New!! Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues - Edited by Marjorie Cohn with a foreword by Archbishop Desmond Tutu.
"Very important book" (Noam Chomsky)

Now out in paperback: The United States and Torture - A "gripping, interdisciplinary work" - see NYU Press.
"the best collection of essays on the topic" (Erwin Chemerinksy, Dean, UC Irvine Law School)
"an extraordinarily important book" (John W. Dean, Nixon White House counsel)

Order Rules of Disengagement“on the side of US service members who didn't check their conscience - and their sense of honor - at the door when they signed up." - see Truthout review.

Also, order Cowboy Republic - Makes the case for prosecuting Bush officials "with equisite legal detail" in "straightforward, everyman language" - see William Fisher review.

View Featured Broadcasts on Google and Professor Cohn's congressional testimony, interview on C-SPAN Book TV and
San Diego's "No War With Syria" rally.


Wednesday, December 17, 2014

“Cuban Five” at Heart of US-Cuba Deal

In the course of delivering his historic speech dramatically altering US Cuba policy, President Barack Obama briefly mentioned that the United States released three Cuban agents. These men are members of the “Cuban Five,” who were imprisoned for gathering information on US-based Cuban exile groups planning terrorist actions against Cuba. Without their release, Cuba would never have freed Alan Gross. And Obama could not have undertaken what ten presidents before him refused to do: normalize relations between the United States and Cuba.

Fighting Terrorism Against Cuba

On June 8, 2001, Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez and Rene Gonzalez were convicted of criminal charges, including conspiracy to commit espionage, and conspiracy to commit murder, in a trial in US district court in Miami. They were sentenced to four life terms and 75 years collectively.

In a 93-page decision, a three-judge panel of the Eleventh Circuit US Court of Appeals unanimously reversed their convictions in 2005, because the anti-Cuba atmosphere in Miami, extensive publicity, and prosecutorial misconduct denied them the right to a fair trial. The decision of the three-judge panel was later overturned by a decision of all the Eleventh Circuit Judges, sitting en banc, so the convictions stood.

But the Cuban Five have steadfastly maintained their innocence and there has been a worldwide campaign to free them. In Cuba, the five men are considered national heroes.

Since the Cuban revolution in 1959, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba and anyone who advocated normalization of relations between the United States and Cuba. Terrorist groups including Alpha 66, Commandos F4, Cuban American National Foundation, Independent and Democratic Cuba, and Brothers to the Rescue, have operated with impunity in the United States – with the knowledge and support of the FBI and CIA. 

One witness at the trial testified that Ruben Dario Lopez-Castro, who was associated with several anti-Castro organizations, and Orlando Bosch, who planted a bomb on a Cubana airliner in 1976, killing all 73 persons aboard, “planned to ship weapons into Cuba for an assassination attempt on [Fidel] Castro.”

The three-judge appellate panel noted, “Bosch has a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-related activities in the United States and in other countries.” Luis Posada Carriles, the other man responsible for downing the Cuban airliner, has never been criminally prosecuted in the United States. Declassified FBI and CIA documents at the National Security Archive show that Posada Carriles was the mastermind of the airplane bombing.

Several terrorist acts in Havana were documented in the panel’s decision, including explosions at eight hotels and the Cuban airport. An Italian tourist was killed and people were injured. Posada Carriles has twice publicly admitted responsibility for these bombings.

In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba. The men peacefully infiltrated criminal exile groups. The Five turned over the results of their investigation to the FBI. But instead of working with Cuba to fight terrorism, the US government arrested the five men.

Former high-ranking US military and security officials testified that Cuba posed no military threat to the Unites States. Although none of the five men had any classified material in their possession or engaged in any acts to injure the United States, and there was no evidence linking any of them to Cuba’s shooting down of two small aircraft flown by Cuban exiles, the Cuban Five were nonetheless convicted of all charges.

A poll of Miami Cuban-Americans reflected “an attitude of a state of war . . . against Cuba” which had a “substantial impact on the rest of the Miami-Dade community” where the trial was held. Dr. Lisandro Perez, Director of the Cuban Research Institute, concluded, “the possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero.”

The appellate panel concluded: “Here, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references.” Nevertheless, the five men never received a new trial.

Fernando Gonzales and Rene Gonzales were released and returned to Cuba after serving most of their 15-year sentences. Hernandez was serving two life sentences. Labanino and Guerrero had a few years left on their sentences. The latter three men were released as part of the historic deal.

The Door Is Now Open

In his speech, Obama mentioned the hypocrisy of the US refusal to recognize Cuba while we enjoy normalized relations with Communist China and Vietnam. He announced several other new measures designed to normalize relations between the United States and Cuba.

But Obama did not lift the US blockade of Cuba, which consists of economic sanctions against Cuba and restrictions on Cuban travel and commerce. Every year for 23 consecutive years, the United Nations General Assembly has called on the United States to lift the blockade, which has cost Cuba in excess of $ 1 trillion.

The US trade embargo of Cuba was initiated during the Cold War by President Dwight D. Eisenhower in response to a 1960 memo written by a senior State Department official. The memo proposed “a line of action that makes the greatest inroads in denying money and supplies to Cuba, to decrease monetary and real wages, to bring about hunger, desperation and the overthrow of the [Castro] government.” As Obama stated, that strategy has been a failure.

During the Clinton administration, Congress passed the Helms-Burton Act, which tightened the blockade. Obama promised to try to work with Congress to repeal this legislation.

Because of the significance of the Cuban exile community in Miami, and the strategic importance of Florida in US elections, no US president has dared to normalize relations with Cuba. As Alice Walker wrote in The Sweet Abyss, “Many of our leaders seem to view Florida’s Cuban conservatives, including the assassins and terrorists among them, as People Who Vote.” Obama has taken a courageous step in shifting US policy toward Cuba.

In their simultaneous speeches today, both Obama and Cuban President Raul Castro thanked Pope Francis for his efforts in helping to engineer the historic deal. CNN reported that bells were ringing in churches all over Havana. This is a wonderful day indeed.

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Tuesday, December 16, 2014

Torture Report Confirms Team Bush War Crimes

Reading the 499-page torture report just released by the Senate Select Committee on Intelligence was a disgusting experience. Even after many years of writing books and articles about the Bush torture policy, I was unprepared for the atrocious pattern of crimes our government committed against other human beings in our name.

One of the most hideous techniques the CIA plied on detainees was called "rectal rehydration" or "rectal feeding" without medical necessity - a sanitized description of rape by a foreign object. A concoction of pureed "hummus, pasta with sauce, nuts and raisins" was forced into the rectum of one detainee. Another was subjected to "rectal rehydration" to establish the interrogator's "total control over the detainee." This constitutes illegal, cruel, inhuman and degrading treatment and a humiliating outrage upon personal dignity.

Several detainees were waterboarded, a technique whereby water is poured into the nose and mouth to cause the victim to think he's drowning. One detainee in CIA custody was tortured on the waterboard 183 times; another was waterboarded 83 times. Waterboarding has long been considered torture, which is a war crime. Indeed, the United States hung Japanese military leaders for the war crime of torture after World War II.

Other "enhanced interrogation techniques" (EIT) included being slammed into walls, hung from the ceiling, kept in total darkness, deprived of sleep - sometimes with forced standing - for up to seven and one-half days, forced to stand on broken limbs for hours on end, threatened with mock execution, confined in a coffin-like box for 11 days, bathed in ice water, dressed in diapers. One detainee "literally looked like a dog that had been kenneled."

The executive summary of the torture report was made public, but the 6,700-page report remains classified. The summary depicts the CIA at best, as keystone cops, at worst, as pathological, lying, sadistic war criminals. The CIA lied repeatedly about the effectiveness of the torture and cruel treatment. Interrogations of detainees were much more brutal than the CIA represented to government officials and the American public.

Bush's CIA directors George Tenet, Porter Goss and Michael Hayden should be charged with crimes, along with their minions who carried out the torture.

Obama Violates Constitutional Duty

In light of the gruesome revelations in the torture report, it is high time President Barack Obama fulfilled his constitutional duty to enforce the law. The US Constitution states the president "shall take care that the laws are faithfully executed." Yet Obama refuses to sanction prosecutions of those responsible for the torture.

The report documents torture and cruel, inhuman, and degrading treatment, all of which violate US and international law. The War Crimes Act punishes torture as a war crime. The Torture Statute (Statute) provides that whoever "outside the United States" commits or attempts to commit torture shall be imprisoned for not more than 20 years "and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life." The statute defines torture as an "act intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control."

When the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions, we promised to prosecute or extradite those who commit or are complicit in the commission of torture. A ratified treaty is part of US law under the Constitution's Supremacy Clause. Yet the Obama administration persists in its refusal to bring the culprits to justice.

On January 11, 2009, nine days before Obama was sworn into office, George Stephanopoulos of ABC News confronted the newly elected president with the "most popular question on your own website, change.gov"- whether Obama would investigate torture by members of the Bush administration. Obama responded:

"I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward, as opposed to looking backward . . . At the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders, lawyering up . . . "

Now we know that many of those people at the CIA were using their extraordinary talents to devise new and more horrific ways to torture, humiliate, degrade and mistreat the people under their control.
To his credit, shortly after he was inaugurated, Obama signed an executive order banning torture. But hunger strikers at Guantánamo are still force-fed, a practice that violates the Torture Convention, according to the UN Committee Against Torture (CAT).

In 2009, US Attorney General Eric Holder ordered an investigation headed by veteran prosecutor Assistant US Attorney John Durham. But, two years later, Holder announced that his office would investigate only the deaths of Gul Rahman and Manadel al-Jamadi, who died while in CIA custody. Holder said that the US Department of Justice had "determined that an expanded criminal investigation of the remaining matters is not warranted." With that decision, Holder made clear that no one would be held accountable for the torture and abuse except possibly for the deaths of Rahman and al-Jamadi.



Ultimately, the Obama administration gave a free pass to those responsible for the two deaths. Rahman froze to death in 2002, after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. Al-Jamadi died after he was suspended from the ceiling by his wrists, which were bound behind his back. Military police officer Tony Diaz, who was present during al-Jamadi's torture, said that blood gushed from his mouth like "a faucet had turned on" when he was lowered to the ground. A military autopsy determined that al-Jamadi's death was a homicide. 

Nevertheless, Holder said that "based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt."

 

Torture is Who They Are

After the report was made public, the White House issued a statement calling the CIA interrogation program "harsh" and the treatment "troubling" - a study in understatement. Obama said that torture "is contrary to who we are."

But torture is who President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and Secretary of State Condoleezza Rice are. Under the well-established doctrine of command responsibility, commanders are liable for war crimes if they knew, or should have known, their subordinates would commit them and they did nothing to stop or prevent it.

In 2008, ABC News reported that the National Security Council Principals Committee consisting of Cheney, Rice, Rumsfeld, Tenet and Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. Bush admitted in his 2010 memoir that he authorized waterboarding. Cheney, Rice and Yoo have made similar admissions. Indeed, Cheney recently admitted on Fox News that Bush "was in fact an integral part of the interrogation program, and he had to approve it." Cheney added, "We did discuss the techniques. There was no effort on our part to keep him from that." Karl Rove told Fox News that Bush was "intimately involved in the decision" to use the EIT. Rove said Bush "was presented, I believe, 12 techniques, he authorized the use of 10 of them, including waterboarding."

Bush, Cheney, Rumsfeld and Rice should be should be prosecuted for their crimes.

The Senate report contains example after example of why "the use of the CIA's enhanced interrogation techniques was not an effective means of obtaining accurate information or gaining detainee cooperation." It says: "Multiple CIA detainees fabricated information, resulting in faulty intelligence . . . on critical intelligence issues including the terrorist threats which the CIA identified as its highest priorities." Yet the CIA continually lied that the EIT "saved lives."

The Legal Mercenaries Should Be Prosecuted

The report says the Department of Justice's (DOJ) Office of Legal Counsel (OLC) relied on the CIA's numerous misrepresentations when crafting OLC memos authorizing the techniques.

But the report gives OLC lawyers, including Deputy Assistant US Attorney General John Yoo (now a law professor at Berkeley) and Assistant Attorney General Jay Bybee (now a federal appellate court judge), free passes by failing to connect the dots leading to their criminal responsibility as war criminals.

The OLC's infamous "torture memos" contain twisted legal reasoning that purported to define torture more narrowly than US law allows. The memos advised high Bush officials how to avoid criminal liability under the War Crimes Act.

Yoo, Bybee and company knew very well that the techniques the CIA sought to employ were illegal. Their August 1, 2002, memo advised that attention grasp, walling, facial hold, facial slap (insult slap), cramped confinement box and the waterboard passed legal muster under the act. They knew these techniques constitute torture or cruel, inhuman or degrading treatment, in violation of the Torture Statute, and the Torture Convention.

The Torture Convention is unequivocal: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture." In light of that clear prohibition, the OLC lawyers knew that "necessity" and "self-defense" are not defenses to torture. Whether the CIA was being forthright about the necessity for, or effectiveness of, the techniques was irrelevant to the faulty legal analysis in the torture memos.

Moreover, after the report was released, Cheney told The New York Times: "The program was authorized. The agency did not want to proceed without authorization, and it was also reviewed legally by the Justice Department before they undertook the program."

Bush's attorneys general, Alberto Gonzales, John Ashcroft and Michael Mukasey, who oversaw the DOJ, should be criminally charged, together with the OLC's legal mercenaries.

The report also fails to connect the dots to the Pentagon. In December 2002, Rumsfeld approved interrogation techniques that included the use of dogs, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, deprivation of light and sound, using scenarios to convince the detainee that death or severely painful consequences are imminent for him and/or his family, and using a wet towel and dripping water to induce the misperception of suffocation.

And the report gives short shrift to the extraordinary rendition program, where detainees were illegally sent to other countries to be tortured. The report refers to "renditions," which are conducted with judicial process. But detainees were rendered to black sites in Syria, Libya and Egypt in order to avoid legal accountability.

No Impunity

"The individuals responsible for the criminal conspiracy revealed in [the Senate] report must be brought to justice and must face criminal penalties commensurate with the gravity of their crimes," according to Ben Emmerson, the UN Special Rapporteur on Counter Terrorism and Human Rights. And the UN's CAT said the Obama administration has failed to investigate the commission of torture and punish those responsible, including "persons in positions of command and those who provided legal cover to torture."

A special prosecutor should be appointed to investigate those from the CIA, the DOJ, and the high officials of the Bush administration who violated, or aided and abetted the violation of, our laws banning torture and cruel, inhuman and degrading treatment. The full 6,700-page Senate report should be declassified.

But Obama said, "Rather than another reason to refight old arguments, I hope that today's report can help us leave these techniques where they belong - in the past." Yes, these crimes were committed in the past. Crimes are always prosecuted after they are committed. Obama should be reminded of his constitutional duty to enforce the law.

If we don't bring the offenders to justice, they could eventually get their due when other countries prosecute them under "universal jurisdiction." Some crimes are so atrocious that countries can punish foreign nationals, the way Israel tried, convicted and executed Adolph Eichmann for his crimes during the Holocaust, even though they had no direct connection to Israel. Emmerson also said, "Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to."

The following grave breaches of the Geneva Conventions constitute war crimes punishable under the Rome Statute of the International Criminal Court (ICC), when committed as part of a plan or policy: torture, willful killing, inhuman treatment, and willfully causing great suffering or serious injury to body or health. The Senate report documented instances of willful killing (death); great suffering (hysterical, asking to die, attempts at self harm); and serious injuries (placed on life support, hallucinations) caused by the EIT. Yoo admitted in his 2006 book that the denial of Geneva protections and coercive interrogation "policies were part of a common, unifying approach to the war on terrorism."

Although the United States is not a party to the ICC, other countries could prosecute US nationals under universal jurisdiction for the core crimes in the Rome Statute.

Obama declared, "Hopefully, we don't do it again." But Obama's hopeful sentiments won't do the trick. The only way to prevent others from using torture and cruel treatment in the future is to bring those responsible to justice. We must send a message to would-be torturers that they will not enjoy impunity for their crimes. Torture has no statute of limitations.

In light of the torture report, the responsibility for the US targeted killing program - by drones and manned bombers - should be removed from the CIA, which cannot be trusted with such awesome responsibility.

Indeed, the entire targeted killing program should be the subject of the next congressional report. Anticipating the imminent release of the torture report, Obama stated, "We did a whole lot of things that were right," after September 11, "but we tortured some folks."

The Bush administration did torture some folks. But we are still doing other things that are not right. The Obama administration has avoided adding detainees to the Guantánamo roster by illegally assassinating them without judicial process. For this, members of Team Obama should also find themselves as criminal defendants someday.

 Copyright, Truthout. Reprinted with permission.

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Wednesday, December 3, 2014

Prosecutor Manipulates Grand Jury Process to Shield Office

You know the fix is in when a suspect who shot an unarmed man voluntarily provides four hours of un-cross examined testimony to a grand jury without taking the Fifth.

On August 9, Ferguson, Missouri Police Officer Darren Wilson gunned down 18-year-old African American Michael Brown. Since that fateful day, people across the country have protested against racial profiling, excessive police force, and the failure of the criminal justice system to provide accountability.

The nail in the coffin of "equal justice under law" came on November 24, when the St. Louis County grand jury refused to indict Wilson for any criminal charges in the shooting death of Brown. In a virtually unprecedented move, St. Louis Prosecutor Robert McCulloch in effect deputized the grand jurors to sit as triers of fact as in a jury trial.

In a normal grand jury proceeding, the prosecutor presents evidence for a few days and then asks the grand jurors to return an indictment, which they nearly always do. Of 162,000 federal cases in 2010, grand juries failed to indict in only 11 of them, according the Bureau of Justice Statistics.

The standard of proof for a grand jury to indict is only probable cause to believe the suspect committed a crime. It is not proof beyond a reasonable doubt, which is required for conviction at trial. Yet McCulloch's team presented testimony and documents to the panel for three months, evidence not subjected to adversarial testing by cross-examination.

Justice Antonin Scalia explained the function of the grand jury in United States v. Williams as follows:

"[I]t is the grand jury's function not 'to enquire . . . upon what foundation [the charge may be] denied,' or otherwise to try the suspect's defenses, but only to examine 'upon what foundation [the charge] is made' by the prosecutor. [citations omitted] As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented."

Every principle Scalia cited was violated in this case. The grand jury was asked to determine whether Wilson acted in self-defense. Wilson was allowed to give four hours of self-serving testimony to the grand jury. And for three months, prosecutors presented both incriminating and exculpatory evidence.
The prosecutor did not ask these grand jurors for an indictment. They were left to sift through the evidence on their own, with no prosecutorial guidance about what to charge. Indeed, the transcripts indicated that prosecutors asked Wilson gentle, leading questions designed to bolster his self-defense claim. For example, a prosecutor told Wilson, "You felt like your life was in jeopardy," followed by, "And use of deadly force was justified at that point, in your opinion?" But prosecutors rigorously challenged witnesses who contradicted Wilson's testimony.

As the grand jury is a secret proceeding, with only the grand jurors and the prosecutor present, the grand jurors did not hear any cross-examination of the officer's testimony, or that of other witnesses (which is customary in an adversarial jury trial). These grand jurors, who were nearing the end of their term, which began in May, knew the drill, since they had sat on several other cases. They knew the prosecutor always asks for indictments. Thus, when the prosecutor handled the Wilson case in a radically different manner, this signaled to the grand jurors that they were not expected to indict. And they did not.

Another unorthodox aspect of this case was McCulloch's announcement of the grand jury's decision on national television. Sounding like a defense attorney delivering a closing argument in a jury trial, McCulloch characterized and analyzed the witness testimony in the light most favorable to the officer.

McCulloch has a history of bias in favor of police involved in altercations with black men. But, ignoring the pleas of 7,000 residents in and near Ferguson who signed a petition, McCulloch refused to recuse himself in the Wilson case.

McCulloch had mischaracterized testimony in a 2000 case in which two black men were killed after officers fired 21 shots at them. As in the Wilson case, the reasonableness of the officers' use of deadly force was critical. In the 2000 case, the officers said the two victims were driving toward them, trying to run them down, and McCulloch claimed that all the witnesses corroborated the officers' story. A later federal investigation, however, determined that the car was not moving forward, and that only three of the thirteen officers said the car was moving forward.

Likewise, Wilson's claim that Brown was "charging" at him when the officer fired the fatal shots into the top of Brown's bowed head was critical to the reasonableness of Wilson's use of deadly force. When McCulloch announced the grand jury's decision, he characterized the witnesses who testified that Brown was "charging" the officer as believable, but dismissed the testimony of witnesses who said Brown was surrendering. McCulloch sounded like a defense attorney, not a prosecutor charged with representing "the people," including Brown.

Wilson fired 12 shots at Brown, six of which struck the teenager. There was a great deal of contradiction among the witnesses, including whether Brown's hands were up or down when Wilson shot at him. That is precisely why there should have been an indictment and a jury trial. Jurors would hear all of the evidence, subjected to adversarial testing by cross-examination. They would assess the credibility of the witnesses, and determine whether Wilson had committed any crime(s) beyond a reasonable doubt.

After reviewing the transcripts and evidence in the Wilson case, San Francisco Public Defender Jeff Adachi noted:

"Dorian Johnson, the key witness who was standing next to Brown during the encounter, provided strong testimony that called into question Wilson's claim that he was defending his life against a deranged aggressor. Johnson testified that Wilson, enraged that the young men did not obey his order to get on the sidewalk, threw his patrol car into reverse. While Wilson claimed Brown prevented him from opening his door, Johnson testified that the officer smacked them with the door after nearly hitting the pair. Johnson described the ensuing struggle as Wilson attempting to pull Brown through the car window by his neck and shirt, and Brown pulling away. Johnson never saw Brown reach for Wilson's gun or punch the officer. Johnson testified that he watched a wounded Brown partially raise his hands and say, 'I don't have a gun' before being fatally shot."

Adachi also wrote, "Prosecutors never asked Wilson why he did not attempt to drive away while Brown was allegedly reaching through his vehicle window or to reconcile the contradiction between his claim that Brown punched the left side of his face and the documented injuries which appear on his right side."

If properly directed, the grand jury may well have indicted Wilson for one of several offenses, including first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, assault with a deadly weapon, unlawful discharge of a firearm, and battery. Wilson testified that he was acting in self-defense when he shot Brown. If he were indicted, the jury would assess whether Wilson acted reasonably when he used deadly force against the teenager.

A police officer in Missouri can use deadly force in making an arrest or preventing escape if he reasonably believes it is necessary to effect the arrest and also reasonably believes the person to be arrested has committed or attempted to commit a felony, or may otherwise endanger life or inflict serious physical injury unless arrested without delay. The key word is "reasonably." The jury would be told to consider whether a deadly weapon was used, how far apart Wilson was from Brown when the former used deadly force, any disparities in the sizes of the two, the crime involved, etc. The evidence was contradictory about the distance between the two during the confrontation, both Wilson and Brown were the same height but Brown was heavier, and the officer contradicted himself about whether he knew that Brown was suspected of committing petty theft for stealing cigarillos (a misdemeanor, not a felony) before the officer stopped him.

In Tennessee v. Garner, the Supreme Court held that an officer cannot arrest an unarmed felony suspect by shooting him dead. If the suspect threatens the officer with a weapon, or there is probable cause to believe he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape. Although there is a dispute about whether Wilson knew that Brown was suspected of stealing cigarillos before stopping him, Brown had likely committed petty theft - a non-violent misdemeanor, not a felony.

Wilson's testimony raises several questions, listed in a piece by Ezra Klein on Vox: "Why did Michael Brown, an 18-year-old kid headed to college, refuse to move from the middle of the street to the sidewalk? Why would he curse out a police officer? Why would he attack a police officer? Why would he dare a police officer to shoot him? Why would he charge a police officer holding a gun? Why would he put his hand in his waistband while charging, even though he was unarmed?"

In my opinion, McCulloch should have filed charges against Wilson, who would then have had the right to a public preliminary hearing. He could present evidence and cross-examine the witnesses against him. And if it were televised, the viewing public could see that justice is done.

According to Adachi, "Wilson's description of Brown as a 'demon' with superhuman strength and unremitting rage, and his description of the neighborhood as 'hostile,' illustrate implicit racial bias that taints use-of-force decisions. These biases surely contribute to the fact that African Americans are 21 times more likely to be shot by police than whites in the US, but the statement's racial implications remain unexamined."

Because of the great social implications of cases involving police shootings of people of color, the presumption in these cases should be that prosecutors utilize the public preliminary hearing process instead of the secret grand jury proceeding.

In a unified statement, several civil and human rights organizations recommended an independent and comprehensive federal investigation by the Department of Justice (DOJ). They said the DOJ should also investigate all police killings and reports of the use of excessive force and racial profiling against youth and people of color. And they would require Body-Worn Cameras to record every police-civilian encounter, and increased community oversight of local law enforcement.

Thousands of people in cities throughout the country are protesting the travesty of justice that occurred in Ferguson. But, as the civil and human rights organizations wrote in their statement, "Nothing will be resolved until there is a systemic change throughout this nation in the implicit and explicit bias against people of color and particularly African-American youth who are routinely targeted by law enforcement even within their own communities."

This piece first appeared on Truthout.

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Friday, October 17, 2014

US Government Sanitizes Vietnam War History

For many years after the Vietnam War, we enjoyed the "Vietnam syndrome," in which US presidents hesitated to launch substantial military attacks on other countries. They feared intense opposition akin to the powerful movement that helped bring an end to the war in Vietnam. But in 1991, at the end of the Gulf War, George H.W. Bush declared, "By God, we've kicked the Vietnam syndrome once and for all!"

With George W. Bush's wars on Iraq and Afghanistan, and Barack Obama's drone wars in seven Muslim-majority countries and his escalating wars in Iraq and Syria, we have apparently moved beyond the Vietnam syndrome. By planting disinformation in the public realm, the government has built support for its recent wars, as it did with Vietnam.

Now the Pentagon is planning to commemorate the 50th anniversary of the Vietnam War by launching a $30 million program to rewrite and sanitize its history. Replete with a fancy interactive website, the effort is aimed at teaching schoolchildren a revisionist history of the war. The program is focused on honoring our service members who fought in Vietnam. But conspicuously absent from the website is a description of the antiwar movement, at the heart of which was the GI movement.

Thousands of GIs participated in the antiwar movement. Many felt betrayed by their government. They established coffee houses and underground newspapers where they shared information about resistance. During the course of the war, more than 500,000 soldiers deserted. The strength of the rebellion of ground troops caused the military to shift to an air war. Ultimately, the war claimed the lives of 58,000 Americans. Untold numbers were wounded and returned with post-traumatic stress disorder. In an astounding statistic, more Vietnam veterans have committed suicide than were killed in the war.

Millions of Americans, many of us students on college campuses, marched, demonstrated, spoke out, sang and protested against the war. Thousands were arrested and some, at Kent State and Jackson State, were killed. The military draft and images of dead Vietnamese galvanized the movement. On November 15, 1969, in what was the largest protest demonstration in Washington, DC, at that time, 250,000 people marched on the nation's capital, demanding an end to the war. Yet the Pentagon's website merely refers to it as a "massive protest."

But Americans weren't the only ones dying. Between 2 and 3 million Indochinese - in Vietnam, Laos and Cambodia - were killed. War crimes - such as the My Lai massacre - were common. In 1968, US soldiers slaughtered 500 unarmed old men, women and children in the Vietnamese village of My Lai. Yet the Pentagon website refers only to the "My Lai Incident," despite the fact that it is customarily referred to as a massacre.

One of the most shameful legacies of the Vietnam War is the US military's use of the deadly defoliant Agent Orange, dioxin. The military sprayed it unsparingly over much of Vietnam's land. An estimated 3 million Vietnamese still suffer the effects of those deadly chemical defoliants. Tens of thousands of US soldiers were also affected. It has caused birth defects in hundreds of thousands of children, both in Vietnam and the United States. It is currently affecting the second and third generations of people directly exposed to Agent Orange decades ago. Certain cancers, diabetes, and spina bifida and other serious birth defects can be traced to Agent Orange exposure. In addition, the chemicals destroyed much of the natural environment of Vietnam; the soil in many "hot spots" near former US army bases remains contaminated.

In the Paris Peace Accords signed in 1973, the Nixon administration pledged to contribute $3 billion toward healing the wounds of war and the post-war reconstruction of Vietnam. That promise remains unfulfilled.

Despite the continuing damage and injury wrought by Agent Orange, the Pentagon website makes scant mention of "Operation Ranch Hand." It says that from 1961 to 1971, the US sprayed 18 million gallons of chemicals over 20 percent of South Vietnam's jungles and 36 percent of its mangrove forests. But the website does not cite the devastating effects of that spraying.

The incomplete history contained on the Pentagon website stirred more than 500 veterans of the US peace movement during the Vietnam era to sign a petition to Lt. Gen. Claude M. "Mick" Kicklighter. It asks that the official program "include viewpoints, speakers and educational materials that represent a full and fair reflection of the issues which divided our country during the war in Vietnam, Laos and Cambodia." The petition cites the "many thousands of veterans" who opposed the war, the "draft refusals of many thousands of young Americans," the "millions who exercised their rights as American citizens by marching, praying, organizing moratoriums, writing letters to Congress," and "those who were tried by our government for civil disobedience or who died in protests." And, the petition says, "very importantly, we cannot forget the millions of victims of the war, both military and civilian, who died in Vietnam, Laos and Cambodia, nor those who perished or were hurt in its aftermath by land mines, unexploded ordnance, Agent Orange and refugee flight."

Antiwar activists who signed the petition include Tom Hayden and Pentagon Papers whistleblower Daniel Ellsberg. "All of us remember that the Pentagon got us into this war in Vietnam with its version of the truth," Hayden said in an interview with The New York Times. "If you conduct a war, you shouldn't be in charge of narrating it," he added.

Veterans for Peace (VFP) is organizing an alternative commemoration of the Vietnam War. "One of the biggest concerns for us," VFP executive director Michael McPhearson told the Times, "is that if a full narrative is not remembered, the government will use the narrative it creates to continue to conduct wars around the world - as a propaganda tool."

Indeed, just as Lyndon B. Johnson used the manufactured Tonkin Gulf incident as a pretext to escalate the Vietnam War, George W. Bush relied on mythical weapons of mass destruction to justify his war on Iraq, and the "war on terror" to justify his invasion of Afghanistan. And Obama justifies his drone wars by citing national security considerations, even though he creates more enemies of the United States as he kills thousands of civilians. ISIS and Khorasan (which no one in Syria heard of until about three weeks ago) are the new enemies Obama is using to justify his wars in Iraq and Syria, although he admits they pose no imminent threat to the United States. The Vietnam syndrome has been replaced by the "Permanent War."

It is no cliché that those who ignore history are bound to repeat it. Unless we are provided an honest accounting of the disgraceful history of the US war on Vietnam, we will be ill equipped to protest the current and future wars conducted in our name.

Copyright, Truthout.org. Reprinted with permission.

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Sunday, September 28, 2014

“I’m Just a Kid”: Tariq’s Ordeal

Last summer, Tariq Khdeir, a 15-year-old American citizen from Baltimore, accompanied his parents to the East Jerusalem neighborhood of Shuafat for a six-week visit with relatives. The first friend Tariq made when he arrived was his cousin, Muhammad Abu Khdeir, whom Tariq had not seen since he was four years old. “We had so much fun,” Tariq told a gathering at the national conference of the U.S. Campaign to End the Israeli Occupation in San Diego on September 19, 2014.

One night while he was in Jerusalem, Tariq saw some police with Muhammad. Tariq thought they had kidnapped Muhammad. Tariq wondered, “Is he gonna come back? Is he gonna come back alive”? But Muhammad did not come back alive. In retaliation for the deaths of three Israeli teenagers, Muhammad was beaten and burnt alive by three Jewish extremists.

After Muhammad’s murder, people took to the streets in protest. Israeli Defense Force soldiers began firing rubber bullets at them. Incredulous, Tariq thought, “Is this really happening in front of me”? Then Israeli soldiers began to run after Tariq. Panicked, Tariq ran.

“There was a 10-foot drop in front of me. Everyone jumped, but they tackled me, zip-tied me, and punched me in the face,” Tariq said. “I was like a punching bag until I became unconscious.” The image of Tariq’s badly swollen, deformed face appeared on media reports throughout the world last July.

When Tariq awoke, his face felt “like a bubble, it hurt so much.” He wondered, “Are they gonna kill me”? After six hours in jail, Tariq was finally taken to the hospital. His father and his uncle told him he might come home or go to jail. Tariq thought, “How could I go to jail? They beat me up.” Tariq told the group, “I’m just a kid.”

Tariq was taken back to jail after he left the hospital. He had to remove the hospital gown and put on his bloody clothes. There were nine people in a tiny cell; it was impossible to sit down. Two days later, Tariq was released. He thought, “I’m finally going home.” But he was placed on house arrest. No charges were ever filed against him. “That’s what they do to all the Palestinians,” Tariq said. 

“They took my cousins, and they’re still in jail, because they’re not American and they didn’t have a video that showed the brutality of the Israelis,” Tariq reported. “It’s inhumane.”

Tariq’s mother, Suha, said, “I cannot begin to describe the pain of seeing my dear son in prison after his viscious beating.” When she first saw Tariq, unconscious, with his swollen face in the hospital, “I didn’t recognize him; I didn’t know if he was alive. I didn’t know if he would survive.” Tariq was handcuffed to the hospital bed. Suha worried whether they would give him his antibiotics, whether they would take care of her son while he was in their custody. “The same people that beat him were now caring for him,” she said. “They told us 300 Palestinian teenagers would be killed for the three Israeli teens.”

Suha noted, “None of this would have happened if Israelis valued the lives of Palestinian Muslims and Christians as much as Israeli Jews.”

Keynote speaker Ali Abunimah followed Tariq and Suha at the conference. He mentioned that of the more than 2,100 Palestinians the Israelis killed in Gaza last summer, 521 were children.

Most of the fatalities were civilians. More than one of every 1,000 Gazans were killed, and one percent of the entire population of Gaza were killed or injured. Most of the weapons the Israelis employed in Gaza were artillery shells, which were used in unprecedented quantities. They are very inaccurate.

In response to Israeli demands that the Palestinians surrender their weapons, Abunimah asked, “Why talk about demilitarizing the oppressed? Let’s talk about demilitarizing the oppressor.”

After Muhammad was killed, the Israelis called it an “honor killing.” Muhammad’s father said, “they’ve killed my son twice.”

Two hundred Palestinian children are still in jail. Abunimah cited the “racist mentality” of many Israelis who chant, “Death to the Arabs.” Abunimah recalled President Barack Obama’s remark about “the shared values of the United States and Israel.”

Do those shared values include slaughtering civilians, torturing children, and holding people in custody indefinitely without charges?

Tariq did come back alive – but only because his beating was caught on tape and because he was a U.S. citizen.

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Wednesday, September 17, 2014

Obama Declares Perpetual War

President Barack Obama escalated the drone war he has conducted for the past five and a half years by declaring his intention to "degrade and ultimately destroy" the Islamic State, also known as ISIS, or ISIL. Since August 8, Obama has mounted at least 154 airstrikes in Iraq. He will send 475 additional US troops, increasing the total number in Iraq to about 1,600. Obama announced he would conduct "a systematic campaign of airstrikes" in Iraq, and possibly in Syria. But, not limiting himself to those countries, Obama declared the whole world his battlefield, stating "We will hunt down terrorists who threaten our country, wherever they are . . . if you threaten America, you will find no safe haven."

If, indeed, there were an imminent threat of attack on the United States, Obama would be legally entitled to launch a military operation. The United Nations Charter, which prohibits the use of military force, allows an exception when a country acts in self-defense. Under the well-established Caroline doctrine, the "necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation." The only problem is, Obama admitted, "We have not yet detected specific plotting against our homeland." Citing only the vague possibility of future "deadly attacks," Obama nevertheless declared a perpetual war with no specific end time.

The only other exception to the UN Charter's prohibition on military force is when the Security Council has given its approval. Obama said he would chair a meeting of the Council in two weeks' time to "mobilize the international community." But the Charter requires that the Council countenance the military operation before it occurs. The proposed resolution the Council is slated to adopt will reportedly call on countries to criminalize recruitment and travel of foreign fighters that join extremist military forces, and require the sharing of airline passenger information. It will not, however, authorize military force. Obama's war violates the UN Charter, a treaty the United States has ratified, making it part of US law under the Supremacy Clause of the US Constitution.

Obama's war also violates the War Powers Resolution, which permits the president to introduce US Armed Forces into hostilities or imminent hostilities only in three situations. First, after Congress has declared war, which has not happened in this case. Second, in "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces," which again, has not occurred. Third, when there is "specific statutory authorization." Obama has not asked Congress to authorize his military attacks.

Indeed, Obama declared, "I have the authority to address the threat from ISIL." He was relying on the Authorization for the Use of Military Force (AUMF) that Congress passed in 2001, which President George W. Bush used to invade Afghanistan. But that AUMF only authorized force against individuals, groups and countries that "planned, authorized, committed or aided" the September 11 terrorist attacks. ISIS did not even exist in 2001. In fact, Ayman al-Zawahiri, al-Qaeda's leader, formally kicked ISIS out of al-Qaeda earlier this year.

When it passed the 2001 AUMF, Congress specifically rejected the Bush administration's request for open-ended military authority "to deter and preempt any future acts of terrorism or aggression against the United States." Moreover, in the National Defense Authorization Act of 2012, Congress specified, "Nothing in this section is intended to . . . expand the authority of the President or the scope of the [2001 AUMF]."

Apparently, Obama is also relying on the 2002 AUMF, in which Congress authorized the president to use the armed forces as he determines necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq, and to enforce all relevant UN Security Council resolutions regarding Iraq. But since that threat and those resolutions were aimed at Saddam Hussein's weapons of mass destruction, that license, too, has ended. Indeed, in June, the White House declared that the 2002 AUMF "is no longer used for any US government activities." That means Obama's current war is not simply a continuation of Bush's Iraq war, and the 2002 AUMF does not provide Obama with legal license to mount his military attacks.

The War Powers Resolution requires Obama to secure a new Congressional authorization for his war within 60 days of launching "hostilities," or he must withdraw US forces within 30 days. The 60-day period runs out on October 7. Obama apparently feels unconstrained to comply with this law.

During the 2008 presidential campaign, Obama told the Boston Globe, "The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Earlier this year, Obama said, "no country can maintain its freedom in the face of continual war." Yet that is exactly what he is doing with his declaration of perpetual war.

Obama is violating both US and international law. He is also risking even more blowback against the United States. The US government has destabilized the region with Bush's Afghanistan and Iraq wars, and Obama's killing of thousands of people with drones. Many Sunnis are less afraid of ISIS than they are of the puppet Shiite government the United States installed in Iraq, which tortured, raped, murdered and arbitrarily detained Sunnis during the last two and a half years.

ISIS is a brutal group. But Obama is imploring Congress to fund the Free Syrian Army, which according to The New York Times, "went on to behead six [captured] ISIS fighters."

Playing both ends against the middle, Obama wants to fight ISIS in Syria without emboldening President Bashar Assad, who is also fighting ISIS. And Obama reserves the right to bomb in Syria, a sovereign country, in defiance of Assad. Obama is playing with fire.

Besides being illegal, Obama's war promises to exacerbate the volatile situation in the region, resulting in more hostility against the United States. Obama has said in the past there is no military solution to this conflict. He should use his leadership in the Security Council to secure a cease-fire, create a peacekeeping force, mount an embargo of all arms being sent to the region, and pursue a regional diplomatic solution enlisting Iran and Syria in the process. Perpetual war is not the answer.

Copyright, Truthout. Reprinted with permission.

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Monday, September 8, 2014

US Slammed for Failure to Fulfill Legal Obligation to Eliminate All Forms of Racial Discrimination

Three weeks after the shooting of Michael Brown in Ferguson, the Committee on the Elimination of Racial Discrimination (CERD) published a report detailing how the United States has failed to fulfill its legal obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (Convention). The CERD report was scathing in its criticism of the US for not complying with the Convention’s mandates. Since the US ratified this treaty, thereby becoming a State Party, it is part of US law under the Supremacy Clause of the Constitution.

States parties must comply with the obligations under the Convention, including submitting periodic reports to CERD regarding their progress in fulfilling their obligations. CERD is the body that monitors compliance of States Parties with the Convention. After reviewing the most recent US report, CERD responded with its concluding observations as follows:

CERD urged the US to prohibit racial discrimination in all its forms, including indirect discrimination. (The US currently prohibits only intentional discrimination, but not legislation and programs that are discriminatory in effect).

CERD urged the US to comply with the Convention’s mandate that States Parties adopt special measures to eliminate persistent disparities based on race or ethnic origin. (The US Supreme Court has narrowed the use of affirmative action in education).

CERD urged the US to specifically outlaw racial profiling. (The FBI, TSA, border enforcement officials and local police engage in racial profiling).

CERD urged the US to clean up radioactive and toxic waste, particularly in areas inhabited by racial and ethnic minorities and indigenous peoples. CERD also urged the US to prevent US-registered transnational corporations from adversely affecting, in particular, minorities and indigenous peoples. (Racial and ethnic minorities, and indigenous peoples are disproportionately affected by negative health impacts of pollution caused by extractive and manufacturing industries).

CERD urged the US to adopt legislation to prevent implementation of voting regulations with discriminatory impact. (The US Supreme Court invalidated procedural safeguards in the Voting Rights Act aimed at preventing the implementation of voting regulations that may have discriminatory effect). CERD also urged the US and all states to reinstate voting rights to persons convicted of felonies who have served their sentences.

CERD urged the US to abolish laws and policies making homelessness a crime. (A high number of homeless persons are disproportionately from racial and ethnic minorities, and homelessness is criminalized by loitering statutes).

CERD urged the US to intensify efforts to eliminate racial discrimination in access to housing, and ensure affordable and adequate housing for all. (There is persistent racial discrimination in housing and a high degree of segregation and concentrated poverty).

CERD urged the US to develop a concrete plan to address racial segregation in schools, and increase federal funds for such programs. (Students from racial and ethnic minorities attend segregated schools with unequal facilities).

CERD urged the US to ensure that everyone, particularly racial and ethnic minorities, who reside in states that have opted out of Medicaid expansion under the Affordable Care Act (ACA), and undocumented immigrants and their families living in the US for less than five years, have effective access to affordable and adequate health-care. (The US Supreme Court allows states to opt out of Medicaid expansion, and undocumented immigrants and their children are excluded from coverage under the ACA).

CERD urged the US to fulfill its obligation to protect the right to life and reduce gun violence by adopting legislation expanding background checks and prohibiting the practice of carrying concealed handguns in public. CERD also urged the US to review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to necessity and proportionality when deadly force is used in self-defense. (There is a high number of gun-related deaths and injuries, and Stand Your Ground laws are used to circumvent the limits of legitimate self-defense).

CERD urged the prompt and effective investigation of each allegation of excessive force by law enforcement officials, prosecution of alleged perpetrators and effective sanctions for those convicted, re-opening of investigations when new evidence becomes available, and adequate compensation for victims and their families. (Brutality and excessive force by law enforcement officials against racial and ethnic minorities has a disparate impact on African-Americans and undocumented migrants crossing the US-Mexico border; US Customs and Border Protection (CBP) agents enjoy impunity for abuses committed against Hispanic/Latino Americans and undocumented migrants).

CERD urged legal protection for the rights of non-citizens, including protection of migrants from exploitative and abusive working conditions; dealing with breaches of immigration law through civil, rather than criminal immigration system; guaranteeing legal representation in all immigration matters; and raising the minimum age for agricultural field work. (Immigration enforcement is increasingly militarized, leading to excessive and lethal force by CBP personnel; local law enforcement increasingly uses racial profiling to determine immigration status; immigrants are detained for prolonged periods of time; and undocumented immigrants are deported without access to justice).

CERD urged the US to intensify efforts to prevent and combat violence against women, particularly against American Indian and Alaska native women, and ensure all cases of violence against women are effectively investigated, prosecuted and sanctioned, and victims are provided appropriate remedies. (A disproportionate number of women from racial and ethnic minorities continue to be subjected to violence, including rape and sexual violence).

CERD urged the US to take concrete and effective steps to eliminate racial disparities at all stages of the criminal justice system. CERD also urged the US to impose, at the federal level, a moratorium on the death penalty with a view to abolishing the death penalty. (Members of racial and ethnic minorities are disproportionately arrested, incarcerated and subjected to harsher sentences, including life imprisonment without parole (LWOP) and the death penalty).

CERD urged the US to intensify efforts to address racial disparities in disciplinary measures, as well as the “school-to-prison pipeline”; and ensure juveniles are not transferred to adult courts and are separated from adults in custody. CERD also urged the US to abolish LWOP for those under 18 at the time of their crime, and the commutation of sentences for those already serving LWOP. (Youth from racial and ethnic minorities are disproportionately arrested at school and referred to the criminal justice system, prosecuted as adults, incarcerated in adult prison, and sentenced to LWOP).

CERD urged the US to end administrative detention without charge or trial at Guantanamo and the closure of the prison facility there without further delay. CERD also urged the US to guarantee the right to a fair trial in compliance with international human rights standards, and to ensure that any detainee not charged and tried is released immediately. (Non-citizens continue to be arbitrarily detained without effective and equal access to the ordinary criminal justice system, and risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment).

CERD urged the US to adopt necessary measures to eliminate the disproportionate impact of inadequate criminal defense programs on racial and ethnic minorities, by improving the quality of legal representation and adequately funding legal aid. (There is no right to counsel in civil proceedings, which disproportionately affects indigent racial and ethnic minorities seeking effective remedies for evictions, foreclosures, domestic violence, employment discrimination, termination of subsistence income or medical assistance, loss of child custody, and deportation).

CERD urged the US to guarantee the right of indigenous peoples to effective participation in decisions affecting them, eliminate undue obstacles to recognition of tribes, protect sacred sites, and halt the removal of indigenous children from their families and communities. (There is a lack of concrete progress in guaranteeing informed consent of indigenous peoples in decisions that affect them, burdensome obstacles to tribal recognition, insufficient protection of sacred sites, and continued removal of indigenous children from families and communities through the US child welfare system). 

CERD also urged the adoption of a National Action Plan to combat structural racial discrimination, and ensure that school curricula, textbooks and teaching materials address human rights themes and promote understanding among racial and ethnic minority groups.

CERD urged the US to recognize the competence of CERD to hear individual complaints. CERD also urged the US to ratify the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of the Their Families; the Convention on the Rights of Persons with Disabilities; and the International Convention for the Protection of All Persons from Enforced Disappearance. 

Finally, CERD urged the US to widely publicize the CERD’s recommendations. When the US ratifies a treaty, the legal obligations it assumes apply at the federal, state and local levels. And although, by ratifying a treaty, the US undertakes an obligation to publicize the terms of the treaty, the US government has not taken this responsibility seriously.

Copyright, Truthout.org. Reprinted with permission.

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Friday, August 22, 2014

National Lawyers Guild, other legal organizations urge International Criminal Court to investigate war crimes by Israeli, U.S. leaders in Gaza

The National Lawyers Guild (NLG), Center for Constitutional Rights, International Association of Democratic Lawyers, Arab Lawyers Union, and American Association of Jurists (Asociacion Americana de Juristas) sent a letter on Friday, August 22 to Fatou Bensouda, Prosecutor of the International Criminal Court (ICC), urging her to initiate an investigation of war crimes, genocide, and crimes against humanity committed by Israeli leaders and aided and abetted by U.S. officials in Gaza. Under the Rome Statute, the ICC has the power to hold individuals criminally accountable for the most serious of crimes.

“In light of the extreme gravity of the situation in the occupied Gaza Strip, in particular the large number of civilian casualties and large scale destruction of civilian property, including schools, mosques and hospitals, and the ongoing incitement to genocide perpetrated by Israeli political figures and leaders, the [NLG] and endorsing organizations strongly urge the Office of the Prosecutor to use its power under Article 15 of the Rome Statute to initiate a preliminary investigation” of crimes within the ICC’s jurisdiction.

“[Under the Rome Statute, an] individual can be convicted of a war crime, genocide or a crime against humanity . . . if he or she ‘aids, abets or otherwise assists’ in the commission or attempted commission of the crime, ‘including providing the means for its commission’,” the letter reads. “By transferring financial assistance, weapons and other military aid to Israel, members of the U.S. Congress, President Barack Obama and Defense Secretary Chuck Hagel have aided and abetted the commission of war crimes, genocide and crimes against humanity by Israeli officials and commanders in Gaza.”

The letter states that on July 20, 2014, in the midst of criminal behavior, Israel requested, and the U.S. Defense Department then authorized, the transfer to Israel of ammunition from the War Reserve Stockpile Ammunition. And in August 2014, Congress overwhelmingly approved, and Obama signed, a $225 million payment for Israel’s Iron Dome missile defense system.

“Israel’s clearly disproportionate use of force against the 1.8 million residents of Gaza appears to have little to do with any claim of security,” the organizations wrote, “but seems to be calculated to exact revenge against Palestinian civilians.” The letter quotes statements of Israeli officials advocating vengeance against “the entire Palestinian people “and “calling for the internment of Palestinians in concentration camps in Sinai and the destruction of the civilian infrastructure in Gaza.”

Allegations of War Crimes

The letter lists the following war crimes, and cites supporting factual allegations for each crime:

-willful killing (over 2,000 Palestinians, 80% civilians)
-willfully causing great suffering or serious injury (wounding nearly 10,000 Palestinians, 2,200 children)
-unlawful, wanton and unjustified extensive destruction and appropriation of property (tens of thousands of Palestinians lost homes, severe damage to infrastructure)
-willful deprivation of fair trial rights (450 Palestinians held without charge or trial)
-intentional attacks against civilians or civilian objects or humanitarian vehicles, installations and personnel (bombing of numerous schools, UN places of refuge, hospitals, ambulances, mosques)
-intentionally launching unjustified attacks, knowing they will kill or injure civilians, damage civilian objects, or cause long-term and severe damage to the natural environment (use of ‘Dahiya Doctrine’ to apply “disproportionate force” and cause “great damage and destruction to civilian property and infrastructure, and suffering to civilian populations,” as defined in UN Human Rights Council [Goldstone] Report) (Israel virtually flattened town of Khuza’a).

Allegations of Genocide

Article 6 of the Rome Statute defines “genocide” as the commission of any of the following acts with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: (a) killing members of the group; (b) causing serious bodily harm to members of the group; or (c) deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part.

The letter says, “In light of the fact that Palestinians in Gaza had no ability to flee for safety, it must be assumed the responsible Israeli officials knew that huge casualties and destruction of civilian property and infrastructure were certain during the massive bombardment by land, air and sea of the occupied Gaza Strip.” The letter also lists “the repeatedly inciting public statements made by Israeli officials before and during the course of Operation Protective Edge and the history of Israel’s repeated bombardment of Palestinian refugee camps and populations in Lebanon and in Gaza” as evidence that “Israeli officials may be implementing a plan to destroy the Palestinian population, at least in part.” 

Allegations of Crimes against Humanity

Article 7 of the Rome Statute defines “crimes against humanity” as the commission of any of the following, when part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Persecution against a group or collectivity based on its political, racial, national, ethnic or religious character; or (c) The crime of apartheid (inhumane acts committed in the context of an institutional regime of systematic oppression and domination by one racial group over another racial group, with the intent to maintain that regime).

The letter states, “Israeli forces have killed, wounded, summarily executed and administratively detained Palestinians, Hamas forces and civilians alike. Israeli forces intentionally destroyed the infrastructure in Gaza.” It also says Israel keeps Palestinians caged in “the world’s largest open air prison,” and “controls all ingress and egress to Gaza, and limits … access to medicine and other essentials.” Finally, the letter cites arbitrary arrest and administrative detention; expropriation of property; destruction of homes, crops and trees; separate areas and roads; segregated housing, legal and educational systems for Palestinians and Jews; the illegal barrier wall encroaching on Palestinian territory; hundreds of illegal Jewish settlements on Palestinian land; and denying the right of Palestinians to return to their homeland because they are not Jews.

The signatories to the letter conclude that “[t]he initiation of an investigation would send a clear message to all involved either in committing or in aiding and abetting of the aforementioned crimes that they stand to be held personally accountable for their actions.”

It remains to be seen whether the ICC will exercise jurisdiction in such a case since neither Israel nor the United States is a party to the Rome Statute. But if the ICC determines that Palestine can accede to the Rome Statute, the ICC could take jurisdiction over crimes committed by Israelis and Americans in Palestinian territory.

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Friday, August 8, 2014

US Leaders Aid and Abet Israeli War Crimes, Genocide & Crimes against Humanity

By sending vast amounts of military aid to Israel, members of the US Congress, President George W. Bush, President Barack Obama and Defense Secretary Chuck Hagel have aided and abetted the commission of war crimes, genocide and crimes against humanity by Israeli officials and commanders in Gaza. An individual can be convicted of a war crime, genocide or a crime against humanity [PDF] in the International Criminal Court (ICC) if he or she "aids, abets or otherwise assists" in the commission or attempted commission of the crime, "including providing the means for its commission."

There is growing evidence that Israeli leaders and commanders have committed the following war crimes, genocide and crimes against humanity as defined in the Rome Statute for the ICC. US military aid has aided, abetted and assisted the commission of these crimes by providing Israel with the military means to commit them.

During Operation Protective Edge, Israeli forces again used the Dahiye Doctrine, which, according to the UN Human Rights Council [Goldstone] Report [PDF], involves "the application of disproportionate force and causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations."

A summary of Israeli leaders' extensive crimes is presented below.

US military aid to Israel

According to the Congressional Research Service, in 2007, the Bush Administration agreed to provide Israel with $30 billion [PDF] in military assistance from 2009 to 2018, provided in annual increments of $3.1 billion. During his March 2013 visit to Israel, Obama pledged that the US would continue to provide Israel with multi-year commitments of military aid subject to the approval of Congress.

Since 2012, the US has sent $276 million worth of weapons and munitions to Israel, not including exports of military transport equipment and high technologies. From January to May 2014, the US transferred to Israel almost $27 million for rocket launchers, $9.3 million worth of parts of guided missiles and nearly $762,000 for bombs, grenades and munitions of war.

On July 20, 2014, Israel requested additional ammunition, including 140mm tank rounds and 40mm illumination grenades, and the Defense Department approved the sale three days later. It came from a $1 billion stockpile of ammunition the US military stores in Israel for that country's use; it is called War Reserve Stockpile Ammunition-Israel. In early August 2014, both houses of Congress overwhelmingly passed, and Obama signed, an appropriation of $225 million for Israel's Iron Dome missile defense system, which has also been used in Gaza. The Senate vote was unanimous. With no debate, the House of Representatives voted 395 to 8 to approve the deal.

Here is a summary of the crimes, as defined in the Rome Statute, Israeli leaders have committed and US leaders have aided and abetted: 

War crimes

(1) Willful killing: Israeli forces have killed nearly 2,000 Palestinians (more than 400 children and over 80% civilians). Israel used 155-millimeter artillery, which, according to Human Rights Watch, is "utterly inappropriate in a densely populated area, because this kind of artillery is considered accurate if it lands anyplace within a 50-meter radius."

(2) Willfully causing great suffering or serious injury to body or health: Nearly 10,000 people, 2,500 of them children, have been wounded. Naban Abu Shaar told the Daily Beast that the dead bodies from what appeared to be a "mass execution" in Khuza'a looked like they were "melted" and were piled on top of each other; assault rifle bullet casings found in the house were marked "IMI" (Israel Military Industries). UNICEF said the Israeli offensive has had a "catastrophic and tragic impact" on children in Gaza; about 373,000 children have had traumatic experiences and need psychological help. The UN Relief and Works Agency for Palestine Refugees (UNRWA) said: "There's a public health catastrophe going on. You know, most of the medical facilities in Gaza are non-operational."

(3) Unlawful and wanton, extensive destruction and appropriation of property not justified by military necessity: Tens of thousands of Palestinians have lost their homes. More than 1,300 buildings were destroyed and 752 were severely damaged. Damage to sewer and water infrastructure has affected two-thirds of Gazans. On July 20, Israeli forces virtually flattened the small town of Khuza'a; one man counted 360 shell attacks in one hour. Reconstruction of Gaza is estimated to cost $6 billion. Israel shrunk Gaza's habitable land mass by 44 percent, establishing a 3 km "no-go" zone for Palestinians; 147 square miles of land will be compressed into 82 square miles. Oxfam described the level of destruction as "outrageous ... much worse than anything we have seen in previous [Israeli] military operations."

(4) Willfully depriving a prisoner of war or a civilian the rights of fair and regular trial: Nearly 2,000 Palestinians were arrested by Israeli forces during July 2014, according to the Palestinian Prisoners Center for Studies. Prisoners include 15 members of the Palestinian Legislative Council, about 240 children, dozens of women, journalists, activists, academics and 62 former prisoners previously released in a prisoner exchange. Israeli forces executed many prisoners after arrest, either by directly firing on them, refusing to allow treatment or allowing them to bleed to death. More than 445 prisoners are being held without charge or trial under administrative detention.

(5) Intentionally directing attacks against the civilian population, civilian objects, or humanitarian vehicles, installations and personnel: "The civilian population in the Gaza Strip is under direct attack," reads a joint declaration of over 150 international law experts. Israeli forces violated the principle of "distinction," which forbids deliberate attacks on civilians or civilian objects. Israeli forces bombed 142 schools (89 run by the UN), including six UN schools in which civilians were taking refuge. Israeli forces shot and killed fleeing civilians (warnings, which must effectively give civilians time to flee before bombing, do not relieve Israel from its legal obligations not to target civilians). Israeli forces repeatedly bombed Gaza's only power plant and other infrastructure, which are "beyond repair." Israeli forces bombed one-third of Gaza's hospitals, 14 primary healthcare clinics and 29 ambulances. At least five medical staff were killed and tens of others were injured.

(6) Intentionally launching attacks with knowledge they will cause incidental loss of life or injury to civilians or damage to civilian objects or long-term severe damage to the natural environment, if they are clearly excessive in relation to the anticipated military advantage: The principle of "proportionality" forbids disproportionate and excessive civilian casualties compared to the claimed military advantage gained in the attack. The Dahiye Doctrine directly violates this principle. Responding to Hamas' rockets with 155-millimeter artillery is disproportionate. Although nearly 2,000 Palestinians (over 80 percent civilians) have been killed, 67 Israelis (all but three of them soldiers) have been killed. The coordinates of all UN facilities were repeatedly communicated to the Israeli forces; they nevertheless bombed them multiple times. Civilians were attacked in Shuja'iyyah market.

(7) Attacking or bombarding undefended towns, villages, dwellings or buildings, or intentionally attacking religious, educational and medical buildings, which are not military objectives: On July 20, Israeli forces virtually flattened the small town of Khuza'a; one man counted 360 shell attacks in one hour. Israeli forces bombed 142 schools (89 run by the UN), one-third of Gaza's hospitals, 14 primary healthcare clinics, and 29 ambulances. Israeli shelling completely destroyed 41 mosques and partially destroyed 120 mosques.

Genocide

(a) With the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: Palestinians, including primarily civilians, and Palestinian infrastructure necessary to sustain life were deliberately targeted by Israeli forces.

(b) The commission of any of the following acts

(i) killing members of the group: Israeli forces killed nearly 2,000 Palestinians.

ii) causing serious bodily or mental harm to members of the group: Israeli forces wounded 10,000 Palestinians.

(iii) deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part: Israeli forces devastated Gaza's infrastructure, knocking out Gaza's only power plant, and destroying homes, schools, buildings, mosques and hospitals.

Crimes against humanity

(A) The commission of murder as part of a widespread or systematic attack against any civilian population: Israeli forces relentlessly bombed Gaza for one month, killing nearly 2,000 Palestinians, more than 80 percent of whom were civilians. Israeli forces intentionally destroyed Gaza's infrastructure, knocking out Gaza's only power plant, and destroying homes, schools, buildings, mosques and hospitals.

(B) Persecution against a group or collectivity based on its political, racial, national, ethnic or religious character, as part of a widespread or systematic attack against any civilian population: Israeli forces killed, wounded, summarily executed, and administratively detained Palestinians, Hamas forces and civilians alike. Israel forces intentionally destroyed the infrastructure of Gaza, populated by Palestinians. UN Secretary General Ban Ki-moon said: "the massive death and destruction in Gaza have shocked and shamed the world." He added the repeated bombing of UN shelters facilities in Gaza was "outrageous, unacceptable and unjustifiable."

(C) The crime of apartheid (inhumane acts committed in the context of an institutional regime of systematic oppression and domination by one racial group over another racial group, with the intent to maintain that regime): Ali Hayek, head of Gaza's federation of industries representing 3,900 businesses that employ 35,000 people, said: "After 30 days of war, the economic situation has become, like, dead. It seems the occupation intentionally destroyed these vital factories that constitute the backbone of the society." Israel maintains an illegal barrier wall that encroaches on Palestinian territory and builds illegal Jewish settlements on Palestinian lands. Israel keeps Gazans caged in what many call "the world's largest open air prison." Israel controls all ingress and egress to Gaza, limits Gazans' access to medicine, subjects Palestinians to arbitrary arrest, expropriates their property, maintains separate areas and roads, segregated housing, different legal and educational systems for Palestinians and Jews and prevents mixed marriages. Only Jews, not Palestinians, have the right to return to Israel-Palestine.

Collective punishment

Although the Rome Statute does not include the crime of collective punishment, it is considered a grave breach of the Fourth Geneva Convention, which constitutes a war crime. Collective punishment means punishing a civilian for an offense he or she has not personally committed; it forbids reprisals against civilians and their property (civilian objects).

Ostensibly to rout out Hamas fighters, Israel has wreaked unprecedented devastation on the people of Gaza, killing nearly 2,000 people (more than 80 percent of them civilians) and destroying much of the infrastructure of Gaza. This constitutes collective punishment.

On August 5, 2014, veteran Israeli military advisor Giora Eiland advocated collective punishment of Gaza's civilian population, saying: "In order to guarantee our interests versus the other side's demands, we must avoid the artificial, wrong and dangerous distinction between the Hamas people, who are 'the bad guys,' and Gaza's residents, which are allegedly 'the good guys.'" That is precisely the strategy Israel has employed during Operation Protective Edge.

Israel's occupation of Palestinian lands also constitutes collective punishment. Israel maintains effective control over Gaza's land, airspace, seaport, electricity, water, telecommunications and population registry. Israel deprives Gazans of food, medicine, fuel and basic services.

Prospects for criminal accountability

Both Israel and the US have refused to ratify the Rome Statute. But if Palestine were a party to the statute, the ICC could exercise jurisdiction over crimes committed by Israelis and Americans in Palestinian territory. The ICC could also take jurisdiction if the UN Security Council refers the matter to the ICC, or if the ICC prosecutor initiates an investigation of the crime. The US would veto any Security Council referral to the ICC. And the ICC prosecutor has not initiated an investigation. So the question is whether Palestine can ratify the statute, thereby becoming a party to the ICC.

In 2009, the Palestinian National Authority filed a declaration [PDF] with the ICC accepting the court's jurisdiction. In 2012, the UN General Assembly overwhelmingly recognized Palestine as a non-member observer state. During the present war, the Palestinian minister of justice and the deputy minister of justice both submitted documents to the ICC indicating that the 2009 declaration is still valid. On August 5, 2014, the Palestinian minister of foreign affairs met with officials from the ICC and inquired about the procedures for Palestine to become a party to the statute.

On July 25, 2014, a French lawyer filed a complaint with the ICC on behalf of the Palestinian justice minister. Citing Israel's military occupation of Palestinian territories, Israel's blockade of the Gaza Strip and the ongoing military operations there, the complaint alleges that Israel committed war crimes and other crimes. The Palestinian government has not formally commented on this complaint.

On July 23, 2014, the UN Human Rights Council established a commission of inquiry into Israeli violations of international human rights and international humanitarian law. The resolution also called on parties to the Fourth Geneva Convention to convene and respond to the alleged violations. That convention requires parties to prosecute violators. Countries can bring foreign nationals to justice for war crimes, genocide and crimes against humanity under the well-established doctrine of universal jurisdiction. Genocide charges could also be brought under the Genocide Convention, to which both Israel and the United States are parties. That convention also punishes complicity in genocide; US leaders' provision of military aid would constitute complicity.

Although the Israeli and US governments continue to maintain that Israel has only acted in self-defense against Hamas' terrorism, the weight of world opinion points in the opposite direction. There is overwhelming opposition to Israeli aggression in Gaza and calls for justice and accountability.

Both Israeli and US leaders must be criminally prosecuted for committing and aiding and abetting these crimes.

This piece first appeared on Jurist.

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Tuesday, July 15, 2014

Israel Inflicts Illegal Collective Punishment on Gaza

Israel has commenced full-scale warfare on the people of Gaza. The recent tensions began about six weeks ago when Israeli forces abducted 17 Palestinian teenage boys in the occupied West Bank. Then, on June 12, three Israeli teenagers were abducted in the southern West Bank; Israel blamed Hamas. After the three youths were found dead, a group of Israelis tortured and killed a Palestinian teenager in Jerusalem. Finally, on July 7, Israel launched a large military operation dubbed "Operation Protective Edge" in the Gaza Strip.

During the past week, Israel has killed 162 Palestinian civilians and counting, including 34 children. In addition to more than 1,200 Israeli airstrikes, Israel has threatened to launch a ground invasion of Gaza. Israel attacked a center for the mentally and physically disabled in Beit Zahiya, killing three patients and a nurse. In addition, Israel has stepped up demolitions of Palestinian homes, and administrative detentions of Palestinians without charge or trial.

The UN Office for the Coordination of Humanitarian Affairs(OCHA) reported that 77 percent of the people Israel has killed in Gaza were civilians. Although Hamas has launched about 1,000 rockets into Israel in the past week, no Israelis have been killed.

UN High Commissioner for Human Rights Navi Pillay expressed alarm at the Israeli military operations as well as the indiscriminate firing of rockets from Gaza into Israel. "For its part, the Government of Israel must take all possible measures to ensure full respect for the principles of distinction, proportionality and precautions in attack, during the conduct of hostilities, as required by international humanitarian law. In all circumstances, they must avoid targeting civilians," she said. In light of "deeply disturbing reports that many of the civilian casualties, including of children, occurred as a result of strikes on homes," Pillay continued, "serious doubt [has been raised] about whether the Israeli strikes have been in accordance with international humanitarian law and international human rights law."

The principle of distinction forbids deliberate attacks on civilians or civilian objects. The proportionality principle forbids disproportionate and excessive civilian casualties compared to the claimed military advantage gained in the attack. Precaution requires that measures be taken in advance to ensure compliance with the principles of distinction and proportionality, to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, and requires taking all feasible precautions in the choice of means and methods of warfare.

Collective Punishment by Israel

Headlines in the mainstream media falsely portray an equivalence of firepower between Israelis and Palestinians in Gaza. But Israel's use of force greatly exceeds that of the Palestinians, and the asymmetric warfare continues to escalate. The Obama administration and Congress have condemned the rocket fire into Israel by Hamas and the "deliberate targeting of civilians." But Washington says Israel has a right to defend itself, justifying Israel's bombing campaign in Gaza and blaming Hamas, while minimizing Israel's role in creating and escalating the violence.

Israel's overwhelming use of military force constitutes collective punishment, which is a war crime. The laws of war, also known as international humanitarian law, are primarily found in the Geneva Conventions. Article 33 of the Fourth Geneva Convention, to which Israel is a party, specifically forbids collective punishment. It says, "No protected person [civilian] may be punished for an offense he or she has not personally committed . . . Reprisals against protected persons and their property are prohibited."

Israel's collective punishment of Palestinians in Operation Protective Edge constitutes a deliberate policy to punish the entire population of Gaza. Since the Palestinians concluded a unity agreement between Fatah in the West Bank and Hamas in Gaza in June, Israel has stepped up the construction of illegal Israeli settlements in the West Bank and Jerusalem. Richard Falk, former UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, noted that Israel broke off the peace talks with the Palestinians before the formation of the Palestinian unity agreement.

Israeli Prime Minister Benjamin Netanyahu has blamed Hamas for the kidnapping and killing of the three Israeli teens in order to discredit the new Palestinian unity agreement. In what amounts to a catch-22, Netanyahu has cynically stymied the peace negotiations because, he said, there was no unified voice to speak for the Palestinians. But now that the Palestinians have a unity agreement, Netanyahu is driving a wedge between Fatah and Hamas in an effort to justify and maintain Israel's occupation of Palestinian territory.

The 140 square-mile Gaza Strip, home to 1.7 million people (half of whom are children), is one of the most densely populated areas in the world. It is often described as the world's largest "open air prison," as Israel maintains a tight blockade, restricting all ingress and egress. Since mid-2013, unemployment has dramatically increased and delivery of basic services has decreased. More than 90 percent of the water in Gaza is unsuitable for drinking. The health system is close to collapse, according to the World Health Organization. Last year, the UN Committee on the Rights of the Child reported, "Palestinian children arrested by [Israeli] military and police are systematically subject to degrading treatment, and often to acts of torture." The committee also concluded that Israel's "illegal long-standing occupation" of Palestinian land, continued expansion of "unlawful" Jewish settlements, construction of the barrier wall into the West Bank [found by the International Court of Justice 10 years ago to violate international law], and the confiscation of land and demolition of homes and livelihoods "constitute severe and continuous violations of the rights of Palestinian children and their families."

After Israel's 2008 to 2009 Operation Cast Lead, in which nearly 1,400 Palestinians (82 percent of whom were civilians) and 13 Israelis were killed, a UN Human Rights Council report by a commission headed by Justice Richard Goldstone concluded, "Disproportionate destruction and violence against civilians were part of a deliberate policy [by Israel]."

In its 2009 report, the Public Committee Against Torture in Israel (PCATI) found, "During Operation Cast Lead no type of property was left untouched: residences, hospitals, schools, mosques, factories and agricultural fields were demolished by the IDF."

Israel, according to PCATI, employed "a coherent strategy that incorporated two major elements into the planning of Operation Cast Lead: 1) The implementation of the 'Dahiye Doctrine,' the principal tenet of which was to cause intentional suffering to civilians so that they would bring pressure to bear on those who were fighting against the IDF [Israel Defense Forces], and 2) The 'No Risk' policy, which placed absolute priority on preventing harm to IDF soldiers, even at the cost of greater danger to Palestinian civilians." Israel is apparently pursuing the same policy in Operation Protective Edge.

In 2013, Falk said, "the people of Gaza have endured the unendurable and suffered what is insufferable for six years. Israel's collective punishment of the civilian population in Gaza must end today." He added, "Israel has the responsibility as the Occupying Power to protect the civilian population."

"In circumstances of prolonged occupation and state terrorism," Falk observed, "Hamas is entitled to claim rights of resistance, although their precise contours are not clearly established by international law. Hamas is certainly entitled to act in self-defense within the constraints of international humanitarian law."

International Reaction

On July 12, 2014, the UN Security Council issued a unanimous statement calling for an immediate ceasefire and "de-escalation of the situation, restoration of calm, and reinstitution of the November 2012 ceasefire." That ceasefire ended eight days of bombings of Gaza by Israel that killed 140 Palestinians, and rocket attacks by Hamas along the border that killed five Israelis. In its July 12 statement, the Council expressed "serious concern regarding the crisis related to Gaza and the protection and welfare of civilians on both sides" and called for respect for international humanitarian law, including the protection of civilians.

Hanna Amira, a member of the executive committee of the Palestine Liberation Organization in the West Bank, said of the Council's statement, "This announcement deals with the oppressor and the victim in the same way; it is a general call to end the fighting, without setting any mechanism to end the fighting. What is needed is an end to the aggression against the Palestinian people in Gaza."

The Palestinian Boycott, Divestment and Sanctions (BDS) National Committee has called on "international governments to impose a two-way arms embargo immediately and to suspend bilateral agreements until Israel fully complies with international law." Indeed, US military aid to Israel also violates US law. The Human Rights and Security Assistance Act requires that the United States halt all military aid to Israel because the latter has engaged in a consistent pattern of gross violation of internationally recognized human rights.

"Because collective punishment is a war crime under the Geneva Conventions, [the Palestinian BDS National Committee] urge[s] the international community to pressure Israel to end its all-out military assault aimed against the total population of Gaza, open the Rafah crossing [between Egypt and Gaza] permanently and heed our call for boycotts, divestment and sanctions." Organizations such as the Bill Gates Foundation, the Presbyterian Church USA and the United Methodist Church are divesting from companies that profit from Israel's occupation, including Hewlett Packard, Motorola Solutions and Caterpillar.

"Israel is able to act with utter impunity because of the military, economic and political support it receives from governments around the world," according to Zaid Shuaibi, a spokesperson for the Palestinian BDS National Committee. Indeed, Israel would be unable to carry out its policies of aggression in Gaza without the support of the United States, which gives Israel more than $3 billion per year.

The United States should demand an immediate ceasefire from both Israel and Hamas. The US government should condemn Israel's escalation, bombing and collective punishment of civilians just as forcefully as it has condemned Hamas' firing of rockets. The Gaza blockade and limitations on freedom of travel of Gazans should be lifted and Israel's occupation of the Palestinian territories should be ended.

This article first appeared on Truthout.

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Monday, June 30, 2014

Will Supremes Apply Cell Phone Privacy to Metadata Collection?

In one of the most significant Fourth Amendment rulings ever handed down by the Supreme Court, all nine justices agreed in an opinion involving two companion cases, Riley v. California and United States v. Wurie, that police generally need a warrant before reading data on the cell phone of an arrestee. This decision may well presage how the Court will rule on the constitutionality of the National Security Agency (NSA) metadata collection program when that issue inevitably comes before it.

Warrants Needed to Search Cell Phone Data

There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest. The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence. Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.

In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestee’s cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects – protecting officers and preventing destruction of evidence - do not apply to the digital content on cell phones: “There are no comparable risks when the search is of digital data.”

Moreover, “[m]odern cell phones, as a category,” Roberts noted, “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Responding to the government’s assertion that a search of cell phone data is “materially indistinguishable” from searches of physical items, Roberts quipped, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Indeed, Roberts observed, the search of a cell phone would typically provide the government with even more personal information than the search of a home, an area that has traditionally been given the strongest privacy protection. Modern cell phones, Roberts wrote, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Roberts was referring to the ubiquitous presence of cell phones appended to our ears as we walk down the street.

But the Court held that while a warrant is usually required to search data on an arrestee’s cell phone, officers could rely on the exigent circumstances exception in appropriate cases. For example, when a suspect is texting an accomplice who is preparing to detonate a bomb, or a child abductor may have information about the child’s location on his cell phone, or circumstances suggest the phone will be the target of an imminent attempt to erase the data on it, police may dispense with a search warrant. 

Metadata Collection Implicates Similar Privacy Concerns

The Riley/Wurie opinion provides insights into how the Court will decide other digital-era privacy issues. Roberts was concerned that “[a]n Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns – perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” The Chief Justice could have been describing the NSA metadata collection program, which requires telecommunications companies to produce all of our telephone communications every day. Although the government claims it does not read the content of those communications, it does monitor the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. As Roberts pointed out in the cell phone case, much can be learned from this data. Calls to a clinic that performs abortions or visits to a gay website can reveal intimate details about a person’s private life. A URL, such as www.webMD.com/depression, can contain significant information, even without examining the content. Whether we access the Internet with our cell phones, or with our computers, the same privacy considerations are implicated.

Roberts quoted Justice Sonia Sotomayor’s concurrence in United States v. Jones, the case in which the Court held that a warrant is generally required before police install and monitor a GPS tracking device on a car. Sotomayor wrote, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” U.S. District Court Judge Richard J. Leon also cited that concurrence by Sotomayor in his 2013 decision that the metadata collection probably violates the Fourth Amendment (Klayman v. Obama).

And both Roberts and Leon distinguished the cell phone search and metadata collection, respectively, from the 1979 case of Smith v. Maryland, in which the Court held that no warrant is required for a telephone company to use a pen register to identify numbers dialed by a particular caller. The Smith Court concluded that a pen register was not a Fourth Amendment “search,” and therefore the police did not need to use a warrant or an exception to the warrant requirement. In order to constitute a “search,” a person must have a reasonable expectation of privacy that is violated. The Court said in Smith that a person does not have a reasonable expectation of privacy in numbers dialed from a phone since he voluntarily transmits them to a third party – the phone company.

Roberts stated in the Riley/Wurie decision: “There is no dispute here that the officers engaged in a search of Wurie’s cell phone.” Likewise, Leon wrote that the issue of “whether a pen register constitutes a ‘search’ is a far cry from the issue in the [metadata collection] case.” Leon added, “When do present-day circumstances – the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and the telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

If the Court is consistent in its analysis, it will determine that the collection by the government of all of our electronic records implicates the same privacy concerns as the inspection of the data on our cell phones. It remains to be seen if and when the metadata collection issue comes before the Court. But the fact that the cell phone decision was 9-0 is a strong indication that all of the justices, regardless of ideology, are deeply concerned about protecting the privacy of our electronic communications.

This piece first appeared on Jurist.
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