Marjorie Cohn

California Assembly Votes to Report on Human Rights to U.N. Committees

2010-08-19T18:31:00.000-07:00

On August 9, the California Assembly took the historic step of becoming the first state to agree to publicize the text of three ratified U.N. human rights treaties, and to submit the required reports to the State Department for consideration by the U.N. treaty committees. The State Assembly voted to pass ACR 129, the Human Rights Reporting legislation, by a vote of 52 to 11, with 16 abstentions. The legislation will now move to the state Senate.

The International Convention on Elimination of all forms of Racial Discrimination requires the United States to publicize the text at the federal, state and local levels, and to make periodic reports to the U.N. Committee on Elimination of Racial Discrimination every two years on complaints of racial discrimination in every aspect of life, and on progress in eliminating such discrimination.

The U.S. ratified this treaty in 1994 and has issued some of the required reports, but has never publicized the text nor has it sought, or included, information from each state, as required. Now the California Assembly has voted to publicize and make the required reports.

The International Convention against Torture and other Cruel, Inhuman or Degrading or Treatment was ratified by the United States in 1994. It requires reporting every four years on misconduct and proper conduct by police, prison guards, human services agents, and everyone in government, and what steps the government is taking to correct reported problems.

The International Covenant on Civil and Political Rights requires reports to the U.N. Human Rights Committee every five years on violations and enforcement of freedom of assembly, labor union rights, rights of children, immigrants, and LGBT. When the Senate passes this Assembly Concurrent Resolution 129, California agencies will collect the information they already gather and submit it to the State Department for submission to the U.N. Human Rights Committee.

Bill Monning, the representative for the 27th Assembly district,
sponsored ACR129.

The City of Berkeley in September 2009 voted to become the first U.S. city to make reports under these treaties. City officials now state that collecting the information for the reports has heightened concern about human rights at City Hall.

Rev. Daniel Buford, President of the Meiklejohn Civil Liberties Institute and Prophetic Justice Minister at Allen Temple Baptist Church in Oakland, testified before the Assembly Appropriations Committee before adoption of the Resolution. He reported that he found the three treaties very helpful in working on justice in the killing of Oscar Grant by BART police officer Johannes Mehserle last year.

Attorney Ann Fagan Ginger, founder of MCLI, reports enthusiastic response when she describes the treaties to African American, Asian American, Latino and human rights organizations, students, unions, and people working on health care, prison conditions, the homeless, immigrant rights, ecology issues, and all other human rights related issues.

When the United States ratifies a treaty, it becomes part of U.S. law under the Supremacy Clause of the Constitution. The United States has not fully complied with its obligations under our ratified human rights treaties. While our government does not hesitate to criticize other countries for their human rights violations, it has been derelict in complying with our own human rights commitments. Hopefully the California Senate will also pass this important legislation which would send a strong message to other states and the federal government that this country is serious about protecting human rights.

Landmark Ruling Declares Prop 8 Unconstitutional

2010-08-08T11:04:00.001-07:00

In a stunning, carefully crafted 136-page opinion, U.S. District Court Judge Vaughn Walker held in Perry v. Schwarzenegger that California’s Proposition 8, which outlaws same-sex marriage, is unconstitutional. The lawsuit was filed by two gay couples who sought to overturn Prop 8. Interestingly, the named defendant, Gov. Arnold Schwarzenegger, did not defend Prop 8. Neither did California’s Attorney General Jerry Brown; in fact, he conceded that Prop 8 is unconstitutional. It was the official proponents of the ballot initiative in the California election who defended Prop 8 in the lawsuit.

After making 80 bullet-proof findings of fact, Walker concluded that Prop 8 violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The judge agreed with all of the legal arguments advanced by the plaintiffs. The forces for marriage equality hit a grand slam. It remains to be seen, however, whether Walker’s ruling will hold up on appeal.

Walker presided over the first trial in U.S. history that raised the issue of whether same-sex marriage violates the federal Constitution. He heard testimony for two weeks, including that of plaintiffs’ myriad experts and the plaintiffs themselves. The anti-marriage equality side presented only two witnesses, who were unable to articulate any rational reason to treat straights and gays differently when it comes to the right to marry. Walker found that the opinions of one of those witnesses, David Blankenhorn, who is founder and president of the Institute for American Values, were “not supported by reliable evidence or methodology . . . and entitled to essentially no weight.” Kenneth Miller, a professor of government at Claremont McKenna College, also testified for the pro-Prop 8 side. The judge noted that Miller’s research did not focus on gay and lesbian issues, and the opinions he gave at trial conflicted with his prior opinions, which undermined his credibility.

When trial judges make factual findings, they are rarely disturbed on appeal; appellate courts usually confine themselves to reviewing legal conclusions. Walker’s detailed findings of facts include the following:

--Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage.

--California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.

--Individuals do not generally choose their sexual orientation.

--Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.

--Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

--The sexual orientation of an individual does not determine whether the individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted.

Walker determined that “Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” Same-sex couples, the judge found, are situated identically to opposite-sex couples regarding their ability to perform the rights and obligations of marriage under California law. He rejected the argument that domestic partnerships are a worthy substitute for marriage, which he called “a culturally superior status.”

Because the plaintiffs sought to exercise the fundamental right to marry, their claim was subject to strict scrutiny. “The minimal evidentiary presentation made by proponents [of Prop 8],” the judge said, “does not meet the heavy burden of production necessary to show that Proposition is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny.” Thus, the judge ruled that Prop 8 violates the Due Process Clause.

Walker then held, “Proposition 8 cannot survive any level of scrutiny under the Equal Protection Clause.” All classifications based on sexual orientation, he wrote, “appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.” When there is a suspect classification, the court will judge it with strict scrutiny.

But, Walker noted, strict scrutiny is unnecessary here because Prop 8 fails even if the court uses the “rational basis” test, in which case the Prop 8 proponents would only need to show that there was a rational basis for treating homosexuals differently from heterosexuals. This is how the judge shot down each one of the rationales the proponents set forth for denying gays the right to marry:

(1) Reserve marriage as only a union between a man and a woman.
--Judge: Tradition alone cannot form a rational basis for a law.

(2) Proceed with caution when implementing social changes.
--Judge: “Because the evidence showed that same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.”

(3) Promote opposite-sex parenting over same-sex parenting.
--Judge: The evidence shows “beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes.” Prop 8 has nothing to do with children; it simply prevents same-sex couples from marrying.

(4) Protect the freedom of those who oppose marriage for same-sex couples.
--Judge: Prop 8 does not affect any First Amendment right or responsibility of parents to educate their children, or the rights of those opposed to homosexuality or to same-sex marriage.

(5) Treat same-sex couples differently from opposite-sex couples.
--Judge: Prop 8 creates an administrative burden on California because it must maintain a parallel institution for same-sex couples.

(6) Any other conceivable interest.
Judge: Proponents have not identified any rational basis that Prop 8 could conceivably further.

A private moral view that same-sex couples are inferior to opposite-sex couples is not a proper basis for legislation, the judge said. Thus, he held, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

To the proponents’ arguments that the purpose of marriage is procreation, Walker retorted, “Never has the state inquired into procreative capacity or intent before issuing a marriage license.” Moreover, the fact that a majority of California voters supported Prop 8 is irrelevant, according to Walker, who wrote that “fundamental rights may not be submitted to [a] vote.”

If this case reaches the U.S. Supreme Court, it will likely fall to the swing Justice Anthony Kennedy to decide whether he wishes to be on the right side of history by affirming Judge Walker’s ruling. Kennedy authored Lawrence v. Texas, which overturned Texas’ anti-sodomy law, and Romer v. Evans, which struck down Colorado’s anti-gay ballot initiative. But Kennedy joined with the four conservative justices in overruling Walker’s decision to broadcast the Prop 8 trial to some locations, although this may reflect Kennedy’s views about the effect of televising trials rather than the way he feels about same-sex marriage.

Well-aware that Kennedy may cast the critical vote, Walker cited Romer and Lawrence several times in his ruling. For example, Walker held that “moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women . . . is not a proper basis on which to legislate,” citing Romer.

Walker also wrote, “The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce ‘profound and deep convictions accepted as ethical and moral principles’ through the criminal code. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot.”

Both Schwarzenegger and Brown asked Walker to permit gay marriages to proceed in California even while the case proceeds through the appellate courts. In ruling on this request, the judge will consider whether his opinion is likely to be upheld on appeal as well as whether same-sex couples who seek to marry would suffer irreparable harm by a postponement.

Judge Walker’s ruling may or may not survive. Nevertheless, in overturning Proposition 8, he struck a mighty blow against homophobia and in favor of equality.

Puerto Rican Political Prisoner Carlos Alberto Torres Released Today After 30 Years

2010-07-26T21:35:00.000-07:00

Today, Puerto Rican political prisoner Carlos Alberto Torres walked out of prison after 30 years behind bars. He was convicted of seditious conspiracy - conspiring to use force against the lawful authority of the United States over Puerto Rico. Torres was punished for being a member of an armed clandestine organization called the FALN, which had taken responsibility for bombings in the Chicago area that resulted in no deaths or injuries. He was not accused of taking part in these bombings, only of being a member of the FALN.

In 1898, Puerto Rico was ceded to the United States by Spain as war bounty in the treaty that ended the Spanish-American War. Nevertheless, the U.S. invaded Puerto Rico and has occupied it ever since. Puerto Ricans have always resisted foreign occupation of their land and called for independence.

Colonized peoples of other empires, particularly in Africa, also resisted colonial control, similarly risking prison and death. In the 1950’s and 60’s, some fought in their own national territory; others, like the Algerians, took their struggle to the metropolis. This wave of anti-colonial struggle led to the formation of a body of international law, which recognized colonialism as a crime against humanity, and which also recognized the right of a people to fight to end that crime, and in the process to use any means at their disposal, including armed struggle.

Torres, who was sentenced to 78 years, invoked international law in his defense, and argued that the courts of the colonizing country may not criminalize captured anti-colonial combatants, but must turn them over to an impartial international tribunal to have their status adjudicated.

The Puerto Rican independence movement enjoys wide support internationally, as evidenced by annual resolutions for 29 years of the United Nations Decolonization Committee, declarations of the Non-Aligned Movement, and recent submissions to the United Nations Human Rights Council Universal Periodic Review.

All of these expressions call on the U.S. government to release Puerto Rican political prisoners who have served 30 and 29 years of their disproportionately long 70 year sentences in U.S. prisons for cases related to the struggle for Puerto Rican independence. They include Torres (who was sentenced to 30 years) and Oscar López Rivera (sentenced to 29 years), as well as Avelino González Claudio, who was recently sentenced to seven years. None of these men was convicted for harming anyone or taking a life.

Torres’ attorney, National Lawyers Guild member Jan Susler of Chicago, notes, “Carlos is being released from prison due to the unflagging support of the Puerto Rican independence movement and others who work for human rights. The more than 10,000 letters of support from the U.S., Puerto Rico, Mexico and other countries sent a strong message to the Parole Commission.”

When President Clinton granted clemency to several of the other Puerto Rican political prisoners in 1999, he declared that “the prisoners were serving extremely lengthy sentences – in some cases 90 years – which were out of proportion to their crimes.” Clinton said he was moved by the support from “various members of Congress, a number of religious organizations, labor organizations, human rights groups, and Hispanic civil and community groups” along with “widespread support across the political spectrum within Puerto Rico,” as well as thousands of letters requesting their release. He also indicated that he was moved by “worldwide support on humanitarian grounds from numerous quarters,” pointing specifically to Jimmy Carter, Nobel Prize laureate South African Archbishop Desmond Tutu, and Coretta Scott King.

Supporters from all over the United States flocked to the welcoming celebration in Chicago, which took place in the heart of the Puerto Rican community. Tomorrow, Torres, his family and attorney will fly to Puerto Rico, where thousands will greet him with a concert of the nation’s finest musicians and artists.

Yet there is a damper on the celebration, as Torres leaves behind his compatriot Oscar López, a 67 year old decorated Viet Nam veteran. López did not accept the terms of President Clinton’s 1999 clemency offer, which would have required him to serve an additional 10 years in prison with good conduct. Though he declined the offer, López has now served the additional 10 years in prison with good conduct. Had he accepted the deal, he would have been released last September. Those who did accept are living successful lives, fully integrated into civil society. There is no reason to treat him differently.

While we celebrate this remarkable day in the life of Torres and the movement for Puerto Rican independence, let us commit ourselves to continue to struggle until Oscar López Rivera and Avelino González Claudio, as well as all political prisoners in U.S. prisons, also walk free.

John McCain on Iraq: ‘We Already Won That One'

2010-07-25T21:19:00.000-07:00

On July 15, I attended a reception in Washington DC to celebrate the 15th anniversary of the normalization of relations between the United States and Vietnam. Geoff Millard and I spoke to Sen. John McCain. When Geoff introduced himself as chairman of the board of Iraq Veterans against the War, McCain retorted, “You’re too late. We already won that one.”

McCain is now the second U.S. official to declare “mission accomplished” in a war that continues to ravage the people and land of Iraq. “[I]t would be a huge mistake to see Iraq as either a success story or as stable,” Juan Cole, Professor of Modern Middle Eastern and South Asian History at the University of Michigan, wrote on Informed Comment. McCain's declaration of victory in Iraq is as specious as the one George W. Bush made after he strutted across the flight deck of the Abraham Lincoln on May 1, 2003.

Gen. David Petraeus is often credited with reducing the violence in Iraq after the “surge” of 30,000 extra U.S. troops. But the violence continues unabated. Every few days there are reports of suicide bombings, car bombs, roadside bombs, and armed attacks in Iraq. About 300 civilians continue to die each month and more than two million Iraqis continue to live as refugees.

I wonder how McCain defines "victory" in Iraq. The U.S. mission there has never been clear since the invasion in 2003. First the search for weapons of mass destruction proved fruitless. Then it became evident there was no link between Al Qaeda and Saddam Hussein. Finally we were told the U.S. invaded Iraq to accomplish regime change and bring democracy to the Iraqi people. But if democracy is the goal, there has been no victory.

Neither Prime Minister Nuri al-Maliki nor Ayad Allawi won a mandate in Iraq’s March election, which created a power vacuum. ”The shortages of power, which remain a chronic problem seven years after the American invasion, have combined with a near paralysis of Iraq’s political system and violence to create a volatile mix of challenges before a planned reduction of United States forces this summer,” according to the New York Times. Ryan Crocker, former U.S. ambassador to Iraq, described the “elitist authoritarianism that basically ignores the people.”

Sunni Arab insurgents have taken advantage of the political vacuum to mount “effective bombing campaigns” and target the banks, says Cole. Last month, attackers in military uniforms tried to storm the Central Bank of Iraq in Baghdad, causing explosions and gun battles with soldiers and police. Fifteen people were killed and 50 were wounded.

Most Iraqis have less than six hours of electricity per day. Baghdad’s poorer neighborhoods have as little as one hour per day, leaving them without so much as an electric fan to withstand the blistering heat – 120 degrees in some places. The electricity shortages caused thousands of Iraqis to join street demonstrations in Baghdad last month.

The political situation in Iraq is worse than it was before the U.S. invaded. Although Saddam Hussein was a tyrant, he nevertheless raised the Iraqi standard of living to a respectable level. “Saddam [had] improved the school system in Iraq and literacy for women was phenomenal for that of an Arab country at the time," William Quandt, a professor of Middle East politics at the University of Virginia who has served as an adviser to the American government on Mideast policy, said on the PBS News Hour. "People didn't go hungry in those days in Iraq," Quandt added.

"We knew Saddam was tough,” Mr. Said Aburish, author of a biography of Hussein called ‘Secrets of His Life and Leadership,’ noted on PBS Frontline. “But the balance was completely different then. He was also delivering. The Iraqi people were getting a great deal of things that they needed and wanted and he was popular.”

Al Qaeda did not operate in Iraq before Bush’s “Operation Iraqi Freedom.” Now Al Qaeda in Mesopotamia terrorizes Iraqis in areas like Amil in Mosul. “They say you have to slaughter soldiers and police,” Staff Col. Ismail Khalif Jasim told the New York Times.

There is a campaign of assassinations aimed at government officials across Iraq, the Times reported a few weeks ago: “Some 150 politicians, civil servants, tribal chiefs, police chiefs, Sunni clerks and members of the Awakening Council [former Sunni insurgents now aligned with the Iraqi government and U.S. military] have been assassinated throughout Iraq since the election.” Speculation about those responsible includes Shiite militia allies, Sunni extremist groups like Al Qaeda in Mesopotamia, Kurdish political parties, and Iran.

Reconstruction of what we have destroyed in Iraq remains elusive. After six years and $104 million spent on restoring a sewage treatment system in Falluja, U.S. officials are walking away without connecting a single house. American reconstruction officials have also walked away from partially completed police stations, schools and government buildings in the past months. “Even some of the projects that will be completed are being finished with such haste, Iraqi officials say, that engineering standards have deteriorated precipitously, putting workers in danger and leaving some of the work at risk of collapse,” the Times reported earlier this month.

President Obama is scheduled to reduce the number of U.S. soldiers in Iraq from 80,000 to 50,000 by the end of August. But that does not mean stability has been attained, nor does it mean the occupation will end. The U.S. is sending civilian "contractors" - perhaps more accurately called mercenaries - to replace them.

The number of State Department security contractors will more than double - from 2,700 to between 6,000 and 7,000 - according to a July 12 report of the bipartisan Commission on Wartime Contracting. The State Department has requested 24 Blackhawk helicopters, 50 Mine-Resistant Ambush-Protected vehicles, and other military equipment from the Pentagon. The gigantic U.S. embassy and five “Enduring Presence Posts” (U.S. bases) will remain in Iraq. The contractors are simply taking over the duties of the departing soldiers.

Transferring military functions to civilians is “one more step in the blurring of the lines between military activities and State Department or diplomatic activities,” said Richard Fontaine of the Center for a New American Security in Washington D.C.

The U.S. government has changed the language describing military activity in Iraq from combat operations to “stability operations,” but U.S. forces will continue to kill Iraqis. “In practical terms, nothing will change,” Maj. Gen. Stephen Lanza told the Times. “We are already doing stability operations.”

Bush’s war of choice in Iraq has caused 4,413 American deaths. Iraq Body Count estimates that between 97,110 and 105,956 Iraqi civilians have been killed. Untold numbers have been seriously wounded. By September, we will have spent nearly $750 billion on this war and occupation.

John McCain should examine the actual state of affairs in Iraq. If he does, he might stop declaring victory.

Losing in Afghanistan

2010-07-06T16:48:00.000-07:00

Last week, the House of Representatives voted 215-210 for $33 billion to fund Barack Obama’s troop increase in Afghanistan. But there was considerable opposition to giving the President a blank check. One hundred sixty-two House members supported an amendment that would have tied the funding to a withdrawal timetable. One hundred members voted for another amendment that would have rejected the $33 billion for the 30,000 new troops already on their way to Afghanistan; that amendment would have required that the money be spent to redeploy our troops out of Afghanistan. Democrats voting for the second amendment included House Speaker Nancy Pelosi and nine Republicans. Both amendments failed to pass.

The new appropriation is in addition to the $130 billion Congress has already approved for Iraq and Afghanistan this year. And the 2010 Pentagon budget is $693 billion, more than all other discretionary spending programs combined.

Our economic crisis is directly tied to the cost of the war. We are in desperate need of money for education and health care. The $1 million per year it costs to maintain a single soldier in Afghanistan could pay for 20 green jobs.

Not only is the war bankrupting us, it has come at a tragic cost in lives. June was the deadliest month for U.S. troops in Afghanistan. In addition to the 1,149 American soldiers killed in Afghanistan, untold numbers of Afghan civilians have died from the war - untold because the Defense Department refuses to maintain statistics of anyone except U.S. personnel. After all, Donald Rumsfeld quipped in 2005, “death has a tendency to encourage a depressing view of war.”

There are other “depressing” aspects of this war as well. As Gen. Stanley McChrystal reported just days before he got the axe, there is a “resilient and growing insurgency” with high levels of violence and corruption within the Karzai government. McChrystal’s remarks were considered “off message” by the White House, which was also irked by the general’s criticisms of Obama officials in a Rolling Stone article. McChrystal believes that you can’t kill your way out of Afghanistan. “The Russians killed 1 million Afghans and that didn’t work.”

He and his successor, Gen. David Petraeus, likely disagree on the need to prevent civilian casualties (known as “Civ Cas”). McChrystal instituted some of the most stringent rules of engagement the U.S. military has had in a war zone: “Patrol only in areas that you are reasonably certain that you will not have to defend yourselves with lethal force.” Commanders cannot fire on buildings or other places if they have reason to believe civilians might be present unless their own forces are in imminent danger of being overrun. And they must end engagements and withdraw rather than risk harming noncombatants. McChrystal knows that for every innocent person you kill, you create new enemies; he calls it “insurgent math.” According to the Los Angeles Times, McChrystal “was credited with bringing about a substantial drop in the proportion of civilian casualties suffered at the hands of NATO’s International Security Assistance Force and its Afghan allies.”

While testifying in Congress before he was confirmed to take McChrystal’s place, Petraeus told senators that some U.S. soldiers had complained about the former’s rules of engagement aimed at preventing civilian casualties.

According to the Rolling Stone article, Obama capitulated to McChrystal’s insistence that more troops were needed in Afghanistan. In his December 1 speech at West Point, the article says, “the president laid out all the reasons why fighting the war in Afghanistan is a bad idea: It’s expensive; we’re in an economic crisis; a decade-long commitment would sap American power; Al Qaeda has shifted its base of operations to Pakistan. Then,” the article continued, “without ever using the words ‘victory’ or ‘win,’ Obama announced that he would send an additional 30,000 troops to Afghanistan, almost as many as McChrystal had requested.”

Both Obama and Petraeus no longer speak of “victory” over the Taliban; they both hold open the possibility of settlement with the Taliban. Indeed, Maj. Gen. Bill Mayville, chief of operations for McChrystal, told Rolling Stone, “It’s not going to look like a win, smell like a win or taste like a win.”

The majority of Americans now oppose the war in Afghanistan. Fareed Zakaria had some harsh words for the war on his CNN show, saying that “the whole enterprise in Afghanistan feels disproportionate, a very expensive solution to what is turning out to be a small but real problem.” Noting that CIA director Leon Panetta admitted that the number of Al Qaeda left in Afghanistan may be 50 to 100, Zakaria asked, “why are we fighting a major war” there? “Last month alone there were more than 100 NATO troops killed in Afghanistan,” he said. “That’s more than one allied death for each living Al Qaeda member in the country in just one month.” Citing estimates that the war will cost more than $100 billion in 2010 alone, Zakaria observed, “That’s a billion dollars for every member of Al Qaeda thought to be living in Afghanistan in one year.” He queried, “Why are we investing so much time, energy, and effort when Al Qaeda is so weak?” And Zakaria responded to the argument that we should continue fighting the Taliban because they are allied with Al Qaeda by saying, “this would be like fighting Italy in World War II after Hitler’s regime had collapsed and Berlin was in flames just because Italy had been allied with Germany.”

There is also division in the Republican ranks over the war. Republican National Committee chairman Michael Steele made some gutsy comments about the war in Afghanistan, saying it is not winnable and calling it a “war of Obama’s choosing.” (Even though George W. Bush first invaded Afghanistan, Obama made the escalation of U.S. involvement a centerpiece of his campaign.) Steele said that if Obama is “such a student of history, has he not understood that, you know, that’s the one thing you don’t do, is engage in a land war in Afghanistan? Everyone who has tried, over 1,000 years of history, has failed.” Interestingly, Republicans Lindsey Graham and John McCain slammed Steele and jumped to Obama’s defense. Rep. Ron Paul, however, agreed with Steele, saying, “Michael Steele has it right, and Republicans should stick by him.”

Obama will likely persist with his failed war. He appears to be stumbling along the same path that Lyndon Johnson followed. Johnson lost his vision for a “Great Society” when he became convinced that his legacy depended on winning the Vietnam War. It appears that Obama has similarly lost his way.

Israel Murders Human Rights Workers Delivering Humanitarian Aid

2010-05-31T10:08:00.000-07:00

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.

Rwandan Arrest of U.S. Lawyer Motivated by Politics

2010-05-29T10:53:00.000-07:00

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.

Kagan’s Troubling Record

2010-05-13T21:38:00.000-07:00

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.

Kagan Will Move Supreme Court to the Right

2010-05-09T20:25:00.001-07:00

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.

Arizona Legalizes Racial Profiling

2010-04-26T21:12:00.000-07:00

The conservative “states’ rights” mantra sweeping our country has led to one of the most egregious wrongs in recent U.S. history. New legislation in Arizona requires law enforcement officers to stop everyone whom they have “reasonable suspicion” to believe is an undocumented immigrant and arrest them if they fail to produce their papers. What constitutes “reasonable suspicion”? When asked what an undocumented person looks like, Arizona Governor Jan Brewer, who signed SB 1070 into law last week, said, “I don’t know what an undocumented person looks like.” The bill does not prohibit police from relying on race or ethnicity in deciding who to stop. It is unlikely that officers will detain Irish or German immigrants to check their documents. This law unconstitutionally criminalizes “walking while brown” in Arizona.

Former Arizona attorney general Grant Woods explained to Brewer that SB 1070 would vest too much discretion in the state police and lead to racial profiling and expensive legal fees for the state. But the governor evidently succumbed to racist pressure as she faces a reelection campaign. Woods said, “[Brewer] really felt that the majority of Arizonans fall on the side of, ‘Let’s solve the problem and not worry about the Constitution.’” The polls Brewer apparently relied on, however, employed questionable methodology and were conducted before heavy media coverage of the controversial legislation. No Democrats and all but one Republican Arizona legislator voted for SB 1070.

Undocumented immigrants in Arizona now face six months in jail and a $500 fine for the first offense – misdemeanor trespass – and an additional $1,000 fine for the second offense, which becomes a felony. By establishing a separate state crime for anyone who violates federal immigration law, the new Arizona law contravenes the Supremacy Clause of the Constitution, which grants the federal government exclusive power to regulate U.S. borders.

SB 1070 creates a cause of action for any person to sue a city, town or county if he or she feels the police are not stopping enough undocumented immigrants. Even if a municipality is innocent, it will still be forced to rack up exorbitant legal fees to defend itself against frivolous lawsuits.

The bill also makes it a misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver impedes the normal flow of traffic, albeit briefly. How many New York taxi drivers impede the flow of traffic when they pick up fares? The law also criminalizes the solicitation of work by an undocumented immigrant in a public place, who gestures or nods to a would-be employer passing by. This part of the legislation is also unconstitutional as courts have held that the solicitation of work is protected speech under the First Amendment.

The new law effectively compels Arizona police to make immigration enforcement their top priority. Indeed several law enforcement groups oppose SB 1070. The Law Enforcement Engagement Initiative, an organization of police officials who favor federal immigration reform, condemned the law, saying it would probably result in racial profiling and threaten public safety because undocumented people would hesitate to come forward and report crimes or cooperate with police for fear of being deported. The Arizona Association of Chiefs of Police also criticized the legislation, saying it will “negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner;” the group believes the immigration issue is best addressed at the federal level.

Many civil rights and faith-based organizations also oppose SB 1070. The Mexican American Legal Defense & Educational Fund (MALDEF) called the law “tantamount to a declaration of secession.” The National Coalition of Latino Clergy and Christian Leaders Legal Defense Fund - which represents 30,000 evangelical churches nationwide - as well as MALDEF, the National Day Laborer Organizing Network (NDLON), and the American Civil Liberties Union (ACLU), are preparing federal lawsuits challenging the constitutionality of SB 1070.

Cardinal Roger M. Mahony of Los Angeles called the ability of officials to demand documents akin to “Nazism.” Former Arizona Senate majority leader Alfredo Gutierrez said, “This is the most oppressive piece of legislation since the Japanese internment camp act” during World War II. Representative Raul M. Grijalva (Dem.-AZ) called for a convention boycott of Arizona. The American Immigration Lawyers Association (AILA) complied. AILA is moving its fall 2010 conference, scheduled for Arizona, to another state.

Even though SB 1070 will not take effect for at least 90 days, undocumented immigrants in Arizona are terrorized by the new law. A man in Mesa, Arizona looked around nervously as he stood on a street corner waiting for work. “We shop in their stores, we clean their yards, but they want us out and the police will be on us,” Eric Ramirez told the New York Times.

Ironically, expelling unauthorized immigrants from Arizona would be costly. The Perryman Group calculated that Arizona would lose $26.4 billion in economic activity, $11.7 billion in gross state product, and approximately 140,324 jobs if all undocumented people were removed from the state.

“This bill does nothing to address human smuggling, the drug cartels, the arms smuggling,” according to Democratic Senator Rebecca Rios. “And, yes, I believe it will create somewhat of a police state,” she added. “Police in Arizona already treat migrants worse than animals,” said Francisco Loureiro, an immigration activist who runs a shelter in Nogales, Mexico. “There is already a hunt for migrants, and now it will be open season under the cover of a law.”

SB 1070 is the latest, albeit one of the worst, racist attacks on undocumented immigrants. The federal program called 287(g) allows certain state and local law enforcement agencies to engage in federal immigration enforcement activities. But a report released earlier this month by the Department of Homeland Security Office of Inspector General found a lack of oversight and training without adequate safeguards against racial profiling.

We can expect SB 1070 to be replicated around the country as the ugly wave of immigrant-bashing continues. Lawmakers from four other states have sought advice from Michael Hethmon, general counsel for the Immigration Reform Law Institute, who helped draft the Arizona law.

“SB 1070 is tearing our state into two,” said Phoenix Mayor Phil Gordon, who called the bill “bitter, small-minded and full of hate.” He thinks “it humiliates us in the eyes of America and threatens our economic recovery.” More than 50,000 people signed petitions opposing SB 1070 and 2,500 students from high schools across Phoenix walked out of school and marched to the state Capitol to protest the bill before it passed. On Sunday, about 3,500 people gathered at the Capitol, chanting, “Yes we can,” “We have rights,” and “We are human.”

President Obama criticized SB 1070 as “misguided,” saying it will “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” He called on Congress to enact federal immigration reform.

But Isabel Garcia, co-chair of the Coalition of Human Rights in Tucson, told Democracy Now! that there have been more deportations under the Obama administration than in any other administration. “This administration continues to follow the flawed concept that migration is somehow a law enforcement or national security issue,” she noted. “And it is not. It is an economic, social, political phenomenon.” She mentioned that NAFTA has displaced millions of workers in Mexico who flood into the United States.

Instead of expressing gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that targets non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a “states rights” approach where each state is free to enact its own racist law.

Let us join the voices of compassion and oppose the mean-spirited actions that aim to scapegoat immigrants. Laws like SB 1070 demean us all.

Keeping Same-Sex Marriage in the Dark

2010-01-15T10:49:00.000-08:00

On Wednesday, a conservative majority of the Supreme Court overturned a ruling made by a federal trial judge that would have allowed limited television coverage of a trial that will decide the fate of California’s Proposition 8. The trial, which is currently proceeding in San Francisco, is one of the most significant civil rights cases of our time. The plaintiffs are seeking to overturn a ballot initiative that makes same-sex marriage illegal in California.

It was unusual that the Supreme Court even decided to hear this case. The high court takes very few cases. It generally decides issues about which the state or federal courts are in conflict or cases that raise important questions of federal law. Yet relying on the Supreme Court’s “supervisory power” over the lower courts, the five conservative justices – Roberts, Scalia, Thomas, Alito and Kennedy – joined in an unsigned 17-page decision and chided Chief Judge Vaughn Walker for seeking to broadcast the trial without a sufficient notice period for public comment.

Justice Breyer wrote in the dissent joined by Justices Stevens, Ginsburg and Sotomayor that he could find no other case in which the Supreme Court had intervened in the procedural aspects of local judicial administration. Indeed, Breyer cited a case in which Scalia wrote, “I do not see the basis for any direct authority to supervise lower courts.”

Moreover, in the comment period that Walker did allow, he received 138,574 comments, and all but 32 favored transmitting the proceedings.

The majority concluded that the same-sex marriage opponents would suffer “irreparable harm” if the trial were broadcast to five other federal courts around the country. But all the witnesses who allegedly might be intimidated by the camera were experts or Prop 8 advocates who had already appeared on television or the Internet during the campaign.

No one presented empirical data to establish that the mere presence of cameras would negatively impact the judicial process, Breyer wrote. He cited a book that I authored with veteran broadcast journalist David Dow, “Cameras in the Courtroom: Television and the Pursuit of Justice.” It describes studies that found no harm from the camera, and one which found that witnesses “who faced an obvious camera, provided answers that were more correct, lengthier and more detailed.”

The five justices who denied camera coverage noted at the outset that they would not express “any view on whether [federal] trials should be broadcast.” Toward the end of their decision, however, they stated that since the trial judge intended to broadcast witness testimony, “[t]his case is therefore not a good one for a pilot program.”

In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?

Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”

The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.

In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.

There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.

This piece first apeared on Jurist.

Obama's Af-Pak War is Illegal

2009-12-20T16:31:00.000-08:00

President Obama accepted the Nobel Peace Prize nine days after he announced he would send 30,000 more troops to Afghanistan. His escalation of that war is not what the Nobel committee envisioned when it sought to encourage him to make peace, not war.

In 1945, in the wake of two wars that claimed millions of lives, the nations of the world created the United Nations system to “save succeeding generations from the scourge of war.” The UN Charter is based on the principles of international peace and security as well as the protection of human rights. But the United States, one of the founding members of the UN, has often flouted the commands of the charter, which is part of US law under the Supremacy Clause of the Constitution.

Although the U.S. invasion of Afghanistan was as illegal as the invasion of Iraq, many Americans saw it as a justifiable response to the attacks of September 11, 2001. The cover of Time magazine called it "The Right War." Obama campaigned on ending the Iraq war but escalating the war in Afghanistan. But a majority of Americans now oppose that war as well.

The UN Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense or when authorized by the Security Council. After the 9/11 attacks, the council passed two resolutions, neither of which authorized the use of military force in Afghanistan.

“Operation Enduring Freedom” was not legitimate self-defense under the charter because the 9/11 attacks were crimes against humanity, not “armed attacks” by another country. Afghanistan did not attack the United States. In fact, 15 of the 19 hijackers hailed from Saudi Arabia. Furthermore, there was not an imminent threat of an armed attack on the United States after 9/11, or President Bush would not have waited three weeks before initiating his October 2001 bombing campaign. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the UN General Assembly.

Bush's justification for attacking Afghanistan was that it was harboring Osama bin Laden and training terrorists, even though bin Laden did not claim responsibility for the 9/11 attacks until 2004. After Bush demanded that the Taliban turn over bin Laden to the United States, the Taliban’s ambassador to Pakistan said his government wanted proof that bin Laden was involved in the 9/11 attacks before deciding whether to extradite him, according to the Washington Post. That proof was not forthcoming, the Taliban did not deliver bin Laden, and Bush began bombing Afghanistan.

Bush’s rationale for attacking Afghanistan was spurious. Iranians could have made the same argument to attack the United States after they overthrew the vicious Shah Reza Pahlavi in 1979 and the U.S. gave him safe haven. If the new Iranian government had demanded that the U.S. turn over the Shah and we refused, would it have been lawful for Iran to invade the United States? Of course not.

When he announced his troop “surge” in Afghanistan, Obama invoked the 9/11 attacks. By continuing and escalating Bush’s war in Afghanistan, Obama, too, is violating the UN Charter. In his speech accepting the Nobel Peace Prize, Obama declared that he has the "right" to wage wars "unilaterally.” The unilateral use of military force, however, is illegal unless undertaken in self-defense.

Those who conspired to hijack airplanes and kill thousands of people on 9/11 are guilty of crimes against humanity. They must be identified and brought to justice in accordance with the law. But retaliation by invading Afghanistan was not the answer. It has lead to growing U.S. and Afghan casualties, and has incurred even more hatred against the United States.

Conspicuously absent from the national discourse is a political analysis of why the tragedy of 9/11 occurred. We need to have that debate and construct a comprehensive strategy to overhaul U.S. foreign policy to inoculate us from the wrath of those who despise American imperialism. The "global war on terror" has been uncritically accepted by most in this country. But terrorism is a tactic, not an enemy. One cannot declare war on a tactic. The way to combat terrorism is by identifying and targeting its root causes, including poverty, lack of education, and foreign occupation.

In his declaration that he would send 30,000 additional U.S. troops to Afghanistan, Obama made scant reference to Pakistan. But his CIA has used more unmanned Predator drones against Pakistan than Bush. There are estimates that these robots have killed several hundred civilians. Most Pakistanis oppose them. A Gallup poll conducted in Pakistan last summer found 67% opposed and only 9% in favor. Notably, a majority of Pakistanis ranked the United States as a greater threat to Pakistan than the Taliban or Pakistan’s arch-rival India.

Many countries use drones for surveillance, but only the United States and Israel have used them for strikes. Scott Shane wrote in the New York Times, “For the first time in history, a civilian intelligence agency is using robots to carry out a military mission, selecting people for targeted killings in a country where the United States is not officially at war.”

The use of these drones in Pakistan violates both the UN Charter and the Geneva Conventions, which prohibit willful killing. Targeted or political assassinations—sometimes called extrajudicial executions—are carried out by order of, or with the acquiescence of, a government, outside any judicial framework. As a 1998 report from the UN Special Rapporteur noted, “extrajudicial executions can never be justified under any circumstances, not even in time of war.” Willful killing is a grave breach of the Geneva Conventions, punishable as a war crime under the U.S. War Crimes Act. Extrajudicial executions also violate a longstanding U.S. policy. In the 1970s, after the Senate Select Committee on Intelligence disclosed that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although there have been exceptions to this policy, every succeeding president until George W. Bush reaffirmed that order.

Obama is trying to make up for his withdrawal from Iraq by escalating the war on Afghanistan. He is acting like Lyndon Johnson, who rejected Defense Secretary Robert McNamara’s admonition about Vietnam because LBJ was “more afraid of the right than the left,” McNamara said in a 2007 interview with Bob Woodward published in the Washington Post.

Approximately 30% of all U.S. deaths in Afghanistan have occurred during Obama’s presidency. The cost of the war, including the 30,000 new troops he just ordered, will be about $100 billion a year. That money could better be used for building schools in Afghanistan and Pakistan, and creating jobs and funding health care in the United States.

Many congressional Democrats are uncomfortable with Obama’s decision to send more troops to Afghanistan. We must encourage them to hold firm and refuse to fund this war. And the left needs to organize and demonstrate to Obama that we are a force with which he must contend.

Lynne Stewart: Casualty of the 'War on Terror'

2009-11-24T10:26:00.000-08:00

In a decision that reflects the post-911 terrorism hysteria, a three-judge panel of the Second Circuit Court of Appeals has affirmed prominent civil rights attorney Lynne Stewart’s convictions and remanded her case to district court Judge John G. Koeltl to reconsider her sentence. The appellate panel directed Koeltl to remand Stewart to custody and the 70-year-old woman is now in prison.

Stewart was convicted of conspiracy to provide and conceal material support to the conspiracy to murder persons in a foreign country (18 U.S.C. sec. 2339A and 18 U.S.C. sec. 2), conspiring to provide and conceal such support (18 U.S.C. sec. 371), and knowingly and willfully making false statements (18 U.S.C. sec. 1001). The majority opinion states that Stewart was convicted “principally with respect to [her] violations of those measures by which [she] had agreed to abide,” namely, Special Administrative Measures (SAMs).

The SAMs were placed on Stewart’s client, Sheikh Omar Ahmad Ali Abdel Rahman, who is serving a life sentence for terrorism-related crimes. They restrict his ability to communicate with persons outside of the prison. Stewart and Abdel Rahman’s other attorneys, Ramsey Clark and Abdeen Jabara, signed statements saying they wouldn’t forward mail from Abdel Rahman to a third person or use their communications with Abdel Rahman to pass messages between him and third persons, including the media. Stewart violated her agreement to abide by the SAMs. Clark and Jabara allegedly did as well. Lawyers who violate SAMs expect to suffer administrative consequences, such as being denied visiting privileges. Yet Stewart was indicted for federal crimes. Clark and Jabara were not.

Judge Koeltl presided over the nine-month trial. Stewart was precluded from arguing that a prosecution for conspiring to commit a conspiracy (an inchoate offense) raises serious dangers. Koeltl sentenced Stewart to 28 months. The maximum sentence under the federal sentencing Guidelines is 30 years but the Supreme Court held in United States v. Booker, 543 U.S. 220 (2005) that the guidelines are advisory, not mandatory.

Koeltl concluded that the terrorism enhancement, “while correct under the guidelines, would result in an unreasonable result.” He cited “the somewhat atypical nature of Stewart’s case” and “the lack of evidence that any victim was harmed as a result of the charged offense.” The result of the terrorism enhancement, according to Koeltl, was “dramatically unreasonable in [her] case” because it “overstate[d] the seriousness of [her] past conduct and the likelihood that [she would] repeat the offense.”

Stewart, Koeltl concluded, “has no criminal history and yet is placed in the highest criminal history category [under the terrorism enhancement] equal to that of repeat felony offenders for the most serious offenses including murder and drug trafficking.” Koeltl found that Stewart’s opportunity to repeat “the crimes to which she had been convicted will be nil” because she “will lose her license to practice law” [“itself a punishment”] and “will be forever separated from any contact with Sheikh Omar Abdel Rahman.”

Koeltl viewed Stewart’s personal characteristics as “extraordinary” and determined that they “argue[d] strongly in favor of a substantial downward variance” from the guidelines. He described her as a dedicated public servant who had, throughout her career, “represented the poor, the disadvantaged and the unpopular, often as a Court-appointed attorney,” thereby providing a “service not only to her clients but to the nation.”

Koeltl also considered that Stewart had suffered from cancer – undergoing surgery and radiation therapy – and found a significant chance of recurrence. At age 67, Koeltl observed, prison would be “particularly difficult” for Stewart.

Although the appellate majority stated that the district court judge is “in the best position to make an individual determination about the ‘history and characteristics’ of a particular defendant, and to adjust the individualized sentence accordingly,” the panel second-guessed Koeltl by ordering that he reconsider Stewart’s sentence. Specifically, the panel directed Koeltl to consider whether Stewart committed perjury at trial by testifying “that she understood that there was a bubble built into the SAMs whereby the attorneys could issue press releases containing Abdel Rahman’s statements as part of their representation of him.” The panel also directed Koeltl to consider Stewart’s possibly perjured testimony about “her purported lack of knowledge” of Taha, a leader of the Islamic Group, who had solicited a statement from Abdel Rahman opposing the continuation of a ceasefire between the Islamic Group and Egyptian President Hosni Mubarak’s government.

In fact, Koeltl noted there was “evidence to indicate that [Stewart’s] statements were false statements.” But he concluded it was “unnecessary to reach [the question] whether the defendant knowingly gave false testimony with the intent to obstruct the proceedings” because (1) the Guidelines calculation already provided for the statutory maximum, and (2) a non-Guidelines sentence was, in Koeltl’s estimation, “reasonable and most consistent with the factors set forth in Section 3553(a).” Thus, Koeltl did consider whether Stewart committed perjury in his initial sentencing decision. Michael Tigar, Stewart’s trial counsel, told me he is “convinced that there is ample independent corroboration for Lynne’s version of events.”

Judge Calabresi, who joined the majority panel decision, noted in his separate opinion that Koeltl was “a judge of extraordinary ability [with] a well-earned reputation for exceptional judgment.” Calabresi wrote that “for us – who have not been involved in the case and do not know all the backs and forths, . . . to second guess the district court’s judgment seems to me be precisely what both the Supreme Court and our court sitting en banc . . . have said we should not do.”

According to Tigar, Koeltl’s sentence decision was “well-argued.” Tigar said, “For any court of appeals judge to write in a hostile vein about [Koeltl’s] decision is an arrogation to the appellate court of a power that the rules of procedure and long legal tradition vest in trial judges. In addition,” he added, “the sentence reflected the reality of this case, a reality that seems to have escaped the court of appeals panel.”

Calabresi thought it “not . . . entirely irrelevant” that Stewart was the only lawyer criminally charged even though two others also violated the SAMs. Noting that “while prosecutorial discretion may be salutary in a wide variety of cases,” Calabresi wrote, “when left entirely without any controls it will concentrate too much power in a single set of government actors, and they, moreover, may on occasion be subject to political pressure.” Calabresi observed that the district court’s exercise of its sentencing discretion “may provide the only effective way to control and diminish unjustified disparities.”

Judge Walker, concurring and dissenting, wrote separately that Stewart’s sentence was “breathtakingly low” and “extraordinarily lenient.” He would go further than the majority and vacate Stewart’s sentence as “substantively unreasonable.”

Both Calabresi and the majority thought it significant that all of the acts for which Stewart was convicted occurred before the September 11, 2001 attacks. Calabresi would “take judicial notice of their timing,” and “recognize that our attitudes about her conduct have inevitably been influenced by the tragedy of that day.” Notably, he added: “We must be careful then in judging Stewart based on lessons that we learned only after her – very serious – crimes were committed.” Stewart was indicted in 2002 and convicted in 2005.

“Lynne’s representation of the sheik was in the best traditions of advocacy,” Tigar said. “She was brought into the case by Ramsey Clark, and her actions on behalf of her client never went farther than Ramsey had already gone. The government’s conduct towards her when the SAMs issue first erupted validated that belief.”

The clear message of the 125-page majority appellate panel opinion is that attorneys who zealously represent their clients in the post-9/11 era beware. This result will undoubtedly chill the willingness of criminal defense attorneys to handle terrorism cases. Moreover, the Court of Appeals fortuitously released its opinion just as Attorney General Eric Holder announced his intent to try Khalid Sheikh Mohammed in federal court for his alleged role in the 9/11 attacks.

Richard Falk Delivers Keynote at NLG Convention

2009-10-26T21:11:00.000-07:00

On October 15, Professor Richard Falk delivered the keynote address, "Imperial Wars and the Obama Presidency: The Role of Law," at the National Lawyers Guild convention in Seattle. He was introduced by NLG president Marjorie Cohn.

New Film, "Tortured Law," Features Marjorie Cohn

2009-10-08T06:53:00.000-07:00

Alliance for Justice has just released a documentary film called “Tortured Law.” This short film examines the role lawyers played in authorizing torture under the Bush Administration. It features excerpts from Marjorie Cohn’s congressional testimony.

National Lawyers Guild, Other Human Rights Groups Send Open Letter to Eric Holder

2009-10-08T06:43:00.001-07:00

Seventeen human rights and civil rights organizations and 45 prominent lawyers and civic leaders have sent a letter to Attorney General Eric Holder last week urging him to appoint a special independent prosecutor to investigate and prosecute Bush officials and lawyers involved in setting illegal interrogation policies.

Holder had expanded the mandate of Justice Department lawyer John Durham to include a preliminary investigation but limited Durham's focus to a handful of interrogators who exceeded the limits set by the "torture memos."

The groups and individuals stressed that the special prosecutor should come from outside the Department of Justice and not limit the investigation to low-level operatives, but "should investigate and prosecute all those who ordered, approved, justified, abetted or carried out the torture and abuse."

The letter cites "political pressure" which has "led to [Holder's] office taking too narrow an approach to the investigation."

Signatories of the letter include the National Lawyers Guild, Center for Constitutional Rights, U.S. Human Rights Network, and Psychologists for Social Responsibility, as well as prominent torture survivor Sister Dianna Ortiz. Also signing is the International Association of Democratic Lawyers, the American Association of Jurists and many other international bar associations. They urge Holder to "hold firm against any attempts by former Vice President Dick Cheney, the CIA directors, and the media to silence those who demand that the United States hold accountable those who have committed and authorized torture."

Both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions "expressly require the United States to either extradite or initiate prosecution of persons who are reasonably accused," the letter says, adding "this is a legal obligation."

"Whether actionable intelligence was gained is not the issue," the letter in conclusion reminds the Attorney General, and says that he cannot "pick and choose those laws you will enforce."

If you or your organization wish to sign the letter, contact Marjorie Cohn at libertad48 'at' san.rr.com.

"The Legal Avenger," an interview of Marjorie Cohn

2009-09-26T19:35:00.001-07:00

Covers illegality of Iraq and Afghanistan wars, prosecuting war crimes, the duty to disobey unlawful orders - See:

http://seminal.firedoglake.com/diary/8498

Legendary Lawyer Doris Brin Walker Dies; Represented Angela Davis, Smith Act Defendants

2009-08-16T16:52:00.000-07:00

Doris “Dobby” Brin Walker, the first woman president of the National Lawyers Guild, died on August 13 at the age of 90. Doris was a brilliant lawyer and a tenacious defender of human rights. The only woman in her University of California Berkeley law school class, Doris defied the odds throughout her life, achieving significant victories for labor, and political activists.

Doris’ legal and political activism spanned several decades and some of the most turbulent but significant periods in US history. She organized workers, fought against Jim Crow and McCarthyism, was active in the civil rights and anti-Vietnam War movements, and actively opposed the current wars in Iraq and Afghanistan.

At UCLA, Doris became a Marxist. After she was sworn in as a member of the California State Bar, Doris joined the Communist Party USA, remaining a member until her death. Upon graduation from law school, Doris began practicing labor law; but a few years later, she went to work in California canneries as a labor organizer. When Cutter Labs fired Doris in 1956, the case was appealed all the way to the Supreme Court. Although the Court refused to hear the case, Justice Douglas, joined in dissent by Chief Justice Warren and Justice Black, wrote, “The blunt truth is that Doris Walker is not discharged for misconduct but either because of her legitimate labor union activities or because of her political ideology or belief. Belief cannot be penalized consistently with the First Amendment . . . The Court today allows belief, not conduct, to be regulated. We sanction a flagrant violation of the First Amendment when we allow California, acting through her highest court, to sustain Mrs. Walker's discharge because of her belief.”

Doris returned to the practice of law and represented people charged under the Alien Registration Act of 1940 (the Smith Act) in California. The Act required all resident aliens to register with the government, enacted procedures to facilitate deportation, and made it a crime for any person to knowingly or willfully advocate the overthrow of the government by force or violence. The work of Doris and other NLG lawyers led to Yates v. United States, in which the Supreme Court overturned the convictions of Smith Act defendants in 1957. After Yates, the government never filed another prosecution under the Smith Act.

During the McCarthy era, Doris was called to testify before the House Un-American Activities Committee and she also represented several HUAC witnesses. From 1956 to 1961, Doris successfully defended William and Sylvia Powell, who faced the death penalty, against Korean War sedition charges. The US government charged that articles Powell had written reporting and criticizing US biological weapons use in Korea were false and written with intent to hinder the war effort. When a mistrial ended the sedition case, the government charged the Powells with treason. Attorney General Robert Kennedy dismissed the case in 1961.

A partner with the NLG firm of Treuhaft & Walker in Oakland, California from 1961 to 1977, Doris’ practice focused on civil rights, free speech and draft cases during the Vietnam War. She also defended death penalty cases. Perhaps best known for her defense of Angela Davis, Doris was part of a legal team that secured Angela’s acquittal on charges of murder, kidnapping and conspiracy. In that case, which Harvard Professor Charles Ogletree in 2005 called “clearly the trial of the 20th century, and one that exemplified the vast and diverse talents of the true Dream Team of the legal profession,” the defense pioneered the use of jury consultants.

Doris was elected president of the NLG in 1970 after a bruising battle during which one opponent labeled her “a man in a woman’s skirt.” She paved the way for the election of six women NLG presidents in the ensuing years.

Serving as Vice President of the International Association of Democratic Lawyers from 1970 to 1978, Doris supported the struggles of victims of U.S. imperialism throughout the world and was instrumental in the development of international human rights law. In 1996, Doris served as one of eight international observers at the South African Truth and Reconciliation Commission hearings led by Desmond Tutu.

In 2004, Doris submitted a resolution on behalf of the NLG Bay Area Chapter to the Conference of Delegates of the California Bar Association asking for an investigation of representations the Bush administration used to justify the war in Iraq, for possible impeachment.

Noted writer Jessica Mitford and Doris were close friends for years; Jessica was married to Robert Truehaft, Doris’ law partner. When Doris invited Jessica to join the Communist Party, the latter replied, “We thought you’d never ask!” There is speculation that author J.K. Rowling, who cited Jessica as her main literary influence, named her Harry Potter house elf “Dobby” after seeing Dobby Walker’s name in Jessica’s books. On a recent visit to her home, Doris showed me the Dobby references in works by Jessica on her bookshelf.

Doris frequently called me with her concerns and opinions about the issues of the day and in the NLG. She remained intensely engaged in politics until the day she died.

Doris “Dobby” Walker inspired generations of progressive lawyers, law students and legal workers to struggle unrelentingly for justice and equality. She was a friend, comrade and role model to scores of people in and out of the NLG. We will never see the likes of her again.

Doris is survived by her daughter Emily Roberson and her granddaughter Iris Feldman. The family requests that contributions in Doris' name be sent to the National Lawyers Guild, 132 Nassau St., Room 922, New York, NY 10038.

Agent Orange Continues to Poison Vietnam

2009-06-14T12:15:00.000-07:00

From 1961 to 1971, the U.S. military sprayed Vietnam with Agent Orange, which contained large quantities of Dioxin, in order to defoliate the trees for military objectives. Dioxin is one of the most dangerous chemicals known to man. It has been recognized by the World Health Organization as a carcinogen (causes cancer) and by the American Academy of Medicine as a teratogen (causes birth defects).

Between 2.5 and 4.8 million people were exposed to Agent Orange. 1.4 billion hectares of land and forest - approximately 12 percent of the land area of Vietnam - were sprayed.

The Vietnamese who were exposed to the chemical have suffered from cancer, liver damage, pulmonary and heart diseases, defects to reproductive capacity, and skin and nervous disorders. Children and grandchildren of those exposed have severe physical deformities, mental and physical disabilities, diseases, and shortened life spans. The forests and jungles in large parts of southern Vietnam have been devastated and denuded. They may never grow back and if they do, it will take 50 to 200 years to regenerate. Animals that inhabited the forests and jungles have become extinct, disrupting the communities that depended on them. The rivers and underground water in some areas have also been contaminated. Erosion and desertification will change the environment, contributing to the warming of the planet and dislocation of crop and animal life.

The U.S. government and the chemical companies knew that Agent Orange, when produced rapidly at high temperatures, would contain large quantities of Dioxin. Nevertheless, the chemical companies continued to produce it in this manner. The U.S. government and the chemical companies also knew that the Bionetics Study, commissioned by the government in 1963, showed that even low levels of Dioxin produced significant deformities in unborn offspring of laboratory animals. But they suppressed that study and continued to spray Vietnam with Agent Orange. It wasn’t until the study was leaked in 1969 that the spraying of Agent Orange was discontinued.

U.S. soldiers who served in Vietnam have experienced similar illnesses. After they sued the chemical companies, including Dow and Monsanto, that manufactured and sold Agent Orange to the government, the case settled out of court for $180 million which gave few plaintiffs more than a few thousand dollars each. Later the U.S. veterans won a legislative victory for compensation for exposure to Agent Orange. They receive $1.52 billion per year in benefits.

But when the Vietnamese victims of Agent Orange sued the chemical companies in federal court, U.S. District Judge Jack Weinstein dismissed the lawsuit, concluding that Agent Orange did not constitute a poison weapon prohibited by the Hague Convention of 1907. Weinstein had reportedly told the chemical companies when they settled the U.S. veterans’ suit that their liability was over and he was making good on his promise. His dismissal was affirmed by the Second Circuit Court of Appeals and the Supreme Court refused to hear the case. The chemical companies admitted in their filing in the Supreme Court that the harm alleged by the victims was foreseeable although not intended. How can something that is foreseeable be unintended?

On May 15 and 16 of this year, the International Peoples’ Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange convened in Paris and heard testimony from 27 victims, witnesses and scientific experts. Seven people from three continents served as judges of the Tribunal, which was sponsored by the International Association of Democratic Lawyers (IADL).

Testimony given by the witnesses showed the following:

Mai Giang Vu, a member of the Army of South Vietnam, carried barrels of the chemicals on his back. His two sons could not walk or function normally, their limbs gradually “curled up” and they could only crawl. They died at the ages of 23 and 25.

Pham The Minh, whose parents also served in the South Vietnamese Army, showed the Tribunal his severely deformed, crooked, skinny legs; he has great difficulty walking, as well as digestive and pulmonary diseases.

To Nga Tran is a French Vietnamese who worked as a journalist during the spraying. Her daughter weighed 6.6 pounds at the age of three months. Her skin began shredding and she could not bear to have skin contact or simple demonstrations of love. She died at 17 months, weighing 6.6 pounds. Ms. To described a woman who gave birth to a “ball” with no human form. Many children are born without brains; others make inhuman sounds.

Rosemarie Hohn Mizo is the widow of George Mizo, who served in the U.S. Army in Vietnam in 1967. He slept on contaminated ground and consumed food and drink that were also contaminated. George refused to serve after he was wounded for the third time; he was court-martialed and sentenced to 2-1/2 years in prison and a dishonorable discharge. George helped found the Friendship Village where Vietnamese victims live in a supportive environment. He died from conditions related to his exposure to Agent Orange.

Georges Doussin, co-founder of the Friendship Village, visited a dormitory where he saw 50 highly deformed “monsters,” who produced inhuman sounds. One man whose parent had been exposed to Agent Orange had four toes on each foot. Doussin said Agent Orange creates “total anarchy in evolution.”

Dr. Nguyen Thi Ngoc Phuong, from Tu Du Hospital in Ho Chi Minh City (Saigon), sees many children born without arms and/or legs, without heads or faces, and without a brain chamber. According to the World Health Organization, only 1 – 4 parts per trillion (PPT) of Dioxin in breast milk can cause severe deformities in fetuses and even death. But up to 1450 PPT are found in maternal milk in Vietnam.

Dr. Jeanne Stellman, who wrote the seminal article about Agent Orange in the magazine Nature, testified that “this is the largest unstudied environmental disaster in the world (except for natural disasters).”

Dr. Jean Grassman, from Brooklyn College at City University of New York, testified that Dioxin is a potent cellular disregulator which alters a variety of pathways to disrupt many systems. Children, she said, are very sensitive to Dioxin; the intrauterine or post natal 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.

Many ecosystems have been destroyed and Dioxin continues to poison Vietnam, especially in the several “hot spots.”

Chemist Dr. Pierre Vermeulin testified that it was estimated that $1 billion would be required to restore one hectare of land in Vietnam. The cost of caring for the victims, many of whom need 24-hour care, is enormous.

In 1973, President Richard Nixon promised $3.25 billion in reconstruction aid to Vietnam “without any preconditions.” That aid was never granted.

There are only 11 Friendship Villages in Vietnam; 1000 are needed to care for the child victims of Agent Orange.

Last week, the Bureau of the IADL, meeting in Hanoi, presented President Nguyen Minh Triet of the Socialist Republic of Vietnam with the final decision of the Tribunal. The judges found the U.S. government and the chemical companies guilty of war crimes, crimes against humanity, and ecocide during the illegal U.S. war of aggression in Vietnam. We recommended that the Agent Orange Commission be established in Vietnam to assess the damages suffered by the people and destruction of the environment, and that the U.S. government and the chemical companies provide compensation for the damage and destruction.

I told the President that it always struck me that even as U.S. bombs were dropping on the people of Vietnam, they always distinguished between the American government and the American 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.”

An estimated 3 million Vietnamese people were killed in the war, which also claimed 58,000 American lives. For many other Vietnamese and U.S. veterans and their families, the war continues to take its toll.

Several treaties the United States has ratified require an effective remedy for violations of human rights. It is time to make good on Nixon’s promise and remedy the terrible wrong the U.S. government perpetrated on the people of Vietnam. Congress must pass legislation to compensate the Vietnamese victims of Agent Orange as it did for the U.S. Vietnam veteran victims.

Our government must know that it cannot continue to use weapons that target and harm civilians. Indeed, the U.S. military is using depleted uranium in Iraq and Afghanistan, which will poison those countries for incalculable decades.

Marjorie Cohn, a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild, served as a judge on the International Peoples’ Tribunal of Conscience in Support of the Vietnamese Victims of Agent Orange. She is a member of the Bureau of the International Association of Democratic Lawyers.

National Lawyers Guild Calls for Reasoned Analysis of Sotomayor Nomination

2009-05-29T21:27:00.000-07:00

New York--In the wake of President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court, the National Lawyers Guild (NLG) encourages a reasoned analysis of Sotomayor's candidacy. Critics are focusing on accusations of judicial activism and identity politics rather than engaging in sound examination of her legal qualifications. Comments of this nature serve only to distract from meaningful discussion surrounding the judicial confirmation process.

“When Judge Sotomayor was nominated, conservative pundits immediately leveled allegations of judicial activism against her. That charge is not only hypocritical, but is also disingenuous. Bush v. Gore, supported by these same commentators in 2000, is the most vivid example of judicial activism ever displayed by the highest court,” said Marjorie Cohn, President of the National Lawyers Guild.

Critics have increasingly questioned the role that Sotomayor’s race and gender played in her nomination. Changing the discourse from one of judicial qualifications to one of identity politics detracts from a proper evaluation of her suitability for the job.

The Guild encourages an analysis that focuses on Sotomayor’s credentials and ability to interpret the Constitution of the United States. These are the criteria by which any judicial nominee should be evaluated.

Obama’s Guantánamo Appeasement Plan

2009-05-25T11:18:00.000-07:00

Two days after his inauguration, President Obama pledged to close Guantánamo within one year. The Republicans, led by Senators John McCain, Mitch McConnell and Pat Roberts, immediately launched a concerted campaign to assail the new president. They claimed his plan would release dangerous terrorists into U.S. communities and allow released terrorists to resume fighting against our troops. Fox News agitator Sean Hannity and Bush team players like torture-memo lawyer John Yoo filled the airwaves and print media with paranoia.

The Republican attacks were bogus. A 2008 McClatchy investigation revealed that the overwhelming majority of Guantánamo detainees taken into custody in 2001 and 2002 in Afghanistan and Pakistan were innocent of wrongdoing or bit players with little intelligence value. A substantial number of those prisoners were literally sold to U.S. officials in exchange for bounty payments offered by the U.S. military. A Seton Hall Law Center report has debunked Pentagon claims that many released detainees have “returned to the fight.” And no one has ever escaped from one of the U.S. super-max prisons, which house hundreds of people convicted of terrorist offenses.

The Republicans have continued to oppose the effort to close Guantánamo. In an attempt to burnish his image and forestall war crimes charges, Dick Cheney now leads the charge, making ubiquitous attacks on Obama. Keeping Guantánamo open is “important,” Cheney declares. He claims that closing Guantánamo would endanger Americans, and warns that if detainees are brought to the United States, they would “acquire all kinds of legal rights.” Obama is also taking heat from the intelligence community. Those officials, like Cheney, seek to justify what they did under the Bush regime.

And now even the Democrats are piling on the bandwagon. Reacting defensively to the Republican attack campaign, the Senate voted 90 to 6 to deny Obama funds to close Guantánamo until he comes up with a “plan” for relocating the detainees there. “We spent hundreds of millions of dollars building an appropriate facility with all security precautions on Guantánamo to try these cases,” said Democratic Senator Jim Webb on ABC News. “I do not believe they should be tried in the United States,” he added.

The pressure has caused Obama to buckle. Timed to coincide with a Cheney speech to the right-wing American Enterprise Institute, Obama announced an appeasement plan to deal with the 240 remaining Guantánamo detainees. Parts of his plan would threaten the very foundation of our legal system – that no one should be held in custody if he has committed no crime. These are Obama’s five categories for disposition of detainees once Guantánamo is closed:

1) Those who violated the laws of war will be tried in military commissions.

Obama's plan would backtrack on an early promise to shut down the military commissions. Obama now claims that such commissions can be fair because they will no longer permit the use of evidence obtained by cruel, inhuman or degrading interrogation methods. He fails to mention, however, that the Pentagon is using “clean teams” to re-interrogate people who were previously interrogated using the prohibited methods. When they once again give the same information, it miraculously becomes untainted. Obama also fails to acknowledge that those tried in the military commissions are forbidden from seeing all the evidence against them, a violation of the bedrock principle that the accused must have an opportunity to confront his accusers.

Even the U.S. Supreme Court has disagreed with this part of Obama's proposed plan of action. In Ex parte Milligan, the Supreme Court declared military trials of civilians to be unconstitutional if civil courts are available.

Prisoners falling in this category should be tried in the courts of the United States, because the laws of war are actually part of U.S. law. The Supremacy Clause of the Constitution says that treaties shall be the supreme law of the land. The Geneva Conventions and the Hague Convention, which the United States has ratified, contain the laws of war.

2) Those who have been ordered released from Guantánamo will remain in custody.

Seventeen Uighurs from China were ordered released after they were found not to be enemy combatants. But they continue to languish in custody because they would be imperiled if returned to China, which considers them enemies of the state. Suggestions that they be brought to the United States have been met with paranoid NIMBY (not in my backyard!) protestations. So, under Obama's plan they will remain incarcerated in a state of legal limbo.

3) Those who cannot be prosecuted yet “pose a clear danger to the American people” will remain in custody with no right to legal process of any kind.

These are people who have never been charged with a crime. Obama did not say why they cannot be prosecuted. Secretary of Defense Robert Gates claims as many as 100 people may fall into this category. Included in this group are those who have “expressed their allegiance to Osama bin Laden.” They will suffer “prolonged detention.”

Obama's plan for "prolonged detention" is nothing more than a newly-coined phrase for “preventive detention,” a policy that harks back to the bad old days of the Alien and Sedition Acts of 1798 and the internment of people of Japanese extraction in the 1940’s. If Obama succeeds in convincing Congress to legalize “prolonged detention,” the United States will continue to be a pariah state among justice-loving nations. The U.S. Congress, still rendered catatonic by post-9/11 rhetoric, will probably capitulate along with Obama.

Michael Ratner, president of the Center for Constitutional Rights, noted that Obama’s new system of preventive detention will just “move Guantánamo to a new location and give it a new name.”

4) Those who can be safely transferred to other countries will be transferred.

Obama noted that 50 men fall into this category. It is unclear what will happen to them when they reach their destinations.

5) Those who violated U.S. criminal laws will be tried in federal courts.

Obama cited the examples of Ramzi Yousef, who tried to blow up the World Trade Center, and Zacarias Moussaoui, who was identified as the 20th 9/11 hijacker. Both were tried and convicted in U.S. courts and both are serving life sentences.

This is the only clearly acceptable part of Obama's plan. All detainees slated to remain in custody should be placed into this category. The federal courts provide due process as required by the Fifth Amendment to the Constitution, which does not limit due process rights to U.S. citizens: “No person . . . shall be deprived of life, liberty, or property without due process of law.”

The federal courts are well suited to deal with accused terrorists. Indeed, federal judges who have presided over such cases say that the Classified Information Procedures Act can effectively protect classified intelligence in federal court trials.

If Mr. Obama proceeds with the plan he announced this week he will empower those who point to U.S. hypocrisy on human rights as a justification to do us harm. Obama’s capitulation to the intelligence gurus and the right-wing attack dogs will not only imperil the rule of law; it will actually make us more vulnerable to future acts of terrorism.

Stanford Anti-War Alumni, Students Call for Condi War Crimes Probe

2009-05-05T20:55:00.000-07:00

During the Vietnam War, Stanford students succeeded in banning secret military research from campus. Last weekend, 150 activist alumni and present Stanford students targeted Condoleezza Rice for authorizing torture and misleading Americans into the illegal Iraq War.

Veterans of the Stanford anti-Vietnam War movement had gathered for a 40th anniversary reunion during the weekend. The gathering featured panels on foreign policy, the economy, political and social movements, science and technology, media, energy and the environment, and strategies for aging activists.

On Sunday, surrounded by alumni and students, Lenny Siegel and I nailed a petition to the University President’s office door. The petition, circulated by Stanford Says No to War, reads:

“We the undersigned students, faculty, staff, alumni, and other concerned members of the Stanford community, believe that high officials of the U.S. Government, including our former Provost, current Political Science Professor, and Hoover Institution Senior Fellow, Condoleezza Rice, should be held accountable for any serious violations of the Law (included ratified treaties, statutes, and/or the U.S. Constitution) through investigation and, if the facts warrant, prosecution, by appropriate legal authorities.”

I stated, “By nailing this petition to the door of the President’s office, we are telling Stanford that the university should not have war criminals on its faculty. There is prima facie evidence that Rice approved torture and misled the country into the Iraq War. Stanford has an obligation to investigate those charges.”

After the petition nailing, I cited the law and evidence of Condoleezza Rice’s responsibility for war crimes - including torture - and for selling the illegal Iraq War:

As National Security Advisor, Rice authorized waterboarding in July 2002, according to a newly released report of the Senate Intelligence Committee. Less than two months later, she hyped the impending U.S. invasion of Iraq, saying, “We don’t want the smoking gun to be a mushroom cloud.” Her ominous warning was part of the Bush administration’s campaign to sell the Iraq war, in spite of the UN International Atomic Energy Agency’s assurances that Saddam Hussein did not possess nuclear weapons.

A week before the nailing of the petition, Rice made some Nixonian admissions in response to questions from Stanford students during a campus dinner designed to burnish Rice’s image on campus.

In October 1968, Stanford anti-war activists had nailed a document to the door of the trustees’ office which demanded that Stanford “halt all military and economic projects concerned with Southeast Asia.”

If you have had any affiliation with Stanford, please sign the petition at http://www.stanford.edu/group/antiwar/crpetition.html.

Condi Channels Nixon: If the President Says So, It’s Not Illegal

2009-04-30T07:02:00.000-07:00

On April 27, Condoleezza Rice had a brief Q & A with some Stanford students:

Condi was extremely uncomfortable, defensive and nervous. She was rude to the first student, interrupted him and yelled at him.

When asked by another student about a recent report that she authorized waterboarding, Condi said, “I didn't authorize anything. I conveyed the authorization of the administration to the agency [CIA] that they had policy authorization subject to the Justice Department’s clearance.”

The kicker was when she was asked whether waterboarding is torture. She replied, "By definition, if it was authorized by the President, it didn't violate our obligations under the Convention against Torture."

Richard Nixon: “If the president does it, it's not illegal.”

John Yoo, in a 2005 debate with Notre Dame professor Doug Cassel: There is no law that could prevent the President from ordering that a young child of a suspect in custody be tortured, even by crushing the child's testicles.

Torture Used to Try to Link Saddam with 9/11

2009-04-23T17:28:00.000-07:00

When I testified last year before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties about Bush interrogation policies, Congressman Trent Franks (R-Ariz) stated that former CIA Director Michael Hayden had confirmed that the Bush administration only waterboarded Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashirit for one minute each. I told Franks I didn’t believe that. Sure enough, one of the newly released torture memos reveals that Mohammed was waterboarded 183 times and Zubaydah was waterboarded 83 times. One of Stephen Bradbury’s 2005 memos asserted that “enhanced techniques” on Zubaydah yielded the identification of Mohammed and an alleged radioactive bomb plot by Jose Padilla. But FBI supervisory special agent Ali Soufan, who interrogated Zubaydah from March to June 2002, wrote in the New York Times that Zubaydah produced that information under traditional interrogation methods, before the harsh techniques were ever used.

Why, then, the relentless waterboarding of these two men? It turns out that high Bush officials put heavy pressure on Pentagon interrogators to get Mohammed and Zubaydah to reveal a link between Saddam Hussein and the 9/11 hijackers, in order to justify Bush’s illegal and unnecessary invasion of Iraq in 2003, according to a newly released report of the Senate Armed Services Committee. That link was never established.

The Senate Intelligence Committee revealed that Condoleezza Rice approved waterboarding on July 17, 2002 “subject to a determination of legality by the OLC.” She got it two weeks later from Jay Bybee and John Yoo. Rice, Dick Cheney, John Ashcroft, Alberto Gonzales and George Tenet reassured the CIA in spring 2003 that the abusive methods were legal.

Team Bush claimed - and still claims - that it had to use harsh techniques to protect us from the terrorists. They really sought to create evidence to rationalize an illegal, unnecessary, and tragic war.

Bush Memos Reveal Policy of Cruelty; Obama Refuses to Enforce the Law

2009-04-22T09:10:00.000-07:00

In response to a Freedom of Information Act request by the ACLU, President Obama released four Bush-era memos that describe unimaginably brutal techniques and provide “legal” justification for clearly illegal acts of torture and cruel, inhuman or degrading treatment. In the face of monumental pressure from the CIA to keep them secret, Obama demonstrated great courage in deciding to make the grotesque memos public. At the same time, however, in an attempt to pacify the intelligence establishment, Obama said, “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He guaranteed free legal representation for CIA employees investigated by Congress or international tribunals, and indemnification for any financial judgments rendered against them.

Obama’s intent to immunize those who violated our laws banning torture and cruel treatment violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

The memos

The memo dated August 1, 2002 was signed by Jay Bybee, and the other three memos, dated May 10, 2005, were signed by Stephen Bradbury.

In startlingly clinical and dispassionate terms, the authors of the newly-released torture memos describe and then rationalize why the devastating techniques the CIA sought to employ on human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques, including banging heads into walls 30 times in a row, prolonged nudity, repeated facial and abdominal slapping, dietary manipulation, and dousing with cold water as low as 41 degrees. They allow shackling in a standing position for 180 hours, sleep deprivation for 11 days, confinement of people in small dark boxes with insects for hours, and waterboarding to create the perception they are drowning. Moreover, the memos permit many of these techniques to be used in combination for a 30-day period. They find that none of these techniques constitute torture or cruel, inhuman or degrading treatment.

Waterboarding, admittedly the most serious of the methods, is designed, according to Bybee, to induce the perception of “suffocation and incipient panic, i.e. the perception of drowning.” But although Bybee finds that “the use of the waterboard constitutes a threat of imminent death,” he accepts the CIA’s claim that it does “not anticipate that any prolonged mental harm would result from the use of the waterboard.” As psychologist Jeffrey Kaye points out, the CIA and the Justice Department “ignored a wealth of other published information” that indicates dissociative symptoms, changes greater than those in patients undergoing heart surgery, and drops in testosterone to castration levels after acute stress associated with techniques that the memos sanction.

The Torture Statute punishes conduct, or conspiracy to engage in conduct, specifically intended to inflict severe physical or mental pain or suffering. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from either the intentional infliction or threatened infliction of severe physical pain or suffering, or from the threat of imminent death.

Bybee asserts that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” He makes the novel claim that the presence of personnel with medical training who can stop the interrogation if medically necessary “indicates that it is not your intent to cause severe physical pain.”

Now a federal judge with lifetime appointment, Bybee concludes that waterboarding does not constitute torture under the Torture Statute. However, he writes, “we cannot predict with confidence whether a court would agree with this conclusion.”

The Bush administration claimed it only used waterboarding three times. But a footnote in one of Bradbury’s memos says waterboarding was utilized “with far greater frequency than initially indicated” with “large volumes of water” rather than small quantities as required by the CIA’s rules.

Bybee’s memo explains why the 10 techniques could be used on Abu Zubaydah, who was considered to be a top Al Qaeda operative. “Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from [the CIA’s] proposed interrogation methods,” the CIA told Bybee. But Zubaydah was a low-ranking Al Qaeda operative, according to leading FBI counter-terrorism expert Dan Coleman, who advised a top FBI official, “This guy is insane, certifiable, split personality.” This was reported by Ron Suskind in his book, The One Percent Doctrine.

The CIA’s request to confine Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA it could place a harmless insect in the box and tell Zubaydah that it will sting him but it won’t kill him. Even though the CIA knew that Zubaydah had an irrational fear of insects, Bybee found there would be no threat of severe physical pain or suffering if it followed this procedure.

Another noxious aspect of these memos is the use of medical professionals to enable the torture and cruel treatment. They are on hand to monitor the victims to make sure they come close to death, but don’t actually die. But the medical personnel may well allow the abuse to cause severe physical pain and do nothing to stop it until the victim reaches the point of impending death. One of Bradbury’s memos requires that a physician be on duty during waterboarding to perform a tracheotomy in case the victim doesn’t recover after being returned to an upright position.

Employing a standard used to measure due process violations, Bradbury concluded that “the CIA interrogation techniques, with their careful screening procedures and medical monitoring, do not ‘shock the conscience,’” and thus were not cruel, inhuman or degrading. It is difficult to imagine how the techniques described above would fail to shock the conscience of any human being.

Obama’s refusal to faithfully execute the law

The Constitution requires the President to enforce the law against both the petty thief who stole salmon from the market, and the CIA agent who tortured or abused a prisoner.

Our law prohibits torture and cruel, inhuman or degrading treatment, and requires that those who subject people to such treatment be prosecuted. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation. The Geneva Conventions proclaim an “obligation” to bring those who have committed torture and cruel treatment before our “own courts.” The Torture Convention and the Geneva Conventions are both part of U.S. law under the Supremacy Clause of the Constitution, which says, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Two federal statutes – the Torture Statute and the War Crimes Act (torture is a war crime) - provide for life imprisonment and even the death penalty if the victim dies from torture.

Obama has made a political calculation to seek amnesty for the CIA torturers. He expressed his “intention” to protect people who relied in good faith on Justice Department advice. However, good faith reliance on superior orders was rejected as a defense at Nuremberg and in Lt. Calley’s Vietnam-era trial for the My Lai Massacre. The Torture Convention provides unequivocally, “An order from a superior officer or a public authority may not be invoked as a justification for torture.”

There is evidence that the CIA was using the illegal techniques as early as April 2002, three to four months before the August memo was written. That would eliminate “good faith” reliance on Justice Department advice as a “defense” to prosecution. And Obama did not say he favored amnesty for those who set the policy – which would include Cheney, Rumsfeld, Rice, Powell, Ashcroft and Gonzales who comprised the Principals Committee that authorized the torture and Bush who approved of it. Nor did Obama include in his intended amnesty the lawyers – like Yoo, Bybee, Bradbury, Addington and Haynes - whose opinions under girded the policy.

When ABC’s George Stephanopoulos asked Rahm Emanuel on Sunday, “What about the people who designed the policies?", Emmanuel said the President doesn’t support their prosecution either.

But the decision about whether and who to prosecute is up to the Attorney General, Eric Holder. If Holder continues to carry out Obama’s political agenda by resisting investigations and prosecution, Congress can, and should, authorize the appointment of a special independent prosecutor to do what the law requires.

The Watergate scandal led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President Carter asked Congress to pass a law authorizing the appointment of a special prosecutor to investigate and prosecute unlawful acts by high government officials. The bill empowered the attorney general to conduct a preliminary 90-day investigation when serious allegations arose involving a high government official.

Under the act, the attorney general could drop the investigation if he determined it was unsupported by the evidence. But if he found some merit to the charges, he was required to apply to a three-judge panel of federal court judges who would appoint a special prosecutor to investigate, prosecute, and issue a report. This procedure was used to appoint Kenneth Starr, whose witch hunt led to Bill Clinton's impeachment. In reaction, Congress allowed the independent counsel statute to expire by its own terms in 1999. It’s time for the people to demand that Congress enact an independent counsel statute.

Universal jurisdiction

What happens if the United States government refuses to prosecute those who ordered, justified and carried out the torture and abuse? Other countries will launch criminal investigations of U.S. nationals under universal jurisdiction. See Spain Investigates What America Should [http://marjoriecohn.com/2009/04/spain-investigates-what-america-should.html].

Indeed prosecutors in Spain decided to file criminal charges against Yoo, Bybee, Gonzales, Haynes, Addington and Feith for torture. But in a rare move, Candido Conde-Pumpido, Spain’s attorney general, overruled the prosecutors’ decision, saying the case had “no merit” because the six men were not present when the abuse took place and it was up to the United States to prosecute.

Universal jurisdiction is used to prosecute foreign nationals when their own country refuses to prosecute. Adoph Eichmann, often called “the architect of the Holocaust,” was tried, convicted and executed by Israel for crimes unconnected to Israel. He orchestrated the deportations but was not necessarily present at the gas chambers when millions were murdered.

Curiously, Conde-Pumpido’s decision followed discussions between the U.S. and Spanish governments in which the Obama administration strongly suggested that charges against the six would be “inconvenient,” according to Scott Horton of Harpers. Apparently and unfortunately, Obama is following the same tack Bush took by pressuring countries to back down on universal jurisdiction prosecutions.

The Spanish case is not dead, however. Judge Baltasar Garzon, who issued the arrest warrant for Augusto Pinochet in 1998, still has the power to determine whether the case will proceed.

Ultimately, it is up to Obama to fulfill his constitutional duty to ensure that the laws are faithfully executed. As he seems inclined to shirk that duty, it is up to us to pressure him, and Congress to hold accountable, those who violate our laws. Obama said that “nothing will be gained by spending our time and energy laying blame for the past.” He is wrong. There is more to gain from upholding the rule of law. It will make future leaders think twice before they authorize the cruel, illegal treatment of other human beings.