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

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

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

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

View Featured Broadcasts on Google and Professor Cohn's congressional testimony, interview on C-SPAN Book TV and
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Wednesday, July 22, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This article was originally published on Truthdig (www.truthdig.com).

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Thursday, July 9, 2015

One Year After Gaza Massacre, UN Exposes Likely War Crimes

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

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

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

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

Collective Punishment

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

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

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

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

Probable Violations of International Law

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

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

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

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

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

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

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

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

Testimonies From IDF Soldiers

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

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

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

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

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

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

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

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

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

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

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

No Rules of Engagement

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

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

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

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

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

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

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

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

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

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

Reactions to the Commission's Report

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

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

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

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

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

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

Copyright, Truthout. Reprinted with permission.

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Tuesday, July 7, 2015

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

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

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

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

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

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

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

The Illegal Occupation of Guantánamo Bay

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

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

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

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

The Diplomatic Importance of Freeing the Cuban Five

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

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

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

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

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

Years of Wrongful Imprisonment

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

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

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

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

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

Surviving Prison Through Poetry and Art

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

Guerrero also began writing poetry in prison.

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

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

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

The Five Return to Cuba

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

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

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

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

The Way Ahead

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

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

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

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

 Copyright, Truthout. Reprinted with permission.

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Wednesday, May 13, 2015

Congress Should End Metadata Collection

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

Section 215 of the Patriot Act

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

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

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

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

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

The Court of Appeals Opinion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What Should Congress Do?

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

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

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

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

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

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

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

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

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

 Copyright, Truthout. Reprinted with permission.

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Monday, May 4, 2015

The Chickens Come Home to Roost in Baltimore

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Friday, May 1, 2015

Agent Orange: Terrible Legacy of the Vietnam War

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

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

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

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

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

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

The panel of judges found the following:

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

- The chemical products caused:

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

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

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

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

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

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

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

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

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

This piece first appeared on Truthout.

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Monday, April 27, 2015

Challenging American Exceptionalism

President Barack Obama stood behind the podium and apologized for inadvertently killing two Western hostages - including one American - during a drone strike in Pakistan. Obama said, “one of the things that sets America apart from many other nations, one of the things that makes us exceptional, is our willingness to confront squarely our imperfections and to learn from our mistakes.” In his 2015 state of the union address, Obama described America as “exceptional.” When he spoke to the United Nations General Assembly in 2013, he said, “Some may disagree, but I believe that America is exceptional.”

American exceptionalism reflects the belief that Americans are somehow better than everyone else. This view reared its head after the 2013 leak of a Department of Justice White Paper that describes circumstances under which the President can order the targeted killing of U.S. citizens. There had been little public concern in this country about drone strikes that killed people in other countries. But when it was revealed that U.S. citizens could be targeted, Americans were outraged. This motivated Senator Rand Paul to launch his 13-hour filibuster of John Brennan’s nomination for CIA director.

It is this double standard that moved Nobel Peace Prize winner Archbishop Desmond Tutu to write a letter to the editor of the New York Times, in which he asked, “Do the United States and its people really want to tell those of us who live in the rest of the world that our lives are not of the same value as yours?” (When I saw that letter, I immediately invited Archbishop Tutu to write the foreword to my book, “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.” He graciously agreed and he elaborates on that sentiment in the foreword).

Obama insists that the CIA and the U.S. military are very careful to avoid civilian casualties. In May 2013, he declared in a speech at the National Defense University, “before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.” 

Nevertheless, of the nearly 3,852 people killed by drone strikes, 476 have reportedly been civilians. The Open Society Justice Initiative (OSJI), which examined nine drone strikes in Yemen, concluded that civilians were killed in every one. Amrit Singh, a senior legal officer at OSJI and primary author of the report, said “We’ve found evidence that President Obama’s standard is not being met on the ground.”

In 2013, the administration released a fact sheet with an additional requirement that “capture is not feasible” before a targeted killing can be carried out. Yet the OSJI also questioned whether this rule is being followed. Suspected terrorist Mohanad Mahmoud Al Farekh, a U.S. citizen, was on the Pentagon’s “kill list” but he was ultimately arrested by Pakistani security forces and will be tried in a U.S. federal court. “This is an example that capturing can be done,” according to Micah Zenko of the Council on Foreign Relations.

The fact sheet also specifies that in order to use lethal force, the target must pose a “continuing, imminent threat to U.S. persons.” But the leaked Justice Department White Paper says that a U.S. citizen can be killed even when there is no “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” This renders the imminency requirement a nullity. Moreover, if there is such a low bar for targeting a citizen, query whether there is any bar at all for killing foreigners.

There must also be “near certainty” that the terrorist target is present. Yet the CIA did not even know who it was slaying when the two hostages were killed. This was a “signature strike,” that targets “suspicious compounds” in areas controlled by “militants.” Zenko says, “most individuals killed are not on a kill list, and the [U.S.] government does not know their names.” So how can one determine with any certainty that a target is present when the CIA is not even targeting individuals?

Contrary to popular opinion, the use of drones does not result in fewer civilian casualties than manned bombers. A study based on classified military data, conducted by the Center for Naval Analyses and the Center for Civilians in Conflict, concluded that the use of drones in Afghanistan caused 10 times more civilian deaths than manned fighter aircraft.

Moreover, a panel with experienced specialists from both the George W. Bush and Bill Clinton administrations issued a 77-page report for the Stimson Center, a nonpartisan think tank, which found there was no indication that drone strikes had advanced “long-term U.S. security interests.” 

Nonetheless, the Obama administration maintains a double standard for apologies to the families of drone victims. “The White House is setting a dangerous precedent – that if you are western and hit by accident we’ll say we are sorry,” said Reprieve attorney Alka Pradhan, “but we’ll put up a stone wall of silence if you are a Yemeni or Pakistani civilian who lost an innocent loved one. Inconsistencies like this are seen around the world as hypocritical, and do the United States’ image real harm.”

It is not just the U.S. image that is suffering. Drone strikes create more enemies of the United States. While Faisal Shahzad was pleading guilty to trying to detonate a bomb in Times Square, he told the judge, “When the drones hit, they don’t see children.”

Americans are justifiably outraged when we hear about ISIS beheading western journalists. Former CIA lawyer Vicki Divoll, who now teaches at the U.S. Naval Academy, told the New Yorker’s Jane Mayer in 2009, “People are a lot more comfortable with a Predator [drone] strike that kills many people than with a throat-slitting that kills one.” But Americans don’t see the images of the drone victims or hear the stories of their survivors. If we did, we might be more sympathetic to the damage our drone bombs are wreaking in our name.

Drone strikes are illegal when conducted off the battlefield. They should be outlawed. Obama, like Bush before him, opportunistically defines the whole world as a battlefield.

The guarantee of due process in the U.S. Constitution as well as in the International Covenant on Civil and Political Rights must be honored, not just in its breach. That means arrest and fair trial, not summary execution. What we really need is a complete reassessment of Obama’s continuation of Bush’s “war on terror.” Until we overhaul our foreign policy and stop invading other countries, changing their regimes, occupying, torturing and indefinitely detaining their people, and uncritically supporting other countries that illegally occupy other peoples’ lands, we will never be safe from terrorism.

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Thursday, April 23, 2015

Dutch Lawsuit Charges Crimes Against Humanity During Egyptian Massacres

On July 3, 2013, the Egyptian military staged a coup’etat and deposed the democratically elected government of President Mohamed Morsi of the Muslim Brotherhood. Thousands of Egyptians staged demonstrations throughout Egypt to show support for Morsi.

One month later, the Egyptian army and police carried out several massacres in Cairo, killing hundreds of unarmed protesters. Authorities mounted a military response to largely peaceful protests by supporters of the Brotherhood against the illegitimate Egyptian government. Although aimed primarily at the Brotherhood, the crackdown included other political opposition groups and individuals.

Four Dutch citizens of Egyptian origin, who were present during three of the most brutal massacres in summer 2013, filed a petition in the Netherlands that charged Egyptian Interior Minister Mohamed Ibrahim with crimes against humanity. In September 2014, the Dutch law firm of Seebregts & Saey submitted a formal request to the Dutch prosecutor to prosecute Ibrahim. Dutch criminal courts have jurisdiction under the International Crimes Act when a Dutch national has been the victim of a crime. Due to head of state immunity, the lawsuit did not name Egyptian President Abdel Fattah el-Sisi, who ordered the Rab’a massacre when he was Defense Minister.

Human Rights Watch (HRW) undertook a one-year investigation into the conduct of security forces responding to the demonstrations. In its report titled “All According to Plan: The Rab’a Massacre and Mass Killings of Protesters in Egypt,” HRW concluded, “police and army forces systematically and intentionally used excessive lethal force in their policing, resulting in killings of protesters on a scale unprecedented in Egypt.” HRW also determined “the killings not only constituted serious violations of international human rights law, but likely amounted to crimes against humanity, given both their widespread and systematic nature and the evidence suggesting the killings were part of a policy to attack unarmed persons on political grounds.” Although HRW was able to confirm that some protesters used firearms in a few instances, they did not justify “the grossly disproportionate and premeditated lethal attacks on overwhelmingly peaceful protesters.”

The Rab’a Massacre

There were over 20,000 protesters in Rab’a Square. In what HRW called “the gravest incident of mass protester killings,” Egyptian police, snipers and military personnel opened fire on unarmed demonstrators on August 14, 2013, “killing at least 817 and likely more than 1,000.” Security forces used live ammunition “with hundreds killed by bullets to their heads, necks, and chests.” Snipers fired from helicopters over Rab’a Square.

“Much of the shooting by police appears to have been indiscriminate,” HRW found, “openly firing in the general direction of crowds of demonstrators instead of targeting armed protester gunmen who may have posed a serious threat.”

The Rab’a mosque, which served as a refuge, particularly for women and children, “held so many corpses that it felt like it ‘had turned into a cemetery,’” one protester told HRW. An 18-year-old boy came into the hospital and said his stomach hurt. A doctor noted, “I looked down and his intestines were all out. He had taken several bullets and [later] died.” The doctor also reported that another person “took a bullet in the face, causing his face to open and tongue to fall out . . . He spent 40 minutes looking at me and gesturing for help, but I couldn’t do anything. Surgery was not possible.” 

The deaths “amounted to collective punishment of the overwhelming majority of peaceful protesters,” HRW concluded.

One of the petitioners, who was present at the demonstration, was not wounded but people on his left and right were being shot. He was also present when the authorities set fire to the hospital on Rab’a Square, killing about 300 patients who were not able to leave.

Republican Guard Square 

On July 7, 2013, about 2,000 Brotherhood supporters began a peaceful sit-in. Shortly before dawn on July 8, police and army units opened fire, targeting those in the protest and others emerging from prayers at the mosque. Authorities killed 61 protesters with live ammunition and injured 435. Most suffered gunshots to the head, neck and chest.

One of the petitioners was hit by a bullet, but survived.

Manassa Memorial At least 95 protesters were killed on July 27, 2013. A field hospital doctor reported, “From 2 a.m. until 8:30 a.m. it was a steady stream; the bodies kept coming. Most had gunshot wounds in the head, neck or chest. The hospital was overflowing; we were completely over capacity.” Another field house doctor told HRW: “All of the dead were either dead on arrival or died immediately after they arrived, because of where they were hit; if you’re hit in the head or chest, you won’t last very long. The entire hospital floor was covered with injured people. It was beyond imagination.”

The two petitioners who were present at this demonstration were not wounded but were in danger of being hit. Others a short distance away were hit by bullets.

Crimes Against Humanity

Dutch law provides for sentences up to life in prison for convictions of crimes against humanity. The crime is defined as intentional killing or other inhumane acts of a comparable nature which intentionally cause severe suffering or severe physical or psychological damage, when committed as part of a widespread or systematic attack against a civilian population pursuant to State policy.

HRW found that “security forces systematically and deliberately killed largely unarmed protesters on political grounds . . . in a widespread manner, resulting in the deaths of over 1,150 protesters, in July and August of 2013.”

HRW further concluded, “[t]he manner in which security forces used force to disperse protests appears to reflect policies set by the Egyptian government.” In fact, “the government anticipated and planned for the deaths of several thousand protesters.”

The Rab’a massacre was “executed pursuant to a plan formulated by the Interior Ministry and approved by the Cabinet and National Defense Council after three weeks of preparation,” HRW determined, citing statements of Ibrahim that he anticipated the dispersal would kill large numbers of demonstrators.

Ibrahim made public statements revealing he knew beforehand that many people would die during the police and military actions to end the demonstrations. The day after the Rab’a massacre, Ibrahim said “the dispersal plan succeeded 100 percent,” indicating that it adhered to a plan that had been put in place.

In a televised interview on August 31, 2013, Ibrahim confirmed that the Interior Ministry expected losses of “10 percent of the people,” adding, “you will find thousands lost from their side.”

“Abject politicization of justice"

HRW learned that “[s]ecurity forces detained over 800 protesters on August 14, 2013, some of whom they beat, tortured and in some cases summarily executed.”

On April 11, 2015, 51 Brotherhood supporters were convicted in a mass trial, based on the testimony of a single police officer. HRW said the evidence presented at the trial demonstrated that the men were disseminating news about and organizing peaceful protests in opposition to the military coup and removal of Morsi. Fourteen of the defendants were sentenced to death and the other 37 were given life sentences. According to Joe Stork, deputy Middle East and North Africa director of HRW, “The fact that people who covered and publicized the mass killings in 2013 could go to prison for life or be executed while the killers walk free captures the abject politicization of justice in Egypt.” Morsi was convicted of charges including incitement to violence and torture from 2012 demonstrations that resulted in the deaths of 10 people outside the presidential palace. He was sentenced to 20 years in prison.

The Dutch lawsuit

The case against Ibrahim is under consideration by the Dutch prosecutor’s office. Should the prosecutor refuse to prosecute Ibrahim, the petitioners can request that the superior court in The Hague order the prosecutor to prosecute.

There has been no legal accountability for the massacres conducted by the Egyptian military government against the largely peaceful protesters. If high government officials in Egypt are permitted to commit crimes against humanity with impunity, it will encourage similar actions in the future – both in Egypt and elsewhere. Since there is little prospect for justice in Egypt itself, the Dutch lawsuit may be the only vehicle for accountability for these most serious crimes.

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Thursday, March 26, 2015

Israel's Blatant Flouting of International Law Requires Presidential Response

As Israeli voters went to the polls, Prime Minister Benjamin Netanyahu declared he would oppose the creation of a Palestinian state. In what The New York Times called a "racist rant," he also proclaimed, "right-wing rule is in danger" because "Arab voters are streaming in huge quantities to the polling stations." James Besser, Washington correspondent for Jewish newspapers for 24 years, wrote that Israeli voters, "more clearly aware of Netanyahu's intent than ever," have chosen "the apartheid path."

Netanyahu's remarks were met with outrage in the United States and around the world. The Obama administration reacted by saying the United States would "reassess" its policy toward Israel. And, significantly, White House Chief of Staff Denis McDonough told a J Street conference that "an occupation that has lasted for almost 50 years must end, and the Palestinian people must have the right to live in and govern themselves in their own sovereign state."

Netanyahu's words create a golden opportunity for Barack Obama to radically transform his policy of uncritical support for Israel's ongoing violations of the law.

Israel Builds Illegal Settlements

Israel took over the West Bank (including East Jerusalem) by military force in 1967 and has held it under military occupation ever since. Security Council Resolution 242, passed in 1967, refers to "the inadmissibility of the acquisition of territory by war" and calls for "withdrawal of Israel armed forces from territories occupied in the recent conflict." Yet Israel continues to occupy the Palestinian territories it acquired in the "Six-Day War."

Since 1967, Israel has transferred more than a half million of its own citizens into these territories. Israel continues to build settlements in the West Bank, which is occupied Palestinian territory. A state that is occupying territory that is not its own cannot build settlements on that territory and transfer its own citizens into them. Under the Rome Statute for the International Criminal Court (ICC), such action constitutes a war crime. Article 8.2(b)(viii) of the statute defines "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies" as a war crime.

The ICC can investigate and prosecute these crimes. Yet, in order to prevent such investigation and prosecution, the United States has consistently opposed Palestine becoming a party to the Rome Statute. Congress passed a law that would automatically discontinue the United States' $400 million annual aid to the Palestinian Authority (PA) if Palestine were to bring charges against Israel in the ICC. Palestine will join the ICC on April 1. If Palestine files charges in the ICC, Obama should find indirect ways to provide funding to the PA to prevent its collapse.

Under the National Emergencies Act, the president has the power to declare an emergency response to a foreign policy crisis. Obama should designate the Israeli settlements an emergency. He could then regulate or prohibit any foreign exchange transaction that directly or indirectly contributes to the expansion of the illegal settlements.

Dozens of organizations designated as 501(c)(3) nonprofits by the Internal Revenue Service (IRS) funnel tens of millions of dollars annually to illegal Israeli settlements. Funding illegal activities violates IRS guidelines. The IRS should undertake a thorough investigation of the activities of these organizations.

Israel Committed War Crimes During Operation Protective Edge

In July 2014, Israel invaded Gaza and killed more than 2,000 Palestinians, the majority of them civilians. Nearly 10,000 Palestinians were wounded, more than 2,000 of them children. Tens of thousands of Palestinians lost their homes and infrastructure was severely damaged. Numerous schools, United Nations (UN) places of refuge, hospitals, ambulances and mosques were intentionally targeted. Israel used the "Dahiya doctrine" to apply "disproportionate force" and cause "great damage and destruction to civilian property and infrastructure, and suffering to civilians populations," as defined in the 2009 UN Human Rights Council (Goldstone) report. These acts constitute evidence of war crimes under Article 8 (2)(a) of the Rome Statute.

Flavia Pansieri, the UN deputy high commissioner for human rights, said that human rights violations "fuel and shape the conflict" in the occupied Palestinian territories, adding that, "[h]uman rights violations in the West Bank, including East Jerusalem, are both cause and consequence of the military occupation and ongoing violence, in a bitter cyclical process with wider implications for peace and security in the region."

Nevertheless, the United States has opposed the investigation and prosecution of these crimes in the ICC. The United States has joined Israel in boycotting the UN Human Rights Council's investigation of international law violations during the July 2014 attack (known as Operation Protective Edge). The US government should support this process and the ICC investigation.

The United States provides Israel with $3.1 billion in military assistance each year. Under the Arms Export Control Act (AECA), countries that receive US military aid can only use weapons for legitimate self-defense and internal security. Israel did not act in self-defense during Protective Edge and its actions went far beyond protecting internal security. Obama should suspend future deliveries of the weapons described in the AECA.

Moreover, under the Leahy Law, military units that commit human rights abuses cannot receive US training or weapons, and individuals who commit human rights abuses are denied US visas. The US State Department's annual report has documented Israeli violations.

And the Foreign Assistance Act of 1961 prohibits assistance to any country "which engages in a consistent pattern of gross violations of internationally recognized human rights."

Obama should enforce these laws.

Israel Maintains the Illegal Barrier Wall

Israel constructed a wall that encroaches on Palestinian land. The International Court of Justice (ICJ, or the World Court) - the legal arm of the UN system - concluded that the construction of that wall and its associated regime impedes the liberty of movement of the inhabitants of the occupied Palestinian territory as guaranteed under Article 12 (1) of the International Covenant on Civil and Political Rights. The ICJ also determined that the wall impedes the right to work, to health, to education and to an adequate standard of living as required by the International Covenant on Economic, Social and Cultural Rights. The ICJ ruled that Israel should dismantle the wall, make reparation for the damage it has caused and return the land, orchards, olive groves and other immovable property it seized to construct the wall - or compensate the aggrieved persons for the damage suffered.

The US government should tell Israel to dismantle the wall in accordance with the ICJ's ruling.

The Pentagon Admits Israel Has Nuclear Weapons

After 50 years of denial about Israel's arsenal of nuclear weapons, the US Defense Department has finally admitted that Israel has nuclear weapons. The Foreign Assistance Act of 1961, as amended, prohibits US military assistance to countries that acquire or transfer nuclear reprocessing technology outside of international nonproliferation regimes; yet this law has been honored in its breach.

While the United States prods other countries to sign the Non-Proliferation Treaty (NPT), requiring international inspections, Israel refuses to sign the NPT, thereby avoiding inspections.

Obama should enforce the law.

US Policy of Opposing Security Council Resolutions Critical of Israel

The United States has a policy of opposing all resolutions in the UN Security Council that condemn Israel's illegal colonization of Palestinian territory, or that define the parameters of a two-state solution.

Indeed, the United States vetoed a resolution in February 2011 that would have condemned the building of Israeli settlements in Palestinian territory. And in November 2014, the United States opposed a draft resolution demanding Israel's withdrawal from the West Bank within three years. 

Obama has put all of his eggs in the "peace process" basket. But now that Netanyahu has stripped away all pretense of negotiating for a Palestinian state, Obama must drop his opposition to such resolutions in the council. A senior White House official told The New York Times that the Obama administration might lend its support to a resolution "embodying the principles of a two-state solution that would include Israel's 1967 borders with Palestine and mutually agreed swaps of territory." The 1967 borders are those that existed before the "Six-Day War," in which Israel took the West Bank, Gaza, the Golan Heights, the Sinai Peninsula and Jerusalem. 

Obama Has a Duty to Enforce the Law

The US Constitution requires that the president "take care that the laws be faithfully executed." Netanyahu has dropped any pretense of good faith. It is high time for the US government to halt its longstanding policy of turning a blind eye to Israel's many violations of the law. Obama has a constitutional duty to enforce the law.

This article first appeared on Truthout.

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Tuesday, March 3, 2015

Netanyahu, ‘Censored Voices,’ and the False Narrative of Self-Defense

On March 3rd, Israeli Prime Minister Benjamin Netanyahu issued an impassioned plea to Congress to protect Israel by opposing diplomacy with Iran. Referring to “the remarkable alliance between Israel and the United States” which includes “generous military assistance and missile defense,” Netanyahu failed to mention that Israel has an arsenal of 100 or 200 nuclear weapons.

The Six-Day War

The day before he delivered that controversial address, Netanyahu expressed similar sentiments to AIPAC, Israel’s powerful U.S. lobby. He reiterated the claim that Israel acted in the 1967 Six-Day War “to defend itself.” The narrative that Israel attacked Egypt, Syria, and Jordan in self-defense, seizing the Palestinian territories in the West Bank, Gaza, Jerusalem, the Golan Heights, and the Sinai Peninsula in 1967, has remained largely unquestioned in the public discourse. Israel relies on that narrative to continue occupying those Palestinian lands. And the powerful film “Censored Voices,” which premiered at Sundance in February, does not challenge that narrative. 

But declassified high-level documents from Britain, France, Russia and the United States reveal that Egypt, Syria, and Jordan were not going to attack Israel and Israel knew it. In fact, they did not attack Israel. Instead, Israel mounted the first attack in order to decimate the Egyptian army and take the West Bank.

Censored voices uncensored

For two weeks following the Six Day War, Amos Oz and Avrahim Shapira visited Israeli kibbutzim and recorded interviews with several Israeli Defense Forces (IDF) soldiers who had just returned from that war. Largely censored by the Israeli government for many years, those reels have finally been made public. “Censored Voices” features the taped voices of young IDF soldiers, as the aging, former soldiers sit silently beside the tape recorder, listening to their own voices.

The testimonies documented in the tapes reveal evidence of targeting civilians and summarily executing prisoners, which constitute war crimes. A soldier asks himself, “They’re civilians – should I kill them or not?” He replies, “I didn’t even think about it. Just kill! Kill everyone you see.” Likewise, one voice notes, “Several times we captured guys, positioned them and just killed them.” Another reveals, “In the war, we all became murderers.” Still another says, “Not only did this war not solve the state’s problems, but it complicated them in a way that’ll be very hard to solve.” One soldier likens evacuating Arab villages to what the Nazis did to Jews in Europe. As a soldier watched an Arab man being taken from his home, the soldier states, “I had an abysmal feeling that I was evil.”
In what proved to be a prescient question, one soldier asks, “Are we doomed to bomb villages every decade for defensive purposes?” Indeed, Israel justifies all of its assaults on Gaza as self-defense, even though Israel invariably attacks first, and kills overwhelming numbers of Palestinians – mostly civilians. Each time, many fewer Israelis are killed by Palestinian rockets.

Israel’s false self-defense claim

The film begins by showing a map of Israel surrounded by Egypt, Syria, and Jordan, with arrows from each country aimed at Israel. The IDF soldiers felt those Arab countries posed an existential threat to Israel. “There was a feeling it would be a Holocaust,” one soldier observed. The Israeli media claimed at the time that Egypt had attacked Israel by land and by air on June 5, 1967. According to British journalist Patrick Seale, “Israel’s preparation of opinion” was “brilliantly managed,” a “remarkable exercise in psychological warfare.”

In his book, “The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War,” published by Cambridge University Press, Ohio State University law professor John Quigley documents conversations by high government officials in Israel, the United States, Egypt, the Soviet Union, France, and Britain leading up to the Six-Day War. He draws on minutes of British cabinet meetings, a French government publication, U.S. documents in “Foreign Relations of the United States,” and Russian national archives. Those conversations make clear that Israel knew Egypt, Syria and Jordan would not and did not attack Israel, and that Israel initiated the attacks.

Egypt was the only one of the three Arab countries that had a military of any consequence. Israeli General Yitzhak Rabin told the Israeli cabinet that the Egyptian forces maintained a defensive posture, and Israeli General Meir Amit, head of Mossad (Israeli’s intelligence agency), informed U.S. Defense Secretary Robert McNamara that Egypt was not poised to attack Israel. Both the United States and the Soviet Union urged Israel not to attack. Nevertheless, Israel’s cabinet voted on June 4 to authorize the IDF to invade Egypt. “

After the cabinet vote,” Quigley writes, “informal discussion turned to ways to make it appear that Israel was not starting a war when in fact that was precisely what it was doing.” Moshe Dayan, who would soon become Israel’s Minister of Defense, ordered military censorship, saying, “For the first twenty-four hours, we have to be the victims.” Dayan admitted in his memoirs, “We had taken the first step in the war with Egypt.” Nevertheless, Israel’s UN Ambassador Gideon Rafael reported to the Security Council that Israel had acted in self-defense.

“The hostilities were attacks by the Israeli air force on multiple Egyptian airfields, aimed at demolishing Egyptian aircraft on the ground,” according to Quigley. On June 5, the CIA told President Lyndon B. Johnson, “Israel fired the first shots today.”

Article 51 of the UN Charter authorizes states to act in collective self-defense after another member state suffers an armed attack. Although Jordan and Syria responded to the Israeli attacks on Egypt, they – and Egypt - inflicted little damage to Israel. By the afternoon of June 5, Israel “had virtually destroyed the air war capacity of Egypt, Jordan, and Syria,” Quigley notes. “The IDF achieved the ‘utter defeat’ of the Egyptian army on June 7 and 8.”

The United States empowers Israel

U.S. Secretary of State Dean Rusk said that U.S. officials were “angry as hell, when the Israelis launched their surprise offensive.” Yet, Quigley notes, “Israel’s gamble paid off in that the United States would not challenge Israel’s story about how the fighting started. Even though it quickly saw through the story, the White House kept its analysis to itself.”

Although Security Council resolution 242, passed in 1967, refers to “the inadmissibility of the acquisition of territory by war” and calls for “withdrawal of Israel armed forces from territories occupied in the recent conflict,” Israel continues to occupy the Palestinian territories it acquired in the Six-Day War.

Israel has abandoned its claim that Egypt attacked first. Yet the international community considers that Israel acted in lawful anticipatory self-defense. Quigley explains how the UN Charter only permits the use of armed force after an armed attack on a UN member state; it does not authorize anticipatory, preventive, or preemptive self-defense.

“The UN did not condemn Israel in 1967 for its attack on Egypt,” Antonio Cassese of the University of Florence explained. Quigley attributes this to Cold War politics, as the USSR supported Egypt. “For the United States in particular, Israel’s success was a Cold War defeat for the USSR. The United States was hardly prepared to condemn Israel after it performed this service.”

The United States continues to support Israel by sending it $3 billion per year in military aid, even when Israel attacks Gaza with overwhelming firepower, as it did in the summer of 2014, killing 2,100 Palestinians (mostly civilians). Sixty-six Israeli soldiers and seven civilians were killed.

If Israel were to mount an attack on Iran, the United States would invariably support Israel against Iran and any Arab country that goes to Iran’s defense. Indeed, Netanyahu intoned to Congress, “may Israel and America always stand together.”

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