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.

Saturday, October 3, 2015

The U.S. Has a Duty to the 'Tempest-Tost' Syrians

Many of us are familiar with the Emma Lazarus poem on a plaque at the base of the Statue of Liberty:

"Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!"

These words, written in the late 19th century, depicted the United States as a refuge for people who had crossed the Atlantic seeking a new home and a better life than they experienced in the places they left behind. The current massive humanitarian crisis in the Middle East, which has created a flood of refugees exiting Syria, obliges our country to live up to the welcome promised in that poem.

With George W. Bush's invasion and occupation of Iraq, which led to the birth of Islamic State, the U.S. government played a significant role in destabilizing the Middle East. The United States and its allies--including Saudi Arabia and Turkey--have trained, financed and supplied weapons to forces fighting the government of Bashar al-Assad in Syria. This has exacerbated the refugee crisis we are now witnessing.

History professor and author Juan Cole wrote that the U.S. invasion of Iraq created 4 million refugees, about one-sixth of Iraq's population. But "the U.S. took in only a few thousand Iraqi refugees after causing all that trouble," he noted. The United States must do better with the Syrian refugees.

Former Secretary of State Colin Powell, speaking about the U.S. invasion of Iraq, famously said, "If you break it, you own it."

Yet President Barack Obama pledged to lift the U.S. lamp to only 10,000 of the 4 million refugees fleeing Syria. After fielding criticism of the United States for taking so few, Secretary of State John Kerry announced that the U.S. would accept 185,000 refugees over the next two years. But this figure reflects the total number from many countries; there is no indication the administration will accept more than 10,000 from Syria.

The United States has a moral obligation, and perhaps a legal one, to accept many of the Syrian refugees. Evolving international norms suggest that all the countries of the world have a duty to provide refuge to those who have fled their homeland to escape persecution or war. Because the United States has 28 percent of the world's wealth, we should take at least 28 percent of the refugees, according to Phyllis Bennis of the Institute for Policy Studies. That would amount to about 350,000 people. And she says the United States should immediately pay 28 percent of the United Nations' refugee relief request, about $5.5 billion, to support nearly 6 million refugees from Syria and nearby countries through the end of 2015.

 The 1951 Refugee Convention and its 1967 Protocol define a refugee as someone outside his or her country who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Due to the fear of persecution, he or she is unable or unwilling to remain in his or her country of origin.

Although many Syrian refugees may meet this definition, many others don't because they fled to escape the violence of the armed conflict ravaging their country, not necessarily to avoid persecution.
Some scholars, however, think a much broader definition of "refugee" is evolving under conventional and customary international law. For example, William Thomas Worster wrote in the Berkeley Journal of International Law that a refugee could be a person who has a well-founded fear of "a threat to life, security or liberty due to events seriously disturbing public order" throughout his or her country--and because of that fear is unable or unwilling to remain or return.

The U.N. High Commissioner for Refugees (UNHCR) has defined "temporary protection" of refugees as "a means, in situations of large-scale influx and in view of the impracticality of conducting individual refugee status determination procedures, for providing protection to groups or categories of persons who are in need of international protection." Temporary protection "is primarily conceived as an emergency protection measure of short duration in response to large-scale influxes, guaranteeing admission to safety, protection from non-refoulement and respect for an appropriate standard of treatment." The first time the UNHCR formally recommended the granting of temporary protection involved "persons fleeing the conflict and human rights abuses in the former Yugoslavia." 

The principle of international law called non-refoulement is the prohibition of forced return. This means a country has a duty not to return an individual to a country where he or she will face persecution. Article 33(1) of the Refugee Convention provides, "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." Even if a country is not a party to the Refugee Convention, it is bound by the customary international law norm of non-refoulement.

As reported in a recent New York Times editorial, immigrants provide many more benefits than burdens, including paying more in taxes than they claim in government benefits and doing jobs that are hard to fill. As the Congressional Budget Office concluded in 2013, gross domestic product would rise by 5.4 percent and the federal budget deficit would fall by $897 billion over the next 20 years if undocumented workers are given a path to citizenship and more work-based visas are made available to foreigners.

In accordance with its legal and moral duty, the United States should step up to the plate and welcome significant numbers of refugees. More than 20 former senior Democratic and Republican officials are urging the Obama administration to accept 100,000 Syrian refugees, and to contribute up to $2 billion to finance their resettlement and help international refugee efforts. The United States has already accepted 1,500 Syrian refugees since the beginning of the hostilities and has contributed more than $4 billion in humanitarian aid for them.

Instead of demanding regime change in Syria, the United States and its allies must stop providing weapons, training and funding to the violent opposition forces. They should enlist Russia and Iran in pursuing a diplomatic solution to this tragic conflict.

Up to this point, some of Syria's immediate neighbors -- Turkey, Jordan, Iraq, Lebanon and Egypt -- have taken in 95 percent of the refugees, according to Amnesty International. Turkey has accepted nearly 2 million, followed by Lebanon, which has taken over 600,000. Jordan has taken half a million. Iraq has accepted almost 250,000. Egypt has accepted more than 130,000.

Germany agreed to take 800,000 refugees. Britain will take in 20,000 Syrian refugees by 2020, at the rate of 4,000 per year. Canada will take 10,000; Australia will take 12,000 Syrian and Iraqi refugees; Venezuela will take 20,000.

But Saudi Arabia, the United Arab Emirates, Qatar, Oman, Bahrain and Kuwait -- the wealthiest nations in the region -- have taken none of the refugees. Likewise, Iran and Russia, which support the Assad government, have refused permanent residency or asylum to the refugees.

Some of the Syrian refugees are Palestinians who first became refugees after the 1947-48 Nakba, when 80 percent of historic Palestine was ethnically cleansed to create Israel. They are "double refugees." But Israel has refused to take in any Syrian refugees.

Israel has apparently forgotten that in 1939, 937 Jewish refugees seeking to escape the Nazis made the perilous ocean voyage on the SS St. Louis, but the United States turned them away. Forced to return to Europe, hundreds of them were then killed by Hitler's forces. The nations of the world, and particularly the United States, must ensure the current refugees obtain the shelter to which they are entitled.

This article was originally published on Truthdig.

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Prisoners' Struggle Ends Indefinite Solitary Confinement

Confirming Frederick Douglass's adage, "Power concedes nothing without a demand," prisoners held in solitary confinement for many years in California have won an unprecedented victory. After three hunger strikes, in which tens of thousands of California inmates participated, and a federal class action lawsuit filed on behalf of prisoners by the Center for Constitutional Rights (CCR), a landmark settlement was reached. It effectively consigns indefinite solitary confinement in California to the dustbins of shameful history.

More than 500 prisoners had been held in isolation in the Security Housing Unit (SHU) at Pelican Bay prison for over 10 years, and 78 of them had been there for more than 20 years. They spend 22 ½ to 24 hours every day in a cramped, concrete, windowless cell, and are denied telephone calls, physical contact with visitors, and vocational, recreational, and educational programs.

Now California prisoners will no longer be sent to the SHU solely based on allegations of gang affiliation, but rather based on infraction of specific serious rules violations. Prisoners will only be put in solitary confinement if they commit a serious offense such as assault or murder in prison, and only after a due process hearing. And they will be put into solitary for a definite term -- no more indeterminate solitary confinement. An estimated 95 percent of California prisoners in solitary confinement based solely on gang affiliation (about 2,000 people) will be released into the general prison population.

The settlement also limits the amount of time a prisoner can spend in the SHU, and provides a two-year step-down program for transfer from SHU to general population. It is estimated that between 1,500 and 2,000 prisoners will be released from SHU within one year of this settlement.

"California's agreement to abandon indeterminate SHU confinement based on gang affiliation demonstrates the power of unity and collective action," the plaintiffs said in a joint statement. "This victory was achieved by efforts of people in prison, their families and loved ones, lawyers, and outside supporters."

The plaintiffs in Ashker v. Governor of California argued that California's use of prolonged solitary confinement constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution, and denies the prisoners the right to due process.

The federal district court judge found that prolonged solitary confinement had deprived the plaintiffs of "normal human contact, environmental and sensory stimulation, mental and physical and health, physical exercise, sleep, nutrition, and meaningful activity" which could constitute cruel and unusual punishment.

Although no U.S. court has yet ruled that solitary confinement violates the Eighth Amendment, Justice Anthony Kennedy indicated in a concurring opinion in June that he would likely entertain such an argument in the future. Commenting on the case of a man who had been isolated for 25 years in California, Kennedy told the U.S. Congress in March that solitary confinement "literally drives men mad."

Indeed, after visiting Eastern State Penitentiary in Philadelphia in 1842, Charles Dickens noted, "The system here, is rigid, strict and hopeless solitary confinement. I believe it ... to be cruel and wrong ... I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body." Dickens felt that isolation of prisoners was a thing that "no man had the right to inflict upon his fellow creature."

Juan Mendez, the U.N. Special Rapporteur on Torture, concluded that solitary confinement for more than 15 days constitutes torture. He wrote that prolonged solitary confinement violates the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights (ICCPR). The United States has ratified both of these treaties, making them part of U.S. law under the Supremacy Clause of the Constitution.

Ireland refused to extradite a man to the United States to face terrorism-related charges earlier this year. The High Court of Ireland worried that he might be held in indefinite isolation in a Colorado "supermax" prison, which would violate the Irish Constitution.

Between 80,000 and 100,000 people are held in some type of isolation in U.S. prisons on any given day, generally in supermax prisons, in 44 states and the federal system. Yet there is no evidence that solitary confinement makes prisons safer, the Government Accountability Office determined in 2013.

Solitary confinement exacerbates mental illness. In Madrid v. Gomez, a U.S. federal court judge wrote that for those with diagnosed mental illness, "placing them in [solitary confinement] is the mental equivalent of putting an asthmatic in a place with little air to breathe."

Professor Craig Haney described the deprivation of basic human needs of social interaction and environmental stimulation as a "painfully long form of social death."

The European Court of Human Rights has determined that "complete sensory isolation coupled with complete social isolation can no doubt destroy the personality," in violation of the European Convention on Human Rights. Likewise, the Inter American Court of Human Rights has stated that prolonged solitary confinement may violation the American Convention on Human Rights.

Suicide rates in California, New York and Texas are significantly higher among those held in solitary confinement than in the general prison population. And juveniles are 19 times more likely to take their own lives in isolation than in the general population. Connecticut, Maine, Oklahoma, New York, and West Virginia have banned or put restrictions on solitary confinement of juveniles. 

President Barack Obama has asked his attorney general to "start a review of the overuse of solitary confinement across American prisons." Obama said, "The social science shows that an environment like that is often more likely to make inmates more alienated, more hostile, potentially more violent." 

The purpose of the penal system is social rehabilitation, according to the ICCPR. In contravention of that mandate, the California legislature has specified that the purpose of sentencing is punishment. Solitary confinement implicitly denies any chance of social rehabilitation. The ICCPR requires that prison guards respect the inherent dignity of every inmate. Prolonged solitary confinement, like other forms of torture, destroys a person's dignity.

Mendez proposed a worldwide ban on nearly all uses of solitary confinement, which has increased throughout the globe, especially in the context of the "war on terror" and "threats to national security." He particularly criticized the routine use of isolation in U.S. supermax prisons.

In his concurring opinion, Justice Kennedy quoted Dostoyevsky: "The degree of civilization in a society can be judged by entering its prisons." So one must wonder why the United States refuses to ratify the U.N. Optional Protocol to the Convention Against Torture, which requires international inspection of prisons.

This article originally appeared on teleSUR.

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One Day Soon, That Drone Overhead May Be Pointing a Taser at You

North Dakota has just become the first state to legalize police use of drones equipped with "less than lethal" weapons, including rubber bullets, Tasers, tear gas, pepper spray and sound cannons. Now, police will be able to remotely fire on people in North Dakota from drones, much as the CIA fires on people in other countries.

Although drones in North Dakota will be limited to "less than lethal" weapons, some of these devices can cause injury or even death, according to Christof Heyns, United Nations special rapporteur on extrajudicial, summary or arbitrary executions. He reported that rubber bullets, water cannons and tear gas have resulted in injury and death. "The danger is that law enforcement officials may argue that the weapons that they use are labeled "less lethal" and then fail to assess whether the level of force is not beyond that required,"

Heyns wrote. The Guardian reports that at least 39 people have been killed by Tasers as far in 2015. Heyns warned the U.N. General Assembly that the use of armed drones by law enforcement could threaten human rights. "An armed drone, controlled by a human from a distance, can hardly do what police officers are supposed to do--use the minimum force required by the circumstances," he said.

Drone manufacturers in North Dakota lobbied hard to stymie efforts that would have required police to obtain warrants before using drones. Al Frazier, a sheriff's deputy who pilots drones, revealed their motivation. He told The Daily Beast, "I think when you're trying to stimulate an industry in your state, you don't want things that would potentially have a chilling effect on [drone] manufacturers." 

When North Dakota police suspected Rodney Brossart of cattle rustling, they asked Homeland Security to use a predator drone to fly over his land. Predator drones are also used by the CIA to conduct surveillance and drop bombs in Pakistan, Yemen, Somalia, Iraq, Afghanistan, and Syria. The police, who didn't get a warrant to fly over Brossart's land, used evidence gathered from the drone surveillance to prosecute him. Brossart was convicted of terrorizing, preventing arrest and failing to comply with the law for stray animals.

The Supreme Court has not yet decided whether police must obtain a warrant before using drones. In California v. Ciraolo, the court upheld the warrantless use of a fixed-wing aircraft at an altitude of 1,000 feet to peer into a private, fenced backyard and identify marijuana plants because "any member of the public flying in this airspace who glanced down could have seen everything that these officers observed." The court noted that no warrant is needed for what is "visible to the naked eye." The justices reached the same result in Florida v. Riley, in which officers saw marijuana plants in a greenhouse from a helicopter 400 feet above.

But in Kyllo v. United States, the court held that the police need a warrant to use a thermal imaging device that measures the temperature of the roof of a house to detect the growing of marijuana inside. Justice Antonin Scalia wrote for the majority that if the government could freely collect any information "emanating from a house," we would be "at the mercy of advancing technology--including imaging technology that could discern all human activity in the home." The majority thought it significant that the technology used in Kyllo was "a device that is not in general public use."

It is unclear how the court will apply these cases to the use of drones, which could be used to conduct long-term surveillance of private property with imaging systems that pick up much more detail than the naked eye.

Fourteen states have enacted legislation that limits how the police can use drones. But, "in the states that don't require warrants, it's pretty much a Wild West," Jay Stanley, senior policy analyst with the ACLU's Speech, Privacy and Technology Project, told the National Journal.

Drones are increasingly used for surveillance in the United States.

The U.S. Customs and Border Patrol (CBP), which patrols almost half the Mexican border with drones, has loaned its drones to local agencies and other national agencies, according to the Electronic Frontier Foundation (EFF). Drones were used 700 times for domestic surveillance between 2010 and 2012.

Stanley cautions against government use of drones for mass surveillance. In my book "Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues,"he writes:

"Police and government agencies, meanwhile, are likely to seek to use this technology for pervasive, suspicionless mass surveillance. To begin with, there is a long history of government agencies seeking to engage in mass surveillance, from the Cold War spying abuses to today's deployment of license plate scanners and surveillance cameras in our public places, to the sweeping NSA programs that were revealed by Edward Snowden."

Stanley warns about discriminatory targeting of people of color, citing the experience in Britain where black people were 1½ to 2½ times more likely to be the subject of surveillance than the percentage of their numbers in the general population would indicate.

Stanley cites the Electronic Frontier Foundation's revelation of CBP documents that suggest the CBP will use "non-lethal weapons designed to immobilize TOIs [targets of interest]." But, he thinks, "there is good reason to think that, once current controversies subside and the spotlight of public attention shifts elsewhere, we will see a push for drones armed with lethal weapons."

The private use of drones can also be quite threatening.

Augustine Lehecka was enjoying a San Diego County beach with friends when a drone flew a few feet above them, its four blades whirring, its camera rotating from side to side. Lehecka said, "We had like a peeping Tom. I felt threatened."

So Lehecka threw his T-shirt at the drone, it hit the propeller and the drone fell to the ground. He was arrested for felony vandalism, and after spending the night in jail and posting $10,000 bail, Lechecka was released without charge. The incident caused a San Diego Union-Tribune columnist to write an article titled "Pin medal on drone downer's shirt." 

In response to Lehecka's arrest, the Encinitas City Council is considering local regulation of drones. John Herron, who urged the council to take action, told a San Diego Union-Tribune reporter that his 3½-year-old son had been terrified by a low-flying drone, saying, "Once my son saw the drone, he became visibly scared . . . he told me he wanted to leave the park."

Children in Yemen and Pakistan are also terrorized by U.S. drones, which hover above their communities for hours at a time, according to the study "Living Under Drones,"published by Stanford and New York University law schools. The constant buzzing of the drone is terrifying. Medea Benjamin spoke to people in Waziristan, Pakistan, many of whom "live in a state of constant fear." She wrote in "Drones and Targeted Killing," "Residents I met with said they had a hard time sleeping, that many people suffer from depression and post-traumatic stress disorder, and that there is widespread use of antidepressants and anti-anxiety medication." She added, "They also reported a spate of suicides, something they said never existed before."

William Merideth downed a drone with a shotgun, claiming it was flying over his property near Louisville, Ky. He said, "I had no way of knowing [if] it was a predator looking at my children." Charged with first-degree endangerment and criminal mischief, Merideth was released on $2,500 bond and is due to return to court in September. The operator of the drone was not charged with any offense.

The Federal Aviation Administration issued proposed regulations on drone use earlier this year. Drones would not be allowed to fly over people unless they are directly involved with the flight. The rules would apply to drones that weigh 55 pounds or less. Drone flights could take place only during the daytime. They would be limited to an altitude of 500 feet and speeds of 100 mph. And they could not fly near airports or restricted airspace. The operator would have to maintain eye contact with the drone at all times.

It could take years for these regulations to be implemented. Meanwhile, the FAA has reported 700 near misses between airplanes and drones in U.S. airspace so far this year. Some of the drones have been flying at high altitudes--10,000 feet or more.

Twenty-six states have passed laws regulating the use of drones, and six more states have adopted resolutions. Issues addressed in these laws include defining what a drone is, the manner in which they can be used by law enforcement and other state agencies, how they can be used by the general public, and how they can be used to hunt game.

In February, the White House began requiring government agencies to inform the public where federal agencies fly drones, how frequently, and what information they secure from drone use.

Two federal bills are pending: in the Senate, The Protecting Individuals From Mass Surveillance Act, and in the House, Preserving American Privacy Act. The Senate bill would require a warrant before federal law enforcement officers could use drones and manned aircraft, but it carves out an exemption within 25 miles of the border, and it wouldn't bind state or municipal agencies. The House bill would require warrants to conduct state or federal drone surveillance with some exceptions. Evidence obtained in violation of both these bills would be inadmissible in court.

Given the significant invasion of privacy occasioned by the use of drones by law enforcement, warrants should be mandatory before using them for surveillance. And weaponized drones of any sort should be outlawed.

This article first appeared on Truthdig.

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Wednesday, August 19, 2015

From Japan to Vietnam, Radiation and Agent Orange Survivors Deserve Justice From the US

We have just marked anniversaries of the war crimes and crimes against humanity committed by the US government against the people of Japan and Vietnam. Seventy years ago, on August 6, 1945, the US military unleashed an atomic bomb on Hiroshima, killing at least 140,000 people. Three days later, the United States dropped a second bomb, on Nagasaki, which killed 70,000. And 54 years ago, on August 10, 1961, the US military began spraying Agent Orange in Vietnam. It contained the deadly chemical dioxin, which has poisoned an estimated 3 million people throughout that country.

Devastating Effects of Radiation in Hiroshima and Nagasaki

On the day of the first atomic bombing, 19-year-old Shinji Mikamo was on the roof of his house in Hiroshima helping his father prepare it for demolition when he saw a huge fireball coming at him. Then he heard a deafening explosion and felt a searing pain throughout his body. He said he felt as if boiling water had been poured over him. Shinji was three-quarters of a mile from the epicenter of the bomb. His chest and right arm were totally burned. Pieces of his flesh fell from his body like ragged clothing. The pain was unbearable. Shinji survived but most of his family perished.

Shinji's daughter, Dr. Akiko Mikamo, told her father's story at the Veterans for Peace convention in San Diego on August 7. She wrote the book, Rising From the Ashes: A True Story of Survival and Forgiveness From Hiroshima. Akiko's mother Miyoko, who was indoors about a half-mile from the epicenter, was also severely injured in the bombing, but she too survived.

Akiko said 99 percent of those who were outdoors at the time of the blast died immediately or within 48 hours. A week after the bombing, thousands of people had experienced a unique combination of symptoms, Susan Southard wrote in the Los Angeles Times:

"Their hair fell out in large clumps, their wounds secreted extreme amounts of pus, and their gums swelled and bled. Purple spots appeared on their bodies, signs of hemorrhaging beneath the skin. Infections ravaged their internal organs. Within a few days of the onset of symptoms, many people lost consciousness, mumbled deliriously and died in extreme pain; others languished for weeks before either dying or slowly recovering."

Southard notes that the US government censored Japanese news reports, photographs, testimonies and scientific research about the condition of the survivors.

Gen. Leslie Groves, director of the Manhattan Project, which created the atom bombs, testified before Congress that death resulting from exposure to large amounts of radiation takes place "without undue suffering." He added it is "a very pleasant way to die."

Thirty years after the end of World War II, numerous cases of leukemia, stomach cancer and colon cancer were documented.

The bombings of Hiroshima and Nagasaki were criminal because at the time Japan was already defeated and had taken steps to surrender. With these atomic bombings, the United States launched the Cold War, marking the beginning of its nuclear threat.

The Continuing Legacy of Agent Orange in Vietnam

Sixteen years after the United States' nuclear attacks on Japan, the US military began spraying Vietnam with Agent Orange-dioxin. In addition to the more than 3 million Vietnamese people killed during the Vietnam War, an equivalent number of people suffer serious diseases and children continue to be born with defects from Agent Orange. US veterans of the Vietnam War and their children suffer as well.

Agent Orange caused direct damage to those exposed to dioxin, including cancers, skin disorders, liver damage, pulmonary and heart diseases, defects to reproductive capacity and nervous disorders. It resulted in indirect damage to the children of those exposed to dioxin, including severe physical deformities, mental and physical disabilities, diseases and shortened life spans.

Dan Shea joined the US Marine Corps in 1968 at the age of 19. He served in Vietnam a little more than two months. But he was in Quang Tri, one of the areas where much of the Agent Orange was sprayed. When Shea saw barrels "all over" with orange stripes on them, he had no idea the dioxin they contained would change his life forever. When they ran out of water, he and his fellow Marines would drink out of the river.

In 1977, Shea's son Casey was born with congenital heart disease and a cleft palate. Before his third birthday, Casey underwent heart surgery for the hole in his heart. Ten hours after surgery, Casey went into a coma and died seven weeks later.

Just as the US censored information about the effects of radiation after the atomic bombings, the US government and the chemical companies that manufactured Agent Orange - including Dow and Monsanto - also suppressed the 1965 Bionetics study that demonstrated dioxin caused many birth defects in experimental animals. The spraying of Agent Orange finally stopped when that study was made public.

Shea, who also addressed the Veterans for Peace convention, works with me on the Vietnam Agent Orange Relief and Responsibility Campaign. We seek to obtain relief for the Vietnamese, Vietnamese-American and US victims of Agent Orange through the recently introduced H.R. 2114. US vets have received some compensation, but not nearly enough. Vietnamese people and Vietnamese-Americans have received nothing for their suffering.

This bill would assist with the cleanup of dioxin still present in Vietnam. It would also provide assistance to the public health system in Vietnam directed at the 3 million Vietnamese people affected by Agent Orange. It would extend assistance to the affected children of male US veterans who suffer the same set of birth defects covered for the children of female veterans. It would also lead to research on the extent of Agent Orange-related diseases in the Vietnamese-American community, and provide them with assistance. Finally, it would lead to laboratory and epidemiological research on the effects of Agent Orange.

Agent Orange in Japan

The US government has also denied that Agent Orange is present on Okinawa, the Pentagon's main support base during the Vietnam War. In February 2013, the Pentagon issued a report denying that there is Agent Orange on Okinawa, but it did not order environmental tests or interview veterans who claimed exposure to Agent Orange there. "The usage of Agent Orange and military defoliants in Okinawa is one of the best kept secrets of the Cold War," according to Jon Mitchell, a journalist based in Tokyo.

"The US government has been lying about Agent Orange on Okinawa for more than 50 years," Mitchell said. An investigation by Okinawa City and the Okinawa Defense Bureau found dioxin and other components of Agent Orange in several barrels on Okinawa. Many bore markings of Dow Chemical, one of the manufacturers of Agent Orange. The Japan Times cited reports of military veterans who said that burying surplus chemicals, including Agent Orange, "was standard operating procedure for the US military on Okinawa."

Two hundred and fifty US service members are claiming damages from exposure to Agent Orange on Okinawa during the Vietnam War, but very few have received compensation from their government. In spite of the Pentagon report, the US Department of Veterans Affairs granted relief in October 2013 to a retired Marine Corps driver who has prostate cancer. The judge ruled that his cancer was triggered by his transport and use of Agent Orange.

Abolish Nuclear Weapons and Compensate Victims of Agent Orange

Besides being criminal, the United States' use of nuclear weapons in Hiroshima and Nagasaki, and poisoning of Vietnam and Okinawa with Agent Orange, are a shameful legacy. The denial and cover-up of each of these crimes adds insult to injury.

As we work toward a nuclear deal with Iran, the US government should abide by its commitment to nuclear disarmament in the Nuclear Non-Proliferation Treaty.

It is also time to fully compensate the victims of Agent Orange and fund a total cleanup of the areas in Vietnam that remain contaminated by the toxic chemical. Urge your congressional representative to cosponsor H.R. 2114, the Victims of Agent Orange Relief Act of 2015.

Copyright Truthout. Reprinted with permission.

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Wednesday, July 22, 2015

The U.S. Aids and Abets War Crimes in the Philippines

After Sept. 11, 2001, President George W. Bush declared the Philippines a second front in the war on terror (“Operation Enduring Freedom-Philippines”). The Philippine government used this as an opportunity to escalate its war against Muslim separatists and other individuals and organizations opposing the policies of the government. The egregious human rights violations committed by the Philippine military and paramilitary forces are some of the most underreported atrocities in the media today.

The International Peoples’ Tribunal on Crimes Against the Filipino People, held July 16-18 in Washington, D.C., drew upward of 300 people. An international panel of seven jurors heard two days of testimony from 32 witnesses, many of whom had been tortured, arbitrarily detained and forcibly evicted from their land. Some testified to being present when their loved ones, including children, were gunned down by the Philippine military or paramilitary. I testified as an expert witness on international human rights violations in the Philippines, many of which were aided and abetted by the U.S. government.

Thirty-one-year-old Melissa Roxas was a community health adviser who went to the Philippines in 2009 to conduct health surveys in central Luzon, where people were dying from cholera and diarrhea. In May of that year, 15 men in civilian clothes with high-powered rifles and wearing bonnets and ski masks forced her into a van and handcuffed and blindfolded her. They beat her, suffocated her and used other forms of torture on her until releasing her six days later. Roxas was continually interrogated and even threatened with death during her horrific torture. She was likely released because she is a U.S. citizen (she has dual citizenship).

But WikiLeaks revealed that although the U.S. Embassy was aware of Roxas’ torture and abduction, it did nothing to secure her release. Roxas convinced the Philippines Court of Appeals to grant her petition for writ of amparo, which confirmed she had been abducted and tortured. Nevertheless, the Philippine government refuses to mount an investigation into her ordeal. And although she lives in the United States, Roxas remains under surveillance.

“Whenever you work with communities,” Roxas testified, “[the Philippine government] vilifies you as a member of the New Peoples Army [NPA].” Ironically, the Philippine military claimed it was the NPA, the armed wing of the Philippine Communist Party, that abducted Roxas. Her physical and emotional scars remain. But, Roxas told the tribunal, “I have the privilege of being in the United States,” unlike many other Filipino victims of human rights violations.

People and groups have been labeled “terrorists” by the Philippine government, the U.S. government and other countries at the behest of the U.S. government. The Philippine government engages in “red tagging”—political vilification. Targets are frequently human rights activists and advocates, political opponents, community organizers or groups struggling for national liberation. Those targeted for assassination are placed on the “order of battle” list.

The tribunal documented 262 cases of extrajudicial killings, 27 cases of forced disappearances, 125 cases of torture, 1,016 cases of illegal arrest, and 60,155 incidents of forced evacuation—many to make way for extraction by mining companies—from July 2010 to June 30 of this year by Philippine police, military, paramilitary or other state agents operating within the chain of command.

As part of the U.S. war on terror, in 2002 the Gloria Macapagal-Arroyo government created the Oplan Bantay Laya, a counterinsurgency program modeled on U.S. strategies, ostensibly to fight communist guerrillas. After 9/11, the Bush administration gave Arroyo $100 million to fund the campaign in the Philippines.

The government of Benigno Aquino III continued the program in 2011 under the name Oplan Bayanihan. It does not distinguish between civilians and combatants, which is considered a war crime under the Rome Statute and the Geneva Conventions.

Oplan Bayanihan has led to tremendous repression, including large numbers of extrajudicial killings, forced disappearances, torture and cruel treatment. Many civilians, including children, have been killed. Hundreds of members of progressive organizations were murdered by Philippine military and paramilitary death squads. Communities and leaders opposed to large-scale and invasive mining have been targeted. Even ordinary people with no political affiliation have not escaped the government’s campaign of terror.

One witness testified that although the counterinsurgency program was presented in the guise of “peace and development,” it was really an “operational guide to crush any resistance by those who work for social justice and support the poor and oppressed.”

Philippine military and paramilitary forces apparently rationalize their harsh treatment as necessary to maintain national security against people and organizations that seek to challenge, or even overthrow, the government. However, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as justification for torture.” Both the Philippines and the United States are parties to the convention on torture.

A 14-year-old boy testified that as he was walking with family members to harvest their crops, “We were fired upon” by soldiers. “We said, ‘We are children, sir.’ ” But the soldiers killed his 8-year-old brother. “I embraced him. The soldier said we were enemies. He was bleeding, the bullet exited in the back. He was dead when my mother saw him. We made an affidavit against the soldiers but it was dismissed by the prosecutor.”

Raymond Manalo was an eyewitness to kidnapping, torture, rape and forced disappearances. He testified that he saw civilians burned alive by soldiers and paramilitary forces. Two women were hit with wooden sticks and burned with a cigarette. Sticks were inserted into their genitals. The two women disappeared and have not been seen since. Although a case was filed, there has been no resolution.

Cynthia Jaramillo testified that her husband, Arnold, was one of nine unarmed men killed in a massive military operation that lasted almost a month. Although Arnold was a member of the NPA, “They were not killed during a legitimate running battle,” she said. “The state of their bodies when recovered clearly indicated the torture, willful killing and desecration of the remains.” Arnold was taken alive and killed at close range by multiple gunshot wounds, his internal organs lacerated, his jaws and teeth shattered. This violates the Geneva Conventions and constitutes illegal extrajudicial killing off the battlefield.

Continuing the Bush policy of the pivot to Asia-Pacific, as a counterweight to China, President Barack Obama enlisted the Aquino government last year to negotiate the Enhanced Defense Cooperation Agreement. While paying lip service to the Philippines’ maintaining sovereignty over the military bases in their country, it actually grants tremendous powers to U.S. forces. The United States also wants to return to its two former military bases at Subic Bay and Clark, which it left in 1992. Those bases were critical to the U.S. imperial war in Vietnam. A U.S. return would violate the well-established right of peoples to self-determination enshrined in the International Covenant on Civil and Political Rights (ICCPR).

The Rome Statute of the International Criminal Court (ICC) includes a prohibition on aiding and abetting liability for war crimes. An individual can be convicted of a war crime in the ICC if he or she “aids, abets or otherwise assists” in the commission or attempted commission of the crime. This includes “providing the means for its commission.”

Between 2001 and 2010, the U.S. government furnished more than $507 million in military aid to the Philippine government, enabling it to commit war crimes. U.S. political and military leaders could be liable in the ICC for war crimes as aiders and abettors.

The United States planned and helped carry out the botched Mamasapano raid on January 25, 2015. Dozens died when commandos from the Special Action Force of the Philippine National Police entered Mamasapano, where the separatist Moro Islamic Liberation Front had a stronghold. The Obama administration had put a $5 million bounty on terror suspect Marwan’s head. According to the Philippine Daily Inquirer, US drones identified Marwan’s hiding place, led the commandos to it, and provided real-time management capacity for the operation off the battlefield. Marwan was killed but his finger was severed and disappeared. It then appeared at an FBI lab in the United States a few days later. DNA tests on the finger confirmed it was Marwan who had been killed.

Murder, torture and cruel treatment constitute war crimes under the Rome Statute and the Geneva Conventions. Both the United States and the Philippines are parties to the Geneva Conventions. But although the Philippines is a party to the Rome Statute, the United States is not. In fact, the U.S. government offered the Philippine government $30 million in additional military aid to secure an agreement that U.S. soldiers in the Philippines would not be turned over to the ICC.

The jury in the tribunal found defendant Aquino and defendant Government of the United States of America, represented by Obama, guilty of war crimes and crimes against humanity. “Indeed,” the panel wrote, “the Prosecution has satisfied the burden of proving satisfactorily that the Defendants, in concert with each other, willfully and feloniously committed gross and systematic violations of Filipino people’s basic human rights.”

The jurors decided, “The killings and disappearances follow a pattern. The victims are vilified as members of the Communist Party of the Philippines, and subjected to red tagging ... after vilification, the victims are subjected to surveillance and then later killed or abducted.” The panel noted, “These are not random violations.” They are “not isolated but state-sponsored, part of a policy deliberately adopted to silence the critics of the government.” They called it “state terror,” drawing an analogy with the military and authoritarian regimes in Latin America in the 1970s and ’80s, which were also supported by the United States.

“Terrorist tagging,” according to the jurors, is not just intended to define military targets but also to “sabotage the peace process between the National Democratic Front (NDF) and the Philippine government.” In fact, Jose Maria Sison, the NDF’s chief political consultant, has been classified by the United States as a “person supporting terrorism.” Sison’s assets have been frozen and he is forbidden to travel, in violation of the ICCPR. The European Union’s second-highest court ruled to delist Sison as a “person supporting terrorism” and reversed a decision by member governments to freeze assets. Yet he remains on the U.S. terrorism list.

Moreover, the jury determined, “the failure of the Philippine government through Defendant Aquino to identify, investigate and/or prosecute the perpetrators of these violations is among the contributing factors to the prevailing impunity in the Philippines.”

The jury urged the defendants to undertake “proper remedial measures to prevent the commission or continuance of such illegal and criminal acts, to repair the damages done to the Filipino people and their environment, compensate the victims and their families for their atrocities, and to rehabilitate the communities, especially indigenous communities that have been destroyed by the criminal acts of the Defendants.”

The panel concluded, “We also encourage the peoples of the world to seek redress, to pursue justice [under universal jurisdiction], and to transform this oppressive, exploitative and repressive global state of affairs exemplified by the experience and plight of the Filipino people, to challenge the international ‘rule of law,’ and to construct a global order founded on full respect for the rights of all peoples, everywhere.”

This article was originally published on Truthdig (

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Thursday, July 9, 2015

One Year After Gaza Massacre, UN Exposes Likely War Crimes

One year ago, on July 7, 2014, Israel launched "Operation Protective Edge," a massive assault on the Gaza Strip. For 51 days, Israel bombarded Gaza with more than 6,000 airstrikes. Many of them hit residential buildings. Tawfik Abu Jama, a father of eight, told UN investigators, "I was sitting with my family at the table ready to break the fast. Suddenly we were sucked into the ground. Later that evening, I woke up in the hospital and was told my wife and children had died."

The UN Human Rights Council subsequently convened an independent, international commission of inquiry to investigate violations of international law in the Occupied Palestinian Territory, particularly the Gaza Strip. The commission finally issued its report on the investigation on June 24, 2015, which included the quote from Abu Jama.

The commission concluded that Israel, and to a lesser extent, Palestinian armed groups, had likely committed violations of international humanitarian law and international human rights law, some constituting war crimes. "The scale of the devastation was unprecedented" in Gaza, according to the commission.

It documented the deaths of 2,251 Palestinians, including 1,462 civilians (299 women and 551 children), and the injuring of 11,231 Palestinians, including 3,540 women and 3,436 children. Ten percent of the children suffered a permanent disability as a result. More than 1,500 Gazan children were orphaned. On the Israeli side, six civilians and 67 soldiers were killed, and up to 1,600 were injured.

Collective Punishment

"According to official Israeli sources, rockets and mortars hit civilian buildings and infrastructure, including schools and houses, causing direct damage to civilian property amounting to almost $25 million," the report stated. In addition, 18,000 housing units were totally or partially destroyed; much of the electrical, water and sanitation infrastructure was incapacitated; and 73 medical facilities and several ambulances were damaged. Twenty-eight percent of the Palestinian population was displaced.

The commission determined, "The impact of the hostilities in Gaza cannot be assessed separately from the blockade imposed by Israel." That blockade and the military operation "have led to a protection crisis and chronic, widespread and systematic violations of human rights, first and foremost the rights to life and to security, but also to health, housing, education and many others." The commission quoted the UN secretary general's characterization of Israel's blockade of Gaza as "a continuing collective penalty against the population of Gaza."

Indeed, the commission stated: "Closed into the Strip, with no possibility to exit at times, 44 percent of Gaza was either a no-go area or the object of evacuation warnings. These terrifying circumstances created a sense of entrapment, of having 'no safe place' to go."

The commission examined 15 cases of strikes on residential buildings across Gaza, which killed 216 people, including 115 children and 50 women. Many of the attacks took place in the evening or at dawn when people were eating, or at night when they were asleep. "The timing of the attacks increased the likelihood that many people, often entire families, would be at home," according to the commission. "Attacking residential buildings rendered women particularly vulnerable to death and injury."

Probable Violations of International Law

The commission documented probable violations of three principles of international humanitarian law - distinction, proportionality and precautions - which may amount to war crimes.

Distinction forbids indiscriminate attacks against civilians. Only combatants may be targeted. The term "combatants," the commission noted, "includes members of the armed forces and of organized armed groups with a continuous combat function."

The commission said Israel had not explained why residential buildings, "which areprima facie civilian objects immune from attack, were considered to be legitimate military objectives." If a strike directly and intentionally targets a house without a specific military objective, that would violate the principle of distinction. "It may also constitute a direct attack against civilian objects or civilians, a war crime under international law," the commission stated.

In addition, the indiscriminate use of rockets by the Palestinians and targeted mortar attacks against civilians would violate the principle of distinction, which may constitute a war crime, the commission determined. The commission also observed, "The questionable conduct of these armed groups does not, however, modify Israel's own obligations to abide by international law."

Proportionality requires the attack be proportionate to the anticipated military advantage. Since Israel did not provide information suggesting that "the civilian casualties and damage to the targeted and surrounding buildings were not excessive," the commission found that the attacks could be disproportionate, and thus could amount to war crimes.

Precautions means that the attacker must take precautions to avoid or limit civilian casualties. "In many incidents, however," the commission concluded, "the weapons used, the timing of the attacks, and the fact that the targets were located in densely populated areas indicate that the Israel Defense Forces [IDF] may not have done everything feasible to avoid or limit civilian casualties." The commission determined that the IDF's use of "roof-knock" warnings - warning strikes before the real strikes - were not effective warnings. Either the concerned persons didn't understand their homes were being subjected to "roof-knocking" or the IDF provided insufficient time after the warning for people to evacuate.

Moreover, the commission criticized Israel for "inferring that anyone remaining in an area that has been the object of a warning is an enemy or a person engaging in 'terrorist activity,'" adding, "those civilians choosing not to heed a warning do not lose the protection granted by their status. The only way in which civilians lose their protection from attack is by directly participating in the hostilities."

Targeting civilians, the commission noted, may amount to a war crime and a violation of the right to life guaranteed by the International Covenant on Civil and Political Rights, which is part of international human rights law.

Testimonies From IDF Soldiers

The issuance of the UN commission's report followed the release in early May of "This Is How We Fought in Gaza," a document containing testimonies of more than 60 former and current IDF members, more than one-quarter of whom were officers up to the rank of major. Those chilling testimonies, compiled by the Israeli nongovernmental organization (NGO) Breaking the Silence, were among the data considered by the commission during its investigation.

Quoting the NGO document, the commission was alarmed by the lax rules of engagement under which the IDF soldiers operated: "[T]he soldiers were briefed by their commanders to fire at every person they identified in a combat zone, since the working assumption was that every person in the field was an enemy."

The document stated that during the "softening" stage, IDF forces conducted heavy shelling in neighborhoods with weapons that can reach up to hundreds of meters from the original target. Soldiers testified to unabated fire on "suspicious points," and said, "almost every object or structure within the forces' eyeshot had the potential to be considered suspicious and thus targeted." Even movements in a window led to a strike on a house, in which soldiers shot to kill.

"I got the impression that every house we passed on our way got hit by a shell - and houses farther away too," a first sergeant in an IDF engineering unit in Gaza City told Breaking the Silence. "It was methodical. There was no threat."

An infantry soldier in Gaza City said, "The rules of engagement for soldiers advancing on the ground were open fire, open fire everywhere, first thing as you go in. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist. And it pretty much stayed that way throughout the operation."

"There weren't really any rules of engagement, it was more protocols," an infantry first sergeant in the northern Gaza Strip testified. "They told us, 'There aren't supposed to be any civilians there. If you spot someone, shoot.' Whether it posed a threat or not wasn't a question, and that makes sense to me. If you shoot someone in Gaza, it's cool, no big deal."

A first sergeant in an armored corps unit in Deir al-Balah observed, "It's simple: whoever feels like shooting more - shoots more. Most guys shot more. Dozens of shells [per day], throughout the operation. Multiply that by 11 tanks in the company." The soldier said they were shooting at randomly chosen houses.

"Anything still there is as good as dead. Anything you see moving in the neighborhoods you're in is not supposed to be there. The [Palestinian] civilians know they are not supposed to be there. Therefore whoever you see there, you kill," according to a first sergeant in an armored corps unit in Deir al-Balah.

A first sergeant in an engineering unit in Gaza City reported, "The instructions are to shoot right away ... Be they armed or unarmed, no matter what."

"Each one basically chose his own target," recalled a first sergeant in an armored corps unit in Deir al-Balah.

An infantry soldier in the southern Gaza Strip described an incident in which two unarmed young women walking in an orchard were "implicated" by a drone. After they were killed, the women "were listed as terrorists. They were fired at - so of course, they must have been terrorists."

No Rules of Engagement

"There were no rules of engagement," an infantry first sergeant in the northern Gaza Strip testified. "If you see anyone in that area, that person is a terrorist." A captain concurred, saying, "The entire time, neither before the incursion nor during the incursion [into the Gaza Strip] were there any clearly defined rules of engagement ... The rules of engagement were more or less that we were entering a war."

After three weeks in Gaza, "during which you're shooting at anything that moves ... The good and the bad get a bit mixed up, and your morals get a bit lost and you sort of lose it," a first sergeant in an armored corps unit in Deir al-Balah testified, "and it also becomes like a computer game, totally cool and real."

"It all looked like a science fiction movie," a first sergeant in an engineering unit in Gaza City said, "with serious levels of destruction everywhere, levels we hadn't seen in [Operation] Cast Lead. No houses."

"I remember that the level of destruction looked insane to me," an infantry first sergeant in the northern Gaza Strip testified. "It looked like a movie set, it didn't look real." A sergeant first class in an armored corps unit in Gaza City recalled, "It was total destruction ... I never saw anything like it, not even in Lebanon. There was destruction there, too - but never in my life did I seen anything like this."

A first sergeant in an armored corps unit testified, "Running over a car is sort of the wet dream of every guy in a tank crew ... Going over [a Caterpillar truck] we felt so little that I suspected we might have missed it. It was pretty cool in the end. I didn't feel any remorse or anything, that I had done something wrong."

"It was just for kicks - the sort of fun you have at a shooting range," a first sergeant in an armored corps unit said.

The commission was alarmed by the "Hannibal directive," that is, "minimum risk to our forces, even at the cost of harming innocent civilians," which "predictably leads to violations of the principles of distinction and proportionality." According to testimony from a first sergeant in an engineering unit in Gaza City, "The only emphasis regarding rules of engagement was to make sure you weren't firing at IDF forces, but other than that, 'Any person you see.'"

An infantry first sergeant in the northern Gaza Strip remembered telling himself, "I really don't give a fuck about [civilians]. They don't deserve anything - and if they deserve something it's either to be badly wounded or killed." An infantry lieutenant in the northern Gaza Strip echoed those sentiments. "Civilian presence is not something that's on your mind, so you don't give it any attention in any consideration," he testified.

"We expect a high level of harm to civilians," an infantry lieutenant testified. He said targets would be approved if they were justified "or if there's a good chance to hit it in a way that'll look good to the Israeli audience, and look bad for the Palestinian audience."

Some soldiers made no pretense of disguising their racism. A lieutenant in the Gaza Division unit described how civilians were called "uninvolved" rather than "civilians." He spoke of "the desensitization to the surging number of dead on the Palestinian side ... The discourse is racist," he said.

Reactions to the Commission's Report

Israel refused to cooperate with the commission's investigation, although the commission relied in part on official Israeli government sources. In anticipation of the issuance of the commission report, Israel released its own report, whitewashing IDF conduct during the Gaza massacre.

But in an article penned in Haaretz, former US President Jimmy Carter and Gro Harlem Brundtland, former Prime Minister of Norway, wrote that the commission's findings echoed what they found on their own visit to Israel and Palestine two months prior. "That is why we welcome the commission of inquiry's report as a potential milestone on the path to accountability," they wrote. "The report is as objective and even-handed as circumstances allowed, as is to be expected with the highly regarded US judge Mary McGowan Davis as commission chair."

The commission was concerned "that impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces, whether it be in the context of active hostilities in Gaza or killings, torture and ill-treatment in the West Bank."

All parties were urged by the commission to fully cooperate with the preliminary examination of the International Criminal Court (ICC). Carter and Brundtland called the ICC "one of the nearest institutions to objective neutrality that the community of nations possesses ... Regrettably neither Israel nor the US are parties to the court. In our view, they should be." They noted with approval the Palestinian Authority's decision to submit evidence to the ICC "on the Gaza war, illegal settlements in the West Bank and East Jerusalem, and the treatment of Palestinian prisoners."

ICC prosecutor Fatou Bensouda, who is conducting a preliminary examination into the situation, has not decided whether to open an official investigation. If she does so, Bensouda said she could investigate low- and middle-rank Israeli soldiers for the purpose of "bringing stronger cases against those most responsible."

The commission determined that the military tactics the IDF employed were "reflective of broader policy, approved at least tacitly by decision-makers at the highest level of Government of Israel."

Copyright, Truthout. Reprinted with permission.

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Tuesday, July 7, 2015

Next Steps in the Normalization of US-Cuban Relations: Thoughts From the Cuban Five

Now that United States and Cuba are preparing to open embassies in each other's countries, what else needs to happen to support the process of détente between the two countries?

During a recent visit to Cuba I posed this question to René González and Antonio Guerrero, two of the "Cuban Five" - five Cuban men who traveled to the United States in the 1990s to gather information about terrorist plots against Cuba and then became celebrated Cuban heroes during their subsequent incarceration by the United States.

Their reply? End the embargo and return Guantánamo Bay to Cuba.

"We have to remember that relations between the countries have never been normal," González said, arguing that the normalization of relations won't happen overnight. He added:

"We were occupied by US troops in 1898. From then on, we were a subject of the US government and especially the US corporations. Then came the Revolution, which tried to correct that imbalance. Then came a different stage - of aggressions, blockade and policies against Cuba, which has lasted for more than 56 years. You cannot expect that establishing normal relations … [for] the first time in history is going to be an easy process."

Guerrero noted that the US had taken one major step toward normalization already by removing Cuba from its list of countries alleged to support terrorism but noted that the next step toward normalization will require a much larger step - ending the US embargo, which in Cuba is more commonly referred to as the "blockade." Normalization, González said, will require "the dismantling of the whole system of aggression against Cuba, especially the blockade. Everybody knows how damaging it has been for the Cuban people. It's a small island. For 50 years, it has been asphyxiated by the biggest power in the world. It had a cost on the Cuban people, on their economy."

The Illegal Occupation of Guantánamo Bay

González also listed the return of Guantánamo to Cuba as necessary for normalization. After the blockade is lifted and Guantánamo is returned to Cuba, he told me, "I believe the process will take speed."

González rightly pointed out that the US occupation of Guantánamo is illegal. The United States gained control of Guantánamo Bay in 1903, when Cuba was occupied by the US Army after its intervention in Cuba's war of independence against Spain. Cuba was forced to accept the Platt Amendment to its Constitution as a prerequisite for the withdrawal of US troops from Cuba. That amendment provided the basis for a treaty granting the United States jurisdiction over Guantánamo Bay. The 1903 Agreement on Coaling and Naval Stations gave the United States the right to use Guantánamo Bay "exclusively as coaling or naval stations, and for no other purpose." A 1934 treaty maintained US control over Guantánamo Bay in perpetuity until the United States abandons it or until both Cuba and the United States agree to modify it. That treaty also limits its uses to "coaling and naval stations."

None of these treaties or agreements gives the United States the right to use Guantánamo Bay as a prison, or to subject detainees to torture or cruel, inhuman or degrading treatment - which has been documented at the prison. The United States thus stands in violation of the 1934 treaty.

Moreover, the doctrine of rebus sic stantibus, enshrined in the Vienna Convention on the Law of Treaties and a norm of customary international law, allows one party to a treaty to abrogate its obligations when there is a fundamental change in circumstances. Using Guantánamo Bay as a prison and torturing detainees is a fundamental change in circumstance, which constitutes grounds for Cuba to terminate the treaty.

The Diplomatic Importance of Freeing the Cuban Five

The United States and Cuba would not likely have announced this week their plans to reopen embassies in each other's countries if President Barack Obama had not successfully negotiated the full release of the Cuban Five in the agreement he reached with Cuban President Raul Castro on December 17, 2014. That deal, to work toward normalization of relations between the two countries, had eluded Obama's 10 predecessors over a 55-year period. It will likely be Obama's signature foreign policy achievement.

A part of the deal that had enormous symbolic significance to the people of Cuba was the freeing of Gerardo Hernandez, Antonio Guerrero and Ramón Labañino - the three members of the Cuban Five who were still imprisoned at the time of the agreement. On December 17, 2014, the three men were granted clemency and returned to Cuba. The other two members of the Cuban Five - René González and Fernando González - had previously been released in 2011 and 2014, respectively, after serving their full sentences.

The case of the Cuban Five garnered international condemnation in particular because the five men had traveled to the United States to gather intelligence on Cuban exile groups for a very legitimate reason. Since Cuba's 1959 Revolution, terrorist organizations based in Miami, including Alpha 66, Commandos F4, the Cuban American National Foundation and Brothers to the Rescue, have carried out terrorist acts against Cuba in an attempt to overthrow the Castro government. The most notorious was the in-air bombing of a Cubana airliner in 1976, which killed all 73 persons aboard, including the entire Cuban fencing team. These groups have acted with impunity in the United States.

The Cuban Five peacefully infiltrated these organizations. They then turned over the results of their investigation to the FBI. But instead of working to combat terrorist plots in the United States against Cuba, the US government arrested them and charged them with crimes including conspiracy to commit espionage and conspiracy to commit murder. Although none of the Five had any classified information or engaged in any acts to injure the United States, they were convicted in a Miami court in 2000 and sentenced to four life terms and 75 years collectively.

A three-judge panel of the 11th Circuit US Court of Appeals unanimously overturned their convictions in 2005, ruling that the Five could not get a fair trial in Miami due to the pervasive anti-Cuba sentiment there. Nevertheless, the 11thCircuit, sitting en banc, upheld the convictions, and Hernandez's life term was affirmed on appeal.

Years of Wrongful Imprisonment

The Cuban Five endured years of harsh conditions and wrongful imprisonment before their release. After being arrested, they were immediately put into solitary confinement and held in "The Hole" for 17 months. Solitary confinement amounts to torture or cruel, inhuman, or degrading treatment or punishment, according to United Nations special rapporteur Juan E. Méndez.

"I believe they expected to break us down," González added. The US government "used the CIPA [Classified Information Procedures Act] and randomly classified everything," which "allowed them to prevent us from looking at the evidence," González said. "So they put us in "The Hole" and then put the evidence in another hole."

Yet, González noted, "Sometimes you have to react as a human with your dignity. And they went after our dignity. And we had to defend it. We were more committed. We were more encouraged to go to trial, and that's what we did."

"For us," González said, "going to trial was great. We wanted to go to trial every day because we wanted to face them and expose the truth of terrorism against Cuba and how the government of the United States supported those terrorists."

"They decided to behave like thugs." he told me. "And then you have to resort to your moral values, again to your human dignity and defend that." González said, "We always knew what we were doing there. We knew that we never intended to make any harm to the United States at all, to the US people. We were very clear on that. As a matter of fact, there was nothing in the whole evidence that would show hatred toward the United States or the US people or an intent to damage anybody. We knew that we were defending human life. And going to prison for defending the most precious thing which is the human life - it makes you strong."

Surviving Prison Through Poetry and Art

I asked González and Guerrero how they survived prison for all those years. "Our humor never went down," González said. "We played chess from one cell to another by yelling. We did poetry. Sometimes we had fun just reading the poetry through the doors."

Guerrero also began writing poetry in prison.

"I started writing poems without even having paper," he said. "A poem came to my head after they arrested me … And I cannot explain how because I wasn't a poet. And then I started writing poems." Guerrero never imagined that his poems would be published, but he shared them with the other prisoners and shared them with people in court. He couldn't believe it when his first book of poems, Desde Mi Altura ("From My Altitude"), was published.

Guerrero also became a painter in prison. "The penitentiary is very tough," he said. "So one day I went to the art room … that was another way to free my mind."

I was thrilled when Guerrero gave me a copy of his newly published book, Absolved by Solidarity, a collection of his paintings depicting the different stages of the trial.

The Five Return to Cuba

When I asked what it was like when all the members of the Cuban Five were back in Cuba together, Guerrero said: "It's a sense of joy. It's a sense of victory. It's a sense of returning to the place where you belong to. And it feels great."

González added: "My little daughter was four months when I was arrested. I came to Cuba two days before her 15th birthday. I have a grandson now which is a beautiful boy."

Both González and Guerrero said they had thought they would never see Hernandez in Cuba again because he was serving a term of life imprisonment. "My biggest fear was he would die there," González said. "And let's not fool ourselves. The US wanted him to die in prison. And the prosecutor wanted him to die in prison."

"We know how hard it is to take him from those appetites," he added, "and we managed to do that. It speaks a lot about Cuba, a lot about the Cuban people, because the Cuban people together as one did everything possible for the Five and it's just pure joy."

The Way Ahead

In the days ahead, the normalization of relations between Cuba and the United States will rely most of all on the United States' willingness to act out of respect for Cuban self-determination. "The only thing we want is respect," Guerrero said. "Let's try to build something now - good for you, good for us - with respect in the middle. … The point is, we don't know if the interest of the American government is really to be respectful and friendly to the Cuban government."

Guerrero said that even if millions of American tourists come flooding in to visit Cuba, he cannot conceive of Cuba becoming a capitalist country and forgetting about the Revolution. "Somebody may bring drugs, or somebody may bring a lot of money and try to buy things," Guerrero said. "We are not accustomed to that. But we are ready to deal with that and create our security and our understanding. They will be received with peace, with love."

González added that the Cuban people don't have hatred or resentment toward the American people specifically. "We don't blame the American people for the faults of the their government," he said. "We know they are people like people anywhere. I believe that all of us have more in common than things that divide us. … And I hope sincerely that this new relationship with the US will allow Americans to come here and share with us this beautiful island."

In June, the Cuban Five visited Robben Island in South Africa, where Nelson Mandela was imprisoned for 18 years by the apartheid regime. Hernandez wrote in the guest book, "It has been a great honor to visit this place together with some of the brave compañeros of Nelson Mandela," who were "a source of inspiration and strength for the Five Cubans to withstand the more than 16 years in US jails." Hernandez added that Mandela's legacy is one "the Five will honor for the rest of our lives."

 Copyright, Truthout. Reprinted with permission.

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Wednesday, May 13, 2015

Congress Should End Metadata Collection

Just as Congress was debating whether to reauthorize Section 215 of the Patriot Act, which the government has used to collect data on every telephone call we make, the Second Circuit Court of Appeals unanimously struck it down in ACLU v. Clapper. Congress has four days left in its current session to decide whether to reauthorize Section 215, amend it or let it die a natural death on June 1, 2015 (the date on which it will sunset if not reauthorized).

Section 215 of the Patriot Act

The controversial section authorizes the Foreign Intelligence Surveillance Court (FISC) to issue orders mandating phone companies, internet service providers, banks, credit card companies etc. to provide their records to the government if the FISC finds "there are reasonable grounds to believe" the records "sought are relevant to an authorized investigation" aimed at protecting the country "against international terrorism."

Thanks to Edward Snowden, we know that the FISC used Section 215 to issue an order mandating Verizon to provide "on an ongoing daily basis ... all call detail records or 'telephony metadata' ... for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls." The National Security Agency (NSA) has been collecting metadata on our phone communications, including the identities of the caller and the person called, the phone numbers of both parties, as well as the date, time, duration and unique identifiers of the communication.

The "data archive" could be accessed only "when the NSA has identified a known telephone number for which ... there are facts giving rise to reasonable, articulable suspicion that the telephone number is associated with [Redacted]." The Court of Appeals speculated that the Redacted portion "presumably" includes "terrorist activity or a specific terrorist organization."

So the government is collecting data that is not "relevant to an authorized investigation," but it argues that it might be of use later when a specific terrorist suspect or terrorist plot is being investigated.

The government "does not seriously dispute [the] contention that all significant service providers in the United States are subject to similar orders," Judge Gerard E. Lynch wrote for the three-judge panel of the Court of Appeals in Clapper. That means all of our phone communications are being collected.

The Court of Appeals Opinion

Judge Lynch began by citing United States v. U.S. Dist. Court (Keith), in which the Supreme Court in 1972 struck down warrantless surveillance procedures that the government had argued were lawful as an exercise of the president's power to protect national security. The Keith Court remarked on "the inherent vagueness of the domestic security concept [and] the necessarily broad and continuing nature of intelligence gathering."

Lynch went on to describe the Senate's Church Committee, established in response to Keith and alleged abuses in the intelligence-gathering and surveillance activities of the NSA, FBI and CIA during "the early 1970s, in a climate not altogether unlike today's." The committee concluded that the privacy rights of US citizens had been violated by activities conducted under the rubric of foreign intelligence collection.

It was the Keith case together with the findings of the Church Committee that led Congress in 1978 to enact the Foreign Intelligence Surveillance Act (FISA) and establish the FISC to review the government's applications for wiretap orders. The FISC, which functions in secret, has authorized just about every wiretap the government has asked for since its creation.

Shortly after the September 11, 2001, attacks, Congress amended FISA by passing the USA Patriot Act, and subsequently amended Section 215. An application for a wiretap order must contain "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevantto an authorized investigation (other than a threat assessment) ... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." (emphasis added).

In construing the phrase, "relevant to an authorized investigation," Lynch notes, "The records demanded are all-encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry."

The government argued that although the vast amount of information does not contain directly "relevant" information, the data should be collected as it may allow the NSA sometime in the future to identify relevant information. Lynch disagreed, noting, "We agree with appellants that such an expansive concept of 'relevance' is unprecedented and unwarranted."

Lynch observed, "The sheer volume of information sought is staggering; while search warrants and subpoenas for business records may encompass large volumes of paper documents or electronic data, the most expansive of such evidentiary demands are dwarfed by the volume of records obtained pursuant to the orders in question here."

But, Lynch noted, "§ 215 does not permit an investigative demand for any information relevant to fighting the war on terror, or anything relevant to whatever the government might want to know. It permits demands for documents 'relevant to an authorized investigation.'"

"The overwhelming bulk of the metadata ... concerns ... individuals who are not targets of an investigation or suspected of engaging in any crime whatsoever, and who are not even suspected of having any contacts with any such targets or suspects," Lynch wrote.

The court was concerned about the slippery slope of allowing the government such expansive power to collect our data. "If the government is correct," Lynch noted, "it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e-mail and social media information) relating to all Americans."

"Such expansive development of government repositories of former private records," according to Lynch, "would be an unprecedented contraction of the privacy expectations of all Americans."

The court held that Section 215 does not authorize the government "to collect phone records only because they may become relevant to a possible authorized investigation in the future."

Therefore, the court decided that Section 215 "does not authorize the telephone metadata program." Since the Court of Appeals concluded that Section 215 does not allow the FISC order, it did not decide whether the metadata collection program also violates the US Constitution.

Because Section 215 is set to expire soon, and Congress is debating how to proceed, the Court of Appeals decided not to issue a preliminary injunction at this time. The court's opinion rejected the government's contention that Congress impliedly authorized the FISC order when it voted for extensions of Section 215. The court said that since the metadata program was secret, members of Congress could not be said to have approved it.

Judge Robert D. Sack concurred with Lynch's opinion and wrote separately, "Because our decision is based on our reading of a federal statute, not the Constitution, Congress can in effect overrule it." If the Court of Appeals had instead concluded that the metadata collection program violated not just Section 215, but the Fourth and/or First Amendments to the US Constitution as well, Congress would be bound by that decision.

What Should Congress Do?

The House of Representatives is poised to pass the USA Freedom Act of 2015, which would amend Section 215 to end bulk collection of metadata from domestic phone companies, but would leave in place a sweeping surveillance program focused on international communications. And if a call originates overseas, information about Americans could still be collected. It would allow the NSA to continue to analyze the metadata, which would be stored by the telephone companies. A panel of experts would advise the FISC, but there would be no provision for a civil liberties advocate. The House Judiciary Committee rejected amendments that would provide safeguards for civil liberties and require the government to secure a warrant before searching collected data for information about Americans.

Even before the Court of Appeals issued its ruling, senators were at odds about what to do with Section 215. Many of them, including Sen. Ted Cruz (R-Texas), support the USA Freedom Act. Senators Mike Lee (R-Utah) and Patrick Leahy (D-Vermont), who authored the overhaul legislation, said they would not consent to a short-term extension of Section 215 to get past the June 1 deadline.

Others, such as Senate Majority Leader Mitch McConnell (R-Kentucky), Sen. Richard M. Burr (R-North Carolina), chairman of the Senate Intelligence Committee, and Sen. Marco Rubio (R-Florida), want reauthorization with no change.

Still others, including Senators Rand Paul (R-Kentucky) and Ron Wyden (D-Oregon), have threatened to mount a filibuster rather than allow a brief extension of Section 215. They oppose the USA Freedom Act, favoring a stronger bill that would end the metadata collection program.

McConnell has refused to allow the USA Freedom Act to come to the Senate floor for discussion. Some Democrats might agree to a brief extension in exchange for McConnell's agreement to allow the act to be debated.

But any legislation that keeps the bulk metadata collection in place would run afoul of the Court of Appeals decision.

Wyden characterized the Court of Appeals ruling as "a huge step for individual Americans' rights." He added, "Now that this program is finally being examined in the sunlight, the executive branch's claims about its legality and effectiveness is crumbling. The president should end mass surveillance immediately. If not, Congress needs to finish the job and finally end this dragnet."

The Privacy and Civil Liberties Oversight Board, as well as a review group appointed by the president, reviewed classified files and concluded that there was no evidence the metadata collection program had ever played a pivotal role in any terrorism investigation.

Congress should take the cue from the Court of Appeals and end the metadata collection program. "If we don't allow Section 215 to sunset," wrote ACLU executive director Anthony Romero, "we risk making permanent a 'new normal' of government surveillance and extending surveillance programs that haven't yet been - and may never be - disclosed to the public."

 Copyright, Truthout. Reprinted with permission.

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Monday, May 4, 2015

The Chickens Come Home to Roost in Baltimore

Once again, the nation watches as prosecutors deal with the killing of an unarmed black man.

“[The officers] failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed by Mr. Gray . . . Accordingly, [he was] illegally arrested,” Baltimore state’s attorney Marilyn Mosby declared, as she announced the filing of criminal charges against the six officers implicated in Freddie Gray’s death.

Gray made “eye contact” with Officer Brian Rice. Gray then ran from Rice, and Rice began chasing Gray. It was after Gray surrendered to Officers Garrett Miller and Edward Nero that Gray was taken on his fatal “rough ride.”

A “rough ride” is an unsanctioned technique that some officers use to injure arrestees without physically touching them with their hands or weapons. The driver typically takes intentionally rough or rapid turnsß around corners or makes sudden stops. Since the suspect is handcuffed, he is unable to brace himself so he falls forward, often bashing his head against the inside of the van.

Like so many African American men before him in this country, Gray was guilty of nothing other than “walking while black.” In his case, Baltimore’s sordid history of racial and class oppression, combined with the war on drugs, made for a deadly combination.

“Probable cause was distorted by the drug war,” David Simon, creator of The Wire, said in an interview with Bill Keller. Set in Baltimore, the award-winning HBO series portrayed the conflict between the police and African Americans in the streets, in a compelling work of historical fiction. “[T]he drug war was as much a function of class and social control as it was of racism,” Simon added. “The drug war gives everybody permission to do anything. It gives cops permission to stop anybody, to go in anyone’s pockets, to manufacture any lie when they get to district court.” In short, under the guise of the war on drugs, Baltimore police have been harassing people for years. Simon added, “My own crew members [on The Wire] used to get picked up trying to come from the set at night . . . Driving while black . . . Charges were non-existent, or were dismissed en masse.”

Scholar Richard Rothstein, a research associate at the Economic Policy Institute, documented more than 100 years of “federal, state, and local policies to quarantine Baltimore’s black population in isolated slums.” Rothstein does not think the answer lies in improving the quality of the police. He recognizes the frustration of those who engage in violent protest, as they have been denied the opportunity to become part of mainstream society. “When disadvantaged children are concentrated in separate schools, as they are in Baltimore, their disadvantages are exacerbated.” Rothstein found, “Baltimore, not at all uniquely, has experienced a century of public policy designed, consciously so, to segregate and impoverish its black population.”

The Supreme Court held in Illinois v. Wardlow that flight in a high-crime area may constitute reasonable suspicion for an officer to briefly detain an individual and determine whether there is evidence of criminal activity. After Miller and Nero handcuffed Gray, they put him in a prone position with his arms handcuffed behind his back. Gray said he couldn’t breathe and requested an inhaler, “to no avail,” according to Mosby. The officers found a legal pocketknife in Gray’s pocket. But instead of releasing Gray, they put him back on his stomach and restrained him with a “leg lace” while waiting for the police wagon to transport him.

Miller and Nero loaded Gray into the wagon, which Officer Caesar Goodson drove. At no time was Gray secured by a seatbelt, in violation of Baltimore Police Department (BPD) policy. At Baker Street, Rice, Nero and Miller placed handcuffs and leg shackles on Gray. They then placed Gray on his stomach in the wagon, head first.

“Following transport from Baker Street,” Mosby said, “Mr. Gray suffered a severe and critical neck injury as a result of being handcuffed, shackled by his feet and unrestrained inside of the BPD wagon.”

Goodson stopped to check on Gray but “at no point did he seek nor did he render any medical assistance for Mr. Gray.” At another stop, Goodson and Officer William Porter went to the back of the wagon to check on Gray, who requested help, said he couldn’t breathe, and twice requested a medic. “At no point did either [Goodson or Porter] restrain Mr. Gray per BPD general order nor did they render or request medical assistance.”

“Despite Mr. Gray’s obvious and recognized need for medical assistance, Officer Goodson in a grossly negligent manner chose to respond to the 1600 block of West North Avenue with Mr. Gray still unsecured by a seatbelt in the wagon without rendering to or summoning medical assistance for Mr. Gray.”

During still another stop, Officer Alicia White, Porter and Goodson “observed Mr. Gray unresponsive on the floor of the wagon.” White, who was “responsible for investigating two citizen complaints pertaining to Mr. Gray’s illegal arrest spoke to the back of Mr. Gray’s head. When he did not respond, she did nothing further despite the fact that she was advised that he needed a medic. She made no effort to look or assess or determine his condition.”

“Despite Mr. Gray’s seriously deteriorating medical condition, no medical assistance was rendered or summoned for Mr. Gray at that time by any officer,” Mosby added.

Goodson failed to restrain Gray with a seatbelt at least five different times.

“By the time [officers] attempted to remove Mr. Gray from the wagon, Mr. Gray was no longer breathing at all.” A medic, who “was finally called to the scene,” determined that Gray “was now in cardiac arrest and was critically and severely injured,” Mosby stated.

Gray was finally “rushed” to the hospital where he underwent surgery and died seven days later.

The Maryland Medical Examiner concluded Gray’s death was a homicide, “believed to be the result of a fatal injury that occurred when Mr. Gray was unrestrained by a seatbelt in the custody of the Baltimore Police Department wagon.”

Mosby described multiple stops during which Gray was never secured by a seatbelt or provided with medical care. Almost one hour passed before he received any medical attention.

The state’s attorney charged six Baltimore police officers as follows:

Goodson: second-degree depraved heart murder, involuntary manslaughter, second-degree negligent assault, manslaughter by vehicle by means of gross negligence, manslaughter by vehicle by means of criminal negligence, misconduct in office by failure to secure prisoner, failure to render aid.

Porter: involuntary manslaughter, second-degree assault, misconduct in office.

Rice: involuntary manslaughter, second-degree assault, misconduct in office, false imprisonment. 

Nero: second-degree intentional assault, second-degree negligent assault, misconduct in office, false imprisonment.

Miller: second-degree intentional assault, second-degree negligent assault, misconduct in office, false imprisonment.

White: involuntary manslaughter, second-degree assault, misconduct in office.

In order to secure a conviction of second-degree depraved heart murder, which carries a maximum sentence of 30 years in prison, the prosecutor must prove that Goodson killed Gray by acting with a conscious and extreme disregard of a very high risk to Gray’s life. Taking Gray on a “rough ride” while he his arms and legs were immobilized caused his death.

Two other men from Baltimore, Jeffrey Alston and Dondi Johnson, became paralyzed after riding in police vans in two separate cases. Alston settled his lawsuit for $6 million in 2004. Goodson should thus have been on notice of the very high risk to Gray’s life from his “rough ride.”

Professor Alan Dershowitz doubts that prosecutors could secure a conviction of Goodson for second-degree depraved heart murder because “Nobody wanted this guy to die, nobody set out to kill him, and nobody intentionally murdered him.” If Dershowitz were to read the Maryland statute, he would learn that second-degree depraved heart murder does not require the intent to kill.

To be convicted of involuntary manslaughter, which carries a maximum of 10 years, Goodson, Porter, Rice and White must have unintentionally caused the death of Gray while doing a negligent act or negligently failing to perform a legal duty. Failing to secure Gray with a seatbelt and get medical assistance for him constituted negligent acts, which caused Gray’s death. The officers had a legal duty to protect a prisoner in their custody.

Second-degree assault, which also carries a maximum sentence of 10 years, requires that the officers caused physical harm to Gray as the result of an intentional or reckless act. Failing to secure Gray with a seatbelt and get him medical assistance constituted acts intended to hurt him, causing physical harm (death) to Gray.

Preliminary hearings are scheduled for May 27, but prosecutors have 30 days from the date of the filing of charges to seek a grand jury indictment. There is ample evidence to support the charges against these officers. But whether they are indicted by a grand jury, and if so, ultimately convicted, remains to be seen.

Gray’s family certainly has a good section 1983 civil rights lawsuit for violation of Gray’s Fourth Amendment right to be free from unreasonable search and seizure, and his Fifth Amendment right not to be deprived of his life or liberty without due process of law.

Sonja Sohn, who portrayed Detective Kima Greggs on The Wire, wrote in the New York Times, “there was a hopelessness on the streets of Baltimore that ran so deep that it seemed to have killed the spirit of the people.” She attributes the recent “violence” to a “public betrayal of trust” as well as “the culture of police brutality that was so pervasive that underserved Baltimoreans accepted it as a fact of life.” When Mosby announced the charges against the officers who were complicit in Gray’s death, Sohn “sensed something lift. It is a break from the defeat I felt when I had to take a breather from my nonprofit [“ReWired for Change,” that served formerly incarcerated youth in Baltimore]. It’s a reprieve from the despair that I felt all those years ago, struggling to act in the reality of the Baltimore poor.”

The elation felt by hundreds of demonstrators in Baltimore was understandable. If the officers are indicted, they will be tried in a community in which the police have long enjoyed a culture of impunity. But Gray’s death took place in the context of killings of several unarmed black men, including Michael Brown and Eric Garner, by police in high-profile cases around the country. This may give jurors pause when they consider whether the officers in Gray’s case could have committed these crimes.

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Friday, May 1, 2015

Agent Orange: Terrible Legacy of the Vietnam War

Mai Giang Vu was exposed to Agent Orange while serving in the Army of South Vietnam from 1968 to 1974. He carried barrels of chemicals to spray in the jungle. His sons were born in 1974 and 1975. They were unable to walk or function normally. Their limbs gradually "curled up" and they could only crawl. By age 18, they were bedridden. One died at age 23; the other at age 25.

Nga Tran is a French Vietnamese woman who worked in Vietnam as a war correspondent. She was there when the US military began spraying chemical defoliants. A big cloud of the agent enveloped her. Shortly after her daughter was born, the child's skin began shedding. She could not bear to have physical contact with anyone. The child never grew. She remained 6.6 pounds - her birth weight - until her death at the age of 17 months. Tran's second daughter suffers from alpha thalassemia, a genetic blood disorder rarely seen in Asia. Tran saw a woman who gave birth to a "ball" with no human form. Many children are born without brains; others make inhuman sounds, Tran said. There are victims who have never stood up. They creep and barely lift their heads.

Rosemarie Hohn Mizo is the widow of George Mizo, who fought for the US Army in Vietnam in 1967. After he refused to serve a third tour, Mizo was court-martialed, spent two and a half years in prison and received a dishonorable discharge. Before his death from Agent Orange-related illnesses, Mizo helped found the Friendship Village where Vietnamese victims live in a supportive environment.

Dr. Jeanne Stellman, who wrote the seminal Agent Orange article in Nature, said, "This is the largest unstudied [unnatural] environmental disaster in the world."

Dr. Jean Grassman, from Brooklyn College at the City University of New York, stated that dioxin (the active ingredient in Agent Orange) is a potent cellular disregulator that alters several pathways and disrupts many bodily systems. She said children are very sensitive to dioxin, and the intrauterine or postnatal exposure to dioxin may result in altered immune, neurobehavioral and hormonal functioning. Women pass their exposure to their children both in utero and through the excretion of dioxin in breast milk.

These were five of the 27 witnesses who testified at the International Peoples' Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange, which was held in Paris in 2009. I served as one of seven judges from three continents. We heard two days of testimony from Vietnamese and US victims of Agent Orange, witnesses and scientists, including the five witnesses cited above. We saw firsthand horribly disfigured individuals who had been exposed to Agent Orange during the Vietnam War.

The panel of judges found the following:

- From 1961 to 1971, the US military sprayed chemical products that contained large quantities of dioxin in order to defoliate the trees for military objectives.

- The chemical products caused:

-- direct damage to those exposed to dioxin, including cancers, skin disorders, liver damage, pulmonary and heart diseases, defects to reproductive capacity, and nervous disorders;
-- indirect damage to the children of those exposed to dioxin, including severe physical deformities, mental and physical disabilities, diseases, and shortened life spans;
-- damage to the land and forests, water supply, and communities of Vietnam, some of which may be permanent. This includes the extinction of animals that once inhabited the forests and jungles of Vietnam, disrupting communities that depended on them; and
-- erosion and desertification that will change the environment, contributing to the warming of the planet and dislocation of crop and animal life. The damage to the environment of Vietnam is "ecocide."

After examining the evidence, the panel determined that the US government and the chemical manufacturers knew that dioxin, one of the most dangerous chemicals known to humans, was present in one of the components of Agent Orange. Yet they continued to use it and in fact suppressed the 1965 Bionetics study that showed dioxin caused many birth defects in experimental animals. It was not until the results of that study were leaked that the use of Agent Orange was stopped.

The panel also concluded that the US war in Vietnam was an illegal war of aggression (crime against peace) against a country seeking national liberation, in violation of the United Nations Charter. It further decided that the use of dioxin was a war crime because it qualified as a poisoned weapon in violation of the Hague Convention and customary international law. Finally, the panel found that the use of dioxin was a crime against humanity, as it constituted an inhuman act perpetrated against a civilian population in connection with a crime against peace and war crimes.

Several international treaties provide the right to an effective remedy for violations of human rights law. They include the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The United States has ratified all of them.

Moreover, in the 1973 Paris Peace Accords, the Nixon administration promised to contribute $3 billion for compensation and postwar reconstruction of Vietnam. That promise remains unfulfilled.

Although US veterans of the Vietnam War have received some compensation for Agent Orange-related illnesses, the Vietnamese people have never seen a dime. The US government has funded the cleanup of dioxin at the Danang airport, only one of the 28 "hot spots" still contaminated by dioxin.

Rep. Barbara Lee (D-California) has introduced H.R. 2114, the Victims of Agent Orange Relief Act of 2015. If enacted, the bill would lead to the cleanup of dioxin and arsenic contamination still present in Vietnam. It would also provide assistance to the public health system in Vietnam directed at the 3 million Vietnamese affected by Agent Orange. It would extend assistance to the affected children of male US veterans who suffer the same set of birth defects covered for the children of female veterans. It would lead to research on the extent of Agent Orange-related diseases in the Vietnamese-American community, and provide them with assistance. Finally, it would lead to laboratory and epidemiological research on the effects of Agent Orange.

Following the 2009 Paris tribunal, I participated in a delegation to Vietnam to present our findings to President Nguyen Minh Triet of the Socialist Republic of Vietnam. I told the president that it struck me that even as US bombs were dropping on the Vietnamese people, they distinguished between the US government and the US people. The president responded, "We fought the forces of aggression but we always reserved our love for the people of America ... because we knew they always supported us."

Now, 40 years after the end of the Vietnam War, we must support the Vietnamese people who continue to suffer some of the most horrific legacies of that war. Contact your representative and demand that he or she co-sponsor H.R. 2114.

This piece first appeared on Truthout.

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