Alberto Gonzales: Tip of the Iceberg

As Democratic and Republican leaders alike pile on to demand Alberto Gonzales' resignation, only George W. Bush is singing his praises. Deputy press secretary Dana Perino said Bush was happy with Gonzales' testimony. "The attorney general continues to have the president's full confidence," she said.

It's not surprising that Bush would be pleased. Like a good soldier, Gonzales, who claimed a faulty memory 70 times, was careful not to incriminate his bosses.

Bush and Cheney hired Gonzales as attorney general to carry out their plan to amass governmental power in the hands of the Executive. They knew they could count on him.

Gonzales' bona fides were well-known to his bosses. When he was counsel to Texas Governor George W. Bush from 1995 to 1997, Gonzales provided his boss with "scant summaries" on capital punishment cases that "repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence," according to the Atlantic Monthly.

Gonzales prepared 57 such summaries, including one regarding the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about his mental condition. Gonzales's three-page summary of the case for Bush mentioned only that Washington's defense counsel's 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush refused to stay executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

The attorney general was central to the Bush-Cheney-Yoo illegal domestic surveillance program. When he testified before the Senate Judiciary Committee after the New York Times uncovered the secret spying program, attorney general Gonzales walked in lockstep with his bosses. Gonzales would not tell the senators whether Bush had authorized other secret programs. He refused to say whether the government could wiretap purely domestic calls without a warrant, or whether he had the authority to search the first class mail of American citizens or to examine people's medical records. When Republican Senator John Cornyn asked him whether law enforcement could shoot down a plane with drugs, Gonzales said, "I'd have to think about that."

At Gonzales' confirmation hearing for attorney general, he said he wasn't sure whether torturing prisoners could be lawful. The former Texas Supreme Court justice surely knew the terms of the Convention Against Torture, a treaty ratified by the United States and therefore part of the supreme law of the land under the Supremacy Clause of the Constitution. The convention says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."

Yet, as White House counsel, Gonzales had advised Bush that the Geneva Conventions, which mandate humane treatment for all captives, were "quant" and "obsolete." Gonzales' advice facilitated the torture of prisoners in Afghanistan, Iraq, Guantánamo and secret CIA prisons around the world. Gonzales had evidently done his homework. The Nazi lawyers at Nuremberg also advised their clients that the Geneva Conventions were "quaint" and "obsolete."

Gonzales' confirmation testimony led the New York Times to opine, "Mr. Bush had made the wrong choice when he rewarded Mr. Gonzales for his loyalty," and the Washington Post to say, "The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world." The Post concluded, "Those senators who are able to reach clear conclusions about torture and whether the United States should engage in it have reason for grave reservations about Mr. Gonzales."

In 2005, Bush said, "Al Gonzales is a great friend of mine. I'm the kind of person, when a friend gets attacked, I don't like it." Eventually, however, Bush will have to unload Gonzales the way he unloaded his friend Donald Rumsfeld. Loyal Republican senators trying to paint Gonzales as incompetent don't want the finger to point higher to the real culprits - Karl Rove, George W. Bush and Dick Cheney.

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Donald Rumsfeld: The War Crimes Case

As the Democrats took control of the House of Representatives and were on the verge of taking over the Senate, George W. Bush announced that Donald Rumsfeld was out and Robert Gates was in as Secretary of Defense. When Bush is being run out of town, he knows how to get out in the front of the crowd and make it look like he's leading the parade. The Rumsfeld-Gates swap is a classic example.

The election was a referendum on the war. The dramatic results prove that the overwhelming majority of people in this country don't like the disaster Bush has created in Iraq. So rather than let the airwaves fill up with beaming Democrats and talk of the horrors of Iraq, Bush changed the subject and fired Rumsfeld. Now, when the Democrats begin to investigate what went wrong, Rumsfeld will no longer be the controversial public face of the war.

Rumsfeld had come under fire from many quarters, not the least of which was a gaggle of military officers who had been clamoring for his resignation. Bush said he decided to oust Rumsfeld before Tuesday's voting but lied to reporters so it wouldn't affect the election. Putting aside the incredulity of that claim, Bush likely waited to see if there would be a changing of the legislative guard before giving Rumsfeld his walking papers. If the GOP had retained control of Congress, Bush would probably have retained Rumsfeld. But in hindsight, Bush has to wish he had ejected Rumsfeld before the election to demonstrate a new direction in the Iraq war to angry voters.

Rumsfeld's sin was not in failing to develop a winning strategy for Iraq. There is no winning in Iraq, because we never belonged there in the first place. The war in Iraq is a war of aggression. It violates the United Nations Charter which only permits one country to invade another in self-defense or with the blessing of the Security Council.

Donald Rumsfeld was one of the primary architects of the Iraq war. On September 15, 2001, in a meeting at Camp David, Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of "good targets in Afghanistan." Former Treasury Secretary Paul O'Neill reported that Rumsfeld articulated his hope to "dissuade" other nations from "asymmetrical challenges" to U.S. power. Rumsfeld's support for a preemptive attack on Iraq "matched with plans for how the world's second largest oil reserve might be divided among the world's contractors made for an irresistible combination," Ron Suskind wrote after interviewing O'Neill.

Rumsfeld defensively sought to decouple oil access from regime change in Iraq when he appeared on CBS News on November 15, 2002. In a Hamlet moment, Rumsfeld proclaimed the United States' beef with Iraq has "nothing to do with oil, literally nothing to do with oil." The Secretary doth protest too much.

Prosecuting a war of aggression isn't Rumsfeld's only crime. He also participated in the highest levels of decision-making that allowed the extrajudicial execution of several people. Willful killing is a grave breach of the Geneva Conventions, which constitutes a war crime. In his book, Chain of Command: The Road from 9/11 to Abu Ghraib, Seymour Hersh described the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. It authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world. Rumsfeld expanded SAP into Iraq in August 2003.

But Rumsfeld's crimes don't end there. He sanctioned the use of torture and cruel, inhuman and degrading treatment, which are grave breaches of the Geneva Conventions, and thus constitute war crimes. Rumsfeld approved interrogation techniques that included the use of dogs, removal of clothing, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, and deprivation of light and auditory stimuli. According to Seymour Hersh, Rumsfeld sanctioned the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld also authorized waterboarding, where the interrogator induces the sensation of imminent death by drowning. Waterboarding is widely considered a form of torture.

Rumsfeld was intimately involved with the interrogation of a Saudi detainee, Mohamed al-Qahtani, at Guantánamo in late 2002. General Geoffrey Miller, who later transferred many of his harsh interrogation techniques to Abu Ghaib, supervised the interrogation and gave Rumsfeld weekly updates on his progress. During a six-week period, al-Qahtani was stripped naked, forced to wear women's underwear on his head, denied bathroom access, threatened with dogs, forced to perform tricks while tethered to a dog leash, and subjected to sleep deprivation. Al-Qahtani was kept in solitary confinement for 160 days. For 48 days out of 54, he was interrogated for 18 to 20 hours a day.

Even though Rumsfeld didn't personally carry out the torture and mistreatment of prisoners, he authorized it. Under the doctrine of command responsibility, a commander can be liable for war crimes committed by his inferiors if he knew or should have known they would be committed and did nothing to stop of prevent them. The U.S. War Crimes Act provides for prosecution of a person who commits war crimes and prescribes life imprisonment, or even the death penalty if the victim dies.

Although intending to signal a new direction in Iraq with his nomination of Gates to replace Rumsfeld, Bush has no intention of leaving Iraq. He is building huge permanent U.S. military bases there. Gates at the helm of the Defense Department, Bush said, "can help make the necessary adjustments in our approach." Bush hopes he can bring congressional Democrats on board by convincing them he will simply fight a smarter war.

But this war can never get smarter. Nearly 3,000 American soldiers and more than 650,000 Iraqi civilians have died and tens of thousands have been wounded. Our national debt has skyrocketed with the billions Bush has pumped into the war. Now that there is a new day in Congress, there must be a new push to end the war. That means a demand that Congress cut off its funds.

And the war criminals must be brought to justice - beginning with Donald Rumsfeld. On November 14, the Center for Constitutional Rights, the National Lawyers Guild, and other organizations will ask the German federal prosecutor to initiate a criminal investigation into the war crimes of Rumsfeld and other Bush administration officials. Although Bush has immunized his team from prosecution in the International Criminal Court, they could be tried in any country under the well-established principle of universal jurisdiction.

Donald Rumsfeld may be out of sight, but he will not be out of mind. The chickens have come home to roost.

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Bush Fears War Crimes Prosecution, Impeachment

With great fanfare, George W. Bush announced to a group of carefully selected 9/11 families yesterday that he had finally decided to send Khalid Sheikh Mohammed and 13 other alleged terrorists to Guantánamo Bay, where they will be tried in military commissions. After nearly 5 years of interrogating these men, why did Bush choose this moment to bring them to "justice"?

Bush said his administration had "largely completed our questioning of the men" and complained that "the Supreme Court's recent decision has impaired our ability to prosecute terrorists through military commissions and has put in question the future of the CIA program."

He was referring to Hamdan v. Rumsfeld, in which the high court recently held that Bush's military commissions did not comply with the law. Bush sought to try prisoners in commissions they could not attend with evidence they never see, including hearsay and evidence obtained by coercion.

The Court also determined that Common Article 3 of the Geneva Conventions applies to al Qaeda detainees. That provision of Geneva prohibits "outrages upon personal dignity" and "humiliating and degrading treatment."

Bush called on Congress to define these "vague and undefined" terms in Common Article 3 because "our military and intelligence personnel" involved in capture and interrogation "could now be at risk of prosecution under the War Crimes Act."

Congress enacted the War Crimes Act in 1996. That act defines violations of Geneva's Common Article 3 as war crimes. Those convicted face life imprisonment or even the death penalty if the victim dies.

The President is undoubtedly familiar with the doctrine of command responsibility, where commanders, all the way up the chain of command to the commander in chief, can be held liable for war crimes their inferiors commit if the commander knew or should have known they might be committed and did nothing to stop or prevent them.

Bush defensively denied that the United States engages in torture and foreswore authorizing it. But it has been well-documented that policies set at the highest levels of our government have resulted in the torture and cruel, inhuman and degrading treatment of U.S. prisoners in Iraq, Afghanistan and Guantánamo.

Indeed, Congress passed the Detainee Treatment Act in December, which codifies the prohibition in United States law against cruel, inhuman or degrading treatment or punishment of prisoners in U.S. custody. In his speech yesterday, Bush took credit for working with Senator John McCain to pass the DTA.

In fact, Bush fought the McCain "anti-torture" amendment tooth-and-nail, at times threatening to veto the entire appropriations bill to which it was appended. At one point, Bush sent Dick Cheney to convince McCain to exempt the CIA from the prohibition on cruel treatment, but McCain refused.

Bush signed the bill, but attached a "signing statement" where he reserved the right to violate the DTA if, as commander-in-chief, he thought it necessary.

Throughout his speech, Bush carefully denied his administration had violated any laws during its "tough" interrogations of prisoners. Yet, the very same day, the Pentagon released a new interrogation manual that prohibits techniques including "waterboarding," which amounts to torture.

Before the Supreme Court decided the Hamdan case, the Pentagon intended to remove any mention of Common Article 3 from its manual. The manual had been the subject of revision since the Abu Ghraib torture photographs came to light.

But in light of Hamdan, the Pentagon was forced to back down and acknowledge the dictates of Common Article 3.

Bush also seeks Congressional approval for his revised military commissions, which reportedly contain nearly all of the objectionable features of his original ones.

The President's speech was timed to coincide with the beginning of the traditional post-Labor Day period when Congress focuses on the November elections. The Democrats reportedly stand a good chance of taking back one or both houses of Congress. Bush fears impeachment if the Democrats achieve a majority in the House of Representatives.

By challenging Congress to focus on legislation about treatment of terrorists - which he called "urgent" - Bush seeks to divert the election discourse away from his disastrous war on Iraq.

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The Death Penalty Is Not Pro-Life

In 1960, California Governor Edmund G. "Pat" Brown agonized about whether to grant clemency to death row inmate Caryl Chessman. Brown's refusal to commute Chessman's sentence haunted him for the rest of his life. He reversed 23 death judgments in the last 7 years of his term. Ronald Reagan, who defeated Brown in the 1966 gubernatorial election, used the death penalty as a weapon to unseat the incumbent governor.

Twenty years later, Rose Bird, one of the greatest chief justices ever to serve on the California Supreme Court, lost her confirmation election largely because of the way she voted in death penalty cases. In all 64 capital cases that came before her during her tenure, Bird voted to overturn every one. Her court as a whole reversed 61. Some of Bird's supporters advised her to affirm just one death verdict in order to win confirmation. Bird refused. She said, "It is easy to be popular. It is not easy to be just."

Republican Governor George Deukmejian and President Ronald Reagan both campaigned against Bird. "The defeat of Rose Bird was significant because it created a new danger in [California], the danger of politicizing a judicial branch that had not previously been subject to political pressures," Court of Appeals Justice J. Anthony Kline observed. Reagan's opposition to judges who "save the lives of killers" helped him in his bid for the presidency.

The fate of Stanley Tookie Williams now rests in the hands of California Governor Arnold Schwarzenegger. The governor is damned if he does and damned if he doesn't spare Williams's life. On the one hand, Schwarzenegger is under pressure from right-wing Republicans to refuse clemency. But there's also high-profile pressure on him in California to grant clemency and prove his campaign claims that he really is a moderate.

When Schwarzenegger denied clemency to Donald Beardslee, the governor was the subject of a mighty backlash in his native Austria, which has outlawed the death penalty. And he must deal with his conscience, much like Pat Brown did in 1960. Schwarzenegger said the Beardslee decision was "the hardest day" of his life.

If ever there was a condemned man who deserved clemency, Williams is the one. A co-founder of the Crips gang, Williams has undergone a remarkable transformation in the 24 years he has been in prison. The author of several children's books that decry gang violence (65,000 have been sold to schools and libraries), Williams has been nominated for the Nobel Peace Prize.

In 1993, Williams videotaped a message from death row supporting a truce between the Crips and the Bloods. He said, "Working together, we can put an end to this cycle that creates deep pain in the hearts of our mothers, our fathers, and our people, who have lost loved ones to this senseless violence." The videotape was shown during a peace summit meeting attended by over 400 gang members. If Schwarzenegger refuses Williams's plea, what message will it send to our children?

By granting clemency to Williams, Schwarzenegger would affirm the ideal of rehabilitation he claims to favor. A governor's pardon of Williams would signal that people can be redeemed, that mercy, not just retribution, is a worthy goal. "I have a despicable background," Williams said. "I was a criminal. I was co-founder of the Crips. I was a nihilist. But people forget that redemption is tailor-made for the wretched."

But even if Schwarzenegger pardons Stanley Tookie Williams, we must ask ourselves if we want to continue to engage in the state-sponsored killing of our people. "The reason to oppose capital punishment," the Los Angeles Times wrote in a recent editorial, "has to do with who we are, not who death row inmates are. The death penalty is inappropriate in all situations because it is unbefitting of a civilized society. Williams' case, though poignant, is irrelevant to this argument."

As it deliberates the nomination of Judge Samuel Alito, the Senate must also deal with what it means to be "pro-life." Alito, who claims to be pro-life when it comes to abortion, is pro-death when it comes to the death penalty.

During his tenure on the Court of Appeals, Alito has shown little solicitude for death row inmates bringing habeas corpus petitions, particularly claims based on ineffective assistance of counsel and racial discrimination in jury selection. His positions in these cases run contrary to recent Supreme Court decisions emphasizing the importance of both race-neutral jury selection and constitutionally adequate counsel.

In 2001, Alito voted to affirm the death judgment of an African-American man convicted by an all-white jury in Delaware. The prosecutor had struck all prospective African-American jurors from the jury pool. That same prosecutor had struck every prospective African-American juror in 3 other capital murder trials in the same county during the prior year. When Alito refused to infer racial discrimination from that pattern, he said, flippantly, "Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections ... But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?"

A majority of the full court accused Alito of "minimiz[ing] the history of discrimination against prospective black jurors and black defendants."

Stanley Tookie Williams, an African-American, was also convicted and sentenced to death by a jury cleansed of all prospective African-American jurors by the prosecutor, based on the testimony of paid police informants. Williams maintains his innocence.

If confirmed as a Supreme Court justice, Alito would have a powerful influence over whether many of our citizens live or die. In the past 5 years, the Court decided only 3 cases concerning abortion, but over 3 dozen involving the death penalty.

Capital cases are complex and often laden with error. A recent study at Columbia University found that 67 percent of death penalty cases had been reversed for serious constitutional error. Recurring features in these cases include prosecutorial or police misconduct; the use of unreliable witness testimony, physical evidence, or confessions; and inadequate defense representation. There is a growing number of cases where DNA or other evidence has proved conclusively that death row inmates are factually innocent. In some cases, that evidence has surfaced too late - after innocent people have already been executed.

The United States is the only industrialized Western democracy that still executes its citizens. In 2004, 97 percent of all known executions took place in China, Iran, Vietnam and the United States. Several major international human rights treaties eschew the death penalty. None of the 3 international criminal tribunals - the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda - permit the death penalty as a sentencing option for the most heinous of crimes over which they have jurisdiction.

Scientific studies have consistently failed to find convincing evidence that that the death penalty deters crime more effectively than other punishments, according to Amnesty International.

"The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality," US Supreme Court Justice Arthur L. Goldberg wrote in a 1976 article in the Boston Globe. We must not be a society that rewards the meanest judges and elected officials. Let us choose and affirm life, not death.

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Torture of Prisoners in U.S. Custody

Major General Geoffrey Miller, the American commander in charge of detentions and interrogations at Abu Ghraib prison in Iraq, recently conducted an overnight tour of the facility for journalists.

He proudly displayed "Camp Liberty" and "Camp Redemption," newly renovated in response to the torture scandal unleashed by the release of the disgusting photographs last spring.

Under the new system in place at Abu Ghraib, an interrogation plan is submitted to a lawyer for approval before any interrogation begins. The time required to process prisoners has been reduced from 120 to 50 days. Since July, 60% of the reviews have lead to releases.

Three hundred Iraqi prisoners were released on one day in September. Each walked away with $25 and a 12-page glossy pamphlet on Iraq's interim government.

General Miller, the tour guide, oversaw interrogations at the United States prison at Guantánamo Bay, Cuba. He had been sent to Abu Ghraib last fall to transfer his interrogation system from Cuba to Iraq. It was on his watch that the worst mistreatment, depicted in the publicized photos, occurred.

Several official reports were written with more disturbing revelations. The International Committee of the Red Cross documented 70 - 90 % of those held at Abu Ghraib were there by mistake.

The reaction of the Bush administration to the revelations of torture was to prosecute seven low ranking soldiers.

In spite of calls for investigation of Secretary of Defense Donald Rumsfeld and President George W. Bush for complicity in the mistreatment, the prison torture scandal has been on the back burner in the national discourse.

The September release of Seymour Hersh's book Chain of Command: The Road from 9/11 to Abu Ghraib, however, has put the issue back on the radar screen.

Rumsfeld testified before the Senate Armed Services Committee that his department was alerted to the abuse of prisoners at Abu Ghraib in January 2004. Rumsfeld told Bush in February about an "issue" involving mistreatment of prisoners in Iraq, according to a Senior White House aide.

These claims are disingenuous. The roots of Abu Ghraib, writes Hersh, lie in the creation of the "unacknowledged" special-access program (SAP) established by a top-secret order signed by Bush in late 2001 or early 2002. The presidential order authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world.

Rumsfeld expanded SAP into Iraq in August 2003. It was Rumsfeld who approved the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld and Bush set this system in motion long before January 2004. The mistreatment of prisoners at Abu Ghraib was part of the ongoing operation.

Hersch quotes a CIA analyst who was sent to the U.S. military prison at Guantánamo in late summer of 2002, to find out why so little useful intelligence had been gathered. After interviewing 30 prisoners, "he came back convinced that we were committing war crimes in Guantánamo."

By fall 2002, the analyst's report finally reached General John A. Gordon, the deputy national security adviser for combating terrorism, who reported directly to national security adviser Condoleezza Rice. Gordon was deeply distressed by the report and its implications for the treatment of captured American soldiers. He also thought "that if the actions at Guantánamo ever became public, it'd be damaging to the president."

Gordon passed the report to Rice, who called a high-level meeting in the White House situation room. Rumsfeld, who had been encouraging his soldiers to get tough with prisoners, was present at the meeting. Yet Rice asked Rumsfeld "what the issues were, and he said he hadn't looked into it." Rice urged him to look into it: "Let's get the story right," she declared.

A military consultant with close ties to Special Operations told Hersh that war crimes were committed in Iraq and no action was taken. "People were beaten to death," he said. "What do you call it when people are tortured and going to die and the soldiers know it, but do not treat their injuries?" the consultant asked rhetorically. "Execution," he replied to his own question.

We should have seen it coming. In Bush's January 2003 State of the Union Address, he said: "All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate." He added, "Let's put it this way. They are no longer a problem for the United States and our friends and allies."

Bush was admitting he had sanctioned summary execution, in direct violation of international, and United States, law.

The Bush administration has also admittedly engaged in the illegal practice of rendition, where people are sent to other countries to be tortured. The C.I.A. acknowledged in testimony before Congress that prior to 2001, it had engaged in about seventy "extraordinary renditions."

In December 2001, for example, American operatives kidnapped two Egyptians and flew them to Cairo, where they were subjected to repeated torture by electrical shocks from electrodes attached to their private parts.

Rape, sodomy with foreign objects, the use of unmuzzled dogs to bite and severely injure prisoners, and beating prisoners to death have been documented at Abu Ghraib. Women beg their families to smuggle poison into the prisons so they could kill themselves because of the humiliation they suffered.

Allegations of routine torture have emerged from Mosul and Basra as well. "Some were burnt with fire, others [had] bandaged broken arms," claimed Yasir Rubaii Saeed al-Qutaji. Haitham Saeed al-Mallah reported seeing "a young man of 14 years of age bleeding from his anus and lying on the floor." Al-Mallah heard the soldiers say that "the reason for this bleeding was inserting a metal object in his anus."

The army has charged one Sergeant with assault and other crimes, and is recommending that two dozen other American soldiers face criminal charges, including negligent homicide for mistreatment of prisoners in Afghanistan.

In September, three Americans running a private prison, but reportedly working with the CIA, were convicted of kidnapping and torture and sentenced to 8-10 years in prison by an Afghan court. Afghan police had reportedly found three men hanging from the ceiling, and five others were found beaten and tied in a dark small room.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty ratified by the U.S. and thus part of its binding domestic law, defines torture as follows: the infliction of severe pain or suffering for the purpose of obtaining a confession, discrimination, coercion or intimidation.

Torture, inhuman treatment, and willful killing are grave breaches of the Geneva Conventions, treaties ratified by the United States. Grave breaches of Geneva are considered war crimes under the U.S. War Crimes Act of 1996. American nationals who commit war crimes abroad can receive life in prison, or even the death penalty if the victim dies.

Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to prevent or stop them.

When John Walker Lindh was captured in Afghanistan in December 2001, his American interrogators stripped and gagged him, strapped him to a board, and displayed him to the press. He was writhing in pain from a bullet left in his body. A Navy admiral told the intelligence officer interrogating Lindh that "the secretary of defense's counsel has authorized him to 'take the gloves off' and ask whatever he wanted."

Although initially charged with crimes of terrorism carrying life in prison, Attorney General John Ashcroft permitted Lindh to plead guilty to lesser crimes that garnered him 20 years. The condition: Lindh make a statement that he suffered "no deliberate mistreatment" while in custody. The cover-up was underway.

Lawyers from the Defense Department and Justice Department penned lengthy memos and created a definition of torture much narrower than the one in the Torture Convention. They advised Bush how his people could engage in torture and avoid prosecution under the U.S. Torture Statute.

More than 300 lawyers, retired judges, and law professors (including this writer), a former FBI director, an ex-Attorney General, and seven past presidents of the American Bar Association, signed a statement denouncing the memos, which, we wrote, "ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law." The statement condemns the most senior lawyers in the Department of Justice, Department of Defense, White House, and Vice President Dick Cheney's office, who "have sought to justify actions that violate the most basic rights of all human beings."

Even the conservative American Bar Association (ABA) criticized what it called "a widespread pattern of abusive detention methods." Those abuses, according to the ABA, "feed terrorism by painting the United States as an arrogant nation above the law."

Relying on advice in these memos, Bush issued an unprecedented order that, as commander-in-chief, he has the authority to suspend the Geneva Conventions. In spite of Geneva's requirement that a competent tribunal decide whether someone qualifies for prisoner of war (POW) status, Bush took it upon himself to decide that Al Qaeda and Taliban prisoners in Afghanistan were not protected by the Geneva Convention on the POWs.

This decision was premised on the reasoning of White House Counsel Alberto Gonzalez [Bush's current nominee for Attorney General, ed.], that "the war against terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

A still-secret section of the recently-released U.S. Army's Fay Report says that "policies and practices developed and approved for use on Al Qaeda and Taliban detainees who were not afforded the protection of the Geneva Conventions, now applied to detainees who did fall under the Geneva Conventions' protections."

And Bush didn't take into account that even prisoners who don't are not POWs must still be treated humanely under the Geneva Convention on the Treatment of Civilians In Time of War.

The Schlesinger Report that came out within a day of the Fay Report accused the Pentagon's top civilian and military leadership of failing to exercise sufficient oversight and permitting conditions that led to the abuses. Rumsfeld's reversals of interrogation policy, according to the report, created confusion about which techniques could be used on prisoners in Iraq.

Rumsfeld has admitted ordering an Iraqi prisoner be hidden from the International Committee of the Red Cross. Pentagon investigators believe the CIA has held as many as 100 "ghost" detainees in Iraq. Hiding prisoners from the Red Cross violates Geneva.

The Schlesinger Report confirmed 5 detainee deaths as a result of interrogation, and 23 more deaths are currently under investigation.

The torture of prisoners in U.S. custody did not begin in Iraq, Afghanistan and Guantánamo. "I do not view the sexual abuse, torture and humiliation of Iraqi prisoners by American soldiers as an isolated event," says Terry Kupers, a psychiatrist who testifies about human rights abuses in U.S. prisons. "The plight of prisoners in the USA is strikingly similar to the plight of the Iraqis who were abused by American GIs. Prisoners are maced, raped, beaten, starved, left naked in freezing cold cells and otherwise abused in too many American prisons, as substantiated by findings in many courts that prisoners' constitutional rights to remain free of cruel and unusual punishment are being violated."

Torture techniques used in Iraq, Afghanistan, and Guantánamo are all too familiar in prisons in the U.S. as well. Hooded, robed figures with electrical wiring attached to them have been seen at the city jail in Sacramento, California. Prisoners in Maricopa County jails in Phoenix, Arizona have been forced to wear women's underwear. And guards in the Utah prison system have piled naked bodies in grotesque and uncomfortable positions.

The connection between mistreatment of prisoners here and abroad is even more direct than that. For example, John Armstrong ran Connecticut's Dept. of Corrections from 1995-2003, before being sent to Iraq as a prison adviser in September 2003. On his Connecticut watch, two mentally ill prisoners died while being restrained by guards. Two more inmates died in custody after guards mistreated them. And Armstrong made a remark once that equated the death penalty with euthanasia.

Speaking of the death penalty, the use of the gas chamber was challenged in California as cruel and unusual punishment, before the execution of Robert Alton Harris about 10 years ago. As a result California adopted the use of the lethal injection because it was more "humane" method of killing a person. Lawyers in Kentucky are now challenging the three-chemical cocktail used for lethal injections in many states as cruel and unusual. It took one man in Kentucky 12 minutes to die from the humane lethal injection.

In May 2000, the U.N. Committee Against Torture considered the United States' initial report on implementation of the Convention Against Torture. It expressed concern at torture and ill-treatment by prison guards - much of it racially motivated--and the sexual abuse of female prisoners by male guards. Human Rights Watch reports that sexual misconduct is rarely investigated, much less punished, and that punishments tend to be light.

Eight prison guards were acquitted of charges they subjected prisoners to cruel and unusual punishment by arranging gladiator-style fights among inmates, and setting up the rape of an inmate by a notoriously violent inmate known as the "Booty Bandit" at Corcoran State Prison in California.

Although Bush signed the Prison Rape Elimination Act of 2003, the law provides for no enforcement mechanism or cause of action for rape victims.

But prison guards have been convicted of organizing assaults on inmates in a federal prison in Florence, Colorado, and at Pelican Bay State Prison in California. The Department of Justice concluded that conditions at prisons in Newport, Arkansas are unconstitutional. And New Jersey prison guards reportedly brutalized over 600 prisoners.

A U.S. District Court Judge in California threatened to place the prisons into receivership if the Department of Corrections (DOC) didn't overhaul its internal disciplinary system. In response, the DOC has undertaken an independent Bureau of Review to ensure violations do not occur in the future.

In the wake of the September 11 attacks, more than 1200 Arab, Muslim, and South Asian men were rounded up in one of the most extensive incidents of racial profiling in the U.S. since the Japanese were interned during World War II. A December 2003 report by the Department of Justice's Office of the Inspector General investigated allegations of physical and verbal abuse of non-citizen prisoners by the Federal Bureau of Prisons' (BOP) Metropolitan Detention Center (MDC) in Brooklyn, NY.

BOP policy prohibits staff members from using brutality, physical violence, intimidation toward inmates, or any force beyond that which is reasonably necessary to subdue an inmate.

The report concluded that several MDC staff members slammed and bounced detainees into the walls, twisted or bent their arms, hands, wrists, or fingers, pulled their thumbs back, tripped them, and dragged them on the floor. It also found violations of BOP policy by verbal abuse as well.

In Estelle v. Gamble, the U.S. Supreme Court applied the Eighth Amendment's ban on cruel and unusual punishment to conditions of confinement that are incompatible with the evolving standards of decency that mark the progress of a maturing society.

The United Nations' Economic and Social Council promulgated the Standard Minimum Rules for the Treatment of Prisoners. The Supreme Court in Estelle specified that these rules should be included in the measurement of "evolving standards of decency."

The rules provide that corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman, or degrading punishments shall be completely prohibited as punishments for disciplinary actions.

Fyodor Dostoevsky once said, "The degree of civilization in a society can be judged by entering its prisons."

In May, when the Abu Ghraib scandal was on the front pages, there were demands for Rumsfeld to resign. But Cheney told Rumsfeld there would be no resignations. It was blatantly political. We're going to hunker down and tough it out, Cheney said, so as not to hurt Bush's chances for election in November.

In spite of George W. Bush's renunciation of the International Criminal Court, many people around the world are clamoring for Bush and his deputies to be held accountable for the widespread torture of prisoners in Iraq, Afghanistan, Guantánamo, and the CIA's secret prisons elsewhere. In the words of Yale law professor Bruce Ackerman: "It is one thing to protect the armed forces from politicized justice; quite another, to make it a haven for suspected war criminals."

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U.S. Finally Outlaws Execution of Children

Today, the Court repudiated the misguided idea that the United States can pledge to leave no child behind while simultaneously exiling children to the death chamber.
Dr. William F. Schulz, Executive Director, Amnesty International

Until March 1, 2005, the United States was the only nation in the world that permitted the execution of children under age 18. Only seven countries besides the U.S. have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then, each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. With the Supreme Court's monumental ruling in Roper v. Simmons, the United States has finally joined the community of nations that says the state-sanctioned execution of children is wrong.

Christopher Simmons was a 17-year-old junior in high school when he and a friend burglarized Shirley Crook's home. When Simmons realized Mrs. Crook had recognized him, he and his friend tied her up, and threw her off a bridge to her death. Simmons, who had never even been arrested before, was described by clinical psychologists who evaluated him as "very immature," "very impulsive," and "very susceptible to being manipulated or influenced." Nevertheless, a Missouri jury sentenced Simmons to death.

The Supreme Court concluded in a 5-4 decision that executing children who were not yet 18 at the time of their crimes constitutes cruel and unusual punishment. "By protecting even those convicted of heinous crimes," Justice Anthony Kennedy wrote for the majority, "the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons."

In determining which punishments are so disproportionate as to be cruel and unusual, the Court considers "the evolving standards of decency that mark the progress of a maturing society," a test set forth in the 1958 case of Trop v. Dulles.

The Court had prohibited the execution of 15-year-old offenders in Thompson v. Oklahoma in 1988, but the following year, it upheld the execution of 16- and 17-year-olds in Stanford v. Kentucky. The same day it decided Stanford, the Court also refused to mandate a categorical exemption from the death penalty for the mentally retarded in Penry v. Lynaugh.

Three years ago, the Court overruled Penry, and held in Atkins v. Virginia that the standards of decency that had evolved in the intervening 13 years demonstrated the execution of the mentally retarded is cruel and unusual punishment. In so ruling, the Court found a national consensus against capital punishment for the mentally retarded because by 2002, 30 States prohibited it. The Atkins Court also resolved that the impairments of the retarded make it less defensible to impose the death penalty as retribution for past crimes, and less likely that the death penalty will have a real deterrent effect.

Kennedy used the same reasoning in Simmons to find a national consensus against the execution of juveniles under 18. Thirty states now prohibit the juvenile death penalty. That number includes the 12 states that have rejected the death penalty altogether, and 18 that maintain it but expressly exclude juveniles from its reach. The consistent trend, wrote Kennedy, has been toward abolition of the juvenile death penalty.

The International Covenant on Civil and Political Rights (ICCPR) is a treaty ratified by the United States and part of our domestic law under the Supremacy Clause of the Constitution. When the Senate ratified the ICCPR in 1992, it did so subject to a reservation to Article 6(5) of that treaty, which prohibits capital punishment for juveniles.

When Congress enacted the Federal Death Penalty Act in 1994, however, it determined that the death penalty should not extend to juveniles. Kennedy cited that law, as well as the infrequency of the use of capital punishment for juveniles, as further evidence that a national consensus has developed against the juvenile death penalty, notwithstanding the reservation to the ICCPR two years earlier.

Kennedy also took notice of scientific and sociological studies that confirm three general differences between juveniles under 18 and adults, demonstrating that juvenile offenders cannot with reliability be classified among the worst offenders, deserving of the death penalty.

First, youths display a "lack of maturity and an underdeveloped sense of responsibility" that "often result in impetuous and ill-considered actions and decisions." For that reason, wrote Kennedy, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.

Second, juveniles are more vulnerable or susceptible to negative influences and peer pressure, and, "lack the freedom that adults have to extricate themselves from a criminogenic setting."

Third, the character of a juvenile is not as well-formed as that of an adult.

"From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed," wrote Kennedy.

Thus, the Court held: "When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity."

One of the most notable aspects of its decision in Simmons is the Court's reference to the law of nations. "Our determination that the death penalty is disproportionate punishment for offenders under 18," Kennedy wrote, "finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

The Court cited the United Nations Convention on the Rights of the Child, which every country in the world except the United States and Somalia has ratified. Article 37 contains an express prohibition on capital punishment for crimes committed by juveniles under 18. What Kennedy failed to mention, however, is that the United States has signed that treaty. Under the Vienna Convention on the Law of Treaties, a country that signs a treaty is forbidden from taking action inconsistent with the object and purpose of the treaty.

Justice Antonin Scalia wrote a dissenting opinion joined by the Chief Justice and Justice Clarence Thomas. Scalia, who fashions himself an "originalist," interprets the Constitution the way he thinks it would have been interpreted in 1791, when the Bill of Rights was adopted.

When Scalia spoke at Thomas Jefferson School of Law a few years ago, he chided the "evolutionists" on the Court, who would likely agree with Justice Thurgood Marshall's words: "I do not believe that the meaning of the Constitution was forever fixed at the Philadelphia convention. The true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making."

In his Simmons dissent, Scalia, still stuck in 1791, characteristically mocked the well-settled doctrine that the ban on cruel and unusual punishment should be analyzed in light of "the evolving standards of decency that reflect a maturing society." Yet, Scalia noted: "At the time the Eighth Amendment was adopted, the death penalty could theoretically be imposed for the crime of a 7-year-old."

Scalia disagreed with the majority's analysis of a "national consensus" against the execution of 16- and 17-year-olds because he omitted the 12 States that have outlawed the death penalty altogether from the total number of States that have shunned the juvenile death penalty. Instead of a total of 30 States found by the majority, Scalia counted only 18, less than 50% of the 50 States.

The majority's reference to international law drew perhaps the strongest rebuke from Scalia, who has never hidden his contempt for the law of nations. "Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage," he wrote. Indeed, in a D.C. Circuit Court of Appeals decision Scalia authored as a judge on that court in 1985, he scornfully referred to "the law of nations - the so-called 'customary international law.'" Scalia disregards well-settled case law and the Restatement of the Foreign Relations Law of the United States, which both recognize customary international law as part of our federal law.

Scalia eschews international contempt for the execution of juveniles in the United States. He also overlooks the refusal of European countries, all of which have abolished the death penalty, to turn over prisoners suspected of terrorism to the United States for fear they will be executed. And, Scalia apparently ignores the disgust felt throughout the world for the torture committed by U.S. forces in Iraq, Afghanistan and Guantánamo Bay.

As a result of Roper v. Simmons, the lives of 72 people who had not attained age 18 when they committed their crimes will be saved. Forty percent of them were sentenced to death in Bush's home state. A study in Texas found that the current capital punishment system is an outgrowth of the "legacy of slavery."

The Supreme Court fortuitously issued its landmark juvenile death penalty decision on the National Day for the Abolition of the Death Penalty, which falls each year on March 1. By outlawing the death penalty for the mentally retarded, and now for juveniles under 18, the Court may be taking small steps toward the eventual abolition of capital punishment.

With ever-increasing numbers of death row inmates being exonerated, public sentiment favoring the death penalty is waning. The Marquis de Lafayette said nearly 200 years ago, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me."

We can hope that one day soon, the United States, which remains the only Western democracy that still sanctions capital punishment, will abolish it. As Supreme Court Justice Arthur J. Goldberg wrote in 1976: "The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality."

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Dear Mr. Gonzales

Dear Mr. Gonzales,

You have been rewarded for your unflinching loyalty to George W. Bush with a nomination for Attorney General of the United States. As White House Counsel, you have walked in lockstep with the President. As Attorney General, you will be charged with representing all the people of the United States. Your performance before the Senate Judiciary Committee on Thursday verified that you will continue to be a yes-man for Bush once you are confirmed.

In the face of interrogation by members of the Committee, you waffled, equivocated, lied, feigned lack of memory, and even remained silent, in the face of the most probing questions. Your refusals to answer prompted Senator Patrick Leahy to say, "Mr. Gonzales, I'd almost think that you'd served in the Senate, you've learned how to filibuster so well."

Even though the Department of Justice retracted the August 2002 torture memo, and replaced it with a new one on the eve of your confirmation hearing, you still refuse to denounce the old memo's narrow and illegal definition of torture. You permitted that definition to remain as government policy for 2 1/2 years, which enabled the torture of countless prisoners in U.S. custody.

You continually evaded inquiries about your responsibility for drafting the now-repudiated memo by portraying yourself as a mere conduit for legal opinions from the Justice Department's Office of Legal Counsel. This puzzled Senator Russ Feingold, who said, "If you were my lawyer, I'd sure want to know your opinion about something like that."

Republican Senator Lindsey Graham told you, "I think we've dramatically undermined the war effort by getting on the slippery slope in terms of playing cute with the law, because it's come back to bite us." Indeed, 12 retired professional military leaders of the U.S. Armed Forces wrote to the Judiciary Committee, expressing "deep concern" about your nomination because detention and interrogation operations which you appeared to have "played a significant role in shaping" have "undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world."

When Senator Graham, an Air Force judge advocate, asked you if you agreed with a professional military lawyer's opinion that the August memo may have put our troops in jeopardy, you were tongue tied. You said nothing for several embarrassing seconds, until Senator Graham suggested you think it over and respond later.

When Senator Richard Durbin asked "Do you believe there are circumstances where other legal restrictions, like the War Crimes Act, would not apply to U.S. personnel?" you again sat mute for several seconds, and then asked to respond later.

It is alarming, Mr. Gonzales, that a lawyer with your pedigree would be stumped into silence by these questions.

You have taken the unprecedented step of advising the President that the Geneva Conventions have become "obsolete." You testified that since "we are fighting a new type of enemy and a new type of war," you "think it is appropriate to revisit whether or not Geneva should be revisited." You admitted preliminary discussions are already underway.

The 12 former military leaders wrote, "Repeatedly in our past, the United States has confronted foes that, at the time they emerged, posed threats of a scope or nature unlike any we had previously faced. But we have been far more steadfast in the past in keeping faith with our national commitment to the rule of law."

Mr. Gonzales, you have concurred in, even commissioned, advice that led to the following:

Sodomy with a broomstick, chemical light, metal object
Severe beatings

Water boarding (simulated drowning)

Electric shock

Attaching electrodes to private parts

Forced masturbation

Pulling out fingernails

Pushing lit cigarettes into ears

Chaining hand and foot in fetal position without food or water

Forced standing on one leg in the sun

Feigned suffocation

Gagging with duct tape

Tormenting with loud music and strobe lights

Sleep deprivation

Hooding

Subjecting to freezing/sweltering temperatures

"Dietary manipulation"

Repeated, prolonged rectal exams

Hanging by arms from hooks

Permitting serious dog bites

Bending back fingers

Intense isolation for more than 3 months

Grabbing genitals

Severe burning

Stacking of naked prisoners in pyramids

Injecting with drugs

Leaving bullet in body of wounded prisoner

Taping naked prisoner to board

Shooting into containers with men inside

Keeping prisoners in small, outdoor cages

Pepper spraying in face

Forcing heads into toilets and flushing

Threatening live burial, drowning, electrocution, rape and death

Beating prisoners to death

Killing wounded prisoners

Throwing off bridge into river and drowning

Rape

Murder

Saddam Hussein would be proud of you, Mr. Gonzales.

Perhaps most alarming was your response to Senator Durbin's question, "Can U.S. personnel legally engage in torture under any circumstances?" You answered, "I don't believe so, but I'd want to get back to you on that." You failed to give a categorical "no" answer. You surely know, Mr. Gonzales, that the Convention Against Torture prohibits torture at any time. That treaty, ratified by the United States and therefore part of the Supreme law of the land under the Supremacy Clause of the Constitution, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."

Mr. Gonzales, based on your record and your performance before the Senate Judiciary Committee, I have critical concerns about your appointment as Attorney General. I believe you would stand mute if George W. Bush told you he planned to collapse the three branches of government into one, destroying the Constitutional separation of powers. Even though Article I, Section 8 of the Constitution gives only Congress the authority "to make Rules concerning Captures on Land and Water," you refused to tell the Senate Judiciary Committee that the President is not above the law. You think the President has the power to declare an act of Congress unconstitutional. You would rationalize the torture of prisoners.

Where even the strident John Ashcroft thought prisoners in United States custody are entitled to due process, you designed the military tribunals to deny it to them.

As counsel to Texas Governor George W. Bush, you wrote abbreviated clemency memos in capital cases omitting crucial defenses such as ineffective assistance of counsel, even evidence of factual innocence. Your counsel led Bush to deny pardons in 56 of 57 death penalty cases.

You sat before the Senate Judiciary Committee and the American people for seven hours with a smug grin on your face, lying to us, knowing you will be confirmed.

Your testimony led the New York Times to opine, "Mr. Bush had made the wrong choice when he rewarded Mr. Gonzales for his loyalty," and the conservative Washington Post to say, "The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world." The Post concluded, "Those senators who are able to reach clear conclusions about torture and whether the United States should engage in it have reason for grave reservations about Mr. Gonzales."

You will have the distinction of being the first Latino Attorney General of the United States. You come from humble roots in Humble, Texas. You should understand the struggles of people of color, yet you have turned your back on them. As overseer of the policies that led to the torture of myriad people of color in Iraq, Afghanistan and Guantánamo Bay, you have betrayed your roots.

Your actions have shamed us in the eyes of the world and endangered our fighting men and women.

You do not deserve to be our country's top prosecutor, head of the Department of Justice, charged with protecting our civil rights.

Mr. Gonzales, you should be ashamed.

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Lethal Law: America Must Follow International Lead, Abolish Death Penalty

"The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality," U.S. Supreme Court Justice Arthur J. Goldberg wrote in a 1976 article in the Boston Globe. Echoed by all Western democracies except the United States, Goldberg's words aptly describe the tragedy promised if Mumia Abu-Jamal is executed.

For 17 years, Jamal, a journalist and political activist, has been on death row in Pennsylvania for the murder of a police officer. Judge Albert Sabo, who presided over Jamal's trial, has presided over more trials resulting in death judgments than any other U.S. judge.

Sabo rejected all of Jamal's new evidence introduced at his 1995-96 post-conviction review hearings in state court. This new evidence included witnesses who wanted to recant their testimony implicating Jamal, who testified about police coercion of false testimony, who knew about police suppression of exonerating evidence, and who saw another man shoot the officer.

Unfortunately for Jamal, federal review of his incomplete state record is now threatened. Under the Antiterrorism and Effective Death Penalty Act of 1996, federal judges must give a presumption of correctness to state court factual findings in criminal cases.

U.S. District Court Judge William H. Yohn will decide whether to limit Jamal's federal habeas review to Sabo's state court record or whether to re-open the federal court record. The record as it stands would virtually ensure execution. Six former Philadelphia prosecutors have sworn in court documents that no accused could receive a fair trial in Sabo's court.

International treaties and customary norms have consistently condemned capital punishment. One of Jamal's 29 claims in his federal habeas corpus petition is that his death sentence is unconstitutional under evolving standards of international law.

The International Covenant on Civil and Political Rights, a major international treaty, provides, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

In the Second Optional Protocol to this covenant, the U.N. General Assembly stated, "No one within the jurisdiction of a State Party to the present protocol shall be executed." It further mandates that, "Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction."

Capital punishment is not one of the penal options available to the International Criminal Court. It likewise is not available to the International Criminal Tribunal for the Former Yugoslavia, established to prosecute serious violations of international humanitarian law in the former territory of Yugoslavia.

Significantly, in Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, the European Convention stated, "The death penalty shall be abolished. No one shall be condemned to such penalty or executed."

According to last week's report of the Organization of Security and Cooperation in Europe, capital punishment is becoming obsolete among its 54 active members, although a handful, including the United States, continues to use the death penalty.

Amnesty International reported that four of the countries that executed people in 1998 – the United States, China, Iran and Saudi Arabia – accounted for 85 percent of all executions.

The U.N. Human Rights Committee found the United States to be noncompliant with its obligations under the International Covenant on Civil and Political Rights, a treaty ratified by the United States, because of its excessive number of offenses subject to the death penalty and the number of death sentences imposed.

The United States has no uniform law on the death penalty: Each state is free to choose whether or not to execute its residents. The Inter-American Commission on Human Rights found that this discrepancy violates the American Declaration of the Rights and Duties of Man, which the United States signed.

In 1997, the U.N. Special Rapporteur reported to the U.N. Commission on Human Rights that "race, ethnic origin, and economic status appear to be the key determinants of who will, and who will not, receive a death sentence" in the United States. The commission responded by calling for an immediate moratorium on capital punishment.

Also in 1997, the American Bar Association, concerned about incompetency of counsel in death penalty cases and racial bias toward either the victim or the defendant, called for a moratorium on the death penalty.

Since 1976, 75 people in the United States have been released from death row as a result of DNA and other exonerating evidence. Several others, however, have been mistakenly executed. And, two months ago, Illinois Gov. George Ryan, dismayed that his state had proven innocent nearly as many death row inmates as it had executed, announced a moratorium on executions.

A recent study in Texas, which leads all other states in the number of people executed, showed that the current capital punishment system is an outgrowth of the racist "legacy of slavery."

The Marquis de Lafayette, speaking to the French Chamber of Deputies in 1830, years after witnessing the excesses of the French Revolution, said, "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me."

The United States must fall in line with the prevailing principles of international law and the community of civilized nations by abolishing the death penalty. As Justice William Brennan wrote in his dissent in Stanford v. Kentucky, 492 U.S. 361 (1989), "the choices of governments elsewhere in the world also merit our attention as indicators whether a punishment is acceptable in a civilized society."

Treaties ratified by the United States become the law of the land under the Constitution. In honoring these treaties, norms of international law must also be followed regarding international displeasure with the death penalty. Even Justices Ruth Bader Ginsburg, Stephen Breyer and Sandra Day O'Connor have considered international law in their rulings.

For instance, in a case last October that challenged the lengthy delays in execution as cruel and unusual punishment, Justice Breyer looked to Jamaica, Zimbabwe and international treaties in arguing, albeit unsuccessfully, that the Court should give "decent respect to the views of mankind."

Like virtually all other civilized countries, the United States must take the high road and abolish the death penalty. We must choose and affirm life, not death.

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