Four years ago, the Republican Party platform included a plank that expressly stated the party’s support for principles of international law. “To be successful international leaders,” the 2008 GOP platform stated, “we must uphold international law, including the laws of war, and update them when necessary. Our moral standing requires that we respect what are essentially American principles of justice.”
While some might have questioned the sincerity of the Republicans’ actual commitment to international law after eight years of the Bush administration’s stated contempt for the Geneva Conventions and other international legal obligations of the United States, the party platform at least paid lip service to these principles and, significantly, described international law as reflecting American values.
This year, the term “international law” appears nowhere in the party’s platform. Neither do the terms “international norms,” “international obligations,” or “international commitments.” Instead, the 2012 GOP platform, adopted at the Republican National Convention yesterday, expresses disdain for the concept of “foreign law,” which it somewhat misleadingly equates with international law.
In a section called “American Sovereignty in U.S. Courts,” the 2012 platform states emphatically that “subjecting American citizens to foreign laws is inimical to the spirit of the Constitution.” The fear of “foreign law” is cited as “one reason we oppose U.S. participation in the International Criminal Court,” which the Republicans suspect could lead to “ideological prosecutions” of U.S. soldiers in The Hague.
“There must be no use of foreign law by U.S. courts in interpreting our Constitution and laws,” the platform states. “Nor should foreign sources of law be used in State courts’ adjudication of criminal or civil matters.”
The conflation of “international law” with “foreign law” has been well-established in Republican Party rhetoric for several years now, dating back at least to 2005 when the Supreme Court cited “the overwhelming weight of international opinion” in ruling that the death penalty for juvenile offenders was unconstitutional.
In reaction to that ruling, then-Attorney General Alberto Gonzales gave a speech at George Mason University Law School where he admonished the Supreme Court for its “use of foreign law in constitutional interpretation.”
“I am troubled by a growing tendency to rely on the laws and judicial decisions of foreign nations in interpreting the United States Constitution,” Gonzales said. “Foreign judges and legislators are not accountable to the American people. If our courts rely on a foreign judge’s opinion or a foreign legislature’s enactment, then that foreign judge or legislature binds us on key constitutional issues.”
Homeland Security Secretary Michael Chertoff also weighed in on the issue, calling the prospect of a United States government constrained by international law a “chilling vision” of the future.
“The fact is, whether we like it or not, international law is increasingly entering our domestic domain,” Chertoff said in a 2006 speech to the right-wing Federalist Society.
“The Supreme Court has begun to bring it through cases like Hamdan,” a reference to Hamdan v. Rumsfeld in which the high court cited the Geneva Conventions in ruling that hundreds of suspects being held without charges at Guantanamo Bay had legal rights.
Chertoff objected to the Supreme Court’s reference to the Geneva Conventions despite the fact that the U.S. Constitution states that treaties entered into by the U.S. government are the “supreme law of the land” and all four Geneva Conventions were long ago signed by the U.S. Executive and ratified by the U.S. Senate.
“International law is being used as a rhetorical weapon against us,” Chertoff said. “We are constantly portrayed as being on the losing end, and the negative end of international law developments.”
While Gonzales and Chertoff were speaking about different subjects – in one case objecting to the citing of international opinion in a Supreme Court decision and in the other objecting to citing international law as a binding obligation of the United States – the message of the two men were essentially the same: no “foreign” law, be it a legally binding treaty or an international norm based on “overwhelming international opinion” has any place in domestic jurisprudence.
At the time, the issue inspired spirited debate among policy wonks and legal scholars.
Frederic L. Kirgis, a law professor at Washington and Lee University, weighed in on the matter in an article for the American Society of International Law, in which he attempted to explain the difference between international law and foreign law.
“Foreign law is not the same as international law,” he wrote.
Foreign law is the law of an individual foreign country or, in some instances, of an identifiable group of foreign countries that have a common legal system or a common set of rules in a particular field of law. From the United States’ perspective, European Union law or the law of the European Convention for the Protection of Human Rights and Fundamental Freedoms would be in the latter category.
International law is the law in force between or among nation-states that have expressly or tacitly consented to be bound by it. Its primary sources are treaties to which specific countries are parties (binding upon those countries, but not upon other countries) and custom. Customary international law stems from the practice of international entities (primarily national governments) over some period of time that has hardened into a reasonably firm expectation that the practice will govern future conduct by all countries that have not clearly objected to the practice during its gestation.
Kirgis cited a Supreme Court decision from 1900, in which the justices wrote: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending on it are duly presented for determination.”
While the incorporation of international law into the domestic legal system of the United States was for a long time considered uncontroversial, the attack on the concept by Bush administration officials established a new paradigm in official Washington – that international norms have no place determining the policies and legal practices of the United States.
It was somewhat surprising then the GOP would make “uphold[ing] international law” an official plank of its party platform in 2008, even going so far as to equate international law with “American principles of justice” and stating that respecting these norms was essential for “our moral standing.”
Perhaps the Republicans that year recognized that after nearly a decade of systematically eroding principles of international law, the United States’ credibility was next to zero in the eyes of the world. Or perhaps the party felt threatened by the Obama campaign’s slogan of “hope and change,” which implicitly promised a return to the rule of law in the USA.
Whatever the reason for including the plank four years ago, it is clear that they do not feel beholden to international law anymore.
Not only does the 2012 platform rail against “foreign law,” but it also expresses its absolute opposition to “the adoption or ratification of international treaties that weaken or encroach upon American sovereignty.” These include several popular treaties that the rest of the world has eagerly adopted such as the UN Convention on Women’s Rights and the Convention on the Rights of the Child.
“Under our Constitution,” the 2012 GOP platform states, “treaties become the law of the land.”
So it is all the more important that the Congress—the Senate through its ratifying power and the House through its appropriating power—shall reject agreements whose long-range impact on the American family is ominous or unclear. These include the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty as well as the various declarations from the U.N. Conference on Environment and Development.
To shield members of our Armed Forces and others in service to America from ideological prosecutions overseas, the Republican Party does not accept the jurisdiction of the International Criminal Court. We support statutory protection for U.S. personnel and officials as they act abroad to meet our global security requirements.
It’s interesting that in a political party platform devoted mostly to attacking the incumbent Democratic president on various issues ranging from health care to nuclear strategy, there are no criticisms in the 2012 GOP platform on undue U.S. adherence to international norms. Perhaps this is because a bipartisan consensus has been reached in Washington on matters of international law.
Despite widespread international criticism of U.S. drone warfare, for example, there is only one reference in the platform to drones, which simply criticized alleged leaks regarding secret drone assassinations from the White House “for political purposes.”
“Leaks by senior Administration officials,” the platform reads, regarding “the use of drones against Al Qaeda and its operatives, and the targeting of our enemies—unprecedented leaks that compromised key sources and methods and damaged our national security—served the single purpose of propping up the image of a weak President.”
There is no mention of torture, indefinite detention or the decade-old gulag of Guantanamo Bay in the 2012 Republican platform. The only criticism, in fact, of Obama’s prosecution of the “war on terror” is over the fact that the administration no longer uses that term in describing the endless war in which the U.S. is engaged.
In the White House’s National Security Strategy, laments the GOP, “the phrase ‘global war on terror’ does not appear at all, and has been purposely avoided and changed by his Administration to ‘overseas contingency operations.’”
What a crying shame.
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
In its decision to grant political asylum to WikiLeaks founder Julian Assange, the Ecuadorian government included a remarkable – and largely overlooked – rebuke of the U.S. justice system.
Judging that Assange’s fears of persecution by the United States are real and would be exacerbated were he to be extradited by the United Kingdom to Sweden in relation to allegations of sexual misconduct, Ecuadorian Foreign Minister Ricardo Patiño Aroca said on Thursday that “there are serious indications of retaliation by the country or countries [the United States] that produced the information disclosed by Mr. Assange, retaliation that can put at risk his safety, integrity and even his life.”
While criticizing Sweden for its prosecution of Assange which has prevented him “the total exercise of the legitimate right to defense,” Ecuador’s primary concern was clearly the possibility that Sweden would hand him over to the United States.
“The judicial evidence shows clearly that, given an extradition to the United States, Mr. Assange would not have a fair trial, he could be judged by a special or military court, and it is not unlikely that he would receive a cruel and demeaning treatment and he would be condemned to a life sentence or the death penalty, which would not respect his human rights,” Ecuador stated.
The U.S.’s history of human rights violations, particularly in relation to the decade-long war on terror and its ongoing abuse of alleged whistleblower Bradley Manning, was clearly on the minds of the Ecuadorian authorities when they made the decision to grant Assange’s asylum request.
Ecuadorian President Rafael Correa explained his decision Friday saying,
It is not that I agree with everything that Julian Assange has done, but does he deserve the death penalty, life imprisonment, to be extradited to a third country for this? Please, what’s the balance between the crime and the punishment, the offense and the punishment? What about due process?
Before making the decision to grant Assange asylum, Ecuador had said that it would allow the extradition to Sweden on the condition that Swedish authorities give assurances they would not extradite him to the United States. Ecuador had further offered Swedish prosecutors the opportunity to question Assange over the sexual misconduct allegations inside the Ecuadorian embassy.
Since Sweden refused to guarantee that it would not extradite Assange to the U.S. and turned down the offer to meet with him in the embassy, Ecuador was left with few options and ultimately chose to protect Assange from persecution and possible human rights abuses by U.S. authorities.
As Mark Weisbrot, co-director of the Center for Economic and Policy Research, pointed out,
Correa didn’t want this mess and it has been a lose-lose situation for him from the beginning. He has suffered increased tension with three countries that are diplomatically important to Ecuador – the US, UK and Sweden. The US is Ecuador’s largest trading partner and has several times threatened to cut off trade preferences that support thousands of Ecuadorian jobs.
Even facing the likelihood of diplomatic retaliation by the United States, Ecuador decided that safeguarding human rights was of paramount importance in this case.
Ecuador agreed with Assange that he will likely be prosecuted for espionage by the United States, considering unmistakable signs that the U.S. is on track to prosecute Assange for his work as a journalist. A grand jury in Alexandria, Virginia, has subpoenaed Twitter feeds regarding Assange and WikiLeaks and in testimony at a pre-trial hearing of prisoner of conscience Bradley Manning, an FBI agent acknowledged that “founders, owners and managers” of WikiLeaks are being investigated.
Were Assange to be extradited to the U.S., there is reason to believe he would receive even worse treatment than Manning, with prominent political figures ranging from radio host Rush Limbaugh to Vice President Joe Biden referring to him as a terrorist, and indicating that he should be killed for what he’s done in exposing U.S. war crimes and embarrassing state secrets.
An indictment is already prepared pending his arrival on U.S. soil, and Sen. Dianne Feinstein (D-Calif.) has recommended that the death penalty be sought in his potential trial. There is also concern over a prejudicial environment he would face in a U.S. trial.
As WikiLeaks lawyer Michael Ratner put it,
Assange is rightly concerned about how he will be treated if he is extradited to the US. One need only consider how the US treated Bradley Manning, the army private who allegedly leaked the cables to WikiLeaks to see why. Manning spent close to a year in pre-trial solitary confinement for 23 hours a day, and then eight months under conditions designed to pressure him into providing evidence to incriminate Assange. During this time, Manning was stripped of his clothing and made to stand nude for inspection. Thousands of people, including scores of legal scholars and the United Nations special rapporteur on torture, have condemned Manning’s treatment as inhumane, and state that it may constitute torture. There is no reason for Assange to expect he will be treated any better.
The United States, officially, is maintaining an air of neutrality in the ongoing Assange saga. “This is an issue between the Ecuadorans, the Brits, the Swedes,” said State Department spokesperson Victoria Nuland. “I don’t have anything particular to add.”
Nuland rejected suggestions that the United States is pushing Britain to enter the Ecuadoran Embassy to remove the WikiLeaks founder. “My information is that we have not involved ourselves in this,” she said.
Former British ambassador Craig Murray, however, reported on his website that he has “private confirmation from within the FCO,” the British Foreign and Commonwealth Office, that the Obama administration is exerting “immense pressure” on the British government to enter the Ecuadorian Embassy and seize Julian Assange.
Murray points out that such an action would be “beyond any argument, a blatant breach of the Vienna Convention of 1961, to which the UK is one of the original parties and which encodes the centuries – arguably millennia – of practice which have enabled diplomatic relations to function.”
“The Vienna Convention is the most subscribed single international treaty in the world,” Murray notes.
In a way, seizing Assange in violation of the Vienna Convention would bring the whole WikiLeaks Cablegate scandal full circle. One of WikiLeaks’ major revelations in 2010 when it published thousands of classified U.S. State Department cables was that the United States had been routinely violating the Vienna Convention by committing espionage against UN officials.
As the Guardian reported on Nov. 28, 2010:
Washington is running a secret intelligence campaign targeted at the leadership of the United Nations, including the secretary general, Ban Ki-moon and the permanent security council representatives from China, Russia, France and the UK.
A classified directive which appears to blur the line between diplomacy and spying was issued to US diplomats under Hillary Clinton’s name in July 2009, demanding forensic technical details about the communications systems used by top UN officials, including passwords and personal encryption keys used in private and commercial networks for official communications.
It called for detailed biometric information “on key UN officials, to include undersecretaries, heads of specialised agencies and their chief advisers, top SYG [secretary general] aides, heads of peace operations and political field missions, including force commanders” as well as intelligence on Ban’s “management and decision-making style and his influence on the secretariat”.
The UN has complained that U.S. spying on the secretary general is illegal, citing the 1946 UN Convention on privileges and immunities which states: “The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action”.
The 1961 Vienna Convention, which covers the UN, also states that “the official correspondence of the mission shall be inviolable.”
It was partially in response to these embarrassing revelations that the United States launched an aggressive counterattack on WikiLeaks – pressuring Visa, Mastercard and Paypal to impose a financial blockade on the anti-secrecy website, detaining alleged whistleblower Bradley Manning for more than 800 days in pre-trial confinement in violation of international law, and hatching a secret indictment against Julian Assange for alleged “espionage” against the United States.
“All of the evidence that is coming out of what we know about the Grand Jury and what is coming out of the Bradley Manning proceedings – confirm that there is, as the Australian government has been reported, by our own embassy in Washington, a criminal investigation of unprecedented size and scale,” says WikiLeaks lawyer Jennifer Robinson.
But ironically the United States’ own overreaching in its reaction has led directly to the granting of asylum for Assange in Ecuador. In its outrageous mistreatment of Bradley Manning, its lack of transparency in its judicial proceedings against Assange, and in the bellicose calls for Assange’s death by prominent U.S. political figures, the United States has hastened this unprecedented situation in which an award-winning journalist is granted asylum in order to protect him from persecution by the U.S. government.
Of course, this saga is far from over, and considering how aggressively the United States has gone after WikiLeaks so far – in blatant disregard for international norms – there is no guarantee that it will respect Assange’s status of diplomatic asylum or the sovereign right of Ecuador to grant that asylum.
“The United States is not a party to the 1954 OAS Convention on Diplomatic Asylum and does not recognize the concept of diplomatic asylum as a matter of international law,” the State Department said in a statement.
The Center for Constitutional Rights, which is providing legal representation to WikiLeaks and Assange, said however that “granting asylum is a humanitarian act and the UN General Assembly has unanimously declared that it should not be construed as unfriendly by other countries.”
“The U.S., Sweden and the U.K. have adopted and reiterated this very principle many times,” CCR pointed out. “It is imperative, therefore, that no diplomatic consequences should befall Ecuador over this decision.”
As Bradley Manning’s lawyer David Coombs reported in a blog post on Friday, a three-star Marine Corps general provided the orders to hold the Wikileaks suspect as a maximum-custody detainee under prevention-of-injury watch (POI), leaving Manning isolated, mistreated by his guards and routinely denied his basic rights under the U.S. Constitution and international law.
While his prolonged pre-trial confinement (over 800 days, so far) has been widely criticized as a violation of the Constitution’s guarantee of a “speedy trial” and the International Covenant on Civil and Political Rights’ guarantee of being “brought promptly before a judge” and being granted a “trial within a reasonable time or to release,” Coombs’ new details reveal a number of other serious breaches of international norms.
Coombs described the treatment as a “flagrant violation” of Manning’s right to not be punished prior to trial and has filed a motion asking for the charges against Manning to be dismissed on these grounds.
In its motion to dismiss, “the Defense argues that a decision had been made early on at Quantico to keep PFC Manning in MAX Custody and in Prevention of Injury (POI) status — in effect, the functional equivalent of solitary confinement,” Coombs wrote on his blog.
Besides being held in solitary confinement for 11 months, Manning was denied meaningful exercise, social interaction, sunlight, and on a number of occasions he was forced to stay completely naked.
As Coombs chronicles on his blog:
PFC Manning was awoken at 0500 hours and required to remain awake in his cell from 0500 to 2200 hours.
PFC Manning was not permitted to lie down on his rack during the duty day. Nor was PFC Manning permitted to lean his back against the cell wall; he had to sit upright on his rack without any back support.
Whenever PFC Manning was moved outside his cell, the entire facility was locked down.
Whenever PFC Manning was moved outside his cell, he was shackled with metal hand and leg restraints and accompanied by at least two guards.
From 29 July 2010 to 10 December 2010, PFC Manning was permitted only 20 minutes of “sunshine call.” Aside from a 3-5 minute shower, this would be the only time PFC Manning would regularly spend outside his cell. During this sunshine call, he would be brought to a small concrete yard, about half to a third of the size of a basketball court. PFC Manning would be permitted to walk around the yard in hand and leg shackles, while being accompanied by a Brig guard at his immediate side (the guard would have his hand on PFC Manning’s back). Two to three other guards would also be present observing PFC Manning. PFC Manning would usually walk in figure-eights or some other pattern. He was not permitted to sit down or stay stationary. …
From 10 December 2010 onward, PFC Manning was permitted a one hour recreation call. At this point, the Brig authorized the removal of his hand and leg shackles and PFC Manning was no longer required to be accompanied by a Brig guard at his immediate side. Although PFC Manning was technically “permitted” to use exercise equipment at the gym, most of this equipment was unplugged or broken down. In addition, depending on the guards, they would not permit him to use certain types of equipment (e.g. the chin up bar). So as to avoid any problems with the guards, PFC Manning would usually walk around the room as he had during his sunshine calls. Three or four guards would be monitoring PFC Manning during his recreation call. …
PFC Manning was not permitted any work duty.
A number of these restrictions violated Manning’s rights as a prisoner guaranteed by the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights and the Standard Minimum Rules for the Treatment of Prisoners.
Manning’s denial of work and exercise opportunities, for example, was a clear breach of the Standard Minimum Rules, which state that “An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.” Further, “Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.”
The shackles that Manning was forced to wear while out of his cell, if not necessary for safety purposes, were also likely out of step with the Standard Minimum Rules, which state: “Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall never be applied as a punishment.”
Manning’s forced nudity, besides being a generally cruel and unusual humiliation technique, clearly breached the letter and spirit of Standard Minimum Rules’ stipulation that “An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.”
The length of Manning’s pre-trial confinement is another area of concern, with his time in detention far exceeding international standards.
The fact that Manning has been awaiting trial in prison for more than two years is a grave breach of his rights under the ICCPR, to which the United States has subscribed. The Human Rights Committee of the United Nations has held that confinement of more than six months is incompatible with article 9 (3) of the ICCPR, which states:
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.
In providing practical guidelines for the use of pre-trial confinement, the UN’s Handbook of International Standards relating to Pre-Trial Detention recommends that governments establish a maximum period of time during which a person may be detained without trial, and if a prisoner’s detention exceeds that amount of time, the he or she shall be released. The Handbook notes, however, that any guideline on maximum pre-trial detention must abide by international standards.
With these concerns in mind, the treatment that Manning has endured has come under intense criticism.
In an open letter to President Obama, members of Congress and Pentagon officials last November, members of the European Parliament expressed concern that “Manning has been subjected to prolonged solitary confinement and other abusive treatment tantamount to torture.”
Manning’s solitary confinement regime “constitute[d] at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture,” according to Juan Mendez, the UN Special Rapporteur on Torture. “If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture,” he told the Guardian earlier this year.
Manning’s defense team has requested that Mendez be allowed to testify at Manning’s next round of hearings scheduled for later this month, but the presiding judge has denied the request. Army Col. Denise Lind told Manning’s attorneys that Mendez would be barred from presenting testimony since he had not actually met with Manning while under the solitary confinement regime.
Mendez had attempted to meet with Manning in private while he was held in solitary confinement, of course, but the U.S. authorities denied him the opportunity.
The various prevarications by the United States are leading some to question whether the Army private will be able to receive anything resembling a fair trial.
This is especially the case since both President Obama and Chairman of the Joint Chiefs of Staff General Martin Dempsey have declared publicly, prior to trial, that Manning “broke the law.”
Their statements have likely prejudiced the proceedings with Unlawful Command Influence under article 17 of the Uniform Code of Military Justice and are in violation of the Standard Minimum Rules for the Treatment of Prisoners, which state: “Unconvicted prisoners are presumed to be innocent and shall be treated as such.”
To sign a petition to President Obama demanding that the charges against Pfc. Bradley Manning be dropped, click here.
War is the health of the State. It automatically sets in motion throughout society those irresistible forces for uniformity, for passionate cooperation with the Government in coercing into obedience the minority groups and individuals which lack the larger herd sense. The machinery of government sets and enforces the drastic penalties; the minorities are either intimidated into silence, or brought slowly around by a subtle process of persuasion which may seem to them really to be converting them. — War Is the Health of the State by Randolph Bourne
Last week’s Sikh temple shooting in Wisconsin and a recent wave of attacks on mosques around the country have inspired a flurry of introspection by the U.S. media, with quite a bit of focus being placed on the right-wing extremist movement to which Sikh temple gunman Wade Michael Page belonged. Much has been made, in particular, of the fact that Page had previously served in the U.S. Army, where he apparently adopted his white supremacist views.
University of Nebraska Professor Pete Simi, who had extensively interviewed Page over a period of three years while researching his book American Swastika, explained to Democracy Now’s Amy Goodman that the Army veteran told him that his military experience “caused him to realize how whites are at a disadvantage and how much the deck is stacked against whites.”
“If you don’t go into the military is as a racist, you definitely leave as one,” Page reportedly told Simi.
There has also been some discussion of how the U.S. military command sometimes takes a blind eye to racist extremism within the military ranks.
Ty Laden, a former skinhead who served in the U.S. Marine Corps, described to CNN’s Anderson Cooper the way his commanding officers would tolerate his unabashedly racist views.
“While I was in the Marine Corps, I used to hang a swastika flag on my wall locker, and everybody in my unit, all the way up to my commander knew it,” he said. “The only time they asked me to take it down was when the commanding general would come through, just so they wouldn’t get in trouble.”
While there is now renewed interest in the subject, it should be pointed out that it has for years been well known that the U.S. military largely takes a see-no-evil approach to right-wing extremism within its ranks. In 2005, with the U.S. war in Iraq grinding on, the military loosened its regulations, issuing “moral waivers” in many cases, allowing those with criminal records and white supremacist backgrounds to join up.
Although Army regulations officially prohibit soldiers from actively participating in racist groups, recruiting shortfalls during the Iraq War led the military to adopt lax standards in enforcing the regulations, resulting in “thousands” of neo-Nazi infiltrators in the Army alone, according to a Defense Department investigator.
In a 2009 profile of neo-Nazi Forrest Fogarty, who served in the 3rd Infantry Division in Iraq, Salon.com described exactly how regulations are sidestepped. Military recruiters for example are instructed to keep an eye out for suspicious tattoos and enlistees are required to explain any tattoos, but the recruiters routinely accept any explanation without question.
Although Fogarty had several well-known racist tattoos such as a Viking carrying a staff and a Celtic cross, he sailed right through the signup process. “They just told me to write an explanation of each tattoo, and I made up some stuff, and that was that,” he says.
Fogarty’s ex-girlfriend even sent the military a dossier of photographs showing Fogarty attending white supremacist rallies and performing with his band, Attack. “They hauled me before some sort of committee and showed me the pictures,” Fogarty says. “I just denied them and said my girlfriend was a spiteful bitch.” He adds: “They knew what I was about. But they let it go because I’m a great soldier.”
By 2006, the lax enforcement of anti-racist regulations had led to “large numbers of neo-Nazis and skinhead extremists” in “the ranks of the world’s best-trained, best-equipped fighting force,” according to the Southern Poverty Law Center.
Neo-Nazis “stretch across all branches of service, they are linking up across the branches once they’re inside, and they are hard-core,” Department of Defense gang detective Scott Barfield told the SPLC. “We’ve got Aryan Nations graffiti in Baghdad,” he added. “That’s a problem.”
Despite this situation identified at least six years ago, little has been done to address the problem. In 2009, for example, the SPLC said it has found “dozens of personal profiles of individuals listing ‘military’ as their occupation on a neo-Nazi, Facebook-type website.” The group complained that the Pentagon has failed to take “forceful action” against extremists in the military despite acknowledging in a 2008 report that the problem has gotten worse.
“While the military has discharged more than 12,500 service members because of their alleged homosexuality since 1994, it has refused to adopt a true ‘zero tolerance’ policy when it comes to extremists in the military,” the group wrote in a letter to supporters.
A 2009 Department of Homeland Security report, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” identified extremism in the military as a potential threat, but the report came under such intense criticism from the mainstream U.S. conservative movement that the DHS repudiated it and subsequently punished its author, Daryl Johnson.
Since then, there has been what can be described as an ad hoc approach to enforcement of anti-extremist regulations, but nothing of any sort of comprehensive nature.
Earlier this year, the Marine Corps was forced to explain a photo of U.S. Marines posing with a Nazi SS flag in Afghanistan that had been circulating on the Internet.
In a statement, Marine Corps Gen. James F. Amos said that
the Marine Corps unequivocally does not condone the use of any such symbols to represent our units or Marines.
The local command to which the Marines in the photo were assigned investigated this issue last November. They determined that the Marines in the photo were ignorant of the connection of this symbol to the Holocaust and monumental atrocities associated with Nazi Germany. To ensure the Marines involved fully understood the historical use of the SS symbology, a formal instructional class was prepared and delivered by unit leadership.
To some though, it was laughable that a military commander would feign ignorance over the use of Nazi symbols in the U.S. military, or that soldiers would claim that they were unaware of the historical significance of Nazi SS thunderbolts.
In an article posted on March Forward’s website, Kevin Baker, a former Staff Sergeant in the U.S. Army infantry who served 28 months in Iraq, noted that “Nazi paraphernalia is not uncommon” in the military.
“In my time as an infantryman,” he says,
I saw Nazi paraphernalia regularly. Soldiers complained to me that in the barracks of Ranger Regiment on Fort Lewis, Nazi flags being hung in soldiers’ rooms without repercussion. My first tour in Iraq was the first time I remember seeing the “Deaths Head” pin, a symbol of the Nazi SS, placed on the front of soldiers’ vests. It was not the last.
Especially in Special Operations units—such as the Marine snipers in the photo—Nazi symbolism is revered. Why? Quite simply because the Nazis are famous for mercilessly killing and terrorizing millions of people. It fits right in to the mentality expected of Spec Ops.
Besides the official toleration of right-wing extremism in the military, there is also the question of how much the military actively teaches racist views.
In May of this year journalists Noah Shachtman and Spencer Ackerman revealed in Wired magazine that for years, the U.S. military had been teaching its future leaders that a “total war” against the world’s 1.4 billion Muslims would be necessary to protect America from Islamic terrorism.
The options taught in the class included using the lessons of “Hiroshima” to wipe out entire cities at once, targeting the “civilian population wherever necessary.”
“For the better part of the last decade,” Wired reported, “a small cabal of self-anointed counterterrorism experts has been working its way through the U.S. military, intelligence and law enforcement communities, trying to convince whoever it could that America’s real terrorist enemy wasn’t al-Qaida — but the Islamic faith itself.”
“We have now come to understand that there is no such thing as ‘moderate Islam,’” Army Lt. Col. Matthew A. Dooley noted in a July 2011 presentation. “It is therefore time for the United States to make our true intentions clear. This barbaric ideology will no longer be tolerated. Islam must change or we will facilitate its self-destruction.”
The class, which has since been discontinued by the Pentagon, included course material that explicitly stated that international law no longer applies to the United States in its conduct of the “war on terror.”
“This model presumes Geneva Conventions IV 1949 standards of armed conflict and the pursuant UN endorsements of it are now, due to the current common practices of Islamic terrorists, no longer relevant or respected globally,” the document reads.
With a military tolerating for years the influx of neo-Nazis into its ranks and teaching its soldiers that international law poses no constraints in a total war against Islam, it should come as no surprise when acts of terror such as attacks on places of religious worship occur.
Just as the United States eschews international norms on the global level in its war on terror, individuals will likely demonstrate the same level of disregard for basic standards of decency on the domestic level as well. This is, after all, what “total war” means.
Despite an extraordinary mobilization by global civil society – including human rights groups, disaster relief organizations and arms control advocates – a historic treaty seeking to regulate the international transfer of small arms and light weapons has been defeated for now.
Non-governmental organizations such as Amnesty International and Oxfam are placing most of the blame for the Arms Trade Treaty’s defeat squarely at the feet of the Obama administration, which raised “eleventh-hour issues with the treaty language,” according to Amnesty International USA.
The U.S. “did a last minute about-face and scuttled progress toward a global arms treaty,” Amnesty wrote in an email to supporters after the treaty failed to reach agreement on July 27.
Although the 190 assembled delegations at the Arms Trade Treaty Conference had thought that an agreement was at hand on the final day of the conference, the United States, joined by Russia and China, said it needed more time to resolve perceived problems in the text.
The draft treaty would prohibit states parties from transferring conventional weapons if they violate arms embargoes or if they would promote acts of genocide, crimes against humanity or war crimes. In considering whether to authorize an arms export, the draft says a country must evaluate whether the weapon would be used to violate international human rights laws or be used by terrorists, organized crime or for corrupt practices.
The idea of an arms trade treaty is supported by civil society organizations worldwide, many of which launched the Control Arms Campaign in 2003. Consisting of about 100 civil society groups around the world, the Control Arms Campaign successfully pushed for governments to start work on developing a global Arms Trade Treaty, a process formally launched in December 2006.
At the time, the U.S. voted against launching the process, while 153 other governments voted for it.
The Obama administration in 2009 reversed the previous administration’s policy and voted to support the negotiating process. With U.S. backing, the UN General Assembly launched a time frame for the negotiation of the Arms Trade Treaty. This included one preparatory meeting in 2010 and two in 2011, before the final negotiating conference in July 2012.
Because the U.S. had insisted on consensus in the treaty negotiations as a precondition for its participation, it had ensured that any one country – including itself – could wield an effective veto over the treaty.
Secretary of State Hillary Clinton said on Oct. 14, 2009, that the U.S. would support the negotiations only if they are held “under the rule of consensus decision-making needed to ensure that all countries can be held to standards that will actually improve the global situation.”
Clinton said the consensus rule, which was ultimately included in the resolution establishing the framework for the negotiations, was needed “to avoid loopholes in the treaty that can be exploited by those wishing to export arms irresponsibly.”
In its email to supporters on Aug. 4, Amnesty International noted that “when the talks began a month ago, many feared that China or Russia might sabotage the talks. Few imagined the United States would be the spoiler.”
The incredulity that the U.S. would spoil the negotiations may have a tad of naivete or wishful thinking, however. The United States is by far the world’s the largest exporter of conventional weapons, accounting for 30 percent of all global exports, according to the Stockholm International Peace Institute. (Most U.S. weapons go to Asia and Oceania, with the subregion of South Asia receiving the bulk of U.S. exports, followed by the Middle East.)
Besides accounting for 90% of civilian casualties in conflict zones – a total of 300,000 to half a million people killed each year – small arms fuel instability, transnational organized crime and terrorism. But the small arms trade is also big business, accounting for approximately $7 billion a year. According to the Small Arms Survey, U.S. transfers alone account for at least $700 million annually.
Some have attributed the Obama administration’s scuttling of the Arms Trade Treaty primarily to this massive amount of money and the undue influence that it can wield over U.S. politicians, particularly in an election year.
As journalist Amy Goodman noted in a column,
There isn’t much that could be considered controversial in the treaty. Signatory governments agree not to export weapons to countries that are under an arms embargo, or to export weapons that would facilitate “the commission of genocide, crimes against humanity, war crimes” or other violations of international humanitarian law. Exports of arms are banned if they will facilitate “gender-based violence or violence against children” or be used for “transnational organized crime.”
Why does the United States need more time than the more than 90 other countries that had sufficient time to read and approve the text? The answer lies in the power of the gun lobby, the arms industry and the apparent inability of President Barack Obama to do the right thing, especially if it contradicts a cold, political calculation.
“This was stunning cowardice by the Obama administration, which at the last minute did an about-face and scuttled progress toward a global arms treaty, just as it reached the finish line,” said Suzanne Nossel, executive director of Amnesty International USA. “It’s a staggering abdication of leadership by the world’s largest exporter of conventional weapons to pull the plug on the talks just as they were nearing an historic breakthrough.”
A Western diplomat, the AP reported, also blamed the United States, saying “they derailed the process.” The diplomat, who spoke on the condition of anonymity due to the political sensitivities, added that nothing will happen to revive negotiations until after the U.S. presidential election in November.
Pointing out that some 50,000 people lost their lives through armed violence during the course of the month-long arms treaty negotiations in New York, Oxfam’s Head of Arms Control Anna Macdonald said that “key countries have dropped the ball” and “let the rest of the world down.”
State Department Spokesperson Victoria Nuland said on July 27 that the United States “supports the outcome today at the Arms Trade Treaty Conference.”
“While the Conference ran out of time to reach consensus on a text,” she said, “it will report its results and the draft text considered back to the UN General Assembly (UNGA). The United States supports a second round of negotiations, conducted on the basis of consensus, on the Treaty next year; we do not support a vote in the UNGA on the current text.”
Nuland reiterated the U.S. position that “international trade in conventional arms is a legitimate enterprise that is and should remain regulated by the individual nations themselves.”
“Any Arms Trade Treaty should require states to develop their own national regulations and controls and strengthen the rule of law regarding arms sales,” she added.
Of course, the treaty that the U.S. had just torpedoed would have done exactly that. Language in the draft treaty required strengthening of national regulations for exporting both arms and ammunition.
The U.S. had also raised concerns that the treaty could in some way infringe on the constitutional right of Americans to “keep and bear arms.” However, language in the defeated treaty recognized “the legitimate trade and use of certain conventional arms” where such use is protected by law.
Perhaps the real reason the U.S. objected to the treaty and ruined its chances at the last minute is simply because the U.S. is the world’s largest exporter of guns and already violates domestic and international law in its export policies.
According to the International Law Commission (ILC), the official UN body that codifies customary international law,
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State” (Article 16 of the International Law Commission, “Articles on Responsibility of States for Internationally Wrongful Acts,” (2001) which were commended by the General Assembly, A/RES/56/83).
The U.S., however, is notorious for arming some of the most brutal and unsavory regimes in the world, providing Bahrain for example $19 million for the fiscal year 2010 and $19.5 million in fiscal year 2011.
In response to Bahrain’s brutal crackdown on protesters last year, Sen. Patrick Leahy (D-VT) stated on Feb. 18, 2011,
U.S. law prohibits aid to foreign security forces that violate human rights, and there is evidence to apply the law today in Bahrain. I have asked the State Department to consider the application of our law and I urge a prompt decision. Attacks on civilians calling for political reform and on the press are assaults on the human rights and dignity of all people.
Sen. Leahy’s concerns were not heeded however, and the U.S. has continued to supply the Bahraini regime through its brutal crackdown on Shiite protesters.
Policies such as these could be susceptible to international pressure were an arms trade treaty to go into effect, not to mention the effect that such a treaty would have on the profits of U.S. weapons manufacturers.
Despite the setback last month in the treaty negotiation process, campaigners are expressing confidence that momentum for the treaty is still strong.
“This is definitely not the end of the story,” said Amnesty International USA’s executive director Suzanne Nossel. “The Obama administration bears heavy responsibility to support moving the talks forward in the coming months and ensuring they reach a successful conclusion.”
Oxfam’s Anna Macdonald said, “The out-of-control arms trade must – and will – be stopped.”