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Obama fights ban on indefinite detention of Americans August 8, 2012

Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice.
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(AFP Photo / Paul J. Richards)

(AFP Photo / Paul J. Richards)

Roger’s note: The phrase “lock ’em up and throw away the key” used to be used jokingly.  It is no joke what Obama is doing.  This president, who is reputed to be a constitutional scholar, is systematically tramping over the constitution and what is perhaps the most important and precious civil and legal protections, habeas corpus.  Imagine how this precedent will be used under some of the Republican nut cases who are likely to be future presidents.  Frightening.

www.rt.com, August 7, 2012

The White House has filed an appeal in hopes of reversing a federal judge’s ruling that bans the indefinite military detention of Americans because attorneys for the president say they are justified to imprison alleged terrorists without charge.

Manhattan federal court Judge Katherine Forrest ruled in May that the indefinite detention provisions signed into law late last year by US President Barack Obama failed to “pass constitutional muster” and ordered a temporary injunction to keep the military from locking up any person, American or other, over allegations of terrorist ties. On Monday, however, federal prosecutors representing President Obama and Defense Secretary Leon Panetta filed a claim with the 2nd US Circuit Court of Appeals in hopes of eliminating that ban.

The plaintiffs “cannot point to a single example of the military’s detaining anyone for engaging in conduct even remotely similar to the type of expressive activities they allege could lead to detention,” Obama’s attorneys insist. With that, the White House is arguing that as long as the indefinite detention law hasn’t be enforced yet, there is no reason for a judge to invalidate it.

Reuters reports this week that the government believes they are justified to have the authorization to lock alleged belligerents up indefinitely because cases involving militants directly aligned against the good of the US government warrants such punishment. Separate from Judge Forrest’s injunction, nine states have attempted to, at least in part, remove themselves from the indefinite detention provisions of included in the National Defense Authorization Act for Fiscal Year 2012, or NDAA.

In section 1021 of the NDAA, the president’s authority to hold a terrorism suspect “without trial, until the end of the hostilities” is reaffirmed by Congress. Despite an accompanying signing statement voicing his opposition to that provision, President Obama quietly inked his name to the NDAA on December 31, 2011. In May, however, a group of plaintiffs including notable journalists and civil liberty proponents challenged section 1021 in court, leading to Just Forrest to find it unconstitutional one month later.

“There is a strong public interest in protecting rights guaranteed by the First Amendment,” Forrest wrote in her 68-page ruling. “There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention.”

At the time Just Forrest made her injunction, attorney Carl Mayer told RT on behalf of the plaintiffs that, although he expected the White House to appeal, “It may not be in their best interest.”

“[T]here are so many people from all sides of the political spectrum opposed to this law that they ought to just say, ‘We’re not going to appeal,’” Mayer said. “The NDAA cannot be used to pick up Americans in a proverbial black van or in any other way that the administration might decide to try to get people into the military justice system. It means that the government is foreclosed now from engaging in this type of action against the civil liberties of Americans.”

The original plaintiffs, who include Pulitzer Prize-winner Chris Hedges, have asked Just Forrest to make her injunction permanent. Oral arguments in the case are expected to begin this week.


The Disappointing Kagan Pick May 12, 2010

Posted by rogerhollander in Criminal Justice.
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(Roger’s note: it may seem redundant to keep on harping about Obama’s selection of Kagan; all indications are that it is a done deal, i.e. she will be confirmed.  I have read many good things about her from progressive blogs and the Obama web site (one commentary that really grated against my sensibility lauded her as a “safe” choice; just what we need, a safe choice to confront the four ultra-conservative ideologues:  Justices Alito, Roberts, Scalia and Thomas).  I am sure there are indeed good things to be said about soon-to-be Justice Kagan.  Too bad that she has a penchant for hiring white males, but much worse, when it comes to presidential powers, she has little respect for such minor considerations as the constitution, the Geneva Conventions, and the concept of habeas corpus.  Well, as my daughters always reminded me, nobody’s perfect.)

Published on Wednesday, May 12, 2010 by The Progressiveby Matthew Rothschild

I’m troubled by Obama’s nomination of Elena Kagan to the Supreme Court.

I’m troubled not because she has no prior experience as a judge. Obama’s right that we need more than cloistered judges on the top bench.

But I wish she had more experience outside of the University of Chicago Law School and Harvard Law School, outside of the Clinton White House and the Obama White House.

These aren’t the widest of worldly experiences.

And her time in the White House is especially troubling.

I’d much prefer having a non-judge who was a former member of Congress, for instance, someone who had an intense personal appreciation for the other branch of government.

Unfortunately, Kagan’s government experience is with the Executive Branch and with upholding its powers. That’s what she did as Solicitor General, remember. She went to bat for the Presidency.

And this President, like George W., has embraced a vast expansion of Executive Powers. So Kagan or her deputies have repeatedly gone into court to invoke the undemocratic doctrine of state secrets. And they’ve gone into court to assert the right to hold any person, captured by the military or the CIA or by some foreign power anywhere in the world, for an indefinite period of time at Bagram Air Base in Afghanistan-without recourse to any due process rights whatsoever.

In Maqaleh v. Gates, she told a federal court: “When it comes to military facilities, unlike Guantanamo, that are truly abroad-particularly those halfway across the globe in an active war zone-courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction.”

It’s no surprise that Kagan disdains due process for detainees. At her confirmation hearings as Solicitor General, Kagan testified that she had no problem with that.

Well, I do. And Justice John Paul Stevens sure did. And the Constitution does. And the Geneva Conventions do.

It’s more than a little too bad that she doesn’t. And that Obama doesn’t.

Stevens, by the way, brought Kennedy along and assigned him the role of writing the decision in the Boumediene case that limited the Executive Branch’s ability to deny due process to detainees.

Wrote Kennedy: “The test for determining the scope of the habeas corpus provision must not be subject to manipulation by those whose power it is designed to restrain.”

So, on this crucial issue of executive power, Kagan is to the right of Kennedy!

I also doubt that Kagan will be better than Stevens in influencing Kennedy, much less the justices on his right. Like Kennedy, Stevens was appointed by a Republican, and Stevens had 12 years on the Court before Kennedy, his junior, came along.

Still, Obama hailed her “skill as a consensus-builder.” But what the court needs now is not a “consensus-builder,” since on many issues there is no basis for consensus. There is a vast ideological gulf. Instead, it needs someone who can advocate as aggressively for a progressive jurisprudence as Roberts, Alito, Scalia, and Thomas advocate for a reactionary one.

The Supreme Court is not Harvard Law School. And Kagan will not be the dean. She’ll be the junior member. To the extent that she is determined to be a consensus builder, the conservatives are more likely to drag her their way than she is likely to drag them in a progressive direction.

More’s the pity.

© 2010 The Progressive

Matthew Rothschild is the editor of The Progressive magazine.

Bybee Weighs In April 30, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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by Scott Horton

Judge Jay Bybee has been conspicuously absent from the discussion about his most famous opinions-not the ones he issued from the bench, but those he uttered just before leaving the Justice Department’s Office of Legal Counsel. Those opinions gave the green light to the use of a series of torture techniques on specific prisoners held by the CIA. But today, Jay Bybee has spoken. He responded to questions from the New York Times:

“The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Other administration lawyers agreed with those conclusions, Judge Bybee said. “The legal question was and is difficult,” he said. “And the stakes for the country were significant no matter what our opinion. In that context, we gave our best, honest advice, based on our good-faith analysis of the law.”

Count me among the unconvinced. First, I believe that one consideration is guiding Judge Bybee here: self-defense. He fully appreciates the threat of a criminal investigation and demands for his impeachment. He’s a sharp enough lawyer to appreciate that with respect to criminal conduct in connection with the issuance of an opinion, he has one pillar to which he can cling: the claim that the opinions expressed were formed in good faith, whether right or wrong. If he can’t sustain that proposition, he’s in deep trouble. Hence his statements to the Times. They are utterly predictable.

Second, if the question “was and is difficult,” as Bybee says, why did he fail, in the two August 1, 2002 memoranda, to apprise his clients of the quite overwhelming authority that runs in precisely the opposite direction of his memos? Indeed, he talks about waterboarding and never bothers to note the long list of cases in which waterboarding was prosecuted, not even the 1983 case prosecuted by the Reagan Justice Department against the backdrop of U.S. accession to the Convention Against Torture. The suppression of all this adverse authority is telling: it suggests an opinion which has been made-to-order, not following careful, good-faith study of a question.

Third, we can’t forget the facts in the background. Bybee is writing up and issuing this opinion as a sort of farewell gift to people who had just elevated him to a lifetime appointment to the federal bench, just one rung below the Supreme Court. He was straining to please them. And the suggestion of a Faustian bargain is hard to miss.

But Bybee’s remarks highlight the need for the Justice Department to come clean with its own internal probe into these matters, begun in 2004 and completed ostensibly in October 2008. We’re told it’s being “finished up” to reflect comments from Attorney General Mukasey and to give the affected parties an opportunity to respond. Seven months is an awfully long time to be “finishing up” a report like this. And the public needs to know the details of how these memos came to be commissioned and written has never been more acute than right now.

Scott Horton, a senior fellow at The Nation Institute, lectures at Columbia Law School. 

Up, Up and Away: The West’s Hysterical Reaction to North Korea April 18, 2009

Posted by rogerhollander in Asia, Foreign Policy, North/South Korea.
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Posted on Apr 17, 2009, www.truthdig.com

AP photo / Ahn Young-joon

South Koreans watch a TV news program on the launch of a North Korean missile.

By Scott Ritter

Six minutes before 1 o’clock in the afternoon, on Jan. 23, a 173-foot-tall, two-stage rocket lifted off from Northeast Asia. Capable of carrying a giant 33,000-pound payload, the rocket’s liquid-fuel engine, supplemented by two solid-fuel strap-on booster rockets, generated nearly half a million pounds of thrust before giving way to the second stage, likewise powered by a liquid-fuel engine. After reaching a height of nearly 430 miles, the rocket released into orbit a 3,850-pound satellite, along with seven smaller probes. Other than the small community of scientists interested in the data expected to be collected from the “Ibuki” Greenhouse Gases Observatory Satellite (GOSAT), the rocket’s main payload, very few people around the world took notice of the launch. The United Nations Security Council did not meet in an emergency session to denounce the launch, nor did it craft a package of punitive economic sanctions in response. 

The reason? The rocket in question, the H-2A, was launched by Japan, at its Tanegashima Space Launch Facility. Deemed an exclusively civilian program, the H-2A has been launched 15 times since its inaugural mission on Aug. 29, 2001. Four of these launches have been in support of exclusively military missions, delivering spy satellites into orbit over North Korea. Although capable of delivering a modern nuclear warhead to intercontinental ranges, the H-2A is seen as a “non-threatening” system since its liquid-fueled engines require a lengthy fueling process prior to launching, precluding any quick-launch capability deemed essential for a military application.

In contrast, on April 5, at 11:30 in the morning, North Korea launched a three-stage rocket called “Unha,” or “Milky Way,” which it claimed was carrying a single small communications satellite weighing a few hundred pounds. Like the H-2A, the “Unha,” better known in the West as the Taepodong-2, is liquid-fueled, requiring weeks of preliminary preparation before launch. Although North Korea declared the vehicle to be intended for launching a satellite, the launch was condemned even before it occurred as “dangerous” and “provocative,” unlike Japan’s similar efforts.

The Taepodong-2 launch was the second attempt by the North Koreans to get this particular design airborne. In 2006, the first effort ended in failure when the rocket exploded some 40 seconds after liftoff. The second launch, by all accounts (except North Korea’s, which announced that its satellite was successfully orbiting the Earth, broadcasting patriotic music), was likewise a failure. The first stage, based on a Chinese design derived from the CSS-2 missile, seemed to function as intended, given the fact that it splashed down in the Sea of Japan in the area expected. However, the second stage, together with the smaller solid-fuel third stage designed to boost the satellite into orbit, fell several hundred miles short of its anticipated impact area, indicating a failure of the second stage to perform properly and, ultimately, launch the satellite. Western hysteria, which labeled the North Korean rocket a direct threat to the western United States, prompting calls for the missile to be shot down, proved unfounded.

In October 2006, in response to North Korea’s announcement that it had conducted an underground test of a nuclear weapon, the Security Council of the United Nations passed Resolution 1718. This resolution, passed under Chapter VII of the U.N. Charter, condemned the North Korean nuclear weapon test and called for the imposition of economic sanctions until North Korea’s nuclear weapons program was dismantled and its nuclear program as a whole reintegrated into the nuclear nonproliferation treaty. It also singled out North Korea’s ballistic missile programs, demanding that Pyongyang “not conduct any further … launch of a ballistic missile” and “suspend all activities related to its ballistic missile program and in this context re-establish its pre-existing commitments to a moratorium on missile launching” and “abandon all other existing weapons of mass destruction and ballistic missile programme in a complete, verifiable and irreversible manner.” 

The April 5 launch was widely condemned by the United States and others (including Japan, which assumed a leading role in framing the North Korean test as “destabilizing” and “dangerous”). President Barack Obama characterized the North Korean launch as a violation of Security Council resolutions and pushed for the council to punish Pyongyang. However, not everyone shared the sentiments of the United States and Japan. Both Russia and China questioned whether the launch was in fact a violation of Resolution 1718, noting that North Korea had every right to launch satellites. The best the United States and Japan could get from the U.N. Security Council was a statement issued by the council president condemning the launch as a “contravention” of Security Council Resolution 1718 and demanding that North Korea “comply fully” with its obligations under the resolution. The statement also demanded that North Korea not shoot off any more rockets or missiles.

Thus it appears that the United Nations Security Council, and not North Korea, is acting in a manner inconsistent with international law. On March 5, 2009, North Korea notified Russia that it was joining the 1966 Outer Space Treaty. Russia is one of three depository states for that treaty (the other two being the United States and the United Kingdom), and North Korea’s announcement made the commitment binding. At the same time, North Korea informed the U.N. secretary-general that it was joining the 1974 Convention on Registration of Objects Launched Into Outer Space. The Outer Space Treaty proclaims “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind,” and that “outer space shall be free for exploration and use by all States.” North Korea’s joining the 1974 convention, while not mandatory, put it in compliance with the established practices of other nations having space launch programs, including Iran, which signed the treaty back in 1967, and which on Feb. 2, 2008, successfully launched a satellite on board its two-stage Safir-2 (“Ambassador”) vehicle. While the United States and others strongly criticized the Iranian action, Russia noted that Iran had not violated international law. The same holds true of the North Korean launch.

A major problem confronting President Obama and others who fear that North Korean and Iranian launches are merely a cover for the development of technologies useful for military ballistic missile programs is that, unlike in the nuclear field, where the nuclear nonproliferation treaty (NPT) seeks to control nuclear weapon technologies and activities within a framework of binding international law, there is no corresponding treaty vehicle concerning ballistic missiles. In 1991, the U.N. Security Council did impose restrictions on ballistic missile technology for Iraq in the aftermath of the Gulf War, but this was a case-specific action which, in defining its mandate, had to turn not to an existing body of binding international law-based definitions, but rather to a voluntary arrangement known as the Missile Technology Control Regime [MTCR], brought into being in 1987. Today the MTCR consists of 34 members, all of which have agreed to abide by a regime that controls the availability of missile-related technology to nonmember states. But the MTCR does not carry with it the force of law, and has become politicized over the years through the inconsistent application of its mandate to the point that it is viewed by many nonsignatory nations as sustaining the military advantage of the member nations.

While both North Korea and Iran have come under strong international criticism and sanctions for their respective nuclear and missile activities, it should be noted that neither nation has acted in a manner which violates international law. North Korea withdrew from the NPT prior to testing its nuclear weapon, and Iran’s nuclear enrichment program operates with full transparency and in keeping with its obligations under the NPT. As signatories to the 1966 Outer Space Treaty, both nations are legally permitted to pursue space launch activity, and the MTCR does not ban ballistic missile development, but rather merely prevents signatory nations from providing such technology to nonsignatory nations. But the lack of international outrage and demands for sanctions against nations such as Israel, Pakistan and India (all of which possess nuclear weapons programs operating outside the NPT, as well as military ballistic missile programs designed to deliver these nuclear weapons) undermines the legitimacy of the current attention on North Korea and Iran. 

On the day North Korea launched its “Unha” vehicle, President Obama delivered a speech in Prague, the Czech Republic, which was hastily redrafted to take the North Korean action into account. “North Korea broke the rules,” Obama said. “Rules must be binding. Violations must be punished. Words must mean something.” These bold statements were made at the same time the president was calling for a global abolition of nuclear weapons and a strengthened NPT as “a basis for cooperation,” one which would require “more resources and authority to strengthen international inspections” and deliver “real and immediate consequences for countries caught breaking the rules or trying to leave the treaty without cause.” The president outlined a valid (if vague) course of action concerning nuclear weapons, but having linked nuclear weapons with ballistic missile delivery vehicles, he remained conspicuously mute on how he envisioned containing and controlling that threat. 

Expansion of the MTCR is not a viable option, although in its most recent plenary session the MTCR underscored the importance of the regime working closely with the United Nations to follow through on measures put in place under Security Council Resolution 1540, passed in 2004 under Chapter VII of the U.N. Charter. Those measures require all states to “establish domestic controls to prevent the proliferation of such weapons and means of delivery, in particular for terrorist purposes, including by establishing appropriate controls over related materials, and adopt legislative measures in that respect.” The resolution specifically said that none of its obligations should be interpreted “so as to conflict with or alter the rights and obligations of State parties to the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention and the Biological and Toxin Weapons Convention or alter the responsibilities of the International Atomic Energy Agency (IAEA) or the Organization for the Prohibition of Chemical Weapons (OPCW).” This reflects the reality that there is established, binding international agreement on nuclear, chemical and biological weapons. There is no such agreement on ballistic missiles.

This is the missing link in Obama’s call for a nuclear-free world. It will be difficult enough to convince entrenched domestic special interests, both economic and political, that we would be safer without nuclear weapons. It will be impossible to sell such a program internationally unless it is coupled with a similar undertaking involving the very missiles and related technology the MTCR seeks to restrict. Such a restriction cannot be limited to those nations which do not currently possess such technology, but rather must be binding on all nations. While the world was focused on the launch of the North Korean missile, almost unmentioned was the testing of an SS-25 intercontinental missile by Russia on April 10. This missile, designed and equipped to deliver a single 500-kiloton nuclear warhead, flew 6,000 miles before hitting its designated target area (the warhead used was a dummy). And what about February’s test launch of a U.S. Navy D-5 ballistic missile from a Trident submarine? This missile flew some 4,000 miles and was equipped with multiple warheads. There was hardly any mention of the test of a U.S. Minuteman III missile in July 2006, made six days after the U.S. orchestrated Security Council condemnation of North Korea’s failed launch of a Taepodong-2 space launch vehicle. India, Pakistan and Israel have all conducted recent tests of their respective nuclear-capable ballistic missile arsenals. If the world is going to be serious about getting rid of nuclear weapons, then it must also address the issue of eliminating those delivery vehicles which provide the most viable vector for nuclear attack—ballistic missiles.

Combining the goals and intent of the MTCR with the 1966 Outer Space Treaty would be a good place to start. Banning ballistic missiles yet maintaining space launch capability are not mutually exclusive objectives. The technologies might be similar, but the employment methodologies are not. Military ballistic missiles are deployed in secrecy and rapidly prepared for launch. Space launch vehicles are operated in full transparency, on declared schedules with announced objectives. If the list of technologies currently controlled by the MTCR was expanded to include all technologies associated with missile launch activity, and access to such technologies made conditional on their use in declared, carefully monitored space launchings controlled by a binding international treaty, it would be possible to rid the world of the scourge of global nuclear attack by not only removing the nuclear weapons but also the most effective means of their delivery. Obama and others who criticize North Korea and Iran would do well to reflect on such a possibility the next time they embark on the ineffective and hypocritical path of assailing those who simply seek to acquire what we already have—whether it be nuclear weapons, nuclear technology, ballistic missiles or space launch capability.

Scott Ritter was a U.N. weapons inspector in Iraq from 1991 to 1998 and a U.S. Marine intelligence officer. He is author of “Target Iran” (Nation Books, 2006) and the forthcoming “On Dangerous Ground: Following the Path of America’s Failed Arms Control Policy,” also published by Nation Books. 

Where’s the Outrage Over Workers Getting the Shaft? March 31, 2009

Posted by rogerhollander in Labor.
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By Marie Cocco

www.truthdig.com, Posted on Mar 30, 2009

    No cable television rants. No congressional hearing staged to publicly whip those responsible for so transparent a betrayal. Not a pitchfork in sight.

    You would be hard-pressed to know that American workers suffered a cruel defeat last week when Pennsylvania Sen. Arlen Specter—the lone Republican to have once supported a measure that would make it easier for workers to form unions and more likely that employers would negotiate in good faith—effectively killed the effort for this year.

    A Specter vote for the proposed Employee Free Choice Act, organized labor’s top legislative goal, was needed to break the expected filibuster by his fellow Republicans.

    The immediate cause of his flip-flop was a primary challenge that Specter is expected to face from former Rep. Pat Toomey, a card-carrying member of the vast right-wing conglomerate. Toomey, who came within a breath of toppling Specter in the 2004 primary, is president of the Club for Growth, an organization of conservatives that has as its guiding principle a fealty to pretty much every economic precept that has gotten us where we are today.

    The club’s view of sound economics is to make permanent the Bush tax cuts, which drain $2.2 trillion from the treasury over a decade and which, according to the nonpartisan Tax Policy Center, bestow the largest benefits on the top one-tenth of 1 percent of households—those with incomes of $3 million or more. The club also wants to permanently repeal the estate tax. This year, the Tax Policy Center found, about two-thirds of this tax will be paid by about 700 estates. The inheritors of these estates represent 0.03 percent of all anticipated heirs in 2009.

    Indirectly but indisputably, Toomey and the ideological brain trust that has given us such skewed policies have also managed to kill the most significant chance American workers had to push back against decades of job losses, benefit cuts and stagnant wages.

    But neither Toomey nor Specter did this alone. Business made defeat of the pro-union measure its top priority. It argued, deceptively, that it was ardently in favor of workers maintaining the right to vote for or against unions in secret-ballot elections when, in truth, such elections under current law are called not by workers but by employers who refuse to accept initial results of card check-offs that favor unionization. 

    Nonetheless, the economic downturn swiftly shredded the cloak of rhetoric about democracy. Business reverted to arguing that allowing workers to bargain for decent wages and benefits is a cost they should not bear. Even Specter took up this cant, arguing against “adding a burden” to business at the wrong time.

    So here is the essence of it: Largely unencumbered by unions, which now represent only about 7 percent of private-sector workers, American businesses have shipped jobs overseas, unilaterally cut benefits, kept wages stagnant or falling for most of the decade and laid off millions. The doctrine of nonintervention in the marketplace that is now the central argument against the proposed Employee Free Choice Act is the very same dogma that led us into the current financial crisis and the worst recession in at least three decades.

    Workers who did nothing to create the current economic crisis must now be kept powerless lest they create some future economic crisis we cannot yet imagine.

    The public—Pennsylvanians among them—voted against this sort of illogic just four short months ago. The AFL-CIO spent $250 million in last year’s elections on behalf of Barack Obama and many other Democrats it believed would be sympathetic to labor. But Obama, who endorsed the free choice act as a candidate, began obscuring his position almost as soon as he took office. And though Specter’s about-face is the most visible backstabbing, a handful of Senate Democrats worried about their own re-elections also were uncertain in their support and almost hostile in their public statements. It is unclear whether the measure would have passed the Senate even if Specter had voted to break his party’s filibuster and allowed a vote.

    American workers do not need friends whose subservience to the politics of self-preservation makes them indistinguishable from enemies. Remember this the next time these same so-called leaders join the frenzy over an irresponsibly greedy corporate culture—and then act decisively to keep it in place.

    Marie Cocco’s e-mail address is mariecocco(at)washpost.com.

© 2009, Washington Post Writers Group

Jailing Kids for Cash February 17, 2009

Posted by rogerhollander in Criminal Justice.
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Posted on Feb 17, 2009, www.truthdig.com

By Amy Goodman

  As many as 5,000 children in Pennsylvania have been found guilty, and up to 2,000 of them jailed, by two corrupt judges who received kickbacks from the builders and owners of private prison facilities that benefited. The two judges pleaded guilty in a stunning case of greed and corruption that is still unfolding. Judges Mark A. Ciavarella Jr. and Michael T. Conahan received $2.6 million in kickbacks while imprisoning children who often had no access to a lawyer. The case offers an extraordinary glimpse into the shameful private prison industry that is flourishing in the United States.

  Take the story of Jamie Quinn. When she was 14 years old, she was imprisoned for almost a year. Jamie, now 18, described the incident that led to her incarceration:

  “I got into an argument with one of my friends. And all that happened was just a basic fight. She slapped me in the face, and I did the same thing back. There [were] no marks, no witnesses, nothing. It was just her word against my word.”

  Jamie was placed in one of the two controversial facilities, PA Child Care, then bounced around to several other locations. The 11-month imprisonment had a devastating impact on her. She told me: “People looked at me different when I came out, thought I was a bad person, because I was gone for so long. My family started splitting up … because I was away and got locked up. I’m still struggling in school, because the schooling system in facilities like these places [are] just horrible.”

  She began cutting herself, blaming medication that she was forced to take: “I was never depressed, I was never put on meds before. I went there, and they just started putting meds on me, and I didn’t even know what they were. They said if I didn’t take them, I wasn’t following my program.” She was hospitalized three times.

  Jamie Quinn is just one of thousands that these two corrupt judges locked up. The Philadelphia-based Juvenile Law Center got involved when Hillary Transue was sent away for three months for posting a Web site parodying the assistant principal at her school. Hillary clearly marked the Web page as a joke. The assistant principal didn’t find it funny, apparently, and Hillary faced the notoriously harsh Judge Ciavarella.

  As Bob Schwartz of the Juvenile Law Center told me: “Hillary had, unknown to her, signed a paper, her mother had signed a paper, giving up her right to a lawyer. That made the 90-second hearing that she had in front of Judge Ciavarella pretty much of a kangaroo court.” The JLC found that in half of the juvenile cases in Luzerne County, defendants had waived their right to an attorney. Judge Ciavarella repeatedly ignored recommendations for leniency from both prosecutors and probation officers. The Pennsylvania Supreme Court heard the JLC’s case, then the FBI began an investigation, which resulted in the two judges entering guilty-plea agreements last week for tax evasion and wire fraud.

  They are expected to serve seven years in federal prison. Two separate class-action lawsuits have been filed on behalf of the imprisoned children.

  This scandal involves just one county in the U.S., and one relatively small private prison company. According to The Sentencing Project, “the United States is the world’s leader in incarceration with 2.1 million people currently in the nation’s prisons or jails—a 500 percent increase over the past thirty years.” The Wall Street Journal reports that “[p]rison companies are preparing for a wave of new business as the economic downturn makes it increasingly difficult for federal and state government officials to build and operate their own jails.” For-profit prison companies like the Corrections Corporation of America and GEO Group (formerly Wackenhut) are positioned for increased profits. It is still not clear what impact the just-signed stimulus bill will have on the private prison industry (for example, the bill contains $800 million for prison construction, yet billions for school construction were cut out).

  Congress is considering legislation to improve juvenile justice policy, legislation the American Civil Liberties Union says is “built on the clear evidence that community-based programs can be far more successful at preventing youth crime than the discredited policies of excessive incarceration.”

  Our children need education and opportunity, not incarceration. Let the kids of Luzerne County imprisoned for profit by corrupt judges teach us a lesson. As young Jamie Quinn said of her 11-month imprisonment, “It just makes me really question other authority figures and people that we’re supposed to look up to and trust.”
  Denis Moynihan contributed research to this column.
  Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 700 stations in North America. She was awarded the 2008 Right Livelihood Award, dubbed the “Alternative Nobel” prize, and received the award in the Swedish Parliament in December.

  © 2009 Amy Goodman

  Distributed by King Features Syndicate

A Crisis of Conscience: Conscientious Objection, Law and Morality December 9, 2008

Posted by rogerhollander in Human Rights, Iraq and Afghanistan, Political Commentary.
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Based on moral convictions, soldiers can decide to be discharged as Conscientious Objectors. (Photo: www.usmilitary.com)


by: Camillo “Mac” Bica, Ph.D., t r u t h o u t | Perspective, 



   Upon the realization that their primary function is to wage war and kill other human beings, some soldiers [1], pursuant to the dictates of their consciences, refuse to fight and apply for discharge from military service as a Conscientious Objector. That is, following a religious and/or moral “awakening,” the soldier determines that war is either always morally wrong and a violation of conscience – General Conscientious Objection (GCO) – or, if not always wrong, it is wrong and a violation of conscience in the particular circumstance in which the soldier is required to fight and kill – Selective Conscientious Objection (SCO). Conscientious Objector (CO) status may be granted, however, only to soldiers who are able to demonstrate a “firm, fixed and sincere objection to participation in war in any form or the bearing of arms,” [2] based upon “religious training and belief,” to include strong moral and ethical convictions, that has “crystallized” since enlisting in the military. Consequently, Selective Conscientious Objectors are not eligible for CO status.

    This distinction between General and Selective Conscientious Objection and the military’s refusal to acknowledge the latter presents the soldier with a crisis of conscience regarding whether to follow orders and participate in what he determines to be an immoral and illegal war or to follow the dictates of his conscience, disobey orders, refuse to fight and face serious disciplinary action. Upon analysis, it is clear that the military’s position on CO status is morally and legally untenable – inconsistent with the demands both of morality and of law.

    Inalienable Human Rights and Conscientious Objection

    Religion and the rule of law teach us that life is sacred and inviolable That is, that human beings possess an inalienable right to life. Correlative to this right is the moral and legal obligation not to kill another human being, i.e., not to violate this right in others. This inalienable right to life is the basis of the Just War principle that requires innocents to be discriminated and afforded immunity, that they not be attacked, injured or killed in war. In the view of the GCO, this right and immunity can never be overridden or forfeited. Hence, war is never a moral option. For others, however, rights are not absolute, but prima facie. That is, under some conditions, rights and immunity can be forfeited, rendering the individual liable to be justifiably injured and/or killed in war. Hence, some wars, wars against aggression for example, may be morally justifiable and provoke no objection of conscience even should the use of deadly force be required. What soldiers with either perspective have in common is the conviction that should they be required to participate in an illegal and immoral war and to kill innocents, given the sanctity and inviolability of human life, they have a moral obligation to refuse to fight, an obligation to become a CO.

    The Legal Concern

    Military theorists, at least sincere and knowledgeable ones, realize that wars can be just or unjust. Further, they understand that, despite being subjected to rather sophisticated Pavlovian conditioning techniques during basic training intended to prepare soldiers for battle and to overcome what Gen. S.L.A. Marshall identified as an aversion to kill, soldiers must maintain an ability to make moral and legal judgments. That is, the military does not want robots, programmed automata that respond unquestioningly to superior orders. By law, soldiers are not required to obey all orders.

“The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” [3]

    In fact, at least since the United States Nuremberg Military Tribunals (NMT), soldiers are legally obligated to sometimes disobey superior orders. US chief prosecutor Robert K. Jackson at the NMT declared in 1948:

“[T]he very essence of the [Nuremberg] Charter is that individuals have intentional duties which transcend the national obligations of obedience imposed by the individual state.” [4]

    United States Uniform Code of Military Justice (UCMJ) 809.ART.90 (20) makes it clear as well that a soldier is required only to obey the “lawful command of his superior officer.” The obvious implication of this is that military personnel should, in fact they are required, under threat of legal sanction, to disobey an unlawful command or order. Clearly, then, under International and US Military Law, the individual soldier is empowered to make critical legal judgments, many times under very stressful and coercive conditions, regarding whether to obey or disobey an order.

    The Order to Fight in an Unjust War Is an Illegal Order

    To wage an unjust war is a crime of aggression. Aggressors, because they violate the rights and immunity of their victims, are acting illegally and immorally. They are Unjustifiable Combatants. Consequently, Unjustifiable Combatants suffer the sanction of forfeiture of their rights and immunity and become liable to be harmed and killed, all things being equal, in self and national defense. The victims of aggression, however, have done nothing to warrant forfeiture of their rights and immunity. They are innocent and maintain their right, their privilege, to war against the aggressor in self and national defense. They are Justifiable Combatants. In war, then, all combatants are not moral or legal equals.

    The order to participate in a war of aggression and to kill innocents (Justifiable Combatants or noncombatants) violates the sanctity and inviolability of human life and the tenets of international and United States military law. Consequently, the order to fight an unjust war is an immoral and illegal order and an affront to conscience. Because leaders may be incompetent or corrupt, and because human beings remain responsible for their actions despite becoming members of the military, soldiers must not unquestioningly obey orders and presume the war to be just. Rather, before participating in war, they are morally and legally required to make the important, though oftentimes difficult judgment regarding whether the “enemy” maintains or forfeits his immunity, i.e., whether the war is just or unjust. Further, should their determination be that it is unjust, not only can soldiers refuse an order to fight, they are legally and morally obligated to do so. That is, they are legally and morally required to become Selective Conscientious Objectors.

    A False Distinction

    Inalienable human rights are values we hold sacred in this nation. In granting CO status, the military is recognizing and accepting the validity of these values and indicating a respect for the religious belief and/or moral imperative of soldiers to act in accordance with the dictates of conscience pursuant to these rights, i.e., to refuse to kill innocent human beings. Theoretical ethical variations in the scope of application of this right, whether the soldier accepts rights and immunity as absolute – killing is always immoral (GCO) – or prima facie – killing is sometimes permissible (SCO) – while, perhaps, of interest to ethicists and philosophers, should have no relevance to determinations of CO status since in either case; morality and law demands that soldiers respect the rights and immunity of innocent human beings and refuse to kill.

    Consequently, there is no moral or legal basis for the military to distinguish between GCO and SCO, accepting the former and rejecting the later. This is particularly important in a society that, while not condemning all war, does recognize the very real possibility that some war may be immoral and unjust. Finally, the failure to recognize SCO is inconsistent with the accepted legal obligations of soldiers as established by the Nuremberg Principles and the Uniform Code of Military Justice to obey only legal orders.


    Whenever a soldier refuses to obey an order to fight in what he deems an immoral war by virtue of a decision of conscience, it is not only appropriate, but morally and legally required to “put the war on trial” as well. While it may be the case, that individual determinations regarding the morality and legality of a war may be mistaken, since national leaders make mistakes as well, the soldier’s decision of conscience must be taken seriously and given credence through a fair and legitimate hearing or trial that does not accept the war’s justness as given. Consequently, such proceedings must go well beyond the two questions that have typified courts marshals to date: “Were you given a command to fight in Iraq?” “Did you obey this command?” and must include a third and most important and relevant question, “Is the Iraq War just?”

    I have argued that the act of fighting in an unjust war is illegal and immoral. I caution the reader, however, to avoid repeating the mistakes of the past (a mistake, I fear, that is again gaining acceptance among a frustrated activist community) of moving from the illegality of the war to the criminality of the warriors. There is a profound moral and legal difference between condemning the act and blaming the actor. Determining moral and legal culpability is a complex process that goes well beyond a determination that the war is unjust. It must involve as well an evaluation of individual motivation, intention, whether the soldier has the information necessary to make such profound moral judgments, and, as stated in the Nuremberg Principles, whether “… a moral choice was in fact possible to him.” While we admire and praise those who are capable of making such judgments and possess the moral courage to act in accordance with the dictates of their consciences, given the severity of the legal and social sanctions the soldier must suffer, it is not at all certain whether refusing to fight under the threat of such sanctions is obligatory or supererogatory – “above and beyond” what we can morally require a person to do. What is even less warranted is to blame the warrior for the war as though his not refusing to fight is the cause and the reason the war continues. Rather, we must understand that ultimately the responsibility and blame is with those who manipulate, deceive and use war as a means of acquiring wealth or power. We must understand that in a democracy all citizens bear responsibility for the actions of their government, and that there is blood on all our hands. We must understand that rather than to condemn and vilify the soldiers, we must educate and help them comprehend the true moral and legal nature of war. Most importantly, we must strive to create an environment in which adolescents and young adults feel empowered to act upon their moral convictions and refuse to fight. Finally, we must ensure that refusers and deserters are supported and provided protection either through SCO laws, legal defense funds, or, more drastically, by providing sanctuaries from military apprehension and prosecution.



    [1] For purposes of convenience, I will use the generic term “soldier” to refer to all members of the military regardless of branch of service or gender.

    [2] DoD Directive 1300.6; AR 600-43 §2-10; MILPERSMAN §1900-020; MCO 1306.16 E; AFI 36-3204; Gillette v. United States, 401 US 437 [91 S.Ct. 828, 28 L.Ed.2d 168 (1971)].

    [3] Article Four, Nuremberg Principles.

[4] http://www.loyno.edu/~quigley/case_docs/motion_exp.pdf

    Camillo “Mac” Bica, Ph.D., is a professor of philosophy at the School of Visual Arts in New York City. He is a former United States Marine Corps Officer with service in Vietnam and a long-time activist for peace and justice.

Sweeping Blackwater Under the Rug December 9, 2008

Posted by rogerhollander in Iraq and Afghanistan.
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Posted on Dec 9, 2008


By Eugene Robinson

The federal manslaughter indictment of five Blackwater Worldwide security guards for the horrific massacre of more than a dozen Iraqi civilians in Baghdad may look like an exercise in accountability, but it’s probably the exact opposite—a whitewash that absolves the governmental and corporate officials who should bear ultimate responsibility.

If what Justice Department prosecutors allege is true, the five guards—Donald Ball, Dustin Heard, Evan Liberty, Nick Slatten and Paul Slough—should have to answer for what they did on Sept. 16, 2007. The men, working under Blackwater’s contract to protect State Department personnel in Iraq, are charged with spraying a busy intersection with machine-gun fire and grenades, killing at least 14 unarmed civilians and wounding 20 others. One man, prosecutors said Monday, was shot in the chest with his hands raised in submission.

The indictment, charging voluntary manslaughter and weapons violations, demonstrates that those who engage “in unprovoked attacks will be held accountable,” Assistant Attorney General Patrick Rowan claimed.

But it demonstrates nothing of the sort. As with the torture and humiliation of detainees at the Abu Ghraib prison, our government is deflecting all scrutiny from the corporate higher-ups who employed the guards—to say nothing of the policymakers whose decisions made the shootings possible, if not inevitable.

Prosecutors did not file charges against the North Carolina-based Blackwater firm—the biggest U.S. security contractor in Iraq—or any of the company’s executives. The whole tragic incident is being blamed on the guards who, prosecutors say, made Baghdad’s Nisoor Square a virtual free-fire zone.

The Blackwater guards were nervous because of a car bombing elsewhere in the city earlier that day. The company says the Blackwater convoy came under attack by insurgents, prompting the guards to fire in self-defense. “Tragically, people did die,” defense attorney Paul Cassell told reporters.

There is a huge difference between self-defense and the kind of indiscriminate fusillade that the Blackwater team allegedly unleashed. Proper training and supervision—which was the Blackwater firm’s responsibility—would have made it more likely for the guards to make the right split-second decisions amid the chaos of Nisoor Square. Rather than give Blackwater a free pass, the Justice Department ought to investigate the preparation these men were given before being sent onto Baghdad’s dangerous streets.

Blackwater no doubt has rules and regulations about when and where its people can discharge their weapons. But were those rules enforced? Did the guards who were indicted Monday have any reason to believe they would be punished for their rampage? Or were the shootings considered acceptable inside the Blackwater bunker? Company executives should have to answer these and other questions—under oath.

But a real attempt to establish blame for this massacre should go beyond Blackwater. It was the Bush administration that decided to police the occupation of Iraq largely with private rather than regular troops.

There are an estimated 30,000 security “contractors” in Iraq, many of them there to protect U.S. State Department personnel. The presence of these heavily armed private soldiers has become a sore point between the U.S. and Iraqi governments. Until now, the mercenaries—they object to that label, but it fits—have been immune from prosecution by the Iraqi courts for any alleged crimes. This will change on Jan. 1, when the new U.S.-Iraqi security pact places them under the jurisdiction of Iraqi law. Blackwater and other firms likely will have a harder time retaining and recruiting personnel, given the prospect of spending time in an Iraqi prison. Yet it is presumed that more private soldiers will be needed, rather than fewer, as the United States reduces troop levels.

Barack Obama has criticized the Bush administration’s decision to outsource so many essentially military tasks in Iraq and elsewhere. The officials who made that decision, however, are not being held accountable—not yet, at least. We deserve, at a minimum, a thorough investigation of what security contractors have done in the name of the United States.

Putting national security in the hands of private companies and private soldiers was bad practice from the start, and incidents such as what happened at Nisoor Square are the foreseeable result. The five Blackwater guards may have fired the weapons, but they were locked and loaded in Washington.

Eugene Robinson’s e-mail address is eugenerobinson(at)washpost.com.