragmentary order" called "Frago 242" not to investigate detainee abuse unless coalition troops were directly involved. U.S. authorities failed to investigate hundreds of reports of torture, rape, abuse and murder by Iraqi soldiers and police. Manfred Nowak, the United Nation's Special Rapporteur on Torture, called on Obama to order a complete investigation of U.S. forces' involvement in human rights abuses.
Many reports of abuse are supported by medical evidence. Prisoners were shackled, blindfolded, and hung by their wrists and ankles. Some were whipped with cables, chains, wire and pistols. Some were burned with acid and cigarettes. Electric shocks were applied to genitals, fingernails were ripped off, and fingers cut off. Some were sodomized with hoses and bottles. Six died from their torture.
And there are reports of widespread killing of civilians by U.S. and other coalition forces.
But after a couple of days of reporting about the largest incident of whistle blowing in our history, news of the Wikileaks revelations has disappeared from the news cycle.
Both torture and the targeting of civilians are war crimes. And, in spite of the reports of torture, Obama completed the handover of 9,250 detainees to the Iraqi government in July 2010. In so doing, he has violated the Convention Against Torture, which forbids a party from expelling, returning or extraditing a person to a country where there are substantial grounds to believe he will be in danger of being subjected to torture. This is called non-refoulement. The United States has ratified the Torture Convention, making it part of U.S. law under the Supremacy Clause of the Constitution.
The newly released documents show that between 2004 and 2009, at least 109,032 Iraqis died, including 66,081 civilians. More than 80 percent of those killed in incidents related to convoys or at checkpoints throughout Iraq were civilians. Pregnant women were shot dead, priests were kidnapped and murdered, and Iraqi prison guards used electric drills to get prisoners to confess.
A U.S. helicopter crew was granted approval to attack two Iraqis on the ground even though the pilots reported that the men were trying to surrender. Under the 1907 Hague Regulations, it is prohibited "to kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion."
Last year, 239 American soldiers took their own lives and 1,713 soldiers survived suicide attempts; 146 soldiers died from high-risk activities, including 74 drug overdoses. One-third of returning troops report mental health problems, and 18.5 percent of all returning service members have Post-Traumatic Stress Disorder or depression, according to a study by the Rand Corporation.
Jon Stewart spent a whole show last week interviewing Obama about everything from health care to the economy. But neither man mentioned the wars, even though the billions spent on them could go a long way toward fixing the economy and paying for health care.
It is time to put the wars back on the national agenda. Iraq Veterans Against the War issued a statement saying, "We grieve for the Iraqi and Afghan lives that were lost and destroyed in these wars. We also grieve for our brothers and sisters in arms, who have been lost to battle or suicide . . . We demand a real end to both wars, including immediate withdrawal of the 50,000 "non-combat" troops who remain in Iraq. The Iraq War Logs underscore the urgent need for peace, healing, and reparations for all who have been harmed by these wars. The first step is to bring our brothers and sisters home."
We cannot rely on Obama to end the wars. It's up to us to put sustained pressure on him to do it.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Her latest book is "Rules of Disengagement: The Politics and Honor of Military Dissent" (with Kathleen Gilberd). Her anthology, "The United States and Torture: Interrogation, Incarceration, and Abuse," will be published in December by NYU Press.
In their Rally to Restore Sanity and/or Fear, Jon Stewart and Stephen Colbert effectively demonstrated how the media hypes fear. They brought out Kareem Abdul Jabbar to show that not all Muslims are terrorists. A couple of musical numbers dealt with the wars we are fighting. But neither Stewart nor Colbert mentioned Iraq or Afghanistan and how they are allowed to continue by the hyping of fear.
Like his predecessor, President Obama also hypes fear - by connecting his war in Afghanistan to keeping us safe, even though CIA director Leon Panetta recently admitted that only 50 to 100 al Qaeda fighters are there. Hoping to put the unpopular Iraq war behind him, Obama declared combat operations over, although 50,000 U.S. troops and some 100,000 mercenaries remain.
Tragically, both wars have largely disappeared from the national discourse. On October 22, Wikileaks released nearly 400,000 previously classified U.S. military documents about the Iraq war. They contain startling evidence of more than 1,300 incidents of torture, rape, abuse and murder by Iraqi security forces while the U.S. government looked the other way. During this time the Bush administration issued a "fragmentary order" called "Frago 242" not to investigate detainee abuse unless coalition troops were directly involved. U.S. authorities failed to investigate hundreds of reports of torture, rape, abuse and murder by Iraqi soldiers and police. Manfred Nowak, the United Nation's Special Rapporteur on Torture, called on Obama to order a complete investigation of U.S. forces' involvement in human rights abuses.
Many reports of abuse are supported by medical evidence. Prisoners were shackled, blindfolded, and hung by their wrists and ankles. Some were whipped with cables, chains, wire and pistols. Some were burned with acid and cigarettes. Electric shocks were applied to genitals, fingernails were ripped off, and fingers cut off. Some were sodomized with hoses and bottles. Six died from their torture.
And there are reports of widespread killing of civilians by U.S. and other coalition forces.
But after a couple of days of reporting about the largest incident of whistle blowing in our history, news of the Wikileaks revelations has disappeared from the news cycle.
Both torture and the targeting of civilians are war crimes. And, in spite of the reports of torture, Obama completed the handover of 9,250 detainees to the Iraqi government in July 2010. In so doing, he has violated the Convention Against Torture, which forbids a party from expelling, returning or extraditing a person to a country where there are substantial grounds to believe he will be in danger of being subjected to torture. This is called non-refoulement. The United States has ratified the Torture Convention, making it part of U.S. law under the Supremacy Clause of the Constitution.
The newly released documents show that between 2004 and 2009, at least 109,032 Iraqis died, including 66,081 civilians. More than 80 percent of those killed in incidents related to convoys or at checkpoints throughout Iraq were civilians. Pregnant women were shot dead, priests were kidnapped and murdered, and Iraqi prison guards used electric drills to get prisoners to confess.
A U.S. helicopter crew was granted approval to attack two Iraqis on the ground even though the pilots reported that the men were trying to surrender. Under the 1907 Hague Regulations, it is prohibited "to kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion."
Last year, 239 American soldiers took their own lives and 1,713 soldiers survived suicide attempts; 146 soldiers died from high-risk activities, including 74 drug overdoses. One-third of returning troops report mental health problems, and 18.5 percent of all returning service members have Post-Traumatic Stress Disorder or depression, according to a study by the Rand Corporation.
Jon Stewart spent a whole show last week interviewing Obama about everything from health care to the economy. But neither man mentioned the wars, even though the billions spent on them could go a long way toward fixing the economy and paying for health care.
It is time to put the wars back on the national agenda. Iraq Veterans Against the War issued a statement saying, "We grieve for the Iraqi and Afghan lives that were lost and destroyed in these wars. We also grieve for our brothers and sisters in arms, who have been lost to battle or suicide . . . We demand a real end to both wars, including immediate withdrawal of the 50,000 "non-combat" troops who remain in Iraq. The Iraq War Logs underscore the urgent need for peace, healing, and reparations for all who have been harmed by these wars. The first step is to bring our brothers and sisters home."
We cannot rely on Obama to end the wars. It's up to us to put sustained pressure on him to do it.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Her latest book is "Rules of Disengagement: The Politics and Honor of Military Dissent" (with Kathleen Gilberd). Her anthology, "The United States and Torture: Interrogation, Incarceration, and Abuse," will be published in December by NYU Press.
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