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

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

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

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

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


Wednesday, 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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Wednesday, February 18, 2015

Obama to Congress: Rubber-Stamp My Perpetual War

As President Barack Obama presented his proposed Authorization for Use of Military Force(AUMF) to Congress, he declared, "I do not believe America's interests are served by endless war, or by remaining on a perpetual war footing." Yet Obama's proposal asks Congress to rubber-stamp his endless war against anyone he wants, wherever he wants. Obama has launched 2,300 airstrikes in Iraq and Syria since August 8, 2014. In his six years as president, he has killed more people than died on 9/11 with drones and other forms of targeted killing in Pakistan, Yemen and Somalia - countries with which the United States is not at war.

Obama's proposed AUMF contains some purported limitations, but their vagueness amounts to a blank check to use US military force in perpetuity.

"Associated Persons or Forces"

The president's proposal authorizes force against the Islamic State (ISIS or ISIL) and its "associated persons or forces." They are defined as "individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners."

This proviso contains no geographical limitation. It would authorize the use of military force anywhere in the world. "[T]he executive branch could interpret this language to authorize force against individuals far from any battlefield with only some remote connection to the group - potentially even in the United States itself," according to the American Civil Liberties Union.

No "Enduring Offensive Operations"

Obama's AUMF "does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations." This provision contains no definition of "enduring." Does this mean one month? One year? Three Years? Or perhaps six months with a break, then another six months?

This provision is riddled with exceptions. The 3,000 US military personnel currently in Iraq are exempted from the limitation. So are special operations forces, as well as those collecting intelligence, involved with "kinetic strikes, or the provision of operation planning and other forms of advice and assistance to partner forces." These exemptions are so vague, they can justify just about any US troops.

Nor is the term "offensive" defined in the proposal. By labeling operations defensive, Obama or his successor could use increasing numbers of ground troops. What if any of the US personnel currently serving in Iraq are attacked? Under Obama's AUMF, the United States could deploy thousands of US troops and call it a defensive operation.

2001 AUMF Still in Force

The three-year sunset provision in Obama's proposal is rendered meaningless by the continued existence of the AUMF Congress gave President George W. Bush in 2001. Obama claims he already has authority to wage his wars under the 2001 AUMF, which authorizes the president to use "force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

But the 2001 AUMF's license is limited to those connected with the 9/11 attacks. In fact, when Bush asked for authority "to deter and preempt any future acts of terrorism or aggression against the United States," Congress refused. Yet Obama has used the 2001 AUMF to justify his ongoing drone war and his invasion of Iraq and Syria, in spite of the absence of any connection with the 9/11 attacks.

Without repealing the 2001 AUMF, "any sunset of the new authorization will be ineffectual, since the next president can claim continued reliance on the old one," according to Rep. Adam Schiff (D-California).

On February 13, 2015, a group of Democratic senators introduced a bill to repeal the 2001 AUMF in three years. This bill would note that Congress "never intended and did not authorize a perpetual war" when it passed that AUMF.

Bipartisan Opposition to Obama's Proposed AUMF

Some Democrats think Obama's proposed AUMF is too broad. Sen. Barbara Boxer (D-California)wrote in The Huffington Post that the language prohibiting "enduring offensive ground combat operations" is "vague, overly broad and confusing."

Many Republicans think Obama's proposal constrains his ability to use US ground troops against ISIS. Ironically, the GOP, which consistently seeks to reign in Obama's authority, wants to grant the president more power to use military force.

It is likely that Congress will ultimately agree on a reworded AUMF to give Obama congressional cover to pursue his wars.

Violation of UN Charter

But even if Congress were to authorize Obama's wars in Iraq and Syria, those wars would still violate the UN Charter. The charter requires all states to settle their disputes peacefully, and to refrain from the use of armed force except when acting in self-defense or with the blessing of the Security Council.

The Syrian government has not consented to Obama's bombing in Syria. And although the Iraqi government has blessed Obama's bombing campaign, Iraqi Prime Minister Haider al-Abadi "is a puppet government that Obama installed and therefore has no authority under international law to consent to U.S. military operations in Iraq," according to law professor Francis Boyle. "It is like in Vietnam when we had our puppets there asking us to conduct military operations there."

Indeed, ISIS is a direct outgrowth of the US invasion and installation of former Prime Minister Nuri al-Maliki, a Shiite Muslim who viciously killed, disappeared and tortured Sunni Muslims after most US troops pulled out. Many Sunnis in Iraq see ISIS as preferable to US bombs.

Pursue diplomacy, not permanent war

Obama's drone strikes have killed large numbers of civilians; only 2 percent of those killed have been high-level al-Qaeda or Taliban leaders. They have also created increased resentment against the United States. When people see their loved ones felled by US bombs, they are more susceptible to recruitment by extremist groups that seek to do us harm.

Likewise, "[b]ombing different groups who live in the same area as ISIS has helped unite ISIS with more moderate groups, more reasonable groups, who could have been persuaded to rejoin the political process," according to Raed Jarrar of the American Friends Service Committee. Sarah Lazare reports that in December 2014, a US coalition bomb hit a jail operated by ISIS in al-Bab, Syria, killing at least 50 civilians.

We need to stop using military force as a solution to everything - indeed, it is a solution to nothing. We must focus on diplomacy, including, as Phyllis Bennis advocates, pressuring our allies such as Turkey, Saudi Arabia, Qatar and the UAE to stop allowing ISIS to cross their borders and stop financing and arming all groups who claim to oppose President Bashar al-Assad in Syria.

There are groups pursuing nonviolent solutions in Syria, Damascus-born author and poet Mohja Kahf notes. We should support the Organization of Women's Freedom and the Federation of Workers Council and Trade Unions in Iraq.

We must also push for the repeal of the 2001 AUMF and prevent the passage of a new AUMF.

We cannot rely on Congress or the president to reverse the course of rampant US militarism. It is up to us to make our voices heard. Mass opposition in the United States to Obama's proposed airstrikes on the Assad regime in 2013 was instrumental in preventing those strikes. Congress and the White House do respond to popular pressure. We must call, write, email and demonstrate, write letters to the editor and op-eds, and voice our disapproval of Obama's perpetual war.

Copyright, Truthout. Reprinted with permission.

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Monday, February 2, 2015

‘How Human Rights Can Build Haiti’

Book Review: ‘How Human Rights Can Build Haiti’ Fran Quigley, Vanderbilt University Press (2014), 223 pp.

Haiti is one of the poorest countries in the world. It has suffered a devastating earthquake followed by a deadly cholera epidemic, both set in the backdrop of a history of oppression by corrupt rulers and foreign exploitation. In spite of incredible challenges, two intrepid human rights attorneys – one Haitian and one American – have worked diligently to vindicate the rights of the people of Haiti, with some notable successes.

Fran Quigley’s important book tells the story of Mario Joseph and Brian Concannon, whose Bureau des Avocats Internationaux (BAI) has given hope to untold numbers of Haitians. They opt for a ‘bottom-up’ rather than a ‘top-down’ approach. Their preference is to help to empower the Haitian people to make change themselves, instead of relying on outsiders – particularly the United States and non-governmental organizations (NGOs) – which establish ‘rule of law programs’ and provide charity, generally with strings attached.

Mario Joseph

Often called the leading human rights lawyer in Haiti, Mario Joseph is president of BAI. “We had an earthquake, yes, but far too many people died in this earthquake. And that is because we in Haiti have no respect for the rule of law,” he says, attributing the deaths to poorly built homes crowded onto steep hillsides. It is estimated that more than 200,000 were killed, 300,000 were injured, and two million were rendered homeless by the earthquake.

Joseph has developed a reputation in Haiti as a fearless advocate, in the face of numerous death threats. While court proceedings take place in French, Joseph speaks Creole so his clients can understand the proceedings. “The justice system is unaffordable for the people of Haiti,” Joseph observes, “but if you are rich or important and your rights are not respected, you can find justice. Conversely, if you are powerful and you abuse human rights, you can find ways to avoid the consequences of your actions.”

Brian Concannon

Joseph’s counterpart in the United States is Brian Concannon, who directs the Institute for Justice and Democracy in Haiti (IJDH) in Boston. Concannon, also fluent in Creole, worked in Haiti for nine years, including the successful case he and Joseph filed after the Raboteau massacre. Concannon returned to the United States and founded IJDH, BAI’s sister organization in 2004. Known as a “tireless worker who makes the transition from human rights lawyer to political strategist to movement organizer as the needs of the Haitian dictate,” Concannon has developed a reputation with congresspersons, who “clearly look to him as the definitive voice on Haiti justice issues,” according to Nicole Lee, former BAI lawyer, now executive director for TransAfrica Forum.

A legacy of exploitation

Quigley outlines Haiti’s tragic history, starting with the occupation by the United States in 1915. 

After occupying Cuba and Puerto Rico, the United States sent Marines to invade Haiti, the only nation born from a successful slave rebellion. The United States declared martial law, seized control of the treasury, and arrested the editors of a newspaper critical of U.S. actions. Haitian opposition to the U.S. occupation grew for the next 20 years, and in 1934, the Marines left Haiti. Haitian president

Francois ‘Papa Doc’ Duvalier exploited the bitterness of the people of Haiti about U.S. domination. But his anti-communism endeared him to the United States and led to U.S. endorsement of his presidential campaign and his successful election in 1956. For the next 30 years, Papa Doc presided over a reign a terror in Haiti, backed by the United States. U.S. support continued during the oppressive tenure of Papa Doc’s son, Jean-Claude Duvalier (‘Baby Doc’).

Haiti’s fragile economy was further weakened by the neoliberal ‘structural adjustment’ program foisted upon it by its international creditors, including the International Monetary Bank. Wages and social services were kept at a minimal level as taxes and tariffs were lifted. By 1986, 300 U.S. corporations were located in Haiti. People migrated from the countryside to seek low-wage jobs in the city.

In 1990, Jean-Bertrand Aristide became Haiti’s first democratically elected president, winning more than 67 percent of the vote and defeating a neoliberal former World Bank official. When Aristide attempted to reverse the neoliberal policies foisted on Haiti, the United States strongly resisted. Less than one year later, Aristide was ousted by officers of the Haitian army, who had been trained at the U.S. School of the Americas and/or were on the CIA payroll.

President Bill Clinton helped restore Aristide to power only after the Haitian president promised to cut government programs for the poor and lower tariffs on food. Clinton regrets that condition to this day. The United States also blocked a $146 million loan to Haiti from the Inter-American Development Bank, money earmarked to improve the water infrastructure system. That move would prove to have devastating consequences in the cholera outbreak in 2010.

In 2004, Aristide was forced to leave Haiti in what many thought was a kidnapping by U.S. Army Special Forces as part of a U.S.-backed coup d’etat. The Bush administration then saw to it that Aristide’s progressive policies were reversed. That same year, the United Nations mission in Haiti (MINUSTAH) arrived but UN peacekeeping troops did little to protect civilians targeted by the new coup government. In fact, MINUSTAH troops helped facilitate political violence, causing resentment among the Haitian people. Cables obtained by WikiLeaks confirm that MINUSTAH protected U.S. interests and global capital.

After the 2004 coup, Haiti descended into lawlessness as the coup government instituted a system of repression with torture, disappearances, summary arrests and executions, rape and drug trafficking. Only a tiny fraction of those in prison had been convicted of a crime and prison conditions were deplorable. When Quigley visited one of the prisons, “[a]ll the prisoners were shirtless and barefoot, very thin, and wearing as little as possible,” he says. “The startling sight of near-naked dark-skinned men crammed together and crouching on a bare floor evoked images of Africans chained in the hold of a slave ship.”

Haiti had “endured a full thirty-two coups and a near-constant state of military dominance over civilians,” Quigley writes. “The government of Haiti made disastrous choices in loans and alliances, and has never been able to develop an economy that is independent of foreign powers, particularly the United States.”

The earthquake in 2010 triggered an overwhelming global response. But since aid was administered by NGOs instead of the Haitian government, much of the pledged money never reached the people of Haiti. And because, writes Quigley, “the military and the media mischaracterized post-earthquake Port-au-Prince as a security crisis rather than a humanitarian crisis, the Haitian people paid dearly.” The United States sent soldiers instead of humanitarian workers, and many food and supplies were not distributed to the victims. “[M]ost of the USAID dollars spent for Haiti went to top U.S. contractors, most based in Washington, DC, area. Less than one percent of U.S. government expenditures have gone to Haitian businesses or organizations.”

Shortly after the earthquake, an outbreak of cholera claimed more than 8,600 lives, and 684,000 became ill. The World Health Organization describes cholera as “an easily treatable disease.” Dr. Paul Farmer, founder of Haiti-based Partners in Health, notes that chronic poverty and deficiencies in the infrastructure made Haiti vulnerable to disasters such as earthquakes and infectious disease. The cholera infection was traced to the dumping of sewage near a river by troops in a camp where the MINUSTAH was based. Bill Clinton admitted that UN peacekeepers were the ‘proximate cause’ of the cholera epidemic.

A human rights-based approach to change in Haiti

In 2011, BAI lawyers filed more than 5,000 claims against the UN and a petition for relief on behalf of cholera victims, requesting compensation. The UN had concluded a status of forces agreement (SOFA) with the government of Haiti in 2004, granting UN troops immunity from civil and criminal claims. But Concannon told Quigley that the UN forfeited its immunity by failing to establish a commission to hear claims of cholera victims, as required by the SOFA. In 2013, UN Secretary-General Ban Ki-moon refused to receive BAI’s claims. BAI then filed a lawsuit against the UN in a New York federal court. That suit is now pending.

Joseph and Concannon won the most important human rights court verdict in Haitian history in 2000. As a result of their work, 53 military and paramilitary officers and soldiers were convicted of human rights violations during the 1994 massacre in Raboteau. They were ordered to pay the victims $140 million.

In other lawsuits, Joseph and Concannon are advocating prosecution of ‘Baby Doc’s’ collaborators for financial crimes and political repression during the brutal Duvalier regime. And the work of BAI and IJDH in responding to the epidemic of rapes in the IDP (internally displaced persons) camps following the earthquake has been exemplary. They have helped to empower the victims, challenged law enforcement, established security patrols and know-your-rights training, pushed prosecutions, and developed an international campaign through the media. As a result, sexual assaults have decreased dramatically, and women are now willing to file complaints. Joseph says, “Where the rule of law does not exist, you have to build it.”

Quigley describes how these two courageous lawyers are creating a template for an effective human rights-focused strategy to end global poverty and failed states. He writes, “[t]heir docket includes community-based programs on rape accountability and prevention, housing rights, and prisoners’ rights, along with international advocacy for fair elections in Haiti, earthquake response, and immigration rights for the Haitian diaspora. BAI helps organize street-blocking protests by camp dwellers facing eviction, and loud, aggressive demonstrations in protest of the UN’s cholera response.”

Joseph and Concannon work indefatigably to give voice to the voiceless and vindicate their human rights. They seek justice both inside and outside the courtroom.

This excellent book combines careful research with personal observations and interviews to paint a graphic portrait of the reality in Haiti and the critical work of Joseph and Concannon. Far from a dry history, it is a gripping tale of two courageous lawyers working to overcome seemingly insurmountable odds to better the lives of the Haitian people. This is a must-read for all those concerned about human rights – both in Haiti and elsewhere.

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Thursday, January 29, 2015

Supreme Court Upholds Auto Stop With No Traffic Violation

Ignorance of the law is no excuse - that is, unless you're a police officer. For the first time, in December, the Supreme Court upheld a traffic stop even where there was no traffic violation. The court, in Heien v. North Carolina, continued its steady erosion of the Fourth Amendment's protection against unreasonable searches and seizures.

In this case, an officer stopped a car that had only one working brake light, thinking that North Carolina law required two working brake lights. But the officer was mistaken about the law. Only one working brake light is required in North Carolina.

Although the court has upheld searches when an officer has made a mistake about the facts, the court has never before said an officer can stop someone due to a mistaken belief the person is committing a crime.

Sgt. Matt Darisse began following a Ford Escort because he thought the driver looked "very stiff and nervous." When the driver of the Escort applied the brakes, only one brake light came on. Darisse then pulled the car over.

Maynor Javier Vasquez was sitting behind the wheel and Nicholas Brady Heien was lying across the rear seat. Darisse gave Vasquez a warning ticket but became suspicious when the latter appeared nervous. Heien, the car's owner, told the officer he could search the car and Darisse found cocaine. Heien was arrested for attempted trafficking in cocaine.

Consent obtained after an unlawful traffic stop is invalid because it is a fruit of a Fourth Amendment violation. In Heien, however, the Supreme Court upheld the stop and thereby, Heien's consent to search.

The North Carolina Court of Appeals reversed Heien's conviction, concluding that the initial stop of his car was not valid because driving with only one working brake light was not a violation of North Carolina law. The Supreme Court reversed the state court and reinstated Heien's conviction.

Chief Justice John Roberts, writing for the majority, opined, "Darisse could have reasonably, even if mistakenly, read the vehicle code to require that both brake lights be in good working order." The court held that an officer's mistake of law will not invalidate a stop if the mistake was reasonable. 

Roberts wrote, "Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistakenly on either ground."

Although Roberts conceded, "Ignorance of the law is no excuse," both for citizens and police officers, he added, "[b]ut just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop." Heien, Roberts pointed out, "is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law."

Sotomayor Dissents

Only Justice Sonia Sotomayor dissented from the court's opinion. She would hold that in the course of determining whether a search or seizure is reasonable, a court should evaluate "an officer's understanding of the facts against the actual state of the law."

Citing the 1996 case of Ornelas v. United States, Sotomayor wrote, "[w]hat matters . . . are the facts as viewed by an objectively reasonable officer, and the rule of law - not an officer's conception of the rule of law, and not even an officer's reasonable misunderstanding about the law, but the law." 

Distinguishing mistake of law from mistake of fact, Sotomayor observed, "The meaning of the law is not probabilistic in the same way that factual determinations are. Rather, 'the notion that the law is definite and knowable' sits at the foundation of our legal system."

Noting that the court has never before "taken into account an officer's understanding of the law, reasonable or otherwise," Sotomayor alluded to the court's erosion of the Fourth Amendment: "Departing from this tradition means further eroding the Fourth Amendment's protection of civil liberties in a context where that protection has already been worn down."

Supreme Court's Erosion of the Fourth Amendment

Indeed, since 2000, the court has decided 13 cases that significantly weaken the Fourth Amendment's guarantee against unreasonable searches and seizures: 

- Illinois v. Wardlow (2000) - Flight in a high-crime neighborhood may constitute reasonable suspicion for a warrantless stop.

- Board of Education v. Pottawatomie (2002) - Public schools can randomly drug test students who engage in extracurricular activities.

- Maryland v. Pringle (2003) - When drugs are found in a car, all occupants may be arrested even without particularized evidence connecting them to the drugs.

- Hiibel v. Sixth Judicial District Court (2004) - A state can compel someone stopped by police to identify himself.

- Illinois v. Caballes (2005) - Police can use a drug dog to sniff around a car even without prior probable cause or reasonable suspicion that drugs are present.

- Samson v. California (2006) - Parolees can be searched without a warrant even if there is no reasonable suspicion or probable cause of criminal activity.

- Hudson v. Michigan (2006) - No suppression of evidence for violation of the knock and announce requirement.

- Herring v. US (2009) - Police can rely on information received from another law enforcement agency that there is a warrant out for the arrest of a person, even though the information is erroneous, which raises the bar for exclusion of illegally obtained evidence.

- Kentucky v. King (2011) - Police can search without a warrant under the exigent circumstances exception even if the police themselves created the exigency.

- Arizona v. US (2012) - Police can ask about immigration status if they have reasonable suspicion the person is not lawfully present in the United States, even though "reasonable suspicion" is based on racial profiling.

- Florida v. Harris (2013) - Alert by a drug-detection dog can constitute probable cause for search even without a showing that the dog is reliable.

- Maryland v. King (2013) - Arrestees can be forced to provide DNA samples even if they are not convicted of a crime.

- Fernandez v. California (2014) - Police can conduct warrantless searches under the consent exception even if a co-tenant objects to the search.

Looking Ahead

Alarmed about the expansion of police authority, Sotomayor predicted: "Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands [their] authority."

This seems like a bad time to expand police authority. The recent killings of Michael Brown, Eric Garner and others by police have raised serious questions about the way police exercise their judgment. Broadening police discretion to allow ignorance-based traffic stops will give officers another excuse to harass people of color. The Heien decision just exacerbates the problem.

Copyright, Truthout. Reprinted with permission.

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Monday, January 12, 2015

Interview of Marjorie Cohn about 'Drones and Targeted Killing'

By John Wilkens
San Diego Union-Tribune

Marjorie Cohn has been a professor at Thomas Jefferson School of Law in San Diego since 1991, specializing in international human rights law. She’s a former president of the National Lawyers Guild and testified before Congress about torture.

She recently edited “Drones and Targeted Killing,” a collection of writings about the legal, moral and political ramifications of unmanned aerial warfare.

Cohn said many people don’t realize that attacks authorized by President Obama have “killed more people with drones than died on 9/11,” and that only “a tiny percentage” were al-Qaeda or Taliban leaders.

Q: Why did you decide to do this book?

A: I thought that it was important for people to understand the different aspects of this issue. It really has not been on the national radar. Things like the beheadings of two American journalists create justifiable horror in the minds of Americans, but when a child is blown up with a drone and body parts are strewn all over we don’t hear about that. The images and the stories of the drone victims really don’t penetrate the national discourse.

Q: Why do you think that is?

A: It’s because we don’t see it. During the Vietnam War, we saw images of what napalm had done to people. There’s that iconic picture of a 9-year-old Vietnamese girl running naked from the American bombers. The government learned a lesson from that. One thing you saw during the Bush administration is we were not allowed to see the caskets of returning soldiers. And likewise we don’t see pictures of drone victims. We barely hear about them.

Q: When you talk to people about drones, what is the most surprising thing to them?

A: I think the most surprising thing is how the drone attacks make us actually less safe rather than more safe. What our government does is launch what is called a double-tap. There’s a drone strike. People die, and rescuers run to the area. And then another drone strike kills the rescuers. It really should be called a triple tap because a third drone strike occurs at the funeral.

When people see the United States killing their loved ones, and wreaking havoc in their communities and terrorizing them, they want to do harm to the United States. The drone strikes make them hate us more, not less.

Q: Tell me about the book. How did you find the articles to include?

A: I decided to gather articles by human rights activists, policy analysts, lawyers and legal scholars to write about the legalities of drone strikes, a philosopher to talk about the morality of these targeted killings, a journalist, and a sociologist in order to examine different aspects of the U.S. policy. 

Archbishop Desmond Tutu agreed to write the forward. In 2013, there was a leak of a Department of Justice white paper talking about rules for killing U.S. citizens, and there was outrage among Americans. There wasn’t that outrage over killing non-Americans, although I’m not sure Americans understood the scope of what was happening in other countries. When it came into the national consciousness that U.S. citizens could be targeted, there was a real backlash.

Archbishop Tutu wrote a compelling letter to The New York Times about this American exceptionalism. 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?”

I wanted him to elaborate on that idea, which he did in the forward of the book.

Q: Since 9/11, the person sitting in the president’s chair no doubt feels it’s a top priority to prevent another terrorist attack here. Aren’t drones an important part of that?

A: My feeling is that the reason we have the terrorist attacks mounted against the United States is not because people hate our democracy but rather they hate our policies. Until we completely reassess our foreign policy and stop using military force as a first line of defense as opposed to a last line of defense we’re going to be vulnerable to terrorist attacks.

Q: What are your biggest concerns about drones domestically?

A: Domestically there are a number of dangers. We’re talking about privacy for one. People are buying photography drones; I think they can’t keep them on the shelves. But in addition to the privacy concerns, I think there is a real danger of law enforcement using them for mass surveillance and racial profiling. Inevitably the customs and border protection agencies are going to be pushing for lethal armed drones.

Q: You teach at Thomas Jefferson. What’s your feeling about how young people view these issues, having grown up in the post 9/11 age?

A: Certainly young people are more familiar and comfortable with technology than we were when I was growing up, but that doesn’t mean that when given the facts about what some of this technology does to innocent people in other countries, young people would not be outraged. They would be.

We do see in this younger generation much less racism, much less homophobia, less prejudice than in my generation and generations before, and I think there is a lot of compassion among young people. But I think it’s important for them to have the information, to understand that there is a conscious effort by the government to sanitize what is happening.

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Friday, December 26, 2014

Marjorie Cohn on Drone Warfare: Illegal, Immoral and Ineffective

Leslie Thatcher (Truthout): Marjorie, could you describe the genesis of this project? 

Marjorie Cohn: George W. Bush prosecuted two illegal wars in which thousands of Americans, Iraqis and Afghans were killed. Although Barack Obama continued those wars, eventually he reduced the numbers of US troops in Iraq and Afghanistan. But Obama vastly expanded the use of targeted killing - with drones, manned bombers and military raids.

Obama has killed more people with drones than died on 9/11. Many of those killed were civilians, and only a tiny percentage of the dead were al-Qaeda or Taliban leaders. Obama's targeted killings off the battlefield are not only illegal and immoral; they also make us less safe due to the blowback from those who have lost family and friends. There was not much opposition to these killings among the American people.

But when a Department of Justice white paper was leaked and Americans learned that US citizens could also be targeted, people were outraged. That selective outrage motivated Archbishop Desmond Tutu to write a letter to The New York Times pointing out the hypocrisy. I thus invited him to write the foreword to the book, and he graciously agreed. I thought a collection with contributions on different aspects of this policy would be useful. The book explores legal, moral and geopolitical issues raised by the US policy of targeted killing.

In this interdisciplinary collection, human rights and political activists, policy analysts, lawyers and legal scholars, a philosopher, a journalist and a sociologist examine different aspects of the US policy of targeted killing with drones and other methods. Contributors include Phyllis Bennis of the Institute for Policy Studies, Code Pink co-founder Medea Benjamin, former UN Special Rapporteur on Palestine Richard Falk, political activist Tom Hayden, Pardiss Kebriaei of the Center for Constitutional Rights, Jane Mayer of The New Yorker, Israeli human rights activist Ishai Menuchin, New York human rights lawyer Jeanne Mirer, sociology professor Tom Reifer, Alice Ross of the Bureau of Investigative Journalism, the ACLU's Jay Stanley, philosophy professor Harry van der Linden, and myself.

Many of your contributors compare drone strikes to torture and one to nuclear weapons? Can you explain why?

Like torture, the use of targeted killing off the battlefield is illegal. Both practices are immoral as well. We have seen the atrocious program of torture conducted during the Bush administration. Drones flying overhead terrorize entire communities. They kill thousands of people. The US government engages in "double taps," in which those rescuing the wounded from the first strike are targeted. This practice should be called the "triple tap," as mourners at funerals for those fallen by the drone bombs are also targeted.

Neither torture nor targeted killings make us safer; in fact, they increase hatred against the United States. Professor Richard Falk discusses in his chapter why drones are more dangerous than nuclear weapons. Nuclear weapons have not been used since 1945 except for deterrence and coercive diplomacy. But drones are unconstrained by any system of regulation.

When even the CIA reports that drone strikes are counterproductive and legal experts seem to agree their use for assassination is illegal, how is it that a distinguished contributor to your book like Richard Falk remains so pessimistic about banning or even limiting their use? 

The United Nations special rapporteurs on extrajudicial killing have written extensively about the dangers and illegality of targeted killing off the battlefield, especially the new technology of lethal automated robots, where there is no operator directing the drones; the computer itself decides who, when and where to target. Although most countries use surveillance drones (the United States and Israel use armed drones), the proliferation of armed drones will inevitably spread to other countries.

The Federal Aviation Administration is tasked with developing regulations for commercial drones within the United States. That is a tall order and it will be difficult to enforce. Unless the international community agrees on regulations for killer drones - which is highly unlikely - their use will continue unregulated. Even with regulation, enforcement would be very difficult.

What are your hopes for the future of drones and targeted killing? What will it take to realize them? 

The US government learned from the Vietnam War that Americans were disturbed by the graphic images of the carnage the US government wrought against the Vietnamese, and that outrage fueled the antiwar movement. The images and stories of drone victims are not part of our national discourse. Medea Benjamin personalizes the victims in her chapter.

Americans are justifiably outraged about the beheading of US journalists (although gays in Saudi Arabia, a close US ally, are also beheaded). But if Americans were to see photographs of the body parts of children blown to bits by US drone bombs, it would not sit well. It is incumbent on us to pressure our elected officials to rein in this deadly policy - by letters, emails, phone calls, sit-ins, op-eds and letters to the editor.

Now that we have seen how the CIA lied about the necessity for and results of the Bush torture program, we should demand that the CIA get out of the killer drone business. And just as those responsible for the torture must be prosecuted, Obama must be brought to justice for his illegal targeted killing program. Accountability requires information, so we should educate ourselves about what our government is doing in our name. It is my hope this book will assist in that endeavor.

This interview first appeared on Truthout.

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