Rogue authority: California cases highlight out-of-control U.S. police forces

Oakland police form a line during a confrontation with Occupy demonstrators on January 28, 2012. (Stephen Lam / Reuters)

Several California cases are revealing disturbing levels of police brutality and incompetence that appear to be pervasive in the state. While in some cases police officers are facing disciplinary actions for their behavior – including criminal prosecution – the seemingly endemic nature of the transgressions are a cause for international concern and could indicate a seriously deteriorating human rights situation in the United States.

Most recently, an Orange County judge ruled that two Fullerton police officers will stand trial on homicide and other charges for their roles in the vicious murder of a schizophrenic homeless man during an encounter that was captured on surveillance video on July 5, 2011.

The full video, which was made public for the first time following the court hearing on Wednesday, indicates that the encounter between the police and 37-year-old Kelly Thomas began as routine harassment of a homeless person, with questioning about where he sleeps at night and requests to search his belongings.

Police officer Manuel Anthony Ramos then began making contradictory demands of Thomas, instructing him to sit down, to extend his legs and simultaneously put his hands on his knees. When Thomas failed to immediately comply with the confusing instructions, Ramos held out his fists and warned Thomas that “they’re getting ready to fuck you up.”

Ramos then proceeded to savagely beat and Taser Thomas for about ten minutes, assisted by several other officers who subsequently joined the assault. Thomas repeatedly cried out “I’m sorry! I’m sorry!” and “Daddy, help me!” as the officers continued to torture him. He died several days later in a hospital.

It turned out that Thomas’ father, Ron Thomas, is a retired police officer who, following his son’s death, made it his mission to get the story out. He used social media to share graphic photos that he took at the side of Kelly Thomas’ hospital bed to show the world what happened to his son.

Fullerton city officials offered Ron Thomas nearly a million dollars to settle the case, but he turned the money down and instead pushed for a criminal trial.

After nearly a year of legal wrangling, Superior Court Judge Walter Schwarm said on Wednesday that sufficient evidence existed to compel a jury trial for Ramos, charged with second-degree murder and involuntary manslaughter, and to try Cpl. Jay Patrick Cicinelli on charges of involuntary manslaughter. Ramos faces 15 years to life in prison, while Cicinelli could serve a maximum of four years.

Following Wednesday’s hearing, however, Ramos’ attorney expressed confidence that the case would not proceed any further. He announced he would seek a review of Judge Schwarm’s ruling, saying, “We don’t expect to go to trial.”

The Chong case

The ruling in the Thomas case comes just a week after another scandalous incident in California, in which a university student was detained by the Drug Enforcement Agency and left in a jail cell without food or water for five days, without being charged with a crime.

Daniel Chong, a UC San Diego student, was detained during a series of DEA drug raids late last month. He was handcuffed and held in a small room for five days at the Drug Enforcement Administration office in San Diego while calling out for help.

“They never came back, ignored all my cries and I still don’t know what happened,” he said. “I’m not sure how they could forget me.”

Chong had been at a friend’s house celebrating 4/20, a day many pot smokers mark as “stoners new year,” when agents burst inside and raided the residence. Chong was then taken to the DEA office in Kearny Mesa. No criminal charges were filed against him, but he was nevertheless left in a cell for five days without any human contact and was not given food or drink. In desperation, he drank his own urine to survive.

As NBC News reported,

After days of being ignored, Chong said he tried to take his own life by breaking the glass from his spectacles with his teeth and then attempting to carve “Sorry mom,” on his arm. He said nurses also found pieces of glass in his throat, which led him to believe he ingested the pieces purposefully.

Chong said he could hear DEA employees and people in neighboring cells. He screamed to let them know he was there, but no one replied. He kicked the door, but no one came to get him.

Chong has filed a lawsuit against the DEA seeking $20 million in damages for the distress he suffered in the incident. “The deprivation of food and water for four and one-half days while the person is handcuffed the entire time constitutes torture under both international and domestic law,” the claim says.

While it’s unclear whether Chong’s treatment was intentional, defense attorney Gretchen Von Helms pointed out that forgetting about an individual being held in police custody is virtually unheard of. “In all my years of practice I’ve never heard of the DEA or any federal government employee simply forgetting about someone that they have in their care,” she says.

Federal prosecutor John Kirby said that it was “inconceivable” that a suspect could be forgotten about for five days but that he finds it hard to believe that Chong’s mistreatment was intentional, “because somebody’s career is done over this.”

The incident has drawn attention from elected officials, who are demanding answers from the DEA. In a letter to Attorney General Eric Holder, Sen. Barbara Boxer (D-Calif.) called for an “immediate and thorough” Department of Justice investigation into the matter.

Occupy brutality

As calls were being made for an investigation into the Chong incident, results from another investigation into California police misconduct were making headlines, this time in relation to systematic brutality used against Occupy Wall Street protesters last October.

Oakland police used “an overwhelming military-type response” to disperse Occupy Oakland demonstrators and intentionally fired at Iraq war veteran Scott Olsen who was critically injured in the protests, according to a report issued on April 30.

Video taken of the October events shows that when fellow demonstrators went to the aid of Olsen, another cop threw a flash grenade into the crowd, further endangering the injured protester and those who were coming to his aid.

In response, Human Rights Watch issued a statement calling on police to respect the fundamental rights of Occupy Wall Street demonstrators across the country.

“The United States’ tradition of peaceful protest is protected not only in U.S. law but also under international law,” said Alison Parker, U.S. program director at Human Rights Watch. “Even when protesters’ actions warrant police intervention, force should only be used where strictly necessary and then only to the degree necessary.”

Amnesty International also weighed in, urging authorities “to ensure that police show restraint in their response to Occupy Wall Street protests, following critical injuries suffered by a man in Oakland, Ca. in clashes between police and demonstrators.”

“The increasingly heavy-handed policing tactics used to quell the Occupy Wall Street protests are deeply alarming,” said Guadalupe Marengo, deputy program director for the Americas. “The police must not resort to using excessive force, such as tear gas, unless strictly necessary.”

The April 30 report, issued by an outside monitor of the Oakland Police Department, concludes for the first time officially that police did fire at and hit Olsen that evening. An Oakland Police Department SWAT team member fired a beanbag round at Olsen, striking him in the head, the report said.

“We have viewed many official and unofficial video clips of the Occupy Oakland-related incidents,” said the report. “These recordings lead us to ask additional questions as the level of force that was used by OPD officers, and whether that use of force was in compliance with the Department’s use of force policies.”

Following the report’s release, a federal judge issued an ultimatum to the city of Oakland to either work out a way to handle the flood of complaints against police or face sanctions.

District Judge Thelton Henderson demanded that officials in the Bay Area city start determining how to deal with the abundance of accusatory statements filed with Oakland authorities, specifically citing the flood of complaints that have come in over how law enforcement conducted themselves during raids on the city’s Occupy Wall Street protests.

Pepper spray incident

In relation to yet another recent case of police brutality in California – the notorious UC Davis pepper spray incident that went viral last fall – a task force report was issued in early April which concluded that campus police and administration made “critically flawed” decisions in reaction to peaceful protests against tuition hikes at the university.

“The pepper spraying incident that took place on November 18, 2011 should and could have been prevented,” concluded the task force.

The report said Lt. John Pike’s decision to use pepper spray on seated protesters was “not authorized by policy” and that his claims of self-defense were not credible.

“There is little factual basis supporting Lt. Pike’s belief that he was trapped by the protesters or that his officers were prevented from leaving the Quad,” the report stated. “Further, there is little evidence that any protesters attempted to use violence against the police.”

Other key findings of the investigation include:

– A Failure to Investigate Whether or Not “Non-Affiliates” in the UC Davis Occupy Encampment Were Present

– The Administration Decided to Deploy Police to Remove the Tents on Nov. 18 before Considering Other Reasonable Alternatives

– The Scope of the Police Operation to Remove the Tents Was Ineffectively Communicated, Not Clearly Understood by Key Decision-Makers, and, Accordingly, Could Not Be Adequately Evaluated as to Its Costs and Consequences

– There Were No Clear Lines Delineating the Responsibility for Decision-Making between Civilian Administrators and Police

– There Was Confusion as to the Legal Basis for the Police Operation

While the UC Davis and Oakland investigations are welcome attempts to provide some level of accountability for rogue police forces in California, the pervasive nature of the problems in the state (not to mention similar cases elsewhere in the United States) seem to indicate a systemic problem of authority that may require a more comprehensive response, including, perhaps from the international community.

International norms

The recent incidents reveal a lack of appreciation within U.S. police forces for international norms of law enforcement, which are clearly laid out in the Code of Conduct for Law Enforcement Officials. Adopted by the UN General Assembly in 1979, the Code of Conduct establishes minimum international standards for police behavior, many of which California police departments are failing to meet.

The human rights protected by the Code of Conduct are identified by national and international law, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

“In the performance of their duty,” it states, “law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.”

The Code states that “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.”

It further lays out specific principles of necessity and proportionality in the use of force by police:

( a ) This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that may be used.

( b ) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.

Further, “Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.”

In the cases of Kelly Thomas, Daniel Chong and Scott Olsen, as well as the UC Davis pepper spray incident, it is clear that California police departments are routinely flouting these vital international standards. If the United States hopes to retain any credibility internationally as a country that respects basic human rights, serious action should be taken to rein its rogue police forces and bring them into compliance with international law.

U.S. offers shaky legal justification for drone strikes

After years of secretly carrying out drone attacks that have killed an estimated 3,000 people in the Middle East, South Asia and Africa, the United States has for the first time formally admitted the program, but stopped short of lifting the shroud of secrecy entirely.

Last week, President Obama’s counter-terrorism adviser John Brennan acknowledged the growing international criticism against the U.S. drone program – including from countries that are the target of these attacks, such as Pakistan – but claimed that the targeted killings conform with U.S. and international law.

He explained that Obama wanted to be more open about the practice.

“A few months after taking office, the president travelled to the National Archives where he discussed how national security requires a delicate balance between secrecy and transparency,” Brennan said. “He has consistently encouraged those of us on his national security team to be as open and candid as possible as well.”

In that interest of greater transparency, Brennan acknowledged the U.S. government’s use of drone strikes, the first formal recognition by a government official of a covert program that has been widely known about for years.

“So let me say it as simply as I can,” Brennan said. “Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.”

Brennan cited a March speech by Attorney General Eric Holder which attempted to provide a legal basis for some of the Obama administration’s more questionable tactics in the war on terror, including extrajudicial assassinations of American citizens.

“Attorney General Holder discussed how our counterterrorism efforts are rooted in, and are strengthened by, adherence to the law, including the legal authorities that allow us to pursue members of al-Qaida, including U.S. citizens, and to do so using technologically advanced weapons,” Brennan said.

Much like Holder’s earlier explanations, however, Brennan focused on narrow legal principles while ignoring the broader implications of these policies for domestic and international law. In Holder’s speech last January, he split hairs over concepts of due process and judicial process, claiming that since the Executive Branch has a secret process by which it determines whether a U.S. citizen shall be targeted for assassination, it is fulfilling constitutional requirements.

“Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces,” Holder said.  “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

The attorney general also took issue with the question of whether targeted killings of terrorism suspects should properly be considered “assassinations.” He acknowledged that if these killings were considered assassinations, they would be unlawful, but since the U.S. government was pre-emptively killing people in “self defense,” the use of lethal force is perfectly legal.

As this blog pointed out in response to Holder’s speech, his narrow legal reasoning disregarded the international community’s most significant objections to “targeted killings,” concerns most clearly articulated in a 2010 United Nations report.

The UN report objected to the very term “targeted killing,” saying that it has no basis or definition in international law, but nevertheless stated that a targeted killing outside of an actual battlefield “is almost never likely to be legal.” The UN report rejected “pre-emptive self-defense” as a justification for killing terrorism suspects far from combat zones.

“This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter,” said Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions. “If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos.”

Like Holder, Brennan’s April 30 speech utilized a constricted legal argument on behalf of U.S. policy, focusing this time on the technology of unmanned aerial drones rather than the broader legal principles raised by the targeted killings.

“There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat,” he said.

But regardless of whether “remotely piloted aircraft” are used or whether more traditional means for dropping bombs are used, the primary legal concern is whether the policy is violates the UN Charter’s prohibition on the use of armed force, a point left unaddressed by Brennan’s narrow legal reasoning.

As the 2010 UN report states: “Whether or not a specific targeted killing is legal depends on the context in which it is conducted: whether in armed conflict, outside armed conflict, or in relation to the interstate use of force.”

Under the rules of international humanitarian law, the report points out, “targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person ‘directly participates in hostilities.’”

In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians. These standards apply regardless of whether the armed conflict is between States (an international armed conflict) or between a State and a non-state armed group (non-international armed conflict), including alleged terrorists.

Since the U.S. drone strikes are being carried out far from any battlefield, it is inconceivable that they conform with the “military necessity” requirement under international law, a question that Brennan skillfully sidestepped by zeroing on the technological aspects of targeted killings carried out by unmanned aerial drones.

The legality of the attacks has been further called into question with a new directive issued by President Obama which authorizes the CIA and the military to launch attacks even when the identity of the targets are not known, in what the U.S. has dubbed “signature strikes.”

According to the Washington Post, congressional officials have expressed concern that using signature strikes would increase the likelihood that those who are killed by drone attacks are not involved in plots against the United States.

This new expanded policy exacerbates the violations of international law inherent in the U.S. drone program, which was already shrouded by ambiguity over who was being killed by these remote-controlled aerial bombing machines. As the UN report notes,

A State killing is legal only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or nonlethal incapacitation, of preventing that threat to life (making lethal force necessary). The proportionality requirement limits the permissible level of force based on the threat posed by the suspect to others.

Similarly, Human Rights Watch points out: “During an armed conflict between a state and a non-state armed group, it is lawful to target only persons taking a direct part in hostilities. This would include individuals planning and directing operations, but not those linked to the armed group in a non-operational way.”

Considering that the U.S. policy now does not even require that the identity of the targets be known, it is impossible to meet the proportionality requirement under international law. After all, how can U.S. officials know whether the strikes are “required to protect life” if they don’t even know who it is that they are targeting?

The U.S. drone program also raises significant questions of sovereignty, another issue raised by the UN and glossed over by Brennan’s speech.

As the UN noted,

Targeted killings conducted in the territory of other States raise sovereignty concerns. Under Article 2(4) of the UN Charter, States are forbidden from using force in the territory of another State. When a State conducts a targeted killing in the territory of another State with which it is not in armed conflict, whether the first State violates the sovereignty of the second is determined by the law applicable to the use of inter-state force, while the question of whether the specific killing of the particular individual(s) is legal is governed by IHL and/or human rights law. …

A targeted killing conducted by one State in the territory of a second State does not violate the second State’s sovereignty if either (a) the second State consents, or (b) the first, targeting, State has a right under international law to use force in self-defence under Article 51 of the UN Charter,  because (i) the second State is responsible for an armed attack against the first State, or (ii) the second State is unwilling or unable to stop armed attacks against the first State launched from its territory. International law permits the use of lethal force in self-defence in response to an “armed attack” as long as that force is necessary and proportionate.

Brennan briefly addressed the issue of sovereignty in his speech, while deftly skirting the issue of consent:

Finally, when considering lethal force we are of course mindful that there are important checks on our ability to act unilaterally in foreign territories.  We do not use force whenever we want, wherever we want.  International legal principles, including respect for a state’s sovereignty and the laws of war, impose constraints.  The United States of America respects national sovereignty and international law.

Brennan’s vague claims of the U.S.’s respect for national sovereignty and the laws of war, however, ignored the fact that some countries, notably Pakistan, have consistently objected to U.S. drone strikes carried out on their territory.

Pakistan has repeatedly protested the U.S. attacks, closing its Afghan border crossings to NATO supplies last November in retaliation for American airstrikes that killed 24 Pakistani soldiers. The government also kicked the U.S. out of a base used by American drones.

On April 12, Pakistan’s parliament unanimously approved a list of conditions that the U.S. must meet if relations are to be restored and NATO supply routes to Afghanistan reopened. The parliament further demanded an immediate end to U.S. drone attacks and an unconditional apology for the airstrike in November that killed 24 soldiers. (The U.S. has expressed “regret” for killing the soldiers, but has declined to apologize.)

Last week, on the same day that Brennan gave his speech voicing the U.S.’s respect for national sovereignty, the Pakistani government condemned a U.S. drone strike that killed three suspected militants in the northwest of the country, the first since the country’s parliament demanded that Washington end the attacks.

While Pakistan attempts to utilize diplomatic pressure to cease the U.S. drone attacks on its territory, American antiwar and human rights groups are ramping up the grassroots pressure to halt the policy as well. Code Pink has a “Ground the Drones” program which includes a petition to “tell Obama that we need a surge in diplomacy, not a surge in violence.”

The ACLU has reiterated its calls for the Obama administration to release memos from the Office of Legal Counsel providing the purported legal justification for the targeted killing program.

ACLU Deputy Legal Director Jameel Jaffer said Brennan’s speech “supplies legal conclusions, not legal analysis.”

We continue to believe that the administration should release the Justice Department memos underlying the program – particularly the memo that authorizes the extrajudicial killing of American terrorism suspects. And the administration should release the evidence it relied on to conclude that an American citizen, Anwar al-Aulaqi, could be killed without charge, trial, or judicial process of any kind.

The ACLU called it a “dangerous” proposition that the U.S. considers the entire planet a battlefield. “It is dangerous to give the President the authority to order the extrajudicial killing of any person – including any American – he believes to be a terrorist,” said Hina Shamsi, director of the ACLU National Security Project.

“The administration insists that the program is closely supervised, but to propose that a secret deliberation that takes place entirely within the executive branch constitutes ‘due process’ is to strip the Fifth Amendment of its essential meaning.”

For its part, Fire Dog Lake has launched a petition drive demanding that the Obama administration release legal memos related to its drone and assassination program.