Arizona Legalizes Racial Profiling

The conservative “states’ rights” mantra sweeping our country has led to one of the most egregious wrongs in recent U.S. history. New legislation in Arizona requires law enforcement officers to stop everyone whom they have “reasonable suspicion” to believe is an undocumented immigrant and arrest them if they fail to produce their papers. What constitutes “reasonable suspicion”? When asked what an undocumented person looks like, Arizona Governor Jan Brewer, who signed SB 1070 into law last week, said, “I don’t know what an undocumented person looks like.” The bill does not prohibit police from relying on race or ethnicity in deciding who to stop. It is unlikely that officers will detain Irish or German immigrants to check their documents. This law unconstitutionally criminalizes “walking while brown” in Arizona.

Former Arizona attorney general Grant Woods explained to Brewer that SB 1070 would vest too much discretion in the state police and lead to racial profiling and expensive legal fees for the state. But the governor evidently succumbed to racist pressure as she faces a reelection campaign. Woods said, “[Brewer] really felt that the majority of Arizonans fall on the side of, ‘Let’s solve the problem and not worry about the Constitution.’” The polls Brewer apparently relied on, however, employed questionable methodology and were conducted before heavy media coverage of the controversial legislation. No Democrats and all but one Republican Arizona legislator voted for SB 1070.

Undocumented immigrants in Arizona now face six months in jail and a $500 fine for the first offense – misdemeanor trespass – and an additional $1,000 fine for the second offense, which becomes a felony. By establishing a separate state crime for anyone who violates federal immigration law, the new Arizona law contravenes the Supremacy Clause of the Constitution, which grants the federal government exclusive power to regulate U.S. borders.

SB 1070 creates a cause of action for any person to sue a city, town or county if he or she feels the police are not stopping enough undocumented immigrants. Even if a municipality is innocent, it will still be forced to rack up exorbitant legal fees to defend itself against frivolous lawsuits.

The bill also makes it a misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver impedes the normal flow of traffic, albeit briefly. How many New York taxi drivers impede the flow of traffic when they pick up fares? The law also criminalizes the solicitation of work by an undocumented immigrant in a public place, who gestures or nods to a would-be employer passing by. This part of the legislation is also unconstitutional as courts have held that the solicitation of work is protected speech under the First Amendment.

The new law effectively compels Arizona police to make immigration enforcement their top priority. Indeed several law enforcement groups oppose SB 1070. The Law Enforcement Engagement Initiative, an organization of police officials who favor federal immigration reform, condemned the law, saying it would probably result in racial profiling and threaten public safety because undocumented people would hesitate to come forward and report crimes or cooperate with police for fear of being deported. The Arizona Association of Chiefs of Police also criticized the legislation, saying it will “negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner;” the group believes the immigration issue is best addressed at the federal level.

Many civil rights and faith-based organizations also oppose SB 1070. The Mexican American Legal Defense & Educational Fund (MALDEF) called the law “tantamount to a declaration of secession.” The National Coalition of Latino Clergy and Christian Leaders Legal Defense Fund - which represents 30,000 evangelical churches nationwide - as well as MALDEF, the National Day Laborer Organizing Network (NDLON), and the American Civil Liberties Union (ACLU), are preparing federal lawsuits challenging the constitutionality of SB 1070.

Cardinal Roger M. Mahony of Los Angeles called the ability of officials to demand documents akin to “Nazism.” Former Arizona Senate majority leader Alfredo Gutierrez said, “This is the most oppressive piece of legislation since the Japanese internment camp act” during World War II. Representative Raul M. Grijalva (Dem.-AZ) called for a convention boycott of Arizona. The American Immigration Lawyers Association (AILA) complied. AILA is moving its fall 2010 conference, scheduled for Arizona, to another state.

Even though SB 1070 will not take effect for at least 90 days, undocumented immigrants in Arizona are terrorized by the new law. A man in Mesa, Arizona looked around nervously as he stood on a street corner waiting for work. “We shop in their stores, we clean their yards, but they want us out and the police will be on us,” Eric Ramirez told the New York Times.

Ironically, expelling unauthorized immigrants from Arizona would be costly. The Perryman Group calculated that Arizona would lose $26.4 billion in economic activity, $11.7 billion in gross state product, and approximately 140,324 jobs if all undocumented people were removed from the state.

“This bill does nothing to address human smuggling, the drug cartels, the arms smuggling,” according to Democratic Senator Rebecca Rios. “And, yes, I believe it will create somewhat of a police state,” she added. “Police in Arizona already treat migrants worse than animals,” said Francisco Loureiro, an immigration activist who runs a shelter in Nogales, Mexico. “There is already a hunt for migrants, and now it will be open season under the cover of a law.”

SB 1070 is the latest, albeit one of the worst, racist attacks on undocumented immigrants. The federal program called 287(g) allows certain state and local law enforcement agencies to engage in federal immigration enforcement activities. But a report released earlier this month by the Department of Homeland Security Office of Inspector General found a lack of oversight and training without adequate safeguards against racial profiling.

We can expect SB 1070 to be replicated around the country as the ugly wave of immigrant-bashing continues. Lawmakers from four other states have sought advice from Michael Hethmon, general counsel for the Immigration Reform Law Institute, who helped draft the Arizona law.

“SB 1070 is tearing our state into two,” said Phoenix Mayor Phil Gordon, who called the bill “bitter, small-minded and full of hate.” He thinks “it humiliates us in the eyes of America and threatens our economic recovery.” More than 50,000 people signed petitions opposing SB 1070 and 2,500 students from high schools across Phoenix walked out of school and marched to the state Capitol to protest the bill before it passed. On Sunday, about 3,500 people gathered at the Capitol, chanting, “Yes we can,” “We have rights,” and “We are human.”

President Obama criticized SB 1070 as “misguided,” saying it will “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” He called on Congress to enact federal immigration reform.

But Isabel Garcia, co-chair of the Coalition of Human Rights in Tucson, told Democracy Now! that there have been more deportations under the Obama administration than in any other administration. “This administration continues to follow the flawed concept that migration is somehow a law enforcement or national security issue,” she noted. “And it is not. It is an economic, social, political phenomenon.” She mentioned that NAFTA has displaced millions of workers in Mexico who flood into the United States.

Instead of expressing gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that targets non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a “states rights” approach where each state is free to enact its own racist law.

Let us join the voices of compassion and oppose the mean-spirited actions that aim to scapegoat immigrants. Laws like SB 1070 demean us all.

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Keeping Same-Sex Marriage in the Dark

On Wednesday, a conservative majority of the Supreme Court overturned a ruling made by a federal trial judge that would have allowed limited television coverage of a trial that will decide the fate of California’s Proposition 8. The trial, which is currently proceeding in San Francisco, is one of the most significant civil rights cases of our time. The plaintiffs are seeking to overturn a ballot initiative that makes same-sex marriage illegal in California.

It was unusual that the Supreme Court even decided to hear this case. The high court takes very few cases. It generally decides issues about which the state or federal courts are in conflict or cases that raise important questions of federal law. Yet relying on the Supreme Court’s “supervisory power” over the lower courts, the five conservative justices – Roberts, Scalia, Thomas, Alito and Kennedy – joined in an unsigned 17-page decision and chided Chief Judge Vaughn Walker for seeking to broadcast the trial without a sufficient notice period for public comment.

Justice Breyer wrote in the dissent joined by Justices Stevens, Ginsburg and Sotomayor that he could find no other case in which the Supreme Court had intervened in the procedural aspects of local judicial administration. Indeed, Breyer cited a case in which Scalia wrote, “I do not see the basis for any direct authority to supervise lower courts.”

Moreover, in the comment period that Walker did allow, he received 138,574 comments, and all but 32 favored transmitting the proceedings.

The majority concluded that the same-sex marriage opponents would suffer “irreparable harm” if the trial were broadcast to five other federal courts around the country. But all the witnesses who allegedly might be intimidated by the camera were experts or Prop 8 advocates who had already appeared on television or the Internet during the campaign.

No one presented empirical data to establish that the mere presence of cameras would negatively impact the judicial process, Breyer wrote. He cited a book that I authored with veteran broadcast journalist David Dow, “Cameras in the Courtroom: Television and the Pursuit of Justice.” It describes studies that found no harm from the camera, and one which found that witnesses “who faced an obvious camera, provided answers that were more correct, lengthier and more detailed.”

The five justices who denied camera coverage noted at the outset that they would not express “any view on whether [federal] trials should be broadcast.” Toward the end of their decision, however, they stated that since the trial judge intended to broadcast witness testimony, “[t]his case is therefore not a good one for a pilot program.”

In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?

Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”

The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.

In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.

There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.

This piece first apeared on Jurist.

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Legendary Lawyer Doris Brin Walker Dies; Represented Angela Davis, Smith Act Defendants

Doris “Dobby” Brin Walker, the first woman president of the National Lawyers Guild, died on August 13 at the age of 90. Doris was a brilliant lawyer and a tenacious defender of human rights. The only woman in her University of California Berkeley law school class, Doris defied the odds throughout her life, achieving significant victories for labor, and political activists.

Doris’ legal and political activism spanned several decades and some of the most turbulent but significant periods in US history. She organized workers, fought against Jim Crow and McCarthyism, was active in the civil rights and anti-Vietnam War movements, and actively opposed the current wars in Iraq and Afghanistan.

At UCLA, Doris became a Marxist. After she was sworn in as a member of the California State Bar, Doris joined the Communist Party USA, remaining a member until her death. Upon graduation from law school, Doris began practicing labor law; but a few years later, she went to work in California canneries as a labor organizer. When Cutter Labs fired Doris in 1956, the case was appealed all the way to the Supreme Court. Although the Court refused to hear the case, Justice Douglas, joined in dissent by Chief Justice Warren and Justice Black, wrote, “The blunt truth is that Doris Walker is not discharged for misconduct but either because of her legitimate labor union activities or because of her political ideology or belief. Belief cannot be penalized consistently with the First Amendment . . . The Court today allows belief, not conduct, to be regulated. We sanction a flagrant violation of the First Amendment when we allow California, acting through her highest court, to sustain Mrs. Walker's discharge because of her belief.”

Doris returned to the practice of law and represented people charged under the Alien Registration Act of 1940 (the Smith Act) in California. The Act required all resident aliens to register with the government, enacted procedures to facilitate deportation, and made it a crime for any person to knowingly or willfully advocate the overthrow of the government by force or violence. The work of Doris and other NLG lawyers led to Yates v. United States, in which the Supreme Court overturned the convictions of Smith Act defendants in 1957. After Yates, the government never filed another prosecution under the Smith Act.

During the McCarthy era, Doris was called to testify before the House Un-American Activities Committee and she also represented several HUAC witnesses. From 1956 to 1961, Doris successfully defended William and Sylvia Powell, who faced the death penalty, against Korean War sedition charges. The US government charged that articles Powell had written reporting and criticizing US biological weapons use in Korea were false and written with intent to hinder the war effort. When a mistrial ended the sedition case, the government charged the Powells with treason. Attorney General Robert Kennedy dismissed the case in 1961.

A partner with the NLG firm of Treuhaft & Walker in Oakland, California from 1961 to 1977, Doris’ practice focused on civil rights, free speech and draft cases during the Vietnam War. She also defended death penalty cases. Perhaps best known for her defense of Angela Davis, Doris was part of a legal team that secured Angela’s acquittal on charges of murder, kidnapping and conspiracy. In that case, which Harvard Professor Charles Ogletree in 2005 called “clearly the trial of the 20th century, and one that exemplified the vast and diverse talents of the true Dream Team of the legal profession,” the defense pioneered the use of jury consultants.

Doris was elected president of the NLG in 1970 after a bruising battle during which one opponent labeled her “a man in a woman’s skirt.” She paved the way for the election of six women NLG presidents in the ensuing years.

Serving as Vice President of the International Association of Democratic Lawyers from 1970 to 1978, Doris supported the struggles of victims of U.S. imperialism throughout the world and was instrumental in the development of international human rights law. In 1996, Doris served as one of eight international observers at the South African Truth and Reconciliation Commission hearings led by Desmond Tutu.

In 2004, Doris submitted a resolution on behalf of the NLG Bay Area Chapter to the Conference of Delegates of the California Bar Association asking for an investigation of representations the Bush administration used to justify the war in Iraq, for possible impeachment.

Noted writer Jessica Mitford and Doris were close friends for years; Jessica was married to Robert Truehaft, Doris’ law partner. When Doris invited Jessica to join the Communist Party, the latter replied, “We thought you’d never ask!” There is speculation that author J.K. Rowling, who cited Jessica as her main literary influence, named her Harry Potter house elf “Dobby” after seeing Dobby Walker’s name in Jessica’s books. On a recent visit to her home, Doris showed me the Dobby references in works by Jessica on her bookshelf.

Doris frequently called me with her concerns and opinions about the issues of the day and in the NLG. She remained intensely engaged in politics until the day she died.

Doris “Dobby” Walker inspired generations of progressive lawyers, law students and legal workers to struggle unrelentingly for justice and equality. She was a friend, comrade and role model to scores of people in and out of the NLG. We will never see the likes of her again.

Doris is survived by her daughter Emily Roberson and her granddaughter Iris Feldman. The family requests that contributions in Doris' name be sent to the National Lawyers Guild, 132 Nassau St., Room 922, New York, NY 10038.

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Obama: Ratify the Women’s Convention Soon

Nearly 30 years after President Jimmy Carter signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the United States remains the only democracy that refuses to ratify the most significant treaty guaranteeing gender equality. One hundred eighty-five countries, including over 90 percent of members of the United Nations, have ratified CEDAW.

U.S. opposition to ratification has been informed not simply by an objective analysis of how CEDAW’s provisions might conflict with U.S. constitutional law. Rather, it reflects the ideological agenda and considerable clout of the religious right and the corporate establishment. Issues of gender equality raise some of the most profound divisions between liberals and conservatives. The right-wing agenda was born again in the Bush administration, which issued numerous directives limiting equality between the sexes. Bush targeted funding for family planning and packed the courts and his administration with anti-choice ideologues.

The parade of horribles trumpeted by ratification opponents includes predictions that it would force the United States to pass an Equal Rights Amendment (ERA). Opposition to the ERA in the 1980s was also grounded in religious fundamentalism. There are fears that ratification may lead to the legalization of same-sex marriage, the abolition of single-sex schools, and create a nation of androgynous children.

Much of the hysteria directed at ratification is based upon false assumptions. One opponent warned: “A messy divorce case shouldn’t end up in the World Court.” This is a reference to the International Court of Justice, which does not even have jurisdiction over marital dissolution cases. An editorial in Hanover, Pennsylvania’s The Evening Sun predicted CEDAW backers will use the International Criminal Court as an enforcement tool. But, the International Criminal Court only has jurisdiction over war crimes, genocide and crimes against humanity.

Cecilia Royals of the National Institute of Womanhood said, “This treaty represents a battering ram against free and democratic societies, and particularly against women with traditional values.” The Weekly Standard charged the treaty “mandates complete sex equality in the military, the overthrow of market wages and implementation of ‘comparable-worth’ pay scales, rigid gender quotas, abortion on demand, and federally mandated child care.” Many opposed to ratification seek to protect the large corporations – the backbone of U.S. capitalism – from having to enact equality provisions that would imperil the bottom line.

Although President Carter signed CEDAW in 1980, the treaty has never been sent to the full U.S. Senate for its advice and consent to ratification. When the president signs a treaty, we are forbidden from taking action inconsistent with the object and purpose of the treaty. But we don’t become a party, with all the treaty obligations, until the president ratifies the treaty with the advice and consent of the Senate.

After Ronald Reagan became president and the Republicans gained control of the Senate, CEDAW languished in the Senate Foreign Relations Committee. Neither Reagan nor President George H.W. Bush sought ratification. Reagan made his contempt for CEDAW perfectly clear when he said that once adopted, the treaty would lead to “sex and sexual differences treated as casually and amorally as dogs and other beasts treat them.”

In 1994, at the behest of the Clinton administration, the Senate Foreign Relations Committee held hearings and recommended full Senate approval of CEDAW. Yet Committee chairman Jesse Helms continued to hold CEDAW hostage by keeping it from a vote in the Senate. In response to a last-minute campaign against ratification fueled by radio talk shows, a “hold” was placed on the treaty, preventing the full Senate from voting on it.

Five years later, 10 female members of the House of Representatives, including Nancy Pelosi, delivered to a hearing of the Senate Foreign Relations Committee (the Committee) a letter supporting ratification, signed by 100 members of Congress. Jesse Helms scolded them with, “Now you please be a lady,” before ordering uniformed officers to “[e]scort them out.”

When the Committee recommended ratification in 1994, it attached proposed reservations, understandings, and declarations (RUDS) to its recommendation, which purported to qualify the terms of ratification. These qualifications, however, would effectively eviscerate the promise of equality enshrined in the treaty. For example, ratification opponents insist that the First Amendment, particularly freedom of religion, trumps a woman’s right to privacy. CEDAW prohibits discrimination by private as well as public entities. States have defined issues of family planning, childcare, marriage, and domestic violence as “private.”

CEDAW, in effect, mandates that states parties take affirmative action to ensure equality for women in the areas of employment, education, health care and family planning, economic, political, cultural, social, and legal relations. CEDAW specifies that temporary measures taken to achieve equality will not constitute discrimination. The U.S. reservation makes clear that notwithstanding the prescriptions of CEDAW to eliminate gender discrimination by any “person, organization or enterprise,” ratification would not mean that the United States would have to ensure that private entities regulate private conduct.

Jesse Helms added an understanding to ratification stating that CEDAW does not create a right to abortion, and that abortion should not be used as a method of family planning. This understanding is unnecessary because CEDAW does not even mention abortion. Opposition to reproductive rights has been a hot button issue for the right-wing evangelicals.

Other reservations specify that the United States undertakes no obligation to enact statutes requiring comparable worth or paid maternity leave. Full-time, year-round, wage-earning American women now earn an average of 75 cents for every dollar earned by men in similar jobs. Women in the United States only enjoy the right to short, unpaid maternity leave, and they can be fired for being late due to pregnancy or maternity-related illness. Women in Canada, Europe and Cuba enjoy greater wage equality and paid maternity rights than women in the United States.

The recommended RUDs purport to ensure that ratification of CEDAW would not require that the United States adopt greater protections than those afforded under the U.S. Constitution. Yet U.S. equal protection jurisprudence falls short of safeguards women would have under CEDAW. Classifications based on race require strict scrutiny and mandate that the government demonstrate a compelling government interest to support them. But classifications based on gender require only intermediate or skeptical scrutiny. Instead of a compelling government interest, there need only be a substantial relationship between the interest and the classification. The Secretary of State even indicated in a 1994 letter to the Senate Foreign Relations Committee that the United States would continue to follow the [lesser] intermediate scrutiny standard after ratification, notwithstanding the treaty’s defining principle prohibiting gender discrimination.

Moreover, CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose” of impairing or nullifying women’s human rights and fundamental freedoms. Yet, U.S. constitutional jurisprudence requires that there be proof of both a discriminatory impact and a discriminatory purpose in order to establish an equal protection violation.

It has been U.S. policy to eschew limitations on speech that reinforce the inferiority of women. Indeed, significant inequality between the sexes persists in the United States in employment and education, and in the economic, political, cultural, and criminal system. Women in the United States do not enjoy guarantees of social welfare rights such as food, clothing, housing, health care and decent working conditions. The refusal to enshrine these rights in U.S. law is the reason our government has also failed to ratify the International Covenant on Economic Social and Cultural Rights (ICESCR). See Obama Spells New Hope for Human Rights.

CEDAW, like the three human rights treaties the United States has ratified – the International Convention on the Elimination of All Forms of Racial Discrimination, the Torture Convention, and the International Covenant on Civil and Political Rights - contains a declaration that the treaty is non-self-executing,which means that it requires implementing legislation to make it effective. Scholars including Professor Louis Henkin maintain that the Senate’s general practice of appending non-self-executing declarations to ratification violates the Supremacy Clause, which mandates that treaties shall be the supreme law of the land. The opposition to ratification stems not only from the belief that the United States should not ratify any treaty with provisions inconsistent with U.S. constitutional jurisprudence; it also demonstrates a refusal to require our government to change or enact laws that comport with the obligations we would undertake by ratifying a treaty.

Finally, there is a declaration that the United States will only submit on a case-by-case basis to the jurisdiction of the International Court of Justice to resolve disputes about the interpretation of CEDAW. According to the Vienna Convention on the Law of Treaties, RUDs which are incompatible with the object and purpose of a treaty are void. The RUDs proposed by the Senate committee are not only incompatible with the mandate of equality in CEDAW, they shun the primary object of the treaty: non-discrimination against women. Professor Cherif Bassiouni has said: “The Senate’s practice of de facto rewriting treaties, through reservations, declarations, understandings, and provisos, leaves the international credibility of the United States shaken and its reliability as a treaty-negotiating partner with foreign countries in doubt.”

Yet, in spite of the RUDs, CEDAW continues to languish in Committee. Early in 2002, President George W. Bush called CEDAW “generally desirable” and said it “should be approved.” Yet once the right-wing pressure geared up, Bush backed down. Five months later and shortly before the Senate Foreign Relations Committee voted 12-7 to approve the treaty, Secretary of State Colin Powell reported that the treaty was “complex” and “vague.” Attorney General John Ashcroft, no champion of women’s rights, was charged with “reviewing” CEDAW. Bush never sent CEDAW to the Senate for advice and consent to ratification.

More than 120 organizations, including AARP, the League of Women Voters, Amnesty International, and the World Federalist Association, support ratification. The city of San Francisco voted in 1998 to adopt the treaty, and its provisions are in force there. City departments have incorporated the treaty into hiring practices as well as budgets for juvenile rehabilitation programs and public transportation.

President-elect Barack Obama has said he supports ratification of CEDAW as well as the Equal Rights Amendment. He has promised increased enforcement by his Office of Civil Rights to ensure effective protection from sex discrimination. President-elect Obama should not hesitate to send CEDAW to the Senate for advice and consent to ratification, without the proposed RUDs that would eviscerate its protections.

It took nearly 150 years for women to gain the right to vote in this country. There is no principled reason our government should resist full equality for women. The United States must climb on board and ratify the Convention on the Elimination of All Forms of Discrimination Against Women.

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NLG Calls on President-elect Obama to Close Guantanamo, Opposes Establishment of National Security Courts

After September 11, 2001, George W. Bush established the Guantánamo Bay prison to enable the United States to imprison non-Americans indefinitely outside the reach and protection of both U.S. and international law. The military commissions and their trial procedures, created under the Military Commissions Act of 2006, have been universally condemned by jurists, scholars and human rights specialists as violating minimum fair trial standards and of being a sham intended to secure convictions.

The National Lawyers Guild (NLG) calls on President-elect Barack Obama to, on the first day of his presidency, issue a presidential order closing Guantánamo Bay prison and ending military commissions.

The NLG also urges President-elect Obama to thereafter, ensure that Guantánamo Bay prisoners are released, repatriated, resettled, or brought to trial (if there is probable cause to believe they have committed a crime) in strict accordance with international human rights and humanitarian law, and the principles of fundamental justice pertaining to criminal proceedings including, but not limited to, the Four Geneva Conventions of 1949, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. The United States has ratified all of these treaties which makes their provisions binding U.S. law under the Supremacy Clause of the Constitution.

The NLG opposes the establishment of special national security courts. Although President-elect Obama said in August, "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” three Obama advisers told the Associated Press that the President-elect is expected to propose a new court system to deal with “sensitive national security cases.” Concerns have been cited about disclosure of classified information in civilian courts and courts-martial.

However, the Classified Information Procedures Act (CIPA) provides a comprehensive and effective method of protecting classified information in existing U.S. courts. CIPA allows a judge to assess the importance of sensitive evidence before it is disclosed in open court and, if necessary, create a nonclassified substitute for use at trial. Former federal prosecutors Richard B. Zabel and James J. Benjamin, Jr. studied the 107 post-9/11 cases and prepared a 171-page white paper for Human Rights First called In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. They wrote, “[w]e are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.” National security courts, they write, “would give the government more power and make it easier for the government to secure convictions.”

“Guantánamo Bay prison is a legal black hole that has become a symbol of injustice, abuse, and U.S. hypocrisy,” said National Lawyers Guild President Marjorie Cohn. “The National Lawyers Guild called for its closure in 2005 and we are hopeful that President-elect Barack Obama will finally end this disgraceful chapter in U.S. history.”

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Obama Spells New Hope for Human Rights

Celebrations of Barack Obama’s election as President of the United States erupted in countries around the world. From Europe to Africa to the Middle East, people were jubilant. After suffering though eight years of an administration that violated more human rights than any other in U.S. history, Obama spells hope for a new day.

While George W. Bush was President, I wrote Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, which chronicled his war of aggression, policy of torture, illegal killings, unlawful Guantánamo detentions, and secret spying on Americans. When the book was published, it seemed unimaginable that we could elect a President who would turn those policies around. But the election of Obama holds that potential.

This is the first in a series of articles in which I will suggest how the Obama administration can start undoing some of the damage Bush wrought, by ratifying three of the major human rights treaties and the Rome Statute for the International Criminal Court.

Although the U.S. government frequently criticizes other countries for their human rights transgressions, the United States has been one of the most flagrant violators. We have refused to ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); and the Convention on the Rights of the Child (CRC). And while the United States worked with other countries for 50 years to create the International Criminal Court, it has failed to ratify that treaty as well. When we ratify a treaty, it becomes part of U.S. law under the Supremacy Clause of the Constitution.

In this article, I will explain why the United States should ratify the ICESCR, which is particularly relevant now that we are in the midst of the most serious economic crisis since the Great Depression.

In 1941, President Franklin D. Roosevelt, whose New Deal helped lift us out of the Depression, gave his famous Four Freedoms Speech, focused on freedom of speech and expression, freedom to worship, freedom from want, and freedom from fear. Roosevelt fleshed out the freedom from want and fear principles in his Economic Bill of Rights. It contained equality of opportunity, the right to a job and a decent wage, the end of special privileges for the few, universal civil liberties, and guaranteed old-age pensions, unemployment insurance and medical care.

FDR’s bill of rights formed the basis for the Universal Declaration of Human Rights, which Eleanor Roosevelt helped draft, and which the U.N. General Assembly adopted in 1949. The Declaration embraced two types of human rights: civil and political rights on the one hand; and economic, social and cultural rights on the other.

These rights were codified in two binding treaties: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The United States ratified the ICCPR in 1992. But it has refused to commit itself to the protection of economic, social and cultural rights. Since the Reagan administration, there has been a policy to define human rights in terms of civil and political rights, but to dismiss economic, social and cultural rights as akin to social welfare, or socialism.

Indeed, the United States' inhumane policy toward Cuba exemplifies this dichotomy. The U.S. government has criticized civil and political rights in Cuba while disregarding Cubans' superior access to universal housing, health care, education and public accommodations, and its guarantee of paid maternity leave and equal pay rates.

The refusal to enshrine rights such as employment, education, food, housing, and health care in U.S. law is the reason the United States has not ratified the ICESCR. This treaty contains the right to work in just and favorable conditions, to an adequate standard of living, to the highest attainable standards of physical and mental health, to education, to housing, and to enjoyment of the benefits of cultural freedom and scientific progress. It also guarantees equal rights for men and women, the right to work, the right to form and join trade unions, the right to social security and social insurance, and protection and assistance to the family.

In the United States, more than 10 million people are unemployed, 2 to 3 million families are homeless each year, and 46 million have no health care benefits. Untold numbers lost their retirement savings when the stock market crashed. Obama has pledged to give the rebuilding of our economy top priority after he is sworn in as President. He promised to create jobs and to ensure that all Americans are covered by health insurance. When Obama said he would cut taxes for 95 percent of the people but end the tax cuts for the rich, he was criticized for wanting to “spread the wealth.” But Obama’s plan is fully consistent with our progressive income tax system. After the election, 15,000 physicians called for a single-payer health care plan, which Obama and Congress should seriously consider.

The United States’ flouting of the United Nations in its unilateral war on Iraq, and torture of prisoners in Afghanistan, Guantánamo Bay, Cuba, and Iraq, has engendered widespread condemnation in the international community. Yale Law School Dean Harold Koh, citing Professor Louis Henkin, summarized the hypocrisy of the United States in the area of human rights as follows: “In the cathedral of human rights, the U.S. is more like a flying buttress than a pillar – choosing to stand outside the international structure supporting the international human rights system but without being willing to subject its own conduct to the scrutiny of the system.”

We should encourage President Obama to send the ICESCR to the Senate for advice and consent to ratification. Becoming a party to that treaty will help not only the people in this country; it will also engender respect for the United States around the world.

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NLG Urges United States to Sign and Ratify Treaty Banning Use of Cluster Bombs

NLG Also Renews Its Call for the U.S. to Ratify Land Mine Treaty

New York. The National Lawyers Guild is disturbed to see that, once again, the rhetoric of the United States government about building peace and security is directly contradicted by its actions. While more than 100 countries met in Dublin and signed a treaty banning the use of cluster bombs, the United States, along with Russia, China and Israel, refused to participate in the conference that led to the treaty and have refused to sign it. The Guild calls on the United States to immediately sign and ratify the treaty, and also renews its call for the United States to ratify the land mine treaty as well.

Cluster bombs are particularly insidious munitions. First, they litter an area with hundreds of submunitions, known as "bomblets," which both kill and maim. Many of the bomblets do not explode on impact and, like land mines, lurk undetected until unfortunate civilians, often children, stumble on them or pick them up. While the State Department’s Stephen D. Mull had said that removing unexploded ordnance from a battlefield is “an absolute moral obligation,” he did not explain how that was to be accomplished. He also maintained that, for some unexplained reason, the United States needed to utilize cluster bombs as part of its national defense, as inconceivable as it may be to imagine the use of such bombs on U.S. soil. If countries that do not have enormous stockpiles of nuclear weapons, massive land, sea and air power, laser-guided smart bombs and missiles, drone planes and countless other weapons of death and destruction can agree to give up their cluster bombs, there is no reason the United States cannot also agree to cease using them.

In the interest of world peace, and as a means of gaining back a measure of its lost credibility in the international community, the National Lawyers Guild calls on the United States to sign and ratify the treaty banning the use of cluster bombs, and renews its call for the United States to ratify the land mine treaty.

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Injustice at Guantanamo: Torture Evidence and the Military Commissions Act

The Bush administration has announced its intention to try six alleged al Qaeda members at Guantánamo under the Military Commissions Act. That Act forbids the admission of evidence extracted by torture, although it permits evidence obtained by cruel, inhuman or degrading treatment if it was secured before December 30, 2005. Thus, the administration would be forbidden from relying on evidence obtained by waterboarding, if waterboarding constitutes torture.

That's one reason Attorney General Michael Mukasey refuses to admit waterboarding is torture. The other is that torture is considered a war crime under the U.S. War Crimes Act. Mukasey would be calling Dick Cheney a war criminal if the former admitted waterboarding is torture. Lawrence Wilkerson, Colin Powell's former chief of staff, has said on National Public Radio that the policies that led to the torture and abuse of prisoners emanated from the Vice President's office.

The federal government is working overtime to try and clean up the legal mess made by the use of illegal interrogation methods. In a thinly-veiled attempt to sanitize the Guantánamo trials, the Department of Justice and the Pentagon instituted an extensive program to re-interview the prisoners who have undergone abusive interrogations, this time with "clean teams." For example, if a prisoner implicated one of the defendants during an interrogation using waterboarding, the government will now re-interrogate that prisoner without waterboarding and get the same information. Then they will say the information was secured humanely. This attempt to wipe the slate clean is a farce and a sham.

In Brady v. Maryland, the US Supreme Court held that a prosecutor has a duty to give criminal defendants all evidence that might tend to exonerate them. Yet the CIA admitted destroying several hundred hours of videotapes depicting interrogations of Abu Zubaydah and Abd al-Ramin al-Nashiri, which likely included waterboarding. The administration claims Abu Zubaydah led them to Khalid Sheikh Mohammed, one of the defendants facing trial in the military commissions. So the government has destroyed potentially exonerating evidence. Moreover, the CIA's "enhanced interrogation techniques" are classified so they can be kept secret from the defendants, and CIA agents cannot be compelled to testify or produce evidence of torture.

A report just released by Seton Hall Law Center for Policy and Research reveals more than 24,000 interrogations have been conducted at Guantánamo since 2002 and every interrogation was videotaped. Many of these interrogations were abusive. "One Government document, for instance, reports detainee treatment so violent as to 'shake the camera in the interrogation room' and 'cause severe internal injury,'" the report says.

The Military Commissions Act contains other provisions that deny the defendants basic due process. It allows a trial to continue in the absence of the accused, places the power to appoint judges in the hands of the Secretary of Defense, permits the introduction of hearsay and evidence obtained without a warrant, and denies the accused the right to see all of the evidence against him. Defense attorneys are not allowed to meet their clients without governmental monitoring, and all of their notes and mail must be handed over to the military.

Will the U.S. Supreme Court be able to rectify the situation of abusive interrogations if and when a case comes before it? Not if Justice Antonin Scalia has his way. Once again, Scalia is acting as a loyal foot soldier in the President's "war on terror." In a BBC interview that aired this week, Scalia defended the use of torture to extract information from prisoners in some cases.

Scalia's remarks mean he has prejudged the issues in future cases in which the Constitution might dictate the suppression of evidence because of illegal police interrogation techniques, or the right to compensation of a person whose civil rights have been violated. Justice Scalia should recuse himself from any case that presents these issues.

Bush is meanwhile threatening to veto a bill Congress passed that would forbid the CIA from subjecting prisoners to interrogation techniques banned by the U.S. Army Field Manual. John McCain, the tortured POW who led the charge in 2005 against cruel treatment, has now hitched his wagon to Bush's star. Presidential candidate McCain voted to allow the CIA to continue to ply its cruelty.

When Bush vetoes the bill, Congress should stand firm for the rule of law and basic standards of human decency and override his veto. Dick Cheney and other officials who participated in formulating the abusive interrogation policies should be investigated under the U.S. War Crimes Act. And the Democratic-controlled Congress should repeal the Military Commissions Act that Bush rammed through the Republican-controlled Congress.

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The Torture Tape Cover-up: How High Does It Go?

When the hideous photographs of torture and abuse emerged from Abu Ghraib in the spring of 2004, they created a public relations disaster for the Bush administration. The White House had painstakingly worked to capitalize on the 9/11 attacks by creating a "war on terror." Never mind the absurdity of declaring war on a tactic. Central to Bush's new "war" was the portrayal of us as the good guys and al Qaeda, the Taliban, and Saddam Hussein as the bad guys.

But the Abu Ghraib photos of naked Iraqis piled on top of one another, forced to masturbate, led around on leashes like dogs shined the light on U.S. hypocrisy.

After the Abu Ghraib revelations, the Bush administration could not tolerate more bad publicity. So in 2005, the CIA destroyed several hundred hours of videotapes depicting torturous interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, probably including water boarding. The former U.S. official involved in discussions about the tapes reported widespread concern that "something as explosive as this would probably get out," according to the Los Angeles Times. This destruction of evidence may violate several laws. And it remains to be seen how high up the chain of command the criminality goes.

Now that the videotape scandal has come to light, Bush and his men are back in damage control mode. CIA Director Michael Hayden minimized the significance of the destruction, claiming the tapes were destroyed "only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries." These claims are disingenuous.

The tapes likely portray U.S. officials engaged in torture, which violates three U.S.-ratified treaties as well as the U.S. Torture Statute and the War Crimes Act.

Bush justifies his administration's "harsh interrogation techniques" by maintaining that Zubaydah, under interrogation, fingered Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. But according to investigative journalist Ron Suskind in his 2006 book One Percent Doctrine, it was a "walk-in" who led the CIA to Mohammed in return for a $25 million reward.

Zubaydah evidently wasn’t a top al Qaeda leader. Dan Coleman, one of the FBI's leading experts on al Qaeda, said Zubaydah "knew very little about real operations, or strategy." Moreover, Zubaydah was schizophrenic, according to Coleman. “This guy is insane, certifiable split personality." Coleman's views were echoed at the top levels of the CIA and were communicated to Bush and Cheney. But Bush scolded CIA director George Tenet, saying, "I said [Zubaydah] was important. You're not going to let me lose face on this, are you?" Zubaydah's minor role in al Qaeda and his apparent insanity were kept secret.

In response to the torture, Zubaydah told his interrogators about myriad terrorist targets al Qaeda had in its sights: the Brooklyn Bridge, the Statute of Liberty, shopping malls, banks, supermarkets, water systems, nuclear plants, and apartment buildings. Al Qaeda was close to building a crude nuclear bomb, Zubaydah reported. None of this was corroborated but the Bush gang reacted to each report zealously.

The Supreme Court has repeatedly affirmed the government's duty to provide criminal defendants with any evidence in the government's possession that might tend to exonerate the defendant or impeach the prosecutor's case. Zacarias Moussaoui tried to subpoena Zubaydah to testify at his trial. On May 9, 2003, Assistant U.S. Attorneys David Novak and David Raskin lied to U.S. District Court Judge Leonie Brinkema, who presided over Moussaoui's trial. When the judge asked "whether the interrogations are being recorded in any format", the U.S. Attorneys said no, evidently relying on information from the CIA. This is obstruction of justice.

When Zubaydah and al-Nashiri go before the military commissions, they will undoubtedly raise their torture as a defense to whatever crimes they face. Yet the evidence of that torture has been destroyed by the government.

There was no way of knowing whether these tapes could have intelligence value in the future. Indeed, the government defied the 2003 and 2004 demands of the 9/11 Commission by failing to turn over the videotaped interrogations. Now the CIA is parsing words by claiming the commission never directly asked for videotapes. "We asked for every single thing they had," commission co-chairman Thomas Kean said. "And then my vice chairman, Lee Hamilton, looked the director of the CIA in the face, and said, 'Look, even if we haven't asked for something, if it's pertinent to our investigation, make it available to us.'" Hamilton said the CIA "clearly obstructed" the commission's investigation.

At the same time the 9/11 Commission was denied the tapes, the ACLU filed Freedom of Information Act requests seeking records of the treatment of all detainees held in U.S. custody abroad since 9/11. When the government refused to comply with the FOIA requests, the ACLU sued in federal court in New York. On September 15, 2004, U.S. District Court Judge Alvin Hellerstein ordered the CIA and other government agencies to "produce or identify" all requested documents within one month. They are still not forthcoming. The ACLU has filed a motion to hold the CIA in contempt of court for refusing to comply with Judge Hellerstein's order.

When the destruction of the tapes became public, both the House and Senate intelligence committees opened investigations, and subpoenaed witnesses and documents to shed light on the matter. Attorney General Michael Mukasey refused to cooperate and tried to put the kabosh on the congressional probes, asking them to wait until he had finished his own internal investigation. But after criticism in the media, the CIA relented and agreed to produce documents and the testimony of acting CIA general counsel John Rizzo.

The decision to destroy the tapes was allegedly made by Jose A. Rodriguez Jr., who was chief of the Directorate of Operations, the CIA's clandestine service. Although the House intelligence committee has subpoenaed Rodriguez, there is no indication his bosses will allow him to testify.

The Sunday Times (London) reported that Rodriguez may seek immunity from prosecution in exchange for testifying before the House intelligence committee. Rodriguez's testimony could be explosive.

At least four top White House lawyers participated in discussions with the CIA between 2003 and 2005 about whether to destroy the videotapes. They included Alberto Gonzales, David Addington (Cheney's former counsel, now his chief of staff), Harriet Miers, and John Bellinger (former senior attorney at the National Security Council). The New York Times quoted a former senior intelligence official as saying there was "vigorous sentiment" among some high White House officials to destroy the tapes.

Two former CIA officials, Vincent Cannistrano and Larry Johnson, think it highly unlikely Rodriguez made the decision to destroy the tapes on his own. George W. Bush "has no recollection" of hearing about the existence or destruction of the tapes before Hayden briefed him on December 13. Yet given Bush's keen interest in Zubaydah's interrogation, it seems more likely the President was involved with the decision to destroy the tapes.

During his Senate confirmation hearing, Michael Mukasey refused to opine about whether water boarding constitutes torture. Mukasey knew the Bush administration had admitted water boarding prisoners, and that torture is a war crime under the U.S. War Crimes Act. Mukasey was shielding his future bosses from criminal liability as war criminals. Now the Department of Justice, under Mukasey, is investigating the destruction of the tapes.

Justice Department regulations call for the appointment of an outside special counsel when (1) a criminal investigation of a person or matter is warranted, (2) the investigation or prosecution of that person or matter by a United States Attorney's Office or litigating division of the Department of Justice would present a conflict of interest for the Department, and (3) under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. When these three conditions are satisfied, the attorney general must select a special counsel from outside the government. (28 C.F.R. 600.1, 600.3 (2007).)

When he was a federal judge, Michael Mukasey issued the material witness warrant for Jose Padilla. The warrant was based partly on information from Abu Zubaydah. It is not clear whether Mukasey knew Zubaydah's statements were obtained by torture. But since he issued the warrant, Mukasey has a real or apparent conflict of interest. He has said it is premature to appoint an outside special counsel. But like the Nixon administration, the Department of Justice cannot be trusted to investigate itself. Congress should be pressured to pass a new independent counsel statute.

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Guantánamo Detainees' Fate at Stake in Boumediene

The Supreme Court will hear arguments on Wednesday in Boumediene v. Bush. Most of the 34 detainees whose fate hangs in the balance in this case were brought to Guantánamo after being picked up by bounty hunters or tribesmen in Afghanistan and Pakistan. Yet the Bush administration has fought hard to keep them away from any independent court where they could contest the legality of their confinement.

In February, two judges on a three-judge panel of the D.C. Circuit Court of Appeals upheld the provision of the Military Commissions Act of 2006 that strips the statutory rights of all Guantánamo detainees to have their habeas corpus petitions heard by U.S. federal courts. The Supreme Court will decide in Boumediene whether these men still have a constitutional right to habeas corpus.

If the lower court decision is left to stand, they can be held there for the rest of their lives without ever having a federal judge determine the legality of their detention.

Background on the Guantánamo cases

In June 2004, the Supreme Court decided Rasul v. Bush, which upheld the right of those detained at Guantánamo to have their petitions for habeas corpus heard by U.S. courts, under the federal habeas statute.

The ink was barely dry on Rasul when Bush created the Combatant Status Review Tribunals, ostensibly to comply with the Rasul ruling. But these tribunals amounted to an end-run around Rasul. They were established to determine whether a detainee is an enemy combatant.

At the end of last term, the Supreme Court struck down Bush's military commissions in Hamdan v. Rumsfeld because they did not comply with due process guarantees in the Uniform Code of Military Justice and the Geneva Conventions. Military commissions are criminal courts to try prisoners for war crimes.

Then, in October of last year, in another end run, this time around Hamdan, Bush rammed the Military Commissions Act of 2006 through a Congress terrified of appearing soft on terror in the upcoming midterm elections. The Act does many things, but it notably amends the habeas corpus statute to strip statutory habeas rights from all Guantánamo detainees.

Do detainees retain constitutional right to habeas corpus?

The two-judge majority in Boumediene upheld the Military Commissions Act's stripping of statutory habeas jurisdiction that the Supreme Court had recognized in Rasul.

Art. I of the Constitution contains the Suspension Clause, which says that Congress can suspend the right of habeas corpus only in times of rebellion or invasion when the public safety may require it. We are not now in a state of invasion or rebellion, and Congress did not make such a finding.

The two-judge majority in Boumediene said: (1) in the absence of a statutory habeas right (which Congress eliminated in the Military Commissions Act), the Constitution only protects the right of habeas corpus that was recognized at common law in 1789; (2) the law in 1789 did not provide the right of habeas corpus to aliens held by the government outside of the sovereign's territory; and (3) Guantánamo is outside U.S territory for constitutional purposes, even though the U.S. has complete control over it.

This reasoning is erroneous for three reasons.

First, the Supreme Court held in INS v. St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." The high court in Rasul cited St. Cyr.

Second, although the Boumediene majority relies on the treaty that says Cuba, not the U.S., has sovereignty over Guantánamo, the Supreme Court rejected that argument in Rasul, when it said: "By the express terms of its agreements with Cuba, the United States exercises 'complete jurisdiction and control' over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. . . Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority under §2241."

Third, although the Rasul Court was analyzing the pre-Military Commissions Act habeas statute, it also cited Johnson v. Eisentrager, which construed the constitutional right of habeas corpus. The Supreme Court in Eisentrager denied habeas jurisdiction to German citizens who had been captured by U.S. forces in China, then tried and convicted of war crimes by an American military commission in Nanking.

The Eisentrager court listed six factors to determine whether an alien is entitled to constitutional habeas jurisdiction in U.S. courts. These factors were cited in Rasul, which said:

"In reversing that determination, this Court [in Eisentrager] summarized the six critical facts in the case:

“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”

"On this set of facts, the [Eisentrager] Court concluded, “no right to the writ of habeas corpus appears.”

The Rasul court continued:

"Petitioners in these [Guantánamo] cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

"Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus."

Combatant Status Review Tribunals not adequate substitute for habeas corpus

In Boumediene, the Bush administration asked the Court of Appeals to review the Combatant Status Review Tribunals. But the court declined, saying it had an inadequate record before it.

The Combatant Status Review Tribunals do not provide a meaningful opportunity to challenge detention. The prisoner is not entitled to an attorney, only a "personal representative," and anything the detainee tells his personal representative can be used against him. After reviewing the cases of 393 detainees, a Seton Hall legal team found that in 96 percent of the cases, the government had not produced any witnesses or presented any documentary evidence to the detainee before the hearing. Detainees were allowed to see only summaries of the classified evidence offered against them, and that evidence was always presumed to be reliable and valid. Requests by detainees for witnesses were rarely granted.

In addition, the personal representatives said nothing in 14 percent of the hearings and made no substantive comments 30 percent of the time. Some personal representatives even advocated for the government's position. In three cases, the detainee was found to be "no longer an enemy combatant," but the military continued to convene tribunals until they were found to be enemy combatants. These detainees were never told of the favorable ruling and there was no indication they were informed or participated in the second or third hearings.

As the dissenter in Boumediene pointed out, the procedure set up in the Detainee Treatment Act for reviewing decisions of the Combatant Status Review Tribunals "is not designed to cure these inadequacies. The court may review only the record developed by the CSRT to assess whether the CSRT has complied with its own standards. Because the detainee still has no means to present evidence rebutting the government's case - even assuming the detainee could learn of it contents - assessing whether the government has more evidence in its favor than the detainee is hardly the proper antidote."

The suspension of habeas corpus will certainly have profound effects on non-citizen detainees. Consider the case of Abu Bakker Qassim, an Uighur from China who was held at Guantánamo for four years. He wrote in the New York Times: "I was locked up and mistreated for being in the wrong place at the wrong time during America's war in Afghanistan. Like hundreds of Guantánamo detainees, I was never a terrorist or a soldier. I was never even on a battlefield. Pakistani bounty hunters sold me and 17 other Uighurs to the United States military like animals for $5,000 a head. The Americans made a terrible mistake."

Rasul v. Bush was a 6-3 decision. Justices Stevens, Souter, Ginsburg, Breyer, O'Connor and Kennedy voted with the majority. The dissenters were Justices Scalia, Thomas and Rehnquist.

The Supreme Court should reverse the Court of Appeals decision in Boumediene, probably in a 5-4 vote with Chief Justice Roberts and Justice Alito voting with the dissent. Surely the Court will not decide that Bush has succeeded in placing the detainees beyond the reach of our federal courts by sending them to Guantánamo. It should also conclude that the judicial review of the decisions of Combatant Status Review Tribunals does not provide an adequate substitute for constitutional habeas corpus.

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Unrepentant, Bush Denies Torture

The April 2004 publication of grotesque photographs of naked Iraqis piled on top of each other, forced to masturbate, and led around on leashes like dogs, sent shock waves around the world. George W. Bush declared, “I shared a deep disgust that those prisoners were treated the way they were treated.” Yet less than a year later, his Justice Department issued a secret opinion endorsing the harshest interrogation techniques the CIA has ever used, according to an October 4, 2007 report in the New York Times. These include head slapping, frigid temperatures, and water boarding, in which the subject is made to feel he is drowning. Water boarding is widely considered a torture technique. Once again, Bush is compelled to issue a denial. He insists, “This government does not torture people."

This was not the first time the Bush administration had officially endorsed torture, however. John Yoo, writing for the Justice Department’s Office of Legal Counsel, penned an August 2002 memorandum that rewrote the legal definition of torture to require the equivalent of organ failure. This memo violated the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty the United States ratified, and therefore part of U.S. law under the Supremacy Clause of the Constitution.

In December 2002, former Secretary of Defense Donald Rumsfeld approved interrogation methods that included the use of dogs, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, deprivation of light and sound, and water boarding. U.S. Navy General Counsel Alberto Mora told William Haynes, the Pentagon’s general counsel, that Rumsfeld’s “authorized interrogation techniques could rise to the level of torture.” As a result, Rumsfeld rescinded some methods but reserved the right to approve others, including water boarding, on a case-by-case basis.

When Bush maintained earlier this week that his government doesn’t torture prisoners, he stressed the need for interrogation to “protect the American people.” Notwithstanding the myth perpetuated by shows like “24,” however, torture doesn’t work. Experts agree that people who are tortured will say anything to make the torture stop.

One of the first victims of the Bush administration’s 2002 torture policy was Abu Zubaydah, whom they called “chief of operations” for al Qaeda and bin Laden’s “number three man.” He was repeatedly tortured at the secret CIA “black sites.” They water boarded him, withheld his medication, threatened him with impending death, and bombarded him with continuous deafening noise and harsh lights.

But Zubaydah wasn’t a top al Qaeda leader. Dan Coleman, one of the FBI's leading experts on al Qaeda, said of Zubaydah, "He knew very little about real operations, or strategy … He was expendable, you know, the greeter . . . Joe Louis in the lobby of Caeser's Palace, shaking hands." Moreover, Zubaydah was schizophrenic; according to Coleman, “This guy is insane, certifiable split personality.” Coleman's views were echoed at the top levels of the CIA and were communicated to Bush and Cheney. But Bush scolded CIA director George Tenet, saying, "I said [Zubaydah] was important. You're not going to let me lose face on this, are you?" Zubaydah's minor role in al Qaeda and his apparent insanity were kept secret.

In response to the torture, Zubaydah told his interrogators about myriad terrorist targets al Qaeda had in its sights: the Brooklyn Bridge, the Statute of Liberty, shopping malls, banks, supermarkets, water systems, nuclear plants, and apartment buildings. Al Qaeda was close to building a crude nuclear bomb, Zubaydah reported. None of this was corroborated but the Bush gang reacted to each report zealously.

Likewise, Khalid Sheikh Mohammed, considered the mastermind of the September 11 attacks, was tortured so severely – including by water boarding – that the information he provided is virtually worthless. A potentially rich source of intelligence was lost as a result of the torture.

Bush’s insistence that his administration doesn't torture rings hollow. He lied about weapons of mass destruction and a Saddam-al Qaeda connection in Iraq. He lied when he assured us his officials would not wiretap without warrants. As evidence of secret memos detailing harsh interrogation policies continues to emerge, we can't believe Bush's denials about torture.

Democrats in Congress have demanded they be allowed to see the memos, but Bush said the interrogation methods have been "fully disclosed to appropriate members of Congress." Senator John D. Rockefeller IV was unmoved. "I'm tired of these games," he said. "They can't say that Congress has been fully briefed while refusing to turn over key documents used to justify the legality of the program."

It is incumbent upon the Senate Judiciary Committee to vigorously interrogate Michael Mukasey during his attorney general confirmation hearing. As AG, Mukasey would oversee the department that writes interrogation policy. Mukasey should know the Convention Against Torture prohibits torture in all circumstances, even in times of war.

Torture is a war crime. Those who commit or order torture can be convicted under the U.S. War Crimes Statute. Techniques that don't rise to the level of torture but constitute cruel, inhuman or degrading treatment or punishment also violate U.S. law. Congress should provide for the appointment of a special independent counsel to fully investigate and prosecute all who are complicit in the torture and mistreatment of prisoners in U.S. custody.

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Repression in Oaxaca: One Year Anniversary of State’s Bloody Attack on Popular Movements

There's an Aztec legend of a warrior who was in love with a princess. When he left to go into battle, the lovers promised each other eternal love. The warrior died in battle, but to fulfill his promise to the princess, he came back as a brilliant orange flower. That flower now graces Flamboyan trees throughout Latin America. Another Flamboyan legend speaks of the struggle of the Puerto Rican people against colonial domination.

On Sunday, June, 10, 2007, under a Flamboyan tree, the Popular Assembly of the People of Oaxaca (APPO) held a press conference to announce the liberation of one of the leaders of the year-long popular struggle for social and economic justice in Oaxaca. Marcelino Coache Verano, secretary general of the free union of Oaxaca municipal workers, had been arrested, severely beaten, and held for six months in prison before he was released on May 31, with all charges against him dismissed.

The press conference kicked off a week of actions to commemorate the brutal June 14, 2006 attack by 1,000 armed police against people peacefully demonstrating in support of the demands of some 70,000 teachers for higher wages, improvement of school buildings, and better resources for children. A teacher typically earns the equivalent of $220 every two weeks, and must purchase school supplies herself. Although the Mexican constitution guarantees free education, mothers have to pay registration fees.

State governor Ulises Ruiz Ortiz sent in state police, accompanied by dogs, who viciously attacked the sleeping teachers and supporters. They tear-gassed everyone in the vicinity, including pregnant women and children; one woman miscarried as a result. Ninety-two people were wounded. Members of the community reacted with outrage, fighting back with anything they could find. They chased the police from the square, and re-established the camp.

On June 17, several hundred local organizations came together to form the APPO, comprising almost 350 different civil organizations working in areas of indigenous issues, sustainable community development, human rights, and social justice. APPO demanded that Governor Ulises Ruiz step down. Meanwhile, the movement continued to grow, with large but peaceful demonstrations. On August 1, hundreds of women marched, and when denied air time by the government radio station, occupied the station and broadcast their position themselves.

Throughout this period, police raids, beatings, and shooting continued. On October 28, four people were killed, including indymedia journalist and U.S. citizen Brad Will and a Mexican teacher, Emilio Alonso Fabian.

The Mexican government sent in the Federal Preventive Police. On November 25, they appeared in full riot gear and encircled the entire area, firing tear gas. As people fled, many were arrested and beaten. Among the prisoners were some simply on their way to work or to the market place that morning. One hundred seventy people were arrested that day, and most were taken to the far away prison of Nayarit. Thirty four were women, and five were minors.

At various times during the seven month period, nearly 1,500,000 teachers, workers, professors and artists, many of them Indigenous people, occupied Oaxaca's main plaza. Although the movement crystallized to support the striking teachers, the frustration of the people resulted from deep economic and social problems the government has aggravated and allowed to fester. These problems that have harmed workers were exacerbated by NAFTA and the Bush administration's neoliberal policies. The majority of the population of Oaxaca is Indigenous, most of whom live in extreme poverty.

Last week, I participated in a human rights delegation of lawyers from the National Lawyers Guild, the International Association of Democratic Lawyers, and the National Association of Democratic Lawyers in Mexico to investigate alleged violations of international law by police against the people of Oaxaca during the past year. We met with lawyers, workers and prisoners.

Coache Verano related how he and three other activists had been arrested in Mexico City, on their way to meet with government officials to negotiate an end to the strife. They were stripped naked, beaten, and guards walked on their backs. Coache Verano's finger was broken. One of the other men was released with Coache Verano. The other two, including APPO leader Flavio Sosa Villavicencio, remain in custody. Coache Verano's wife and young children told us how they were terrorized for months with death threats and shots fired at their home.

The two prisoners we interviewed at the Tlacolula prison, about 20 miles outside of Oaxaca, also described how they were beaten by police. Flabiano Juárez Hernández was not part of the demonstration. He was working in the market near the plaza when he was arrested on November 20 and charged with auto theft, a crime considered so serious, there is no possibility of bail. The blows to his head required several stitches and left a scar. Juárez Hernández is indigenous and doesn't speak fluent Spanish; yet he was denied the services of an interpreter.

Wilbert Ramon Aquino Aragón is a worker who participated in the demonstrations on November 20 and 25. On January 10, he was arrested for the attempted murder of a taxi driver he never met. He was told he would be released if he identified people in police photographs. Since he refused, he continues to be held at Tlacolula. The police beat Aquino Aragón so badly he is scheduled for surgery next week. His head bears scars from the blows the police dealt.

Twenty year-old Pedro Garibo Pérez was not involved in the demonstration. Yet on November 20, he was arrested and kept face down for 6 hours with his leg on a hot muffler. The 20 centimeter burn on his leg was left unattended for more than two and a half months. When lawyers finally were able to visit him, they saw a large areas of exposed raw flesh on his leg. As a result of their demands, he finally received medical attention. Garibo Pérez spent 10 days in the hospital, where he was diagnosed with a hematoma and received a skin graft.

A 50-year-old widow named Aurelia was working as a maid inside a house on November 25, and didn't know what was happening outside. She had just left work when they arrested her a half a block away. She was walking down the street and saw people running all over the place. The police started firing tear gas at everyone. She said, "I felt myself asphyxiating and my eyes filled with tears. I couldn't move. I was so scared."

The police grabbed Aurelia by the hair, cursed at her and kicked her. They forced her and several other women to kneel for two hours on the cobblestone. Then they were thrown into a truck in a pile, "like animals, with their hands and feet tied." Many were crying out that they could not feel their legs. The police officers responded, "You may as well die you old hags."

Aurelia had to sleep on a cement block in a cold room with no blanket. "Later that night," Aurelia said, "you could hear the men screaming nearby. I thought about my family members who were there yelling, beaten." Many of the women were beaten; some had head injuries.

They were flown to Nayarit and held there for 21 days. During that time, the women heard nothing about the men or the rest of their families.

The treatment to which these people were subjected violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which I explain in my book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Three of the techniques used by the police in Oaxaca apparently originated in the United States. They include terrorizing people with ferocious dogs, threats to throw prisoners from helicopters into the sea, and a humiliation technique of denying toilet privileges, leaving people to defecate in their pants.

Nine men remain in custody. There are only 13 lawyers representing the 350 people who still have charges pending against them. Many of the lawyers have suffered some form of harassment, including threats, beatings, and sexual harassment. Five inmates were made to sign statements denouncing lawyer Yésica Sánchez Maya, president of the Mexican League for Defense of Human Rights (LIMEDDH), in exchange for their release from prison. The 29-year-old Sánchez Maya, a passionate and effective leader of the movement, told us she knows she might be arrested at any moment. She remains unbowed.

The International Civil Commission for the Observation of Human Rights concluded that 20 people have been illegally executed in the past few months. APPO has documented 29 who have been assassinated and 100 tortured throughout this struggle. The murders have been carried out by paramilitary or parapolice groups presumably linked to the state government.

On March 14, 2007 Mexico's National Human Rights Commission reported that 12 people had been killed and documented 1,600 rights violations. The Commission demanded that the Senate punish the killings and other human rights abuses in Oaxaca. APPO criticized the report for overlooking killings and failing to implicate Ruiz.

Mexican Supreme Court Justice minister Juan Silva Meza said on May 28 that federal, state and municipal authorities committed grave civil rights violations during the Oaxaca conflict. Silva Meza recommended that the Court create a committee to investigate the responsible public officials.

Lawyers for LIMEDDH and APPO have filed deununcias against Ruiz, the president of Mexico, and the attorney general, seeking to remove Ruiz and hold them criminally accountable. The charges include assassination, torture, forced disappearance, and denial of justice. These requests have not been acted upon although a special prosecutor was named, (who is not independent) and the Supreme Court has indicated its intention to form a committee to investigate.

Marcelino Coache Verano has his freedom for now. But, he told the reporters, "there is no freedom for us if there isn't freedom for our comrades. There is no justice until those responsible for the assassinations and torture are brought to justice."

The government has criminalized the social movement. And the problems underlying the struggle remain unsolved. But like the Flamboyan tree, the movement in Oaxaca will continue to flower. "I never went to the marches before," Aurelia said, "but now after what the government has done to me, I'll be there to show my support. I don't know what the APPO is because I've never been to anything that has to do with APPO, but now I'm going to support them. I've heard of the teachers and I'll support them too, now, because it hurt so much what the government did to me."

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Conscientious Objector Faces Court-Martial

On March 6, the court-martial will begin in Germany for Army Specialist Augustín Aguayo, who faces up to seven years in prison for refusing to deploy to Iraq for a second tour of duty. His petition for habeas corpus was denied by a three-judge panel of the D.C. Circuit Court of Appeals on February 16. Judges Sentelle and Randolph were the same jurists who recently upheld the provision of the Military Commissions Act that strips habeas corpus rights from Guantánamo detainees.

Before his first deployment to Iraq, Aguayo discovered he was a conscientious objector. When he began to train in arms, Aguayo had great difficulty firing at human-shaped silhouettes and stabbing human mannequins. "During basic training," he recalls, "I felt guilty when I had to pick up and hold a weapon and practice killing with it."

When Aguayo and his wife, Helga, saw an article on the Internet about conscientious objector Stephen Funk, they realized that Aguayo was a conscientious objector.

After he applied to be a conscientious objector three years ago, Aguayo was sent to Iraq as a medic. He refused to load his gun. But instead of treating him as a non-combatant, he was given guard duty and placed in dangerous positions with an unloaded weapon.

A week after Aguayo's habeas corpus petition was denied on August 24, 2006, his unit was slated to deploy to Iraq for the second time. On September 1, 2006, Aguayo went AWOL and missed his unit's deployment to Iraq. He turned himself in to the Army the following day.

Rather than court-martialing Aguayo, Army personnel told him he would be going to Iraq anyway, even if they had to handcuff him and shackle him to the plane. Aguayo fled from the military base in Germany and turned himself in once again on September 26, 2006. He was shipped back to Germany where he will be tried by court-martial this week.

In his statement to the Court of Appeals, Aguayo wrote: "In my last deployment, I witnessed how soldiers dehumanize the Iraqi people with words and actions. I saw countless innocent lives which were shortened due to the war. I still struggle with the senselessness of it all – Iraqi civilians losing their lives because they drove too close to a convoy or a check point, soldiers' being shot by mistake by their own buddies, misunderstandings (due to the language barrier) leading to death. This is not acceptable to me. It makes no sense that to better the lives of these civilians they must first endure great human loss. This, too, is clear and convincing evidence to me that all war is evil and harmful."

"I also oppose war," Aguayo added, "because I have seen first-hand the direct result of deployments to war zones. As a result of Operation Iraqi Freedom II, I have seen many veterans whose lives have been shattered. Many men came back with missing parts, and countless physical and emotional scars, such as Post Traumatic Stress Disorder. I have personally seen my comrades come back to commit suicide, drink themselves to death, and develop a strong addiction to drugs. It is obvious to me that these men’s lives were destroyed by war. What participation in war does to our own soldiers is another reason why war is fundamentally immoral and wrong."

Aguayo received positive recommendations from the chaplain and Capt. Sean Foster, who held Aguayo's conscientious objector hearing in Tikrit, Iraq. They both found Aguayo's beliefs to be sincere and recommended he be granted conscientious objector status.

But the Court of Appeals sided with four officers who recommended Aguayo's petition be denied. None of the four interviewed Aguayo. The appellate court mentioned that Aguayo was agnostic and cited a report that said Aguayo lacks a "religious foundation" to be a conscientious objector.

Aguayo, who was born in Mexico, is a naturalized U.S. citizen. On February 23, the Mexican legislature condemned the military proceedings pending against Aguayo. Senator Silvano Aureoles called Aguayo "a prisoner of conscience and one more victim of president George W. Bush's militaristic eagerness."

Augustín Aguayo is represented by National Lawyers Guild lawyers James Klimaski, Peter Goldberger, and James Feldman. For more information on Aguayo's case, see http://www.aguayodefense.org/.

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Fool Us Twice? From Iraq to Iran

It's déja vu. This time the Bush gang wants war with Iran . Following a carefully orchestrated strategy, they have ratcheted up the "threat" from Iran, designed to mislead us into a new war four years after they misled us into Iraq.

Like its insistence that Iraq had WMD, the Bush administration has been hyping claims that Iran seeks nuclear weapons. The International Atomic Energy Agency (IAEA), however, has found no evidence that Iran is building nuclear weapons. IAEA chief Mohamed ElBaradei says there is plenty of time for negotiation with Iran.

Bush has sent two battle carrier groups, replete with nukes, to the Persian Gulf and a third is reportedly preparing to follow. In support of Bush's case that Iran poses a danger to the U.S. , three unnamed American officials ceremoniously trotted out metal parts found in Iraq and claimed Iran supplied them to kill our soldiers in Iraq.

This "evidence" - or "packaging," as the Associated Press calls it - doesn't pass the straight face test with most reputable observers. "The officials offered no evidence to substantiate allegations that the 'highest levels' of the Iranian government had sanctioned support for attacks against U.S. troops," according to Monday's Washington Post.

Saturday's New York Times cited information gleaned from "interrogation reports" from Iranians and Iraqis captured in the recent U.S. raid on the Iranian embassy in northern Iraq . They allegedly indicated money and weapons components are brought into Iraq over the Iranian border at night. If those people indeed provided such information, query what kind of pressure, i.e. torture, might have been applied to encourage their cooperation. Recall the centerpiece of Colin Powell's 2003 lies to the Security Council about ties between Iraq and al Qaeda came from false information tortured out of Ibn al-Shaykh al-Libi.

Any Iranian weapons in Iraq may belong to the Supreme Council for Islamic Revolution in Iraq (SCIRI), a Shiite resistance group the U.S. used to support. There could be old Iranian munitions lying around which are left over from the Iran-Iraq war during the 1980s. A former high level U.S. military officer told me it was not uncommon to find large caches of weapons around Iraq . He cited the 2004 discovery of 37,000 American Colt 45 handguns in a warehouse near the Iranian border on the Iraq side, likely procured "when Saddam was our friend." The United States armed both sides in the Iran-Iraq conflict.

The U.S. National Intelligence Estimate on Iraq , released last week, concluded that Iranian or Syrian involvement is "not likely to be a major driver of violence" in Iraq .

Paul Krugman wrote that even if Iran were providing aid to some factions in Iraq , "you can say the same about Saudi Arabia , which is believed to be a major source of financial support for Sunni insurgents - and Sunnis, not Iranian-backed Shiites, are still responsible for most American combat deaths." Indeed, 15 of the 19 hijackers on 9/11 were Saudis. But as Krugman mentions, the Bush administration's "close personal and financial ties to the Saudis" have caused it to downplay "Saudi connections to America 's enemies."

American troops are still fighting in Afghanistan . Yet the Bush administration hasn't complained about the Taliban attacks on Afghanistan that originate in Pakistan , a country with documented nuclear weapons. Of course the Bush administration is cozy with the Pakistani regime.

The government of Israel, which also has nukes, is fueling the call for an invasion of Iran . On February 7, the Los Angeles Times cited Israeli politicians and generals warning of a "second Holocaust" if no one fails to prevent Tehran from acquiring nukes.

Israel would like to start a war with Iran and supports this desire by citing a quote from Iranian president Mahmoud Ahmadinejad that Israel should be wiped off the map. But this is an erroneous translation of what he said. According to University of Michigan professor Juan Cole and Farsi language analysts, Ahmadinejad was quoting Ayatollah Khomeini, who said the "regime occupying Jerusalem must vanish from the page of time." Cole said this "does not imply military action or killing anyone at all." Journalist Diana Johnstone points out the quote is not aimed at the Israeli people, but at the Zionist "regime" occupying Jerusalem. "Coming from a Muslim religious leader," Johnstone wrote, "this opinion is doubtless based on objection to Jewish monopoly of a city considered holy by all three of the Abramic monotheisms." Iran has not threatened to invade Israel.

Indeed, only 36 percent of the Jews in Israel told pollsters last month they thought a nuclear attack by Iran posed the "biggest threat" to Israel . Americans concur. Seventy-five percent want negotiations in lieu of war with Iran.

Yet Hillary Clinton, Barack Obama and John Edwards, all beholden to the Israel lobby, have bought into Bush's dangerous rhetoric about Iran.

It would be sheer lunacy to make war on Iran. Three former high-ranking U.S. military officers and a coalition of 13 British think-tanks and faith groups have warned that an attack on Iran would have disastrous consequences.

Bush probably won't ask Congress to bless his Iran war. He will provoke a confrontation and then claim we have to fight back. Last year, the New York Times documented a January 2003 meeting with Prime Minister Tony Blair, where Bush "talked about several ways to provoke a confrontation [with Iraq], including a proposal to paint a United States surveillance plane in the colors of the United Nations in hopes of drawing fire."

A nuclear attack on Iran would violate U.S. obligations under the Nuclear Non-Proliferation Treaty. Any attack would violate the U.N. Charter. All treaties we ratify become part of U.S. law under the Constitution's Supremacy Clause. Twelve European, international, and U.S. legal and human rights groups issued an open letter warning of the illegality of any offensive military action by the U.S. against Iran. (http://www.nlg.org/news/statements/Military_Iran_2007.htm ).

Congress has tied itself in knots over a non-binding resolution on Iraq . If our elected representatives responded to their constituencies instead of the Bush gang's fear mongering, they would stand up to him and pass a modern day Boland Amendment forbidding military action against Iran.

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Pentagon Attacks Lawyers of Guantánamo Detainees

In one of the most severe blows the Bush administration has dealt to our constitutional democracy, the Pentagon attacked the lawyers who have volunteered to represent the Guantánamo detainees.

Deputy Assistant Secretary of Defense Charles Stimson threatened corporate lawyers who agree to defend the men and boys imprisoned there. Flashing a list of corporations that use law firms doing this pro bono work, Stimson declared, "Corporate C.E.O.'s seeing this should ask firms to choose between lucrative retainers and representing terrorists."

In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts.

Adams later said his representation of those British soldiers was "one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."

Federal Judge Green, who has handled the many habeas corpus petitions filed by the Guantánamo detainees, expressed appreciation for the lawyers: "I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service."

More than 750 men and boys have been held like animals in cages during the last five years at Guantánamo. Many were picked up by warlords and sold to the U.S. military for bounty. None has been tried for any crime. Very few even have any criminal charges against them.

Ironically, there were no alleged terrorists connected with 9/11 there until Bush recently transferred 14 men from his secret CIA prisons to Guantánamo. Meanwhile, hundreds of detainees languish in custody, aided by 500 courageous lawyers from 120 firms who have volunteered countless hours to represent them.

Under the Military Commissions Act Bush just rammed through Congress, the Guantánamo prisoners could be held for the rest of their lives without ever seeing a judge. Those who decide that death could not be worse than life at Gitmo have participated in a hunger strike.

Rather than subject the Bush administration to embarrassment when prisoners die in U.S. custody, military guards force feed them. Thick plastic tubes are forced down their throats with no anesthesia. Tubes are not sterilized before being reused on other prisoners. The UN Human Rights Commission called the force-feeding "torture." Many prisoners also report being tortured during interrogations.

Guantánamo has become the symbol of U.S. hypocrisy. While fighting the "war on terror" and attacking other countries for their human rights abuses, the officials in the Bush administration have become war criminals. Torture and cruel or inhuman treatment are punishable as war crimes under the U.S. War Crimes Act.

The Supreme Court held in Rasul v. Bush that the Guantánamo prison is under U.S. jurisdiction, so prisoners there are entitled to the protections of the Constitution. The Sixth Amendment mandates that every person charged with a crime has the right to be defended by an attorney. The government is forbidden by the Fifth Amendment from denying any "person" -- U.S. citizen or not -- due process of law. The presumption of innocence is enshrined in our legal system.

Bush's attack on lawyers is the latest assault on our civil liberties, which now includes warrantless surveillance of our phone calls and email, and most recently, our U.S. Mail. Although Bush says he's spying on the terrorists, those who criticize his policies, including his illegal and immoral war on Iraq, are also invariably in his cross hairs.

All Americans should heed the words of Martin Niemoller: "First they came for the Communists, but I was not a Communist, so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat, so I did nothing. Then came the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little. Then when they came for me, there was no one left who could stand up for me."

George W. Bush must immediately renounce Stimson's threats and relieve him of his duties. A country that would sacrifice its own values under the guise of protecting them has no moral authority in this world.

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