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.


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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Wednesday, December 17, 2014

“Cuban Five” at Heart of US-Cuba Deal

In the course of delivering his historic speech dramatically altering US Cuba policy, President Barack Obama briefly mentioned that the United States released three Cuban agents. These men are members of the “Cuban Five,” who were imprisoned for gathering information on US-based Cuban exile groups planning terrorist actions against Cuba. Without their release, Cuba would never have freed Alan Gross. And Obama could not have undertaken what ten presidents before him refused to do: normalize relations between the United States and Cuba.

Fighting Terrorism Against Cuba

On June 8, 2001, Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez and Rene Gonzalez were convicted of criminal charges, including conspiracy to commit espionage, and conspiracy to commit murder, in a trial in US district court in Miami. They were sentenced to four life terms and 75 years collectively.

In a 93-page decision, a three-judge panel of the Eleventh Circuit US Court of Appeals unanimously reversed their convictions in 2005, because the anti-Cuba atmosphere in Miami, extensive publicity, and prosecutorial misconduct denied them the right to a fair trial. The decision of the three-judge panel was later overturned by a decision of all the Eleventh Circuit Judges, sitting en banc, so the convictions stood.

But the Cuban Five have steadfastly maintained their innocence and there has been a worldwide campaign to free them. In Cuba, the five men are considered national heroes.

Since the Cuban revolution in 1959, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba and anyone who advocated normalization of relations between the United States and Cuba. Terrorist groups including Alpha 66, Commandos F4, Cuban American National Foundation, Independent and Democratic Cuba, and Brothers to the Rescue, have operated with impunity in the United States – with the knowledge and support of the FBI and CIA. 

One witness at the trial testified that Ruben Dario Lopez-Castro, who was associated with several anti-Castro organizations, and Orlando Bosch, who planted a bomb on a Cubana airliner in 1976, killing all 73 persons aboard, “planned to ship weapons into Cuba for an assassination attempt on [Fidel] Castro.”

The three-judge appellate panel noted, “Bosch has a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-related activities in the United States and in other countries.” Luis Posada Carriles, the other man responsible for downing the Cuban airliner, has never been criminally prosecuted in the United States. Declassified FBI and CIA documents at the National Security Archive show that Posada Carriles was the mastermind of the airplane bombing.

Several terrorist acts in Havana were documented in the panel’s decision, including explosions at eight hotels and the Cuban airport. An Italian tourist was killed and people were injured. Posada Carriles has twice publicly admitted responsibility for these bombings.

In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba. The men peacefully infiltrated criminal exile groups. The Five turned over the results of their investigation to the FBI. But instead of working with Cuba to fight terrorism, the US government arrested the five men.

Former high-ranking US military and security officials testified that Cuba posed no military threat to the Unites States. Although none of the five men had any classified material in their possession or engaged in any acts to injure the United States, and there was no evidence linking any of them to Cuba’s shooting down of two small aircraft flown by Cuban exiles, the Cuban Five were nonetheless convicted of all charges.

A poll of Miami Cuban-Americans reflected “an attitude of a state of war . . . against Cuba” which had a “substantial impact on the rest of the Miami-Dade community” where the trial was held. Dr. Lisandro Perez, Director of the Cuban Research Institute, concluded, “the possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero.”

The appellate panel concluded: “Here, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references.” Nevertheless, the five men never received a new trial.

Fernando Gonzales and Rene Gonzales were released and returned to Cuba after serving most of their 15-year sentences. Hernandez was serving two life sentences. Labanino and Guerrero had a few years left on their sentences. The latter three men were released as part of the historic deal.

The Door Is Now Open

In his speech, Obama mentioned the hypocrisy of the US refusal to recognize Cuba while we enjoy normalized relations with Communist China and Vietnam. He announced several other new measures designed to normalize relations between the United States and Cuba.

But Obama did not lift the US blockade of Cuba, which consists of economic sanctions against Cuba and restrictions on Cuban travel and commerce. Every year for 23 consecutive years, the United Nations General Assembly has called on the United States to lift the blockade, which has cost Cuba in excess of $ 1 trillion.

The US trade embargo of Cuba was initiated during the Cold War by President Dwight D. Eisenhower in response to a 1960 memo written by a senior State Department official. The memo proposed “a line of action that makes the greatest inroads in denying money and supplies to Cuba, to decrease monetary and real wages, to bring about hunger, desperation and the overthrow of the [Castro] government.” As Obama stated, that strategy has been a failure.

During the Clinton administration, Congress passed the Helms-Burton Act, which tightened the blockade. Obama promised to try to work with Congress to repeal this legislation.

Because of the significance of the Cuban exile community in Miami, and the strategic importance of Florida in US elections, no US president has dared to normalize relations with Cuba. As Alice Walker wrote in The Sweet Abyss, “Many of our leaders seem to view Florida’s Cuban conservatives, including the assassins and terrorists among them, as People Who Vote.” Obama has taken a courageous step in shifting US policy toward Cuba.

In their simultaneous speeches today, both Obama and Cuban President Raul Castro thanked Pope Francis for his efforts in helping to engineer the historic deal. CNN reported that bells were ringing in churches all over Havana. This is a wonderful day indeed.

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Tuesday, December 16, 2014

Torture Report Confirms Team Bush War Crimes

Reading the 499-page torture report just released by the Senate Select Committee on Intelligence was a disgusting experience. Even after many years of writing books and articles about the Bush torture policy, I was unprepared for the atrocious pattern of crimes our government committed against other human beings in our name.

One of the most hideous techniques the CIA plied on detainees was called "rectal rehydration" or "rectal feeding" without medical necessity - a sanitized description of rape by a foreign object. A concoction of pureed "hummus, pasta with sauce, nuts and raisins" was forced into the rectum of one detainee. Another was subjected to "rectal rehydration" to establish the interrogator's "total control over the detainee." This constitutes illegal, cruel, inhuman and degrading treatment and a humiliating outrage upon personal dignity.

Several detainees were waterboarded, a technique whereby water is poured into the nose and mouth to cause the victim to think he's drowning. One detainee in CIA custody was tortured on the waterboard 183 times; another was waterboarded 83 times. Waterboarding has long been considered torture, which is a war crime. Indeed, the United States hung Japanese military leaders for the war crime of torture after World War II.

Other "enhanced interrogation techniques" (EIT) included being slammed into walls, hung from the ceiling, kept in total darkness, deprived of sleep - sometimes with forced standing - for up to seven and one-half days, forced to stand on broken limbs for hours on end, threatened with mock execution, confined in a coffin-like box for 11 days, bathed in ice water, dressed in diapers. One detainee "literally looked like a dog that had been kenneled."

The executive summary of the torture report was made public, but the 6,700-page report remains classified. The summary depicts the CIA at best, as keystone cops, at worst, as pathological, lying, sadistic war criminals. The CIA lied repeatedly about the effectiveness of the torture and cruel treatment. Interrogations of detainees were much more brutal than the CIA represented to government officials and the American public.

Bush's CIA directors George Tenet, Porter Goss and Michael Hayden should be charged with crimes, along with their minions who carried out the torture.

Obama Violates Constitutional Duty

In light of the gruesome revelations in the torture report, it is high time President Barack Obama fulfilled his constitutional duty to enforce the law. The US Constitution states the president "shall take care that the laws are faithfully executed." Yet Obama refuses to sanction prosecutions of those responsible for the torture.

The report documents torture and cruel, inhuman, and degrading treatment, all of which violate US and international law. The War Crimes Act punishes torture as a war crime. The Torture Statute (Statute) provides that whoever "outside the United States" commits or attempts to commit torture shall be imprisoned for not more than 20 years "and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life." The statute defines torture as an "act intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control."

When the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions, we promised to prosecute or extradite those who commit or are complicit in the commission of torture. A ratified treaty is part of US law under the Constitution's Supremacy Clause. Yet the Obama administration persists in its refusal to bring the culprits to justice.

On January 11, 2009, nine days before Obama was sworn into office, George Stephanopoulos of ABC News confronted the newly elected president with the "most popular question on your own website, change.gov"- whether Obama would investigate torture by members of the Bush administration. Obama responded:

"I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward, as opposed to looking backward . . . At the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders, lawyering up . . . "

Now we know that many of those people at the CIA were using their extraordinary talents to devise new and more horrific ways to torture, humiliate, degrade and mistreat the people under their control.
To his credit, shortly after he was inaugurated, Obama signed an executive order banning torture. But hunger strikers at Guantánamo are still force-fed, a practice that violates the Torture Convention, according to the UN Committee Against Torture (CAT).

In 2009, US Attorney General Eric Holder ordered an investigation headed by veteran prosecutor Assistant US Attorney John Durham. But, two years later, Holder announced that his office would investigate only the deaths of Gul Rahman and Manadel al-Jamadi, who died while in CIA custody. Holder said that the US Department of Justice had "determined that an expanded criminal investigation of the remaining matters is not warranted." With that decision, Holder made clear that no one would be held accountable for the torture and abuse except possibly for the deaths of Rahman and al-Jamadi.



Ultimately, the Obama administration gave a free pass to those responsible for the two deaths. Rahman froze to death in 2002, after being stripped and shackled to a cold cement floor in the secret Afghan prison known as the Salt Pit. Al-Jamadi died after he was suspended from the ceiling by his wrists, which were bound behind his back. Military police officer Tony Diaz, who was present during al-Jamadi's torture, said that blood gushed from his mouth like "a faucet had turned on" when he was lowered to the ground. A military autopsy determined that al-Jamadi's death was a homicide. 

Nevertheless, Holder said that "based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt."

 

Torture is Who They Are

After the report was made public, the White House issued a statement calling the CIA interrogation program "harsh" and the treatment "troubling" - a study in understatement. Obama said that torture "is contrary to who we are."

But torture is who President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and Secretary of State Condoleezza Rice are. Under the well-established doctrine of command responsibility, commanders are liable for war crimes if they knew, or should have known, their subordinates would commit them and they did nothing to stop or prevent it.

In 2008, ABC News reported that the National Security Council Principals Committee consisting of Cheney, Rice, Rumsfeld, Tenet and Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. Bush admitted in his 2010 memoir that he authorized waterboarding. Cheney, Rice and Yoo have made similar admissions. Indeed, Cheney recently admitted on Fox News that Bush "was in fact an integral part of the interrogation program, and he had to approve it." Cheney added, "We did discuss the techniques. There was no effort on our part to keep him from that." Karl Rove told Fox News that Bush was "intimately involved in the decision" to use the EIT. Rove said Bush "was presented, I believe, 12 techniques, he authorized the use of 10 of them, including waterboarding."

Bush, Cheney, Rumsfeld and Rice should be should be prosecuted for their crimes.

The Senate report contains example after example of why "the use of the CIA's enhanced interrogation techniques was not an effective means of obtaining accurate information or gaining detainee cooperation." It says: "Multiple CIA detainees fabricated information, resulting in faulty intelligence . . . on critical intelligence issues including the terrorist threats which the CIA identified as its highest priorities." Yet the CIA continually lied that the EIT "saved lives."

The Legal Mercenaries Should Be Prosecuted

The report says the Department of Justice's (DOJ) Office of Legal Counsel (OLC) relied on the CIA's numerous misrepresentations when crafting OLC memos authorizing the techniques.

But the report gives OLC lawyers, including Deputy Assistant US Attorney General John Yoo (now a law professor at Berkeley) and Assistant Attorney General Jay Bybee (now a federal appellate court judge), free passes by failing to connect the dots leading to their criminal responsibility as war criminals.

The OLC's infamous "torture memos" contain twisted legal reasoning that purported to define torture more narrowly than US law allows. The memos advised high Bush officials how to avoid criminal liability under the War Crimes Act.

Yoo, Bybee and company knew very well that the techniques the CIA sought to employ were illegal. Their August 1, 2002, memo advised that attention grasp, walling, facial hold, facial slap (insult slap), cramped confinement box and the waterboard passed legal muster under the act. They knew these techniques constitute torture or cruel, inhuman or degrading treatment, in violation of the Torture Statute, and the Torture Convention.

The Torture Convention is unequivocal: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture." In light of that clear prohibition, the OLC lawyers knew that "necessity" and "self-defense" are not defenses to torture. Whether the CIA was being forthright about the necessity for, or effectiveness of, the techniques was irrelevant to the faulty legal analysis in the torture memos.

Moreover, after the report was released, Cheney told The New York Times: "The program was authorized. The agency did not want to proceed without authorization, and it was also reviewed legally by the Justice Department before they undertook the program."

Bush's attorneys general, Alberto Gonzales, John Ashcroft and Michael Mukasey, who oversaw the DOJ, should be criminally charged, together with the OLC's legal mercenaries.

The report also fails to connect the dots to the Pentagon. In December 2002, Rumsfeld approved interrogation techniques that included the use of dogs, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, deprivation of light and sound, using scenarios to convince the detainee that death or severely painful consequences are imminent for him and/or his family, and using a wet towel and dripping water to induce the misperception of suffocation.

And the report gives short shrift to the extraordinary rendition program, where detainees were illegally sent to other countries to be tortured. The report refers to "renditions," which are conducted with judicial process. But detainees were rendered to black sites in Syria, Libya and Egypt in order to avoid legal accountability.

No Impunity

"The individuals responsible for the criminal conspiracy revealed in [the Senate] report must be brought to justice and must face criminal penalties commensurate with the gravity of their crimes," according to Ben Emmerson, the UN Special Rapporteur on Counter Terrorism and Human Rights. And the UN's CAT said the Obama administration has failed to investigate the commission of torture and punish those responsible, including "persons in positions of command and those who provided legal cover to torture."

A special prosecutor should be appointed to investigate those from the CIA, the DOJ, and the high officials of the Bush administration who violated, or aided and abetted the violation of, our laws banning torture and cruel, inhuman and degrading treatment. The full 6,700-page Senate report should be declassified.

But Obama said, "Rather than another reason to refight old arguments, I hope that today's report can help us leave these techniques where they belong - in the past." Yes, these crimes were committed in the past. Crimes are always prosecuted after they are committed. Obama should be reminded of his constitutional duty to enforce the law.

If we don't bring the offenders to justice, they could eventually get their due when other countries prosecute them under "universal jurisdiction." Some crimes are so atrocious that countries can punish foreign nationals, the way Israel tried, convicted and executed Adolph Eichmann for his crimes during the Holocaust, even though they had no direct connection to Israel. Emmerson also said, "Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to."

The following grave breaches of the Geneva Conventions constitute war crimes punishable under the Rome Statute of the International Criminal Court (ICC), when committed as part of a plan or policy: torture, willful killing, inhuman treatment, and willfully causing great suffering or serious injury to body or health. The Senate report documented instances of willful killing (death); great suffering (hysterical, asking to die, attempts at self harm); and serious injuries (placed on life support, hallucinations) caused by the EIT. Yoo admitted in his 2006 book that the denial of Geneva protections and coercive interrogation "policies were part of a common, unifying approach to the war on terrorism."

Although the United States is not a party to the ICC, other countries could prosecute US nationals under universal jurisdiction for the core crimes in the Rome Statute.

Obama declared, "Hopefully, we don't do it again." But Obama's hopeful sentiments won't do the trick. The only way to prevent others from using torture and cruel treatment in the future is to bring those responsible to justice. We must send a message to would-be torturers that they will not enjoy impunity for their crimes. Torture has no statute of limitations.

In light of the torture report, the responsibility for the US targeted killing program - by drones and manned bombers - should be removed from the CIA, which cannot be trusted with such awesome responsibility.

Indeed, the entire targeted killing program should be the subject of the next congressional report. Anticipating the imminent release of the torture report, Obama stated, "We did a whole lot of things that were right," after September 11, "but we tortured some folks."

The Bush administration did torture some folks. But we are still doing other things that are not right. The Obama administration has avoided adding detainees to the Guantánamo roster by illegally assassinating them without judicial process. For this, members of Team Obama should also find themselves as criminal defendants someday.

 Copyright, Truthout. Reprinted with permission.

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Wednesday, December 3, 2014

Prosecutor Manipulates Grand Jury Process to Shield Office

You know the fix is in when a suspect who shot an unarmed man voluntarily provides four hours of un-cross examined testimony to a grand jury without taking the Fifth.

On August 9, Ferguson, Missouri Police Officer Darren Wilson gunned down 18-year-old African American Michael Brown. Since that fateful day, people across the country have protested against racial profiling, excessive police force, and the failure of the criminal justice system to provide accountability.

The nail in the coffin of "equal justice under law" came on November 24, when the St. Louis County grand jury refused to indict Wilson for any criminal charges in the shooting death of Brown. In a virtually unprecedented move, St. Louis Prosecutor Robert McCulloch in effect deputized the grand jurors to sit as triers of fact as in a jury trial.

In a normal grand jury proceeding, the prosecutor presents evidence for a few days and then asks the grand jurors to return an indictment, which they nearly always do. Of 162,000 federal cases in 2010, grand juries failed to indict in only 11 of them, according the Bureau of Justice Statistics.

The standard of proof for a grand jury to indict is only probable cause to believe the suspect committed a crime. It is not proof beyond a reasonable doubt, which is required for conviction at trial. Yet McCulloch's team presented testimony and documents to the panel for three months, evidence not subjected to adversarial testing by cross-examination.

Justice Antonin Scalia explained the function of the grand jury in United States v. Williams as follows:

"[I]t is the grand jury's function not 'to enquire . . . upon what foundation [the charge may be] denied,' or otherwise to try the suspect's defenses, but only to examine 'upon what foundation [the charge] is made' by the prosecutor. [citations omitted] As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented."

Every principle Scalia cited was violated in this case. The grand jury was asked to determine whether Wilson acted in self-defense. Wilson was allowed to give four hours of self-serving testimony to the grand jury. And for three months, prosecutors presented both incriminating and exculpatory evidence.
The prosecutor did not ask these grand jurors for an indictment. They were left to sift through the evidence on their own, with no prosecutorial guidance about what to charge. Indeed, the transcripts indicated that prosecutors asked Wilson gentle, leading questions designed to bolster his self-defense claim. For example, a prosecutor told Wilson, "You felt like your life was in jeopardy," followed by, "And use of deadly force was justified at that point, in your opinion?" But prosecutors rigorously challenged witnesses who contradicted Wilson's testimony.

As the grand jury is a secret proceeding, with only the grand jurors and the prosecutor present, the grand jurors did not hear any cross-examination of the officer's testimony, or that of other witnesses (which is customary in an adversarial jury trial). These grand jurors, who were nearing the end of their term, which began in May, knew the drill, since they had sat on several other cases. They knew the prosecutor always asks for indictments. Thus, when the prosecutor handled the Wilson case in a radically different manner, this signaled to the grand jurors that they were not expected to indict. And they did not.

Another unorthodox aspect of this case was McCulloch's announcement of the grand jury's decision on national television. Sounding like a defense attorney delivering a closing argument in a jury trial, McCulloch characterized and analyzed the witness testimony in the light most favorable to the officer.

McCulloch has a history of bias in favor of police involved in altercations with black men. But, ignoring the pleas of 7,000 residents in and near Ferguson who signed a petition, McCulloch refused to recuse himself in the Wilson case.

McCulloch had mischaracterized testimony in a 2000 case in which two black men were killed after officers fired 21 shots at them. As in the Wilson case, the reasonableness of the officers' use of deadly force was critical. In the 2000 case, the officers said the two victims were driving toward them, trying to run them down, and McCulloch claimed that all the witnesses corroborated the officers' story. A later federal investigation, however, determined that the car was not moving forward, and that only three of the thirteen officers said the car was moving forward.

Likewise, Wilson's claim that Brown was "charging" at him when the officer fired the fatal shots into the top of Brown's bowed head was critical to the reasonableness of Wilson's use of deadly force. When McCulloch announced the grand jury's decision, he characterized the witnesses who testified that Brown was "charging" the officer as believable, but dismissed the testimony of witnesses who said Brown was surrendering. McCulloch sounded like a defense attorney, not a prosecutor charged with representing "the people," including Brown.

Wilson fired 12 shots at Brown, six of which struck the teenager. There was a great deal of contradiction among the witnesses, including whether Brown's hands were up or down when Wilson shot at him. That is precisely why there should have been an indictment and a jury trial. Jurors would hear all of the evidence, subjected to adversarial testing by cross-examination. They would assess the credibility of the witnesses, and determine whether Wilson had committed any crime(s) beyond a reasonable doubt.

After reviewing the transcripts and evidence in the Wilson case, San Francisco Public Defender Jeff Adachi noted:

"Dorian Johnson, the key witness who was standing next to Brown during the encounter, provided strong testimony that called into question Wilson's claim that he was defending his life against a deranged aggressor. Johnson testified that Wilson, enraged that the young men did not obey his order to get on the sidewalk, threw his patrol car into reverse. While Wilson claimed Brown prevented him from opening his door, Johnson testified that the officer smacked them with the door after nearly hitting the pair. Johnson described the ensuing struggle as Wilson attempting to pull Brown through the car window by his neck and shirt, and Brown pulling away. Johnson never saw Brown reach for Wilson's gun or punch the officer. Johnson testified that he watched a wounded Brown partially raise his hands and say, 'I don't have a gun' before being fatally shot."

Adachi also wrote, "Prosecutors never asked Wilson why he did not attempt to drive away while Brown was allegedly reaching through his vehicle window or to reconcile the contradiction between his claim that Brown punched the left side of his face and the documented injuries which appear on his right side."

If properly directed, the grand jury may well have indicted Wilson for one of several offenses, including first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, assault with a deadly weapon, unlawful discharge of a firearm, and battery. Wilson testified that he was acting in self-defense when he shot Brown. If he were indicted, the jury would assess whether Wilson acted reasonably when he used deadly force against the teenager.

A police officer in Missouri can use deadly force in making an arrest or preventing escape if he reasonably believes it is necessary to effect the arrest and also reasonably believes the person to be arrested has committed or attempted to commit a felony, or may otherwise endanger life or inflict serious physical injury unless arrested without delay. The key word is "reasonably." The jury would be told to consider whether a deadly weapon was used, how far apart Wilson was from Brown when the former used deadly force, any disparities in the sizes of the two, the crime involved, etc. The evidence was contradictory about the distance between the two during the confrontation, both Wilson and Brown were the same height but Brown was heavier, and the officer contradicted himself about whether he knew that Brown was suspected of committing petty theft for stealing cigarillos (a misdemeanor, not a felony) before the officer stopped him.

In Tennessee v. Garner, the Supreme Court held that an officer cannot arrest an unarmed felony suspect by shooting him dead. If the suspect threatens the officer with a weapon, or there is probable cause to believe he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape. Although there is a dispute about whether Wilson knew that Brown was suspected of stealing cigarillos before stopping him, Brown had likely committed petty theft - a non-violent misdemeanor, not a felony.

Wilson's testimony raises several questions, listed in a piece by Ezra Klein on Vox: "Why did Michael Brown, an 18-year-old kid headed to college, refuse to move from the middle of the street to the sidewalk? Why would he curse out a police officer? Why would he attack a police officer? Why would he dare a police officer to shoot him? Why would he charge a police officer holding a gun? Why would he put his hand in his waistband while charging, even though he was unarmed?"

In my opinion, McCulloch should have filed charges against Wilson, who would then have had the right to a public preliminary hearing. He could present evidence and cross-examine the witnesses against him. And if it were televised, the viewing public could see that justice is done.

According to Adachi, "Wilson's description of Brown as a 'demon' with superhuman strength and unremitting rage, and his description of the neighborhood as 'hostile,' illustrate implicit racial bias that taints use-of-force decisions. These biases surely contribute to the fact that African Americans are 21 times more likely to be shot by police than whites in the US, but the statement's racial implications remain unexamined."

Because of the great social implications of cases involving police shootings of people of color, the presumption in these cases should be that prosecutors utilize the public preliminary hearing process instead of the secret grand jury proceeding.

In a unified statement, several civil and human rights organizations recommended an independent and comprehensive federal investigation by the Department of Justice (DOJ). They said the DOJ should also investigate all police killings and reports of the use of excessive force and racial profiling against youth and people of color. And they would require Body-Worn Cameras to record every police-civilian encounter, and increased community oversight of local law enforcement.

Thousands of people in cities throughout the country are protesting the travesty of justice that occurred in Ferguson. But, as the civil and human rights organizations wrote in their statement, "Nothing will be resolved until there is a systemic change throughout this nation in the implicit and explicit bias against people of color and particularly African-American youth who are routinely targeted by law enforcement even within their own communities."

This piece first appeared on Truthout.

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Friday, October 17, 2014

US Government Sanitizes Vietnam War History

For many years after the Vietnam War, we enjoyed the "Vietnam syndrome," in which US presidents hesitated to launch substantial military attacks on other countries. They feared intense opposition akin to the powerful movement that helped bring an end to the war in Vietnam. But in 1991, at the end of the Gulf War, George H.W. Bush declared, "By God, we've kicked the Vietnam syndrome once and for all!"

With George W. Bush's wars on Iraq and Afghanistan, and Barack Obama's drone wars in seven Muslim-majority countries and his escalating wars in Iraq and Syria, we have apparently moved beyond the Vietnam syndrome. By planting disinformation in the public realm, the government has built support for its recent wars, as it did with Vietnam.

Now the Pentagon is planning to commemorate the 50th anniversary of the Vietnam War by launching a $30 million program to rewrite and sanitize its history. Replete with a fancy interactive website, the effort is aimed at teaching schoolchildren a revisionist history of the war. The program is focused on honoring our service members who fought in Vietnam. But conspicuously absent from the website is a description of the antiwar movement, at the heart of which was the GI movement.

Thousands of GIs participated in the antiwar movement. Many felt betrayed by their government. They established coffee houses and underground newspapers where they shared information about resistance. During the course of the war, more than 500,000 soldiers deserted. The strength of the rebellion of ground troops caused the military to shift to an air war. Ultimately, the war claimed the lives of 58,000 Americans. Untold numbers were wounded and returned with post-traumatic stress disorder. In an astounding statistic, more Vietnam veterans have committed suicide than were killed in the war.

Millions of Americans, many of us students on college campuses, marched, demonstrated, spoke out, sang and protested against the war. Thousands were arrested and some, at Kent State and Jackson State, were killed. The military draft and images of dead Vietnamese galvanized the movement. On November 15, 1969, in what was the largest protest demonstration in Washington, DC, at that time, 250,000 people marched on the nation's capital, demanding an end to the war. Yet the Pentagon's website merely refers to it as a "massive protest."

But Americans weren't the only ones dying. Between 2 and 3 million Indochinese - in Vietnam, Laos and Cambodia - were killed. War crimes - such as the My Lai massacre - were common. In 1968, US soldiers slaughtered 500 unarmed old men, women and children in the Vietnamese village of My Lai. Yet the Pentagon website refers only to the "My Lai Incident," despite the fact that it is customarily referred to as a massacre.

One of the most shameful legacies of the Vietnam War is the US military's use of the deadly defoliant Agent Orange, dioxin. The military sprayed it unsparingly over much of Vietnam's land. An estimated 3 million Vietnamese still suffer the effects of those deadly chemical defoliants. Tens of thousands of US soldiers were also affected. It has caused birth defects in hundreds of thousands of children, both in Vietnam and the United States. It is currently affecting the second and third generations of people directly exposed to Agent Orange decades ago. Certain cancers, diabetes, and spina bifida and other serious birth defects can be traced to Agent Orange exposure. In addition, the chemicals destroyed much of the natural environment of Vietnam; the soil in many "hot spots" near former US army bases remains contaminated.

In the Paris Peace Accords signed in 1973, the Nixon administration pledged to contribute $3 billion toward healing the wounds of war and the post-war reconstruction of Vietnam. That promise remains unfulfilled.

Despite the continuing damage and injury wrought by Agent Orange, the Pentagon website makes scant mention of "Operation Ranch Hand." It says that from 1961 to 1971, the US sprayed 18 million gallons of chemicals over 20 percent of South Vietnam's jungles and 36 percent of its mangrove forests. But the website does not cite the devastating effects of that spraying.

The incomplete history contained on the Pentagon website stirred more than 500 veterans of the US peace movement during the Vietnam era to sign a petition to Lt. Gen. Claude M. "Mick" Kicklighter. It asks that the official program "include viewpoints, speakers and educational materials that represent a full and fair reflection of the issues which divided our country during the war in Vietnam, Laos and Cambodia." The petition cites the "many thousands of veterans" who opposed the war, the "draft refusals of many thousands of young Americans," the "millions who exercised their rights as American citizens by marching, praying, organizing moratoriums, writing letters to Congress," and "those who were tried by our government for civil disobedience or who died in protests." And, the petition says, "very importantly, we cannot forget the millions of victims of the war, both military and civilian, who died in Vietnam, Laos and Cambodia, nor those who perished or were hurt in its aftermath by land mines, unexploded ordnance, Agent Orange and refugee flight."

Antiwar activists who signed the petition include Tom Hayden and Pentagon Papers whistleblower Daniel Ellsberg. "All of us remember that the Pentagon got us into this war in Vietnam with its version of the truth," Hayden said in an interview with The New York Times. "If you conduct a war, you shouldn't be in charge of narrating it," he added.

Veterans for Peace (VFP) is organizing an alternative commemoration of the Vietnam War. "One of the biggest concerns for us," VFP executive director Michael McPhearson told the Times, "is that if a full narrative is not remembered, the government will use the narrative it creates to continue to conduct wars around the world - as a propaganda tool."

Indeed, just as Lyndon B. Johnson used the manufactured Tonkin Gulf incident as a pretext to escalate the Vietnam War, George W. Bush relied on mythical weapons of mass destruction to justify his war on Iraq, and the "war on terror" to justify his invasion of Afghanistan. And Obama justifies his drone wars by citing national security considerations, even though he creates more enemies of the United States as he kills thousands of civilians. ISIS and Khorasan (which no one in Syria heard of until about three weeks ago) are the new enemies Obama is using to justify his wars in Iraq and Syria, although he admits they pose no imminent threat to the United States. The Vietnam syndrome has been replaced by the "Permanent War."

It is no cliché that those who ignore history are bound to repeat it. Unless we are provided an honest accounting of the disgraceful history of the US war on Vietnam, we will be ill equipped to protest the current and future wars conducted in our name.

Copyright, Truthout.org. Reprinted with permission.

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Sunday, September 28, 2014

“I’m Just a Kid”: Tariq’s Ordeal

Last summer, Tariq Khdeir, a 15-year-old American citizen from Baltimore, accompanied his parents to the East Jerusalem neighborhood of Shuafat for a six-week visit with relatives. The first friend Tariq made when he arrived was his cousin, Muhammad Abu Khdeir, whom Tariq had not seen since he was four years old. “We had so much fun,” Tariq told a gathering at the national conference of the U.S. Campaign to End the Israeli Occupation in San Diego on September 19, 2014.

One night while he was in Jerusalem, Tariq saw some police with Muhammad. Tariq thought they had kidnapped Muhammad. Tariq wondered, “Is he gonna come back? Is he gonna come back alive”? But Muhammad did not come back alive. In retaliation for the deaths of three Israeli teenagers, Muhammad was beaten and burnt alive by three Jewish extremists.

After Muhammad’s murder, people took to the streets in protest. Israeli Defense Force soldiers began firing rubber bullets at them. Incredulous, Tariq thought, “Is this really happening in front of me”? Then Israeli soldiers began to run after Tariq. Panicked, Tariq ran.

“There was a 10-foot drop in front of me. Everyone jumped, but they tackled me, zip-tied me, and punched me in the face,” Tariq said. “I was like a punching bag until I became unconscious.” The image of Tariq’s badly swollen, deformed face appeared on media reports throughout the world last July.

When Tariq awoke, his face felt “like a bubble, it hurt so much.” He wondered, “Are they gonna kill me”? After six hours in jail, Tariq was finally taken to the hospital. His father and his uncle told him he might come home or go to jail. Tariq thought, “How could I go to jail? They beat me up.” Tariq told the group, “I’m just a kid.”

Tariq was taken back to jail after he left the hospital. He had to remove the hospital gown and put on his bloody clothes. There were nine people in a tiny cell; it was impossible to sit down. Two days later, Tariq was released. He thought, “I’m finally going home.” But he was placed on house arrest. No charges were ever filed against him. “That’s what they do to all the Palestinians,” Tariq said. 

“They took my cousins, and they’re still in jail, because they’re not American and they didn’t have a video that showed the brutality of the Israelis,” Tariq reported. “It’s inhumane.”

Tariq’s mother, Suha, said, “I cannot begin to describe the pain of seeing my dear son in prison after his viscious beating.” When she first saw Tariq, unconscious, with his swollen face in the hospital, “I didn’t recognize him; I didn’t know if he was alive. I didn’t know if he would survive.” Tariq was handcuffed to the hospital bed. Suha worried whether they would give him his antibiotics, whether they would take care of her son while he was in their custody. “The same people that beat him were now caring for him,” she said. “They told us 300 Palestinian teenagers would be killed for the three Israeli teens.”

Suha noted, “None of this would have happened if Israelis valued the lives of Palestinian Muslims and Christians as much as Israeli Jews.”

Keynote speaker Ali Abunimah followed Tariq and Suha at the conference. He mentioned that of the more than 2,100 Palestinians the Israelis killed in Gaza last summer, 521 were children.

Most of the fatalities were civilians. More than one of every 1,000 Gazans were killed, and one percent of the entire population of Gaza were killed or injured. Most of the weapons the Israelis employed in Gaza were artillery shells, which were used in unprecedented quantities. They are very inaccurate.

In response to Israeli demands that the Palestinians surrender their weapons, Abunimah asked, “Why talk about demilitarizing the oppressed? Let’s talk about demilitarizing the oppressor.”

After Muhammad was killed, the Israelis called it an “honor killing.” Muhammad’s father said, “they’ve killed my son twice.”

Two hundred Palestinian children are still in jail. Abunimah cited the “racist mentality” of many Israelis who chant, “Death to the Arabs.” Abunimah recalled President Barack Obama’s remark about “the shared values of the United States and Israel.”

Do those shared values include slaughtering civilians, torturing children, and holding people in custody indefinitely without charges?

Tariq did come back alive – but only because his beating was caught on tape and because he was a U.S. citizen.

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Wednesday, September 17, 2014

Obama Declares Perpetual War

President Barack Obama escalated the drone war he has conducted for the past five and a half years by declaring his intention to "degrade and ultimately destroy" the Islamic State, also known as ISIS, or ISIL. Since August 8, Obama has mounted at least 154 airstrikes in Iraq. He will send 475 additional US troops, increasing the total number in Iraq to about 1,600. Obama announced he would conduct "a systematic campaign of airstrikes" in Iraq, and possibly in Syria. But, not limiting himself to those countries, Obama declared the whole world his battlefield, stating "We will hunt down terrorists who threaten our country, wherever they are . . . if you threaten America, you will find no safe haven."

If, indeed, there were an imminent threat of attack on the United States, Obama would be legally entitled to launch a military operation. The United Nations Charter, which prohibits the use of military force, allows an exception when a country acts in self-defense. Under the well-established Caroline doctrine, the "necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation." The only problem is, Obama admitted, "We have not yet detected specific plotting against our homeland." Citing only the vague possibility of future "deadly attacks," Obama nevertheless declared a perpetual war with no specific end time.

The only other exception to the UN Charter's prohibition on military force is when the Security Council has given its approval. Obama said he would chair a meeting of the Council in two weeks' time to "mobilize the international community." But the Charter requires that the Council countenance the military operation before it occurs. The proposed resolution the Council is slated to adopt will reportedly call on countries to criminalize recruitment and travel of foreign fighters that join extremist military forces, and require the sharing of airline passenger information. It will not, however, authorize military force. Obama's war violates the UN Charter, a treaty the United States has ratified, making it part of US law under the Supremacy Clause of the US Constitution.

Obama's war also violates the War Powers Resolution, which permits the president to introduce US Armed Forces into hostilities or imminent hostilities only in three situations. First, after Congress has declared war, which has not happened in this case. Second, in "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces," which again, has not occurred. Third, when there is "specific statutory authorization." Obama has not asked Congress to authorize his military attacks.

Indeed, Obama declared, "I have the authority to address the threat from ISIL." He was relying on the Authorization for the Use of Military Force (AUMF) that Congress passed in 2001, which President George W. Bush used to invade Afghanistan. But that AUMF only authorized force against individuals, groups and countries that "planned, authorized, committed or aided" the September 11 terrorist attacks. ISIS did not even exist in 2001. In fact, Ayman al-Zawahiri, al-Qaeda's leader, formally kicked ISIS out of al-Qaeda earlier this year.

When it passed the 2001 AUMF, Congress specifically rejected the Bush administration's request for open-ended military authority "to deter and preempt any future acts of terrorism or aggression against the United States." Moreover, in the National Defense Authorization Act of 2012, Congress specified, "Nothing in this section is intended to . . . expand the authority of the President or the scope of the [2001 AUMF]."

Apparently, Obama is also relying on the 2002 AUMF, in which Congress authorized the president to use the armed forces as he determines necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq, and to enforce all relevant UN Security Council resolutions regarding Iraq. But since that threat and those resolutions were aimed at Saddam Hussein's weapons of mass destruction, that license, too, has ended. Indeed, in June, the White House declared that the 2002 AUMF "is no longer used for any US government activities." That means Obama's current war is not simply a continuation of Bush's Iraq war, and the 2002 AUMF does not provide Obama with legal license to mount his military attacks.

The War Powers Resolution requires Obama to secure a new Congressional authorization for his war within 60 days of launching "hostilities," or he must withdraw US forces within 30 days. The 60-day period runs out on October 7. Obama apparently feels unconstrained to comply with this law.

During the 2008 presidential campaign, Obama told the Boston Globe, "The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Earlier this year, Obama said, "no country can maintain its freedom in the face of continual war." Yet that is exactly what he is doing with his declaration of perpetual war.

Obama is violating both US and international law. He is also risking even more blowback against the United States. The US government has destabilized the region with Bush's Afghanistan and Iraq wars, and Obama's killing of thousands of people with drones. Many Sunnis are less afraid of ISIS than they are of the puppet Shiite government the United States installed in Iraq, which tortured, raped, murdered and arbitrarily detained Sunnis during the last two and a half years.

ISIS is a brutal group. But Obama is imploring Congress to fund the Free Syrian Army, which according to The New York Times, "went on to behead six [captured] ISIS fighters."

Playing both ends against the middle, Obama wants to fight ISIS in Syria without emboldening President Bashar Assad, who is also fighting ISIS. And Obama reserves the right to bomb in Syria, a sovereign country, in defiance of Assad. Obama is playing with fire.

Besides being illegal, Obama's war promises to exacerbate the volatile situation in the region, resulting in more hostility against the United States. Obama has said in the past there is no military solution to this conflict. He should use his leadership in the Security Council to secure a cease-fire, create a peacekeeping force, mount an embargo of all arms being sent to the region, and pursue a regional diplomatic solution enlisting Iran and Syria in the process. Perpetual war is not the answer.

Copyright, Truthout. Reprinted with permission.

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