Archive | January 2012

Report details U.S./NATO war crimes in Libya

A new report by a coalition of human rights groups in the Middle East presents exhaustively researched evidence of war crimes carried out in Libya by the United States and NATO during last year’s intervention.

Basing its work “primarily, and to the greatest extent possible, on information gathered firsthand,” the Independent Civil Society Fact-Finding Mission to Libya carried out “an independent and impartial analysis of all parties’ compliance with their obligations under international human rights law and international humanitarian law.”

In regards to the U.S./NATO military intervention, relevant international law includes the Geneva Conventions’ common Article 3, and the United Nations Charter, which provide for protection of civilians in armed combat and the territorial integrity of sovereign states, respectively.

The Mission found that “a significant percentage of the sites” targeted by NATO “were clearly civilian objects.”

Although NATO had claimed that these sites were converted into military objectives by Gaddafi forces, which in some cases may have used civilian sites as weapons storage or military communications facilities, the report notes that “site investigations conducted by the Mission failed to reveal any traces of weapons, munitions, military or communications equipment, or secondary explosions, other than the remnants of the ordinance used in the destruction of the site.”

Acknowledging that the sites may have been cleaned in the months since the strikes, the Mission “regards it as implausible that all Libyan military debris was cleared, particularly in light of the presence of fragments of NATO ordinance.”

While NATO and Libyan rebel forces regularly claimed that the airstrikes resulted in zero civilian casualties based on the fact that advance warnings were given before bombing, “the Mission finds it difficult to believe that such strikes – which often completely destroyed multi-story buildings – consistently resulted in zero casualties.”

The fact-finding mission also explored questions concerning Security Council Resolution 1973, which purportedly authorized the U.S./NATO intervention in Libya. While the resolution provided authorization to states “to take all necessary measures […] to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya,” the Mission noted that “debate exists regarding the precise meaning of the term ‘all necessary measures’.”

“From first-hand information available to the Mission,” the report states, “it appears that NATO participated in what could be classified as offensive actions undertaken by the opposition forces, including, for example, attacks on towns and cities held by Gaddafi forces.”

Further, “the choice of certain targets, such as a regional food warehouse, raise prima facie questions regarding the role of such attacks with respect to the protection of civilians.”

The report also documents systematic murder, torture, expulsion and abuse of suspected Gaddafi loyalists by the NATO-backed rebel forces of the National Transitional Council. It details the forced expulsion of the mostly black-skinned inhabitants of Tawergha and the persecution of sub-Saharan migrant workers by forces allied to the NTC and its transitional government.

With NATO having ended its intervention in Libya last October, claiming that “the Alliance’s job to protect civilians from attack or the threat of attack in Libya had been done,” it appears that attacks on civilians by the NATO-backed forces continue to take place.

The situation has gotten so bad that the international medical aid group Doctors Without Borders is suspending its mission in the prisons of the Libyan city of Misrata, claiming detainees are being routinely tortured and denied medical attention.

The organization has treated a total of 115 detainees who had been tortured and reported all such cases to Misrata authorities demanding an immediate stop to any form of ill treatment of prisoners. But nothing has changed.

“No concrete action has been taken,” said the organization’s general director Christopher Stokes. “Instead, our team received four new torture cases. We have therefore come to the decision to suspend our medical activities in the detention centers.”

As this blog noted last April, just a couple weeks into the Western intervention in Libya, “as we have seen in Iraq, when an intervention is launched in violation of international law, human rights violations tend to proliferate.”

With the new report by the Independent Civil Society Fact-Finding Mission to Libya, it is now clear how prescient those words were.

Massive protests are planned against a NATO-G8 Summit to be held this May in Chicago. To get involved, visit the Coalition Against NATO/G8 War & Poverty Agenda website.

Mumia Abu-Jamal in general population for first time in 31 years

For the first time since his arrest in 1981 for allegedly killing a Philadelphia police officer, world-renowned death row journalist Mumia Abu-Jamal was transferred to general prison population on Jan. 27. He had been held in Administrative Custody, also known as “The Hole” or solitary confinement, at SCI Mahanoy since Philadelphia prosecutor Seth Williams announced he would not pursue the death penalty against the imprisoned journalist seven weeks ago.

The move to general population came within hours of the of delivery of over 5,500 signed petitions to Pennsylvania Department of Corrections headquarters and a complaint filed with the support of United Nations Special Rapporteur on Torture, Juan Mendez.

Mumia’s supporters had launched a campaign in early January, directed at the Pennsylvania Secretary of Corrections, SCI Mahanoy, and DA Seth Williams, calling for his immediate transfer to general population.

statement  circulated by Prison Radio and the Human Rights Coalition described Mumia’s conditions in solitary, noting that they were even worse than the conditions of his 30+ years on death row. The statement also highlighted the plight of the tens of thousands of other inmates being held in solitary confinement across the country.

Mumia Abu-Jamal is being held in extremely repressive conditions. And like thousands of prisoners, residents of solitary confinement and isolation units in every hole in every prison across the country, Mumia is being subject to draconian, dehumanizing and brutal conditions. Solitary confinement. He is shackled whenever he is outside his cell, even to the shower. He is shackled around his ankles, waist and wrist.  He is shackled while behind Plexiglas during visits. Subject to strip searches before and after visits. Unable to walk freely. Having bits of paper to write notes on, with a rubber flex pen. No shelves, 4 books.  No access to news reports, letters delayed. Restricted visiting. Glaring lights on 24 hours a day. Only one brief phone call to his wife. No access to adequate food or commissary. These conditions are worse than death row.

The National Lawyers Guild, for whom Mumia Abu-Jamal serves as vice president, noted that these conditions amount to torture under international law.

“Mumia’s move off death row is a hollow victory if it means he is subjected to cruel, inhuman, and degrading treatment in violation of the United Nations Convention against Torture,” said NLG Executive Director Heidi Boghosian.

Indeed, as Juan Mendez, the UN Special Rapporteur on Torture, has stated, lengthy solitary confinement can cause serious mental and physical damage and should be considered torture.

Mendez has proposed that all solitary confinement longer than 15 days should be outlawed.

“It can amount to torture or cruel, inhuman and degrading treatment or punishment when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles,” he said.

Studies show there are an estimated 20,000-25,000 individuals currently being held in solitary confinement in the United States.

U.S. slammed on indefinite detention, torture and censorship

Cartoon by Kal

The international community is continuing to express deep concern over the human rights situation in the United States, particularly in regards to its indefinite detention policies and attempts to censor the Internet through legislation such as the recently shelved Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA).

On Monday UN High Commissioner for Human Rights Navi Pillay expressed disappointment that the U.S. government has failed to close the Guantanamo Bay detention facility despite President Obama’s promises three years ago, and has instead entrenched a system of arbitrary detention. Pillay said she was troubled by the failure to ensure accountability for serious human rights violations, including torture, that have taken place at the notorious prison camp.

“It is ten years since the U.S. Government opened the prison at Guantanamo, and now three years since 22 January 2009, when the President ordered its closure within twelve months. Yet the facility continues to exist and individuals remain arbitrarily detained – indefinitely – in clear breach of international law,” said the UN human rights chief.

“To make matters worse,” she added, “the new National Defense Authorization Act, signed into law in December 2011, now effectively codifies such indefinite military detention without charge or trial. This piece of legislation contravenes some of the most fundamental tenets of justice and human rights, namely the right to a fair trial and the right not to be arbitrarily detained. Nobody should ever be held for years on end without being tried and convicted, or released.”

The High Commissioner also said that international law requires “thorough and systematic investigation of all allegations of serious human rights violations, including torture, that allegedly took place at Guantanamo Bay.”

“Every effort must be made to hold to account those responsible for the development, approval or implementation of coercive interrogation methods analogous to torture under international law,” she said. “Individuals found to have perpetrated, ordered, tolerated or condoned torture and ill-treatment should be brought to justice.”

Pillay said she was disturbed by the Government’s failure to allow independent human rights monitoring of the detention conditions at Guantanamo.

“I urge the US Congress to take steps to enable the US Administration to close the Guantanamo Bay detention centre – as it stated it wished to do – in compliance with the Government’s obligations under international human rights law, and in so doing, to fully respect the principle of non-refoulement, under which no one should be sent back to a country where they may face torture,” Pillay said.

Regarding SOPA and PIPA, the OSCE Representative on Freedom of the Media, Dunja Mijatović, today called for governments to reassess protection of intellectual property rights online, emphasizing the potential threat to individual freedoms posed by expanding legal rights and technological restrictions.

The recent debate over SOPA and PIPA shows that there is an urgent need to reassess the design and scope of international intellectual property rights in the digital age, she said.

“Under no circumstances should the interests of rights holders be placed above the fundamental right to freedom of expression and the right to privacy,” said Mijatovic. “We need a new balance between the legitimate rights of the copyright holders and the creative exercise of everyone’s right to freedom of expression in the public domain.”

Established by the Helsinki Final Act in 1975, the OSCE spans North America, Europe and Central Asia, counting the United States as one of its 56 members.

“I call on all OSCE participating States to come up with new approaches to protect both fundamental freedoms and intellectual property rights. These should reflect the spirit and pace of the digital age we are living in,” she said. “Mandatory monitoring of Internet content for copyright infringements could have a chilling effect on users engaging in political discourse.”

Mijatović urged governments to reconsider their Internet strategies, keeping in mind its borderless nature to ensure that the Internet remains an open and public forum for freedom of expression for their citizens, in line with OSCE commitments and international standards of media freedom.

“Governments must be aware that every attempt to regulate the Internet on the national level inevitably has global implications – because we still are fortunate to have only one Internet. Any online regulation should thus be considered carefully and debated openly, including with the industry, civil society, media and governments, in order to ensure that it does not lead to fragmentation or to cutting off users and interrupting the free flow of information,” she said.

In Padilla ruling, Fourth Circuit Court ignores U.S. international obligations

Padilla being subjected to sensory deprivation while being taken to the dentist in 2006 (New York Times)

In a decision with international implications, a U.S. court has demonstrated a decided indifference to the United States’ international obligations on matters of human rights. On Monday the Fourth Circuit Court in Richmond, Va., ruled that the military policies of detention without charge and the harsh interrogation methods established by the Bush administration and continued in part by the Obama administration cannot be challenged in damage lawsuits in federal courts.

Issues raised by the case regarding the detention of terrorist suspects – in particular the treatment of Jose Padilla, a U.S. citizen held for nearly four years without charge as an “enemy combatant” – have been addressed specifically by international bodies to which the U.S. belongs, but these concerns did not factor in to the judges’ deliberations.

In dismissing the Padilla case, the court declared that under the Constitution, the making of counter-terrorism policy is entrusted solely to Congress and the President, and the courts may not “trespass” on this authority. The court therefore threw out the lawsuit brought by Padilla, who was seeking damages of one dollar from each of the defendants: Donald H. Rumsfeld, Former Secretary of Defense; Catherine T. Hanft, Former Commander Consolidated Brig; Melanie A. Marr, Former Commander Consolidated Brig; Lowell E. Jacoby, Vice Admiral, Former Director Defense Intelligence Agency; Paul Wolfowitz, Former Deputy Secretary Of Defense; William Haynes, Former General Counsel Department of Defense; Leon E. Panetta, Secretary of Defense.

Padilla had contended that he was entitled to sue the defendants because the government deprived him of other ways to seek remedies for his treatment, even under military code.

In its ruling, however, the court recognized the President’s purported absolute authority to hold terrorist suspects – even U.S. citizens – indefinitely and incommunicado as enemy combatants:

On June 9, 2002, acting pursuant to his authority under the AUMF [2001 Authorization of Military Force], President George W. Bush issued an order to defendant Donald Rumsfeld, then Secretary of Defense, to detain Padilla as an enemy combatant, the President having determined that Padilla possessed vital intelligence and posed an ongoing threat to the national security of the United States.

That day, Padilla was removed from civilian custody and transferred to the Naval Consolidated Brig at Charleston, South Carolina. While in military custody, Padilla claims that he was repeatedly abused, threatened with torture, deprived of basic necessities, and unjustifiably cut off from access to the outside world. Over time, these conditions were relaxed, and he was allowed monitored meetings with his attorneys.

The ruling seemed to downplay Padilla’s actual allegations though, which are not simply that he was “threatened with torture,” but in fact that he was tortured. According to his attorneys, Padilla was routinely mistreated and abused in ways designed to cause pain, anguish, depression and ultimately the loss of will to live.

“The extended torture visited upon Mr. Padilla has left him damaged, both mentally and physically,” said a court filing by Orlando do Campo, one of Padilla’s lawyers. The filing says that Padilla was subjected to sleep deprivation and extremes of heat and cold, and forced to stand for extended periods in painful “stress positions.”

His lawyers have also claimed that Padilla was forced to take LSD and PCP to act as truth serums during his interrogations.

As forensic psychiatrist Dr. Angela Hegarty, who interviewed Jose Padilla for 22 hours to determine the state of his mental health, told Democracy Now in 2007:

What happened at the brig was essentially the destruction of a human being’s mind. That’s what happened at the brig. His personality was deconstructed and reformed.

And essentially, like many abuse victims, whether it’s torture survivors or battered women or even children who are abused by parents, as long as the parents or the abuser is in control in their minds, essentially they identify with the primary aims of the abuser. And all abusers, whoever they are, have one absolute requirement, and that is that you keep their secret. I mean, it’s common knowledge that people who abuse children or women will say, “Look at what you made me do,” putting the blame on the victim, trying to instill guilt. “People will judge you. People will think you’re crazy if you tell them about this. You will be an enemy. You will be seen as an enemy. You will be seen as a bad person if this comes out. There will be dire and terrible consequences, not only for you.” Jose was very, very concerned that if torture allegations were made on his behalf, that somehow it would it interfere with the government’s ability to detain people at Guantanamo, and this was something he couldn’t sign onto. He was very identified with the goals of the government.

Dr. Hegarty commented specifically on the psychological effect of the prolonged isolation and sensory deprivation that Padilla was subjected to:

This was the first time I ever met anybody who had been isolated for such an extraordinarily long period of time. I mean, the sensory deprivation studies, for example, tell us that without sleep, especially, people will develop psychotic symptoms, hallucinations, panic attacks, depression, suicidality within days. And here we had a man who had been in this situation, utterly dependent on his interrogators, who didn’t treat him all that nicely, for years. And apart from –- the only people I ever met who had such a protracted experience were people who were in detention camps overseas, that would come close, but even then they weren’t subjected to the sensory deprivation. So, yes, he was somewhat of a unique case in that regard.

Glossing over the specifics of Padilla’s four years of mistreatment, the Fourth Circuit’s decision instead treated these issues as mere policy decisions that were made expeditiously by the Executive and Legislative Branches – decisions that the Judiciary constitutionally has no say in.

The ruling makes clear the court’s opinion that the Judicial Branch has no competence to inject itself into matters that pertain to Congress’s war-making authority or the President’s powers as Commander-in-Chief, even when constitutional rights of U.S. citizens are involved:

Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence.

The court noted that:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the thought that those involved would face prolonged civil litigation and potential personal liability.


This is a case in which the political branches, exercising powers explicitly assigned them by our Constitution, formulated policies with profound implications for national security. One may agree or not agree with those policies. One may debate whether they were or were not the most effective counterterrorism strategy. But the forum for such debates is not the civil cause of action pressed in the case at bar.

So, essentially, the Fourth Circuit Court in Richmond, Va., has washed the Judiciary’s hands of any responsibility in determining the constitutionality of any treatment of U.S. citizens who are designated by the Executive Branch as “enemy combatants.” Anything goes if the government calls you a terrorist, according to the court.

As Padilla’s attorney, Ben Wizner, said in a statement Monday:

Today is a sad day for the rule of law and for those who believe that the courts should protect American citizens from torture by their own government. By dismissing this lawsuit, the appeals court handed the government a blank check to commit any abuse in the name of national security, even the brutal torture of a U.S. citizen on U.S. soil. This impunity is not only anathema to a democracy governed by laws, but contrary to history’s lesson that in times of fear our values are a strength, not a hindrance.

It could also be pointed out that since the Constitution provides that treaties entered into by the United States are “the supreme law of the land,” the court has issued the U.S. government a blank check to disregard this clause and violate international treaties at will, in particular the  International Covenant on Civil and Political Rights, ratified by the United States in 1992.

As Padilla was held in military custody for nearly four years without charge or trial, it appears the U.S. has violated of Article 9 of the ICCPR, which states:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

By denying Padilla a right to compensation in civil courts, the Fourth Circuit appears to have also overlooked this provision of the ICCPR: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

As a party to the Covenant, the U.S. is required to submit a report to the UN Human Rights Committee every five years on its compliance with the Covenant’s provisions.

The last report submitted by the United States – in 2005 – was seven years overdue. Regarding the matter of indefinite detention, the 2005 report pointed out that the U.S. Supreme Court has stated “that the United States is entitled to detain enemy combatants, even American citizens, until the end of hostilities, in order to prevent the enemy combatants from returning to the field of battle and again taking up arms.”

The U.S. asserted that “the detention of such individuals is such a fundamental and accepted incident of war that it is part of the ‘necessary and appropriate’ force that Congress authorized the President to use against nations, organizations, or persons associated with the September 11 terrorist attacks.”

The Human Rights Committee objected to this “restrictive interpretation made by the State party of its obligations under the Covenant,” and urged the U.S. to “review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.”

The HRC had particularly harsh words for the U.S.’s indefinite detention policies: “The State party [the U.S.] should ensure that its counter-terrorism measures are in full conformity with the Covenant and in particular that the legislation adopted in this context is limited to crimes that would justify being assimilated to terrorism, and the grave consequences associated with it.”

The Committee reminded the United States of its obligations under the Covenant to both prosecute those responsible for using torture or cruel, inhuman or degrading treatment, and to provide compensation to the victims of such policies:

The State party should conduct prompt and independent investigations into all allegations concerning suspicious deaths,  torture or cruel, inhuman or degrading treatment or punishment inflicted by its personnel (including commanders) as well as contract employees, in detention facilities in Guantanamo Bay, Afghanistan, Iraq and other overseas locations.  The State party should ensure that those responsible are prosecuted and punished in accordance with the gravity of the crime.  The State party should adopt all necessary measures to prevent the recurrence of such behaviors, in particular by providing adequate training and clear guidance to its personnel (including commanders) and contract employees, about their respective obligations and responsibilities, in line with articles 7 and 10 of the Covenant.  During the course of any legal proceedings, the State party should also refrain from relying on evidence obtained by treatment incompatible with article 7.  The Committee wishes to be informed about the measures taken by the State party to ensure the respect of the right to reparation for the victims.

By dismissing Padilla’s lawsuit, the Fourth Circuit Court has essentially done the opposite of what the UN Human Rights Committee has recommended to bring the U.S. in compliance with the ICCPR regarding its detention policies. The court has ensured, at least for now, that the right of reparations for the victims of U.S. detention and torture policies will remain unrecognized by the United States. It has ensured that the U.S. will remain in violation of its obligations under international law.

In this video, Padilla’s mother, Estela Lebron, discusses the treatment of her son by the U.S. government:

Arizona’s book ban and international law

All things in common nature should produce
Without sweat or endeavour: treason, felony,
Sword, pike, knife, gun, or need of any engine,
Would I not have; but nature should bring forth,
Of its own kind, all foison, all abundance,
To feed my innocent people.

– From William Shakespeare’s banned play, “The Tempest”

Arizona’s draconian anti-Latino laws are in the news again with the disclosure of a book ban in Tucson Unified School District (TUSD) that includes William Shakespeare’s classic The Tempest, which since the 1950s has been used in school curriculums on postcolonial theory.

The list of removed books also includes Rethinking Columbus: The Next 500 Years, a textbook described as ‘resources for teaching about the impact of the arrival of Columbus in the Americas;’ Pedagogy of the Oppressed by Brazilian academic Paolo Freire; Occupied America: A History of Chicanos by Rodolfo Acuña; Chicano!: The History of the Mexican Civil Rights Movement by Arturo Rosales; 500 Years of Chicano History in Pictures, by Elizabeth Martinez and Critical Race Theory, a textbook by Richard Delgado and Jean Stefancic.

According to district spokeperson Cara Rene, the books “will be cleared from all classrooms, boxed up and sent to the Textbook Depository for storage.” In offering a rationale for the ban, Schools Superintendent John Huppenthal has said that “In TUSD Mexican American Studies courses, a troubling, common theme arose time and time again in course and instructional materials, books and lesson plans: Latino minorities have been and continue to be oppressed by a Caucasian majority.”

Huppenthal, declaring Tucson out of compliance with a state law criminalizing the teaching of ethnic studies, on Jan. 6 ordered that 10 percent of the budget for TUSD be withheld until the school district eradicates its Mexican American Studies program. The removal of subversive books such as The Tempest was intended to bring TUSD in compliance with Arizona law.

But is Arizona law in compliance with international law?

By banning books written from a minority perspective simply because they offer a version of history in which “Latino minorities have been … oppressed by a Caucasian majority,” the state of Arizona may find itself in violation of Article 27 of the International Covenant on Civil and Political Rights, which deals with the rights of ethnic minorities:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

In a debate on Democracy Now, however, Superintendent Huppenthal seems to be more concerned with the “Marxian” analysis that might be included in some of the books than with their ethnic or racial perspectives.

“The designers of the class,” he said,

laid this all out in a journal article. And they explicitly said in the journal article that they were going to racemize—racemize the classes. And in racemizing the classes, there is a philosopher in South America, controversial philosopher, because—it’s strictly right in his books—he uses a Marxist structure to his thinking and his philosophy, that—and Marx, of course, said that the entire history of mankind was a struggle between the classes.

So the designers of the Mexican American Studies classes explicitly say in their journal articles that they’re going to construct Mexican American Studies around this Marxian framework with a predominantly ethnic underclass, the oppressed, being—filling out that Marxian model and a predominantly Caucasian class filling out the role of the oppressor. It really is so simplistic, but it was replete through the entire article. And a lot of things, very unhealthy.

So, according to this public official, it is legitimate to ban educational materials simply because they might include views that are outside the mainstream of political culture – in this case, class-based Marxist analysis.

However, Article 19 of the ICCPR deals specifically with the freedom of information and opinion, expressly codifying “the right to freely seek, receive and impart information and ideas of all kinds”:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

So, while the Tucson school district engages in a 21st century book burning to bring itself into compliance with an Arizona state law (under threat of being defunded), it is fairly clear that the state of Arizona itself is out of compliance with the ICCPR, a legally binding treaty ratified by the United States in 1992.

To sign a petition calling on the school board to reverse the decision to ban the books and reinstate the Mexican American Studies program, click here.

Terrorism or not, assassination of Iranian scientist another flagrant violation of international law

Outraged Iranians protest the assassination of Mostafa Ahmadi-Roshan (Photo by AFP/Getty Images)

With the perpetrator of last week’s assassination of a top Iranian nuclear scientist still unidentified, a debate is raging as to whether the brazen daylight car-bombing should legally qualify as an act of terrorism. Jason Pontin, Editor in Chief of Technology Review, has asserted that the bombing was not intended to incite fear in the population, and should therefore be considered assassination, not terrorism.

International law professor Kevin Jon Heller weighed in on the question in a blog post today at Opinio Juris, arguing that under the International Convention for the Suppression of Terrorist Bombings, last week’s assassination of Mostafa Ahmadi-Roshan would qualify. Although the international community has yet to agree on a general definition of terrorism, he points out that Article 2 of the Terrorist Bombing Convention defines an act of terrorism as follows:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

While under this definition, the bombing last week in Tehran would seem to qualify as “terrorism,” the whole debate is arguably a bit academic and beside the point. Even under the U.S. government’s definition in the Patriot Act, the bombing that killed Ahmadi-Roshan would certainly qualify as terrorism.

Section 802 of the Patriot Act define acts of terrorism as “activities that (A) involve acts dangerous to human life … that (B) appear to be intended (i) to intimidate or coerce a civilian population, (ii) to influence the policy of a government by intimidation or coercion, or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.”

But of course, this is the U.S. government’s definition terrorism within the United States. When the question is whether an act of violence in a foreign country is an act of terrorism, different rules apply and can be altered as needed.

There are in fact myriad definitions of terrorism that can shift and change depending on the political whims of the day. One of the clearest examples of this was when the U.S. government removed the Kosovo Liberation Army from its list of “Foreign Terrorist Organizations” in 1998.

The State Department de-listed the KLA that year as the U.S. was attempting to increase pressure on Yugoslav president Slobodan Milosevic and the Clinton administration was lobbying France to do the same. From then on, the United States maintained diplomatic relations with the KLA’s leaders and spoke of them not as terrorists, but as freedom fighters justly resisting oppression.

As this instance makes clear, “terrorism” is a loaded term that has more to do with political realities than any objective realities.

This is why the question of whether last week’s killing of Ahmadi-Roshan should qualify as terrorism is a bit of a red herring. Whether “terrorism” or not, the bombing was obviously an assassination, and as the Harvard Law Review pointed out in 2006 in an article about the new usage of the preferred euphemism “targeted killing”:

Black’s Law Dictionary defines assassination as ‘the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.’ If termed ‘assassination,’ then attacks on leaders have been construed as prohibited by Article 23b of the Hague Convention of 1899, which outlaws ‘treacherous’ attacks on adversaries, and by the Protocol Addition to the Geneva Convention of 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), which prohibits attacks that rely on ‘perfidy.’

Even the U.S. government has acknowledged that these types of assassinations would be illegal under international conventions.

Back in October, when the United States accused the Iranian government of being involved in a plot to assassinate the Saudi ambassador to the United States, Attorney General Eric Holder said that the alleged assassination attempt “constitutes a flagrant violation of U.S. and international law.”

Vice President Joe Biden said on NBC, “Every nation in the world, when they learn the facts of this, will be outraged that (Iran) would violate such an international norm, in addition to obviously being a crime to assassinate anybody, and in the process probably have killed scores of Americans.”

Secretary of State Hillary Clinton said on Oct. 12, “This kind of reckless act undermines international norms and the international system. Iran must be held accountable for its actions.”

U.S. Representative Peter King, Chairman of the House Homeland Security, called the alleged Iranian plot an “act of war.”

The response to the assassination of Ahmadi-Roshan has been a bit more muted.

“I want to categorically deny any United States involvement in any kind of act of violence inside Iran,” Clinton told reporters last week when asked about the attack.

Victoria Nuland, Clinton’s spokeswoman, said the State Department condemned “any assassination or attack on an innocent person and we express our sympathies to the family.”

Some prominent politicians, however, praised the assassination, with Republican presidential candidate Rick Santorum saying that killing Iranian scientists is “wonderful,” as it sends a message to those who work on Iran’s nuclear program that they “are not safe.”

Santorum’s comments came just days after Defense Secretary Leon Panetta stated frankly that Iran is not currently attempting to develop nuclear weapons.

“Are they trying to develop a nuclear weapon? No. But we know that they’re trying to develop a nuclear capability. And that’s what concerns us,” Panetta told “Face the Nation” host Bob Schieffer. “And our red line to Iran is to not develop a nuclear weapon. That’s a red line for us.”

In the same segment, General Martin Dempsey, Chairman of the Joint Chiefs of Staff, was asked whether the U.S. “should take out their nuclear capabilities.”

Dempsey replied that “I certainly want them to believe that that’s the case.”

So, within a one-minute segment on a nationally broadcast television program, the Secretary of Defense concedes that Iran is not trying to develop a nuclear weapon, and the Chairman of the Joint Chiefs of Staff issues an ambiguous threat to bomb the country nonetheless.

This veiled threat could be seen as violating the UN Charter, which states:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

It should also be noted that Iran is within its rights under the Nuclear Non-Proliferation Treaty (NPT) to develop nuclear technology for peaceful purposes, as it claims to be doing and as Leon Panetta recently acknowledged. Entering into force in 1970, the NPT recognizes the right of five countries — China, France, Russia, United Kingdom, and the United States — to possess nuclear weapons, conditional upon eventual disarmament, and the right of other signatories to use nuclear technology for peaceful purposes, conditional upon their non-acquisition of nuclear weapons.

The treaty is essentially a mutual promise between nuclear-armed countries to rid themselves of these weapons and non-nuclear states to abstain from attaining them:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

The U.S., the only country to have ever used nuclear weapons in war, continues to lead the world in stockpiling them. It has also detonated the lion’s share of nuclear tests, as this YouTube video illustrates:

In its 2010 Nuclear Posture Review, the U.S. essentially admitted that it has no intention of ever ridding itself of nuclear weapons. “As long as nuclear weapons exist,” the Review states, the United States will sustain safe, secure, and effective nuclear forces.”

It therefore would seem that the United States is shirking its end of the bargain in the NPT to work towards full nuclear disarmament.

For its part, Iran says its nuclear program is for peaceful purposes only, and has the support of a good portion of the international community. Last November, the the Non-Aligned Movement (NAM), an international grouping of 120 member states, reiterated its support for Tehran’s nuclear rights.

In a statement to the International Atomic Energy Agency (IAEA)’s Board of Directors, NAM called for creating a nuclear-arms free zone in the Middle East, urging that an agreement must be signed by world nations under which any attack on nuclear facilities is banned.

Iran now claims to have evidence the U.S. was behind the killing of Mostafa Ahmadi-Roshan in Tehran last week, and is seeking the support of NAM in responding to the incident.

Iran’s state TV reported that the Iranian foreign ministry had, in a letter handed to the Swiss ambassador in Tehran, said: “We have reliable documents and evidence that this terrorist act was planned, guided and supported by the CIA.”

In a letter last week to Khaled Abdelrahman Shamaa, the representative of the NAM chairman to the UN office in Vienna, Iran called on the 120-member international body to take proper measures to prevent the assassination of nuclear scientists.

The letter outlined the need for the implementation of proper strategies to prevent the assassination of scientists anywhere, but particularly in developing countries.

Demonstrators in DC demand accountability, compliance and an end to corruption

January 11, 2012, the ten-year anniversary of the first detainees arriving at Guatanamo Bay, saw Washington, DC’s largest ever demonstration against the U.S. military’s prison camp.

Amnesty activists march from the White House to the Capitol on 10 year anniversary of Gitmo. (Photo by Scott Langley)

The LA Times reported that “Chants of ‘Guantanamo has got to go’ echoed down Pennsylvania Avenue on Wednesday as a crowd of rain-dampened protesters marked the 10th anniversary of the arrival of the first 20 detainees at the U.S. military prison at Guantanamo Bay, Cuba.”

Demonstrators march through DC on Jan. 11, 2012 (Photo by Witness Against Torture)

More than 800 people demonstrated in solidarity with the 171 inmates who remain in the prison, according to the Times, although other estimates put the number in the thousands:

“The protest was so large,” reported Indymedia, “that it had to divide into multiple elements going to multiple targets, as not everyone could fit at the Supreme Court.” Nearly 200 marchers in orange jump suits and black hoods marchers went to the Supreme Court.

In front of Supreme Court, activists call for prosecution of U.S. torturers (Photo by Scott Langley)

Other marches went to Congress, the Department of Justice, and one returned to the White House.

Amnesty activists in front of White House on 10 year anniversary of Gitmo. (Photo by Scott Langley)

According to the LA Times report,

Protesters voiced anger with President Obama‘s failure to close the prison — which he promised to do during his 2008 presidential campaign — and with his approval last month of the National Defense Authorization Act, which codified the U.S. government’s authority to detain prisoners, including U.S. citizens, indefinitely without trial.

“President Obama is largely responsible for the failure to close Guantanamo, and his administration should not take its progressive base for granted,” said Vincent Warren, the executive director of the Center for Constitutional Rights, a legal advocacy group that represents some Guantanamo detainees.

“Guantanamo is one part of an illegal, inhumane and unjust global detention policy,” Warren said. “Our message: ‘No excuses. Shut it down.'”

Among the groups involved with organizing the demonstrations were Amnesty International, Witness Against Torture, World Can’t Wait, and the Center for Constitutional Rights.

A report at DC Indymedia noted that “Occupy DC added their numbers to the existing ranks of antiwar protesters who have marched against Guantanamo Bay every year on the 11th of January.”

A number of protesters drew connections between the ongoing detentions at Guantanamo and the new indefinite detention provisions that President Obama recently signed into law with the 2012 National Defense Authorization Act (NDAA).

Protesters draw the connection between indefinite detention at Guantanamo and the potential for such abuses in the USA with the adoption of the NDAA (Photo by Witness Against Torture)

An open letter to Obama by Human Rights Watch on Jan. 10 urged him to reaffirm his stated commitment to close the notorious prison camp in Cuba and noted:

We are deeply disappointed that you chose to sign into law the National Defense Authorization Act (NDAA) despite your administration’s repeated threats to veto the bill if it contained detention provisions detrimental to the rule of law and US national security. The new law represents a complete rejection of the vision you outlined for counterterrorism policy when you took office. The final version of the bill, while amended slightly, seeks to upend the effective use of law enforcement for countering terrorism and replace it with a military detention system.

Your signing statement appended to the bill noted a number of deeply problematic areas which you have committed to interpreting in a manner that avoids constitutional conflicts and complies with the laws of war. Yet those problematic areas are the very reason you should have vetoed the bill, and why you must make repeal of those provisions a top priority for your administration this year. As long as the NDAA remains a part of US law, it can be used by future administrations to detain people indefinitely even in circumstances your administration has disavowed.

As this blog noted in December, the indefinite detention provisions of the NDAA are not only a violation of the U.S. Constitution, but also international law. Article 9 of the International Covenant on Civil and Political Rights states,

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Ratified by the U.S. Senate in 1992, the ICCPR is legally binding on the United States.

The issue of the NDAA indefinite detention provisions is likely to remain at the forefront of protests moving forward. A call to “Occupy Congress” starting Jan. 17 notes as a prominent grievance the fact that the supposedly “do-nothing” 112th Congress “voted to allow the President to use the military to indefinitely detain, without charge or trial, any person, including U.S. citizens on U.S. soil, that he deems an enemy. While ostensibly about terrorism suspects, the language is so vague and broad that interpretation is guaranteed to expand to cover almost anyone.”

In a Facebook post on Jan. 12, the Center for Constitutional Rights called on the American people to intensify the fight against the NDAA’s unconstitutional and illegal indefinite detention policies:

On January 17, let’s take this movement to the next level: Occupy Congress and demand a government for the people by We the people. We have to push back against the NDAA of 2012, this law not only threatens to undermine or effectively nullify laws which restrict the involvement of U.S. military forces in domestic law enforcement operations, but it’s also the first time since the McCarthy Era that Congress has passed a statute authorizing the indefinite detention of citizens and non-citizens without charge or trial.

Other grievances cited by Occupy Congress include:

Largely because of all this questionable legislation, the U.S. Congress currently has a 5% public approval rating.

An overarching concern of the Occupy movement as well as the public as a whole is the institutionalized corruption that produces many of the bad laws adopted by Congress. Even the recent adoption of the NDAA appears to be at least partially the result of the legalized bribery on Capitol Hill known as the “campaign finance system.”

As the Constitution Campaign blog reported last month,

The internet hacktivist group Anonymous revealed a possible explanation to the rushed passage of the National Defense Authorization Act (NDAA) by Congress this month, after they hacked the accounts of the 83 senators who voted for the bill and found that many proponents had received large amounts of lobbying money.

The NDAA began as simply a funding bill, but now contains worrisome provisions that could allow the indefinite military detention of American citizens without constitutionally guaranteed rights to trial in an impartial court. Anonymous uncovered a money trail connecting senators’ votes for the NDAA detention provisions to defense contractors passing large sums of money under the proverbial table. Most notable was Senator Robert Portman (R-OH), an outspoken supporter of the bill, who received a whopping $272,853–more than any other member of Congress, according to Anonymous.

“We are truly disturbed by the ludicrous $272,853 he received from special interest groups supporting the NDAA bill that authorizes the indefinite detention of U.S. citizens on U.S. soil,” said Anonymous in their information dump. One defense firm in particular, SunFire LLC, has been linked to lobbying congress and Portman for the detention provisions. SunFire has since rebuked the accusations.

The idea that military contractors have long shaped our nation’s foreign policy is by now well established, having been presaged by President EIsenhower (himself a former general) 40 years ago.  For those same corporate interests to now shape our military’s domestic policy is disturbing, to say the least.

It should be no surprise, however, as the NDAA’s indefinite detention provisions could create vast new markets for defense contractors, especially those involved in building private prisons or detention camps.  With each detainee at Guantanamo Bay costing the U.S. government $800,000 a year, there could be enormous corporate profits available through detaining Americans without trial.

So, here we see a clear nexus between the corrupting influence of money in politics and the adoption of dreadful laws that abrogate vital constitutional rights and important principles of international law. This is one reason that the United Nations Convention against Corruption – of which the U.S. is a state party – calls for measures to be taken to prevent corruption and conflicts of interest among public officials:

Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.

Each State Party shall endeavour to establish and promote effective practices aimed at the prevention of corruption.

These principles are at the heart of Occupy movement’s demands, and on Tuesday they will be brought directly to the Capitol steps:

Urinating on corpses a violation of international law, not just military rules

The NATO command in Afghanistan has denounced the actions of a group of U.S. Marines who were caught urinating on killed Taliban fighters in a video posted to YouTube.

“A video recently posted on a public website appears to show U.S. military personnel committing an inappropriate act with enemy corpses,” said NATO’s International Security Assistance Force in a statement released Thursday. “This disrespectful act is inexplicable and not in keeping with the high moral standards we expect of coalition forces.”

ISAF said that “a United States Criminal Investigatory agency has launched an investigation,” which “will be thorough and any individuals with confirmed involvement will be held fully accountable.”

The U.S. Marine Corps has also vowed a full investigation. Those involved could face court martial proceedings for violating U.S. military rules which specifically forbid “photographing or filming… human casualties,” according to a CBS News report.

While photographing and filming corpses may violate U.S. military rules, the act of desecrating corpses by urinating on them is also a clear violation of the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, which forbids “outrages upon personal dignity, in particular humiliating and degrading treatment,” and contains this provision specific to treatment of the dead:

Art. 17. Parties to the conflict shall ensure that burial or cremation of the dead, carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. One half of the double identity disc, or the identity disc itself if it is a single disc, should remain on the body.

Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. In case of cremation, the circumstances and reasons for cremation shall be stated in detail in the death certificate or on the authenticated list of the dead.

They shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found. For this purpose, they shall organize at the commencement of hostilities an Official Graves Registration Service, to allow subsequent exhumations and to ensure the identification of bodies, whatever the site of the graves, and the possible transportation to the home country. These provisions shall likewise apply to the ashes, which shall be kept by the Graves Registration Service until proper disposal thereof in accordance with the wishes of the home country.

As soon as circumstances permit, and at latest at the end of hostilities, these Services shall exchange, through the Information Bureau mentioned in the second paragraph of Article 16, lists showing the exact location and markings of the graves, together with particulars of the dead interred therein.

The fact that a group of Marines would so cavalierly disregard these Geneva Convention requirements and felt confident enough to desecrate these corpses while being filmed begs the question of whether the military is properly instructing rank-and-file soldiers on international obligations.

Following World War II, the United States was one of the leading forces behind the Geneva Conventions, not only signing and ratifying them but sending the original signed copies to a vault in the State Department, where they remain to this day.

However, in January 2002, President George W. Bush decided that the Geneva Conventions do not apply to Taliban fighters. Ignoring advice from the State Department, Bush sided with the Pentagon and Justice Department declaring the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban. He formalized this decision in a Feb. 7, 2002 presidential memorandum.

So, as the Marine Corps now investigates the soldiers captured on video urinating on Taliban corpses, it’s worth bearing in mind that these actions may emanate from a chain of command that has been poisoned by institutionalized lawlessness from the top down.

Criticism of U.S. human rights violations renewed on Guantanamo’s ten-year anniversary

When the Guantanamo prison camp, originally dubbed by the U.S. military Camp X-Ray, opened in January 2002 the United States came under international criticism that was nearly unprecedented in its intensity.

Some of the loudest complaints came from the staunchest U.S. ally, the United Kingdom, where three cabinet ministers – Robin Cook, Patricia Hewitt and Jack Straw – expressed concern that international agreements about the treatment of prisoners of war were being breached.

The U.N. High Commissioner for Human Rights, Mary Robinson, also objected to the camp and called on the Bush administration to follow the Geneva Conventions. In a Jan. 19, 2002, column in the British Independent, Robinson argued that because the Afghanistan conflict was of an international nature, “the law of international armed conflict applies.” She took issue with the administration’s assertion that the prisoners were “unlawful combatants” and thus outside the protections of the Geneva Conventions.

EU foreign policy chief Javier Solana said that despite the Sept. 11 atrocities, ”changing our values and our way of life would be terrorism’s first victory.”

Amnesty International expressed concern about the tactics being used and the secrecy surrounding the camp. “Keeping prisoners incommunicado, sensory deprivation, the use of unnecessary restraint and the humiliation of people through tactics such as shaving them, are all classic techniques employed to ‘break’ the spirit of individuals ahead of interrogation,” the human rights group said.

In an unusual break with its code of not publicly criticizing detaining governments, the International Committee of the Red Cross said the United States might have violated Geneva Convention rules against making a spectacle of prisoners by distributing pictures of the detainees being subjected to sensory deprivation, which were published worldwide.

British human rights attorney Stephen Solley said the treatment of the suspects was “so far removed from human rights norms that it [was] difficult to comprehend.”

Seven years later, when President Obama announced that he would close the Guantanamo camp, the international praise was equally intense. An Executive Order Obama signed on Jan. 22, 2009 – just two days after being sworn in as president – seemed to unambiguously mandate the closure of Guantanamo within a year:

The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.

Michele Cercone, spokesperson for the European Union Justice and Home Affairs Commission, said at the time that the commission “has been very pleased that one of the first actions of Mr. Obama has been to turn the page on this sad episode of Guantanamo.”

UN High Commissioner for Human Rights Navi Pillay also praised Obama’s Executive Order, saying that it was a good day for the rule of law.

“The fact that President Obama has placed such a high priority on closing Guantánamo and set in motion a system to safeguard the fundamental rights of the detainees there is extremely encouraging,” she stated.

“The United States has in the past been a staunch supporter of international human rights law, and this is one of the reasons that the regime that was established in Guantánamo has been viewed as so damaging,” the High Commissioner added.

On today’s ten-year anniversary of Guantanamo opening, however, there is a palpable sense of disappointment and betrayal from the human rights community. The United States is finding itself on the receiving end of now-familiar criticism of its indefinite detention policies, with human rights organizations and intergovernmental bodies renewing their complaints that for the past ten years, the U.S. has flouted international human rights standards in its practices at the notorious prison camp.

“Human Rights Watch opposes the prolonged indefinite detention without trial of terrorism suspects at Guantanamo Bay and elsewhere,” said HRW in a statement on Jan. 6. The group reminded the U.S. of its obligations to prosecute terrorist suspects and to compensate detainees who have been wrongly imprisoned and mistreated over the past decade:

The practice [of indefinite detention] violates US obligations under international law. Human Rights Watch has strongly urged the US government to either promptly prosecute the remaining Guantanamo detainees according to international fair trial standards, or safely repatriate them to home or third countries. We have also called for investigations of US officials implicated in torture of terrorism suspects and for adequate compensation for detainees who were mistreated. Human Rights Watch will continue to press for compliance with these obligations. Failure to do so does enormous damage to the rule of law both in the US and abroad.

“Guantanamo has politicized justice internationally by portraying detainees as having no human rights,” said Amnesty International on the eve of Guantanamo’s ten-year anniversary. Amnesty has described the legacy of the Guantanamo Bay as a “decade of damage to human rights” not only in the United States, but across the world.

In a report released on December 16, 2011, Amnesty stated:

The USA speaks the language of human rights fluently on the global stage, but stumbles when it comes to applying human rights standards to itself. The Bush administration promised to put human rights at the centre of its counter-terrorism strategy, but singularly failed to do so. The Obama administration has promised the same thing, but the USA continues to fall short of this commitment, despite what were undoubtedly positive initial steps in the right direction.

“From day one,” said Amnesty, “the USA failed to recognize the applicability of human rights law to the Guantánamo detentions.”

Ambassador Janez Lenarčič, the Director of the OSCE Office for Democratic Institutions and Human Rights (ODIHR), also expressed dismay over the failure to close the Guantanamo facility.

“Universal human rights standards require that the detention of terrorist suspects shall be accompanied by concrete charges and the persons detained under these charges shall be immediately informed of them and brought before a competent judicial authority,” Lenarčič said.

In a press release, ODIHR reminded the United States of its OSCE obligations:

As a participating State of the OSCE, the United States has committed itself to respect human rights in the fight against terrorism and to ensure the right to a fair trial within a reasonable time before an independent and impartial tribunal. In the OSCE Bucharest Document of 2001, participating States expressed their determination to protect their citizens from security challenges such as terrorism “while safeguarding the rule of law, individual liberties, and the right to equal justice under law.”

Lenarčič regretted that the practice of indefinite detention without trial has been codified into U.S. law with the recent adoption of the 2012 National Defense Authorization Act (NDAA). He called for a swift closure of the Guantánamo detention center and urged the authorities to prosecute promptly the remaining Guantánamo detainees in accordance with international fair trial standards, or release them.

Moazzam Begg, a 43-year-old British Muslim who was wrongly detained at Guantanamo for three years – two of them in solitary confinement – until British authorities negotiated his release in January 2005, is more despondent about the prospects of closing the prison camp.

“Gitmo will never close. That is a fantasy,” Begg recently told CNN. “I’ve stopped wishing for it. Even if it closes its doors, it will be only symbolic. The detainees who are still there will go somewhere else to be held and be treated possibly worse, and still not get their time in court. And Gitmo, in a way, will always be open. It will be in my memory, in my head, just like everyone else who experienced that hell.”

Colonel Morris Davis, a chief prosecutor at Guantanamo Bay during George W. Bush’s administration, concurs with Moazzam Begg, saying that Obama “doesn’t have the balls” to close Guantanamo:

Nevertheless, there are numerous actions scheduled today across the United States calling for the closure of the notorious prison camp. Witness Against Torture is organizing a human chain around the White House in what is expected to be the largest of the national actions. Noting that “the Bush detention regime has been more deeply institutionalized by the Obama administration, and the failure to close Guantánamo is but one in a string of unkept promises,” Witness Against Torture is demanding that the United States:

  • Close Guantánamo & end abuses at Bagram
  • End indefinite detention and unfair military commissions
  • Charge and fairly try detainees or release them
  • Ensure accountability for torture: investigate, prosecute and provide remedy for victims
  • Revise the Army Field Manual to help ensure torture isn’t used again

Amnesty International is also participating in the day of action at the White House and is collecting signatures for a petition to be delivered to Obama before his January 24 State of the Union Address. For its part, the ACLU has pulled together this infographic, “Guantanamo by the Numbers“:

The ACLU “Close Gitmo” Activist Toolkit is available here.

Texas redistricting case raises questions of international obligations on elections

Having heard oral arguments on Monday, the Supreme Court is now considering whether to nullify redistricting maps in Texas which critics contend have been drawn to favor Republican candidates and weaken the electoral power of racial minorities — particularly Latinos and African Americans.

As ProPublica reports, the case will determine which district maps Texas will use in the 2012 elections, and could help ultimately determine which party controls the U.S. House of Representatives following the November election. Because of a 20.6% population increase, Texas is gaining four seats in Congress, and how the district lines are drawn is likely to determine whether those additional seats will be won by Democrats or Republicans — and how big an impact minority votes will have in deciding who the new representatives will be.

The Republican-dominated state legislature drew maps that heavily favor Republicans, with at least three of the four new congressional districts drawn in a way that seemed likely to diminish the impact of minority votes, even though Latinos and African-Americans accounted for 89% of the state’s population growth.

This is where Texas finds itself in possible violation of the law. Section 5 of the 1965 Voting Rights Act requires that Texas and other states with a history of racial discrimination get federal “preclearance” before implementing any laws that affect voting.

Texas had sought summary judgment on the case in federal court, but the judges ruled in November “that the State of Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice.”

In its Supreme Court filing on Monday, the Department of Justice argued that the proposed map is illegal because it diminishes the ability of minority voters to elect the candidate of their choice.

Texas is now asking the Supreme Court to use the state legislature’s maps before they have received federal preclearance, essentially trying to temporarily thwart the Voting Rights Act’s preclearance requirement.

There is speculation that the Court could use the case as an opportunity to address the constitutionality of Section 5 of the Voting Rights Act. As Lyle Denniston of SCOTUSblog put it, the implications of the case “raise fundamental questions about the division of power between state legislatures and federal courts in the crafting of new districts following each ten-year federal census, and about how far federal courts may go in that process to assure election opportunities for minority races or ethnic groups.”

“This dispute,” he says, “is a fundamental test of historic questions about federalism — that is, the roles of federal vs. state governments in managing election processes.”

While considering the important constitutional questions of the case, the Supreme Court would also do well to take into account the United States’ international obligations on elections, as laid out in the 1990 Copenhagen Document of the Organization for Security and Cooperation in Europe (OSCE), of which the U.S. is one of 56 participating states.

As a signatory to the Copenhagen Document, the United States has agreed to certain election-related commitments, specifically:

To ensure that the will of the people serves as the basis of the authority of government, the participating States will

— hold free elections at reasonable intervals, as established by law;

— permit all seats in at  least one chamber of the national legislature to be freely contested in a popular vote;

— guarantee universal and equal suffrage to adult citizens

In its observations of U.S. elections, the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) has repeatedly criticized the practice of partisan congressional districting (as recently carried out by the Texas state legislature), noting that it too often prevents genuine competition in congressional elections. ODIHR’s final report on the 2010 midterm elections concluded:

Delimitation of congressional districts is a fundamental element of the election process to ensure respect of the equality of the vote. While electoral districts for Senators comprise entire states, boundaries of electoral districts’ for House of Representatives (congressional districts) are updated every ten years, following a decennial census. The results of the ongoing 2010 decennial census will lead to a reapportionment of the 435 House of Representatives seats and redistricting of the existing congressional districts, on the basis of the new population figures.

Historically, districting has been based on a number of principles including that districts should have equal population, be compact and contiguous, respect administrative territorial divisions and preserve “communities of interest”. It is also noted that because redistricting plans are typically drafted by elected governors and state legislatures, they may often reflect political realities in a manner that takes into account voters’ political preferences. As a result of this process, some districts have very unusual shapes, which could indicate that “gerrymandering” has occurred in order to favour one partisan interest. In some cases, however, strange boundaries can emerge as a result of local geographic conditions or the taking into account of minority voting rights.

Nevertheless, there is a broad perception that a significant number of congressional districts are non-competitive as the outcome of the election could be predicted with a high degree of probability. In these mid-term elections, one senator and 27 candidates for members of the House were elected unopposed.

The OSCE/ODIHR reiterated its recommendation contained in the final report on the 2006 mid-term elections: “With a view to ensuring genuine electoral competition in congressional districts, consideration could be given to introducing procedures for drawing district boundaries that will be based on criteria other than voters’ voting histories and perceived future voting intentions.”

In response to fraudulent parliamentary elections in Russia just last month, Secretary of State Hillary Clinton stated, “We hope in particular that the Russian authorities will take action on the recommendations that come forward from observer missions like the OSCE in its final report and their own electoral observers, who are making recommendations about how to improve the process.”

As the U.S. frequently cites OSCE obligations in criticizing other countries’ elections, perhaps it’s time that the U.S. starts heeding its own advice and takes seriously the OSCE’s recommendations on how to improve the electoral process in this country rather than just geopolitical rivals like Russia. Ensuring genuinely competitive elections by drawing congressional districts fairly would be good start.

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