Israel Murders Human Rights Workers Delivering Humanitarian Aid

On Sunday, Israel murdered human rights workers who were attempting to deliver 10,000 tons of humanitarian aid to the people of Gaza, because Gaza has been virtually cut off from the outside world by Israel. At least 9 people were reportedly killed and dozens injured when Israeli troops boarded the six-ship Freedom Flotilla convoy in international waters and immediately fired live ammunition at the people on board the ships. The convoy was comprised of 700 people from 50 nationalities and included a Nobel laureate, members of parliament from Ireland, Germany, Sweden, Turkey and Malaysia, as well as Palestinian members of the Israeli Knesset and a Holocaust survivor.

Israel’s armed attack on these human rights workers constitutes a clear breach of international law. The human rights workers should be released immediately, medical treatment should be provided for the wounded, and all humanitarian aid materials should be immediately transferred to Gaza.

Human rights organizations and bar associations, including the International Association of Democratic Lawyers, the National Lawyers Guild, the American Association of Jurists, the International Jewish Anti-Zionist Network, MADRE, the European Association of Lawyers for Democracy, World Human Rights, the Palestinian Center for Human Rights, and the governments of Britain, France, Germany and Turkey have condemned the Israeli assault. The U.S. government, has not yet spoken out in opposition to the assault by Israel, the largest recipient of U.S. aid.

There should be an international investigation of crimes committed during and after Israel’s armed attack on the Freedom Flotilla and prosecution of all Israeli officials and soldiers responsible.

Israel must end its illegal blockade of Gaza, which constitutes unlawful aggression under General Assembly Resolution 3314 (1974). When the Security Council convenes, it should order Israel to cease its acts of aggression.

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Rwandan Arrest of U.S. Lawyer Motivated by Politics

Professor Peter Erlinder, noted criminal defense lawyer and past president of the National Lawyers Guild, was arrested Friday morning in Rwanda for “genocide ideology.” Erlinder’s representation of high-profile defendants before the International Criminal Tribunal for Rwanda (ICTR) has incurred the wrath of government officials, who have charged him with “negation of the Tutsi genocide” for mounting defenses of his clients that conflict with the government party line about who was responsible for the 1994 genocide.

The Rwandan government recently blasted the U.S. government for criticizing Rwanda’s restrictions on the media and human rights organizations in advance of the upcoming August national elections. A Human Rights Watch researcher had been barred from the country and several independent newspapers had been shuttered. Opposition supporters had been attacked and jailed.

Erlinder had recently filed a lawsuit in Oklahoma against Rwandan president Paul Kagame, which likely angered the government in Rwanda. Erlinder had traveled to Kigali, Rwanda to represent his client, Victoire Ingabire Umuhoza, who is also charged with “denying genocide.” Ms. Umuhoza happens to be opposing President Kagame in the forthcoming August elections. Since he arrived in Kigali, the government-sponsored media there has been very critical of Erlinder.

The “Law Relating to the Punishment of the Crime of Genocide Ideology,” unique to Rwanda, defines genocide broadly and does not require that one have any link to a genocidal act. It punishes legitimate forms of expression protected by international treaties. Human Rights Watch, Amnesty International and the U.S. State Department have denounced the law as a means for political repression.

In an interview shortly before he traveled to Kigali, Erlinder stated that Ms. Umuhoza was not in Rwanda in 1994 and the charges against her are not supported by a verdict of the ICTR.

Regardless of the merits of the case, however, it is unsupportable that an attorney be arrested and jailed for vigorously representing his client. In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts. Adams later said his representation of those British soldiers was "one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."

Bar associations including the National Lawyers Guild (NLG) and the National Association of Criminal Defense Lawyers (NACDL) have condemned Erlinder’s arrest. “There can be no justice for anyone if the state can silence lawyers for defendants whom it dislikes and a government that seeks to prevent lawyers from being vigorous advocates for their clients cannot be trusted,” said NLG president David Gespass. “Government intimidation and interference with criminal defense lawyers is unacceptable in all its forms and it fundamentally undermines justice,” according to an NACDL press release.

Erlinder should be released immediately. He should be given immediate access to counsel and the charges against him should be dismissed.

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Kagan’s Troubling Record

After President Obama nominated Elena Kagan for the Supreme Court, he made a statement that implied she would follow in the footsteps of Justice Thurgood Marshall, the civil rights giant and first black Supreme Court justice. Kagan served as a law clerk for Marshall shortly after she graduated from Harvard Law School. Specifically, Obama said that Marshall's “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career.” Unfortunately, history does not support Obama's optimism that Kagan is a disciple of Marshall.

Kagan demonstrated while working as his law clerk that she disagreed with Marshall's jurisprudence. In 1988, the Supreme Court decided Kadrmas v. Dickinson Public Schools, a case about whether a school district could make a poor family pay for busing their child to the closest school, which was 16 miles away. The 5-justice majority held that the busing fee did not violate the Fourteenth Amendment’s Equal Protection Clause. They rejected the proposition that education is a fundamental right which would subject the statute on which the school district relied to ‘strict scrutiny.’ The Court also declined to review the statute with ‘heightened scrutiny’ even though it had different effects on the wealthy and the poor. Instead, the majority found a ‘rational basis’ for the statute, that is, allocating limited governmental resources.

Marshall asked clerk Kagan to craft the first draft of a strong dissent in that case. But Kagan had a difficult time complying with Marshall’s wishes and he returned several drafts to her for, in Kagan’s words, “failing to express in a properly pungent tone - his understanding of the case.” Ultimately, Marshall’s dissent said, “The intent of our Fourteenth Amendment was to abolish caste legislation.” He relied on Plyler v. Doe, in which the Court had upheld the right of the children of undocumented immigrants to receive free public education in the State of Texas. “As I have stated on prior occasions,” Marshall wrote, “proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake.” Kagan later complained that Marshall “allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences to guide him.”

Kagan evidently rejects these humanistic factors that guided Marshall's decision making and would follow a more traditional approach. This is a matter of concern for progressives, who worry about how the Supreme Court will deal with issues like a woman's right to choose, same sex marriage, "don't ask, don't tell," and the right of corporations to donate money to political campaigns without restraint. While Kagan has remained silent on many controversial issues, she has announced her belief that the Constitution provides no right to same-sex marriage. If the issue of marriage equality comes before the Court, Justice Kagan would almost certainly rule that denying same sex couples the right to marry does not violate equal protection.

There are other indications that should give progressives pause as well. During her solicitor general confirmation hearing, Kagan said, “The Constitution generally imposes limitations on government rather than establishes affirmative rights and thus has what might be thought of as a libertarian slant. I fully accept this traditional understanding…” But the Constitution is full of affirmative rights – the right to a jury trial, the right to counsel, the right to assemble and petition the government, etc. Does Kagan not understand that decisions made by the Supreme Court give life and meaning to these fundamental rights? Is she willing to interpret those provisions in a way that will preserve individual liberties?

While Kagan generally thinks the Constitution serves to limit governmental power, she nevertheless buys into the Republican theory that the Executive Branch should be enhanced. In one of her few law review articles, Kagan advocated expansive executive power consistent with a formulation from the Reagan administration. This is reminiscent of the ‘unitary executive’ theory that George W. Bush used to justify grabbing unbridled executive power in his ‘war on terror.’

As solicitor general, Kagan asserted in a brief that the ‘state secrets privilege’ is grounded in the Constitution. The Obama White House, like the Bush administration, is asserting this privilege to prevent people who the CIA sent to other countries to be tortured and people challenging Bush’s secret spying program from litigating their cases in court.

During her forthcoming confirmation hearing, senators should press Kagan to define her judicial philosophy. Several of the radical right-wingers on the Court define themselves as ‘originalists’, claiming to interpret the Constitution consistent with the intent of the founding fathers.

I would like to hear Kagan say that her judicial philosophy is that human rights are more sacred than property interests. I would hope she would declare that her judicial philosophy favors the right to self-determination – of other countries to control their destinies, of women to control their bodies, and of all people to choose whom they wish to marry.

Kagan is likely to be circumspect about her views. She will frequently decline to answer, protesting that issues may come before the Court. We should be wary about how Justice Kagan will rule when they do.

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Kagan Will Move Supreme Court to the Right

President Barack Obama has chosen Elena Kagan to fill the vacancy left by Justice John Paul Stevens' retirement. Sadly, Kagan cannot fill Justice Stevens' mighty shoes.

As the Rehnquist court continued to eviscerate the right of the people to be free from unreasonable searches and seizures, Associate Justice John Paul Stevens filed principled and courageous dissents. For example, the majority held in the 1991 case of California v. Acevedo that although the police cannot search a closed container without a warrant, they can wait until a person puts the container into a car and then do a warrantless search because the container is now mobile. In a ringing dissent that exemplified his revulsion at executive overreaching, Justice Stevens wrote that “decisions like the one the Court makes today will support the conclusion that this Court has
become a loyal foot soldier in the Executive's fight against crime.”

The founders wrote checks and balances into the Constitution so that no one branch would become too powerful. But during his “war on
terror,” President George W. Bush claimed nearly unbridled executive power to hold non-citizens indefinitely without an opportunity to challenge their detention and to deny them due process. Three times, a closely divided Supreme Court put on the brakes. Justice Stevens played a critical role in each of those decisions. He wrote the opinions in Rasul v. Bush and Hamdan v. Rumsfeld and his fingerprints were all over Boumediene v. Bush.

Unfortunately, President Barack Obama has continued to assert many of Bush’s executive policies in his “war on terror.” Elena Kagan, Obama’s choice to replace Justice Stevens, has never been a judge. But she has been a loyal foot soldier in Obama’s fight against terrorism and there is little reason to believe that she will not continue to do so. During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield. While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent.

Justice Stevens ruled in favor of broad enforcement of our civil rights laws. In his 2007 dissent in Parents Involved in Community Schools v. Seattle School District No. 1, he wrote that “children of all races benefit from integrated classrooms and playgrounds.” When Kagan was dean of Harvard Law School, she hired 32 tenured and
tenure-track academic faculty members. Only seven were women and only one was a minority. “What a twist of fate,” wrote four minority law professors on Salon.com, “if the first black president – of both the Harvard Law Review and the United States of America – seemed to be untroubled by a 21st Century Harvard faculty that hired largely white men.”

Obama had a golden opportunity to appoint a giant of a justice who could take on the extreme right-wingers on the Court who rule consistently against equality and for corporate power. When he cast a vote against the confirmation of John Roberts to be Chief Justice, Senator Obama said, “he has far more often used his formidable skills
on behalf of the strong and in opposition to the weak.” Justice Stevens has done just the opposite.

If he wanted to choose a non-judge, Obama could have picked Harold Hongju Koh or Erwin Chemerinsky, both brilliant and courageous legal scholars who champion human rights and civil rights over corporate and executive power. Unlike Kagan, whose 20 years as a law professor produced a paucity of legal scholarship, Koh and Chemerinsky both have a formidable body of work that is widely cited by judges and scholars.

But Obama took the cautious route and nominated Kagan, who, like Harriet Miers, has no record of judicial opinions and no formidable legal writings. Since Kagan was handily confirmed as solicitor general, Obama probably thinks her confirmation will go smoothly. After the health care debacle, however, he should know that the right-wingers will not be appeased by this milk toast appointment, but will oppose whomever he nominates.

The Warren Court issued several landmark decisions. It sought to remedy the inequality between the races and between rich and poor, and to curb unchecked executive power. Chief Justice Earl Warren wrote these words, which would later become his epitaph: “Where there is injustice, we should correct it. Where there is poverty, we should eliminate it. Where there is corruption, we should stamp it out. Where there is violence, we should punish it. Where there is neglect, we should provide care. Where there is war, we should restore peace. And wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

Conservatives decry activist judges – primarily those who act contrary to conservative politics. But the Constitution is a short document and it is up to judges to interpret it. Obama has defensively bought into the right-wing rhetoric, saying recently that during the 1960’s and 1970’s, “liberals were guilty” of the “error” of being activist judges. Rather than celebrating the historic achievements of the Warren Court – and of Justice Stevens – Obama is once again cowering in the face of conservative opposition.

Obama should have done the right thing, the courageous thing, and filled Justice Stevens’ seat with someone who can fill his shoes. His nomination of Elena Kagan will move the delicately balanced court to the Right. And that is not the right thing.

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