A Call to End All Renditions

Binyam Mohamed, an Ethiopian residing in Britain, said he was tortured after being sent to Morocco and Afghanistan in 2002 by the U.S. government. Mohamed was transferred to Guantánamo in 2004 and all terrorism charges against him were dismissed last year. Mohamed was a victim of extraordinary rendition, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured.

Mohamed and four other plaintiffs are accusing Boeing subsidiary Jeppesen Dataplan, Inc. of flying them to other countries and secret CIA camps where they were tortured. In Mohamed’s case, two British justices accused the Bush administration of pressuring the British government to block the release of evidence that was “relevant to allegations of torture” of Mohamed.

Twenty-five lines edited out of the court documents included details about how Mohamed’s genitals were sliced with a scalpel as well as other torture methods so extreme that waterboarding “is very far down the list of things they did,” according to a British official quoted by the Telegraph (UK).

The plaintiffs’ complaint quotes a former Jeppesen employee as saying, “We do all of the extraordinary rendition flights – you know, the torture flights.” A senior company official also apparently admitted the company transported people to countries where they would be tortured.

Obama’s Justice Department appeared before a three-judge panel of the Ninth U.S. Circuit Court of Appeals Monday in the Jeppesen lawsuit. But instead of making a clean break with the dark policies of the Bush years, the Obama administration claimed the same “state secrets” privilege that Bush used to block inquiry into his policies of torture and illegal surveillance. Claiming that the extraordinary rendition program is a state secret is disingenuous since it is has been extensively documented in the media.

“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.

If the judges accept Obama's state secrets claim, these men will be denied their day in court and precluded from any recovery for the damages they suffered as a result of extraordinary rendition.

Two and a half weeks before Obama’s representative appeared in the Jeppesen case, the new President had signed Executive Order 13491. It established a special task force “to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.”

This order prohibits extraordinary rendition. It also ensures humane treatment of persons in U.S. custody or control. But it doesn’t specifically guarantee that prisoners the United States renders to other countries will be free from cruel, inhuman or degrading treatment that doesn’t amount to torture. It does, however, aim to ensure that our government’s practices of transferring people to other countries complies with U.S. laws and policies, including our obligations under international law.

One of those laws is the International Covenant on Civil Political Rights (ICCPR), a treaty the United States ratified in 1992. Article 7 of the ICCPR prohibits the States Parties from subjecting persons “to torture or to cruel, inhuman, or degrading treatment or punishment.” The Human Rights Committee, which is the body that monitors the ICCPR, has interpreted that prohibition to forbid States Parties from exposing “individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”

Order 13491 also mandates, “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” The order does not define “expeditiously” and the definitional section of the order says that the terms ‘detention facilities’ and ‘detention facility’ “do not refer to facilities used only to hold people on a short-term, transitory basis.” Once again, “short term” and “transitory” are not defined.

In his confirmation hearing, Attorney General Eric Holder categorically stated that the United States should not turn over an individual to a country where we have reason to believe he will be tortured. Leon Panetta, nominee for CIA director, went further and interpreted Order 13491 as forbidding “that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values.”

But alarmingly, Panetta appeared to champion the same standard used by the Bush administration, which reportedly engaged in extraordinary rendition 100 to 150 times as of March 2005. After September 11, 2001, President Bush issued a classified directive that expanded the CIA’s authority to render terrorist suspects to other States. Former Attorney General Alberto Gonzales said the CIA and the State Department received assurances that prisoners will be treated humanely. “I will seek the same kinds of assurances that they will not be treated inhumanely,” Panetta told the senators.

Gonzales had admitted, however, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us . . . If you’re asking me, ‘Does a country always comply?’ I don’t have an answer to that.”

The answer is no. Binyam Mohamed’s case is apparently the tip of the iceberg. Maher Arar, a Canadian born in Syria, was apprehended by U.S. authorities in New York on September 26, 2002, and transported to Syria, where he was brutally tortured for months. Arar used an Arabic expression to describe the pain he experienced: “you forget the milk that you have been fed from the breast of your mother.” The Canadian government later exonerated Arar of any terrorist ties. Thirteen CIA operatives were arrested in Italy for kidnapping an Egyptian, Abu Omar, in Milan and transporting him to Cairo where he was tortured.

Panetta made clear that the CIA will continue to engage in rendition to detain and interrogate terrorism suspects and transfer them to other countries. “If we capture a high-value prisoner,” he said, “I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” No clarification of how long is “temporarily” or what “debrief” would mean.

When Sen. Christopher Bond (R-Mo.) asked about the Clinton administration’s use of the CIA to transfer prisoners to countries where they were later executed, Panetta replied, “I think that is an appropriate use of rendition.” Jane Mayer, columnist for the New Yorker, has documented numerous instances of extraordinary rendition during the Clinton administration, including cases in which suspects were executed in the country to which the United States had rendered them. Once when Richard Clarke, President Clinton’s chief counter-terrorism adviser on the National Security Council, “proposed a snatch,” Vice-President Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”

There is a slippery slope between ordinary rendition and extraordinary rendition. “Rendition has to end,” Michael Ratner, president of the Center for Constitutional Rights, told Amy Goodman on Democracy Now! “Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence.” Ratner queried whether Cuba could enter the United States and take Luis Posada, the man responsible for blowing up a commercial Cuban airline in 1976 and killing 73 people. Or whether the United States could go down to Cuba and kidnap Assata Shakur, who escaped a murder charge in New Jersey.

Moreover, “renditions for the most part weren’t very productive,” a former CIA official told the Los Angeles Times. After a prisoner was turned over to authorities in Egypt, Jordan or another country, the CIA had very little influence over how prisoners were treated and whether they were ultimately released.

The U.S. government should disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001. Those who ordered renditions should be prosecuted. And the special task force should recommend, and Obama should agree to, an end to all renditions.

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Guantánamo Justice Delayed Seven Years

Since the Bush administration began transporting men and boys to Guantánamo Bay in January 2002, it has tried to prevent them from presenting their cases before a neutral federal judge. Indeed, the naval base was turned into a prison camp precisely to keep the detainees away from impartial courts. The government argued that federal courts had no jurisdiction over men detained on Cuban soil. Twice, the Supreme Court rejected that argument, finding that the United States exercises complete jurisdiction and control over the Guantánamo Bay base.

Finally, on November 20, in a stunning development, U.S. District Court Judge Richard J. Leon ordered the government to release five Guantánamo Bay detainees “forthwith.” Finding that the government failed to prove the men were “enemy combatants,” the judge, in a rare comment, urged senior government leaders not to appeal his ruling. “Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough,” he said.

The five detainees the judge ordered released are Lakhdar Boumediene, Mustafa Ait Idir, Hadj Boudella, Saber Lahmar and Mohammed Nechla. Judge Leon did, however, find that a sixth detainee, Belkacem Bensayah, was properly classified an enemy combatant.

It was the Supreme Court’s June 12, 2008 decision in Boumediene v. Bush (see Supreme Court Checks and Balances in Boumediene) that allowed Judge Leon to review the enemy combatant classifications. The high court upheld the Guantánamo detainees’ constitutional right to habeas corpus and made clear they were “entitled to a prompt habeas corpus hearing.” Judge Leon adopted the definition of "enemy combatant" used by the Combatant Status Review Tribunals, which is “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

The six detainees in this case are native Algerians who were residing in Bosnia and Herzegovina, over a thousand miles from the battlefield in Afghanistan. All six held Bosnian citizenship or lawful permanent residence as well as native Algerian citizenship. Arrested by Bosnian authorities in October 2001 for alleged involvement in a plot to bomb the U.S. Embassy in Sarajevo, they were ordered released from prison on January 17, 2002 and then turned over to U.S. personnel who transported them to Guantánamo on January 20, 2002. They have been there ever since.

President Bush had withdrawn the alleged bomb plot as a basis for their detention. He argued instead that the men planned to travel to Afghanistan in late 2001 and take up arms against the United States and allied forces. Judge Leon found the government had failed to prove these allegations by a preponderance of evidence in the cases of all but Bensayah.

The judge said the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source. He wrote that “while the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it.” He added, “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court’s obligation under the Supreme Court’s decision in Hamdi to protect petitioners from the risk of erroneous detention.”

The government did, however, present additional evidence which persuaded Judge Leon that Bensayah was “an al-Qaida facilitator” who planned to take up arms against the United States and facilitate the travel of unnamed others to do the same. That, wrote the judge, “constitutes direct support of al-Qaida in furtherance of its objectives” and “this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”

Bosnian authorities have indicated they are willing to take the five detainees once they are released.

In October, another federal district judge in Washington, Ricardo M. Urbina, ordered that 17 Uighur detainees be released from Guantánamo. The judge didn’t hold an evidentiary hearing because the government conceded the men were not enemy combatants. But the 17 men from western China languish in custody because the government has appealed Judge Urbina’s ruling.

President-elect Barack Obama has pledged to close the Guantánamo prison when he takes office. The National Lawyers Guild has urged Obama to ensure that the 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. This includes but is 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 Guild opposes the creation of national security courts to try the detainees. Although 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 an adequate 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.”

President-elect Obama should send those prisoners he intends to try to U.S. civilian and military courts, which are well-suited to protect national security concerns. He should eschew the creation of a new system of courts with reduced due process, which will raise many of the same concerns as Bush’s dreaded military commissions.

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Human Rights Hypocrisy

Last week, the President of the United Nations General Assembly announced a new proposal to revamp the UN Human Rights Commission and rename it the UN Human Rights Council. The product of months of negotiations between the 53 member nations of the Commission, the proposal will be voted on by the General Assembly next month. The United States, however, immediately denounced the compromise. John Bolton, US ambassador to the United Nations, said it has too many "deficiencies" and should be renegotiated.

Bolton stated last month, "Membership on the Commission by some of the world's most notorious human rights abusers mocks the legitimacy of the Commission and the United Nations itself." But Bolton was not referring to the United States, which invaded Iraq in violation of the UN Charter, killed thousands of innocent Iraqis, and tortured and abused prisoners in Iraq, Afghanistan and Guantánamo Bay.

The United States and Western European countries have criticized the Human Rights Commission because it has elected countries such as Sudan, Zimbabwe, Libya and Cuba, whom the Western nations have accused of human rights violations.

In a press release issued last week, the Permanent Mission of Cuba to the United Nations said, "If any government does not deserve to be part of the Council, it is the one who represents a State that benefited from the slavery and the transatlantic slave trade, that kept a 'constructive commitment' to extend the existence of the apartheid regime, that protects and bestows impunity to the human rights violations perpetrated by the Israeli occupation of Palestine and other Arab territories, that supported the bloody military dictatorships of Latin America, that today tortures and murders in the name of liberty which the majority of its own citizens do not benefit from, that fails to meet its commitments and obligations of official development assistance to the Third World, and that threatens and attacks the Southern countries."

The United States objects to the new proposal's commitment to the protection of economic, social and cultural rights. The refusal to enshrine rights such as employment, education, food, housing, and health care in US law is the reason the United States has not ratified the International Covenant on 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 US government criticizes 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 US also opposes the new proposal's affirmation that the right to development is on par with the rights to peace and security, and human rights, as the three pillars of the United Nations system. Last year, the United States and Australia were the only nations to vote against a General Assembly resolution on the Right to Development, which was passed by a vote of 48 to 2, with 2 abstentions. It reaffirmed the principle that the right to development is an "inalienable human right."

A member of the Commission since it was formed in 1947, the US was furious when it was voted off the Commission in 2001. Many countries were angry with the United States for its policies in the Middle East, and its opposition to the International Criminal Court, the treaty to ban land mines, the Kyoto Protocol, and making AIDS drugs available to everyone.

It was only after behind the scenes negotiations among Western nations that the US was able to manipulate its way back onto the Commission one year later.

The new proposal provides that members of the Council will serve for a period of three years and shall not be eligible for immediate re-election after two consecutive terms. This is objectionable to the United States, which wants to guarantee a spot on the Council for the five permanent members of the Security Council - France, Britain, Russia, China and the US.

The United States also wants open voting on Council membership instead of the secret ballot elections that the proposal calls for. The US would like to make it easier to blackmail smaller nations for their votes.

In his statement last week, Bolton also said, "We consider the United States a champion of human rights. It is a fundamental and bedrock tenet upon which our country was founded. Thus, when the United States falls short of the high standards we set for ourselves, we move swiftly and decisively to vigorously prosecute offenders who are US citizens in our courts." Yet only a few low-ranking soldiers and a chief warrant officer have been prosecuted for the widespread and systematic torture and abuse of prisoners in US custody.

Ironically, two weeks ago, the UN Human Rights Commission issued a report decrying the torture and cruel, inhuman and degrading treatment of prisoners by United States forces at Guantánamo. It called on the US government to ensure that "all persons found to have perpetrated, ordered, tolerated or condoned such practices, up to the highest level of military and political command, are brought to justice." The United States, which has refused to allow UN or other human rights experts to speak directly with the Guantánamo prisoners, rejected the Commission's report.

The US has a history of scuttling Commission investigations when they focus on the United States as a human rights violator.

Last spring, the United States refused a request by Jean Ziegler, the UN Human Rights Commission's Special Rapporteur on the Right to Food, to meet with State Department officials to discuss the impact the US embargo on Cuba was having on the Cuban people's right to food. Last fall, Ziegler reported that both Coalition Forces and the insurgents in Iraq "have adopted the cutting of food and water supplies to cities under attack." Ziegler noted that "the starvation of civilians as a method of warfare is prohibited in both international and non-international armed conflict," citing the Protocols to the Geneva Conventions.

The United States likewise pressured the Commission to withdraw Professor Cherif Bassiouni, the Commission's Independent Expert on Human Rights in Afghanistan, from his mission after he issued a report critical of the US. Professor Bassiouni accused United States troops of breaking into homes, arbitrarily arresting residents and torturing detainees. He also alleged that US-led forces had committed "sexual abuse, beatings, torture and use of force resulting in death." He wrote, "When these forces directly engage in practices that violate ... international human rights and international humanitarian law, they undermine the national project of establishing a legal basis for the use of force."

"The United States and the coalition forces consider themselves above and beyond the reach of the law," Professor Bassiouni told Amy Goodman of Democracy Now! "They feel that human rights don't apply to them, the international conventions don't apply to them, nobody can ask them what they're doing, and nobody can hold them accountable."

Yale Law School Dean Harold Koh concurs. He wrote, "In the cathedral of human rights, the US 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."

The composition of the new Council will not likely differ significantly from the old Commission. "That reality," according to Phyllis Bennis, a senior fellow at the Institute for Policy Studies, "reflects the failure of the John Bolton-led US effort to impose an entirely new human rights infrastructure on the United Nations, one that would privilege those countries given a seal of approval by Washington to serve on the Council, with others, especially those in bad graces in Washington, prohibited from serving."

In the next few weeks, we can expect some strong arm-twisting by the United States to scuttle the new proposal.

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U.S. Finally Outlaws Execution of Children

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Capture of Saddam Hussein: Pyrrhic Victory?

The "capture" of Saddam Hussein is being hailed as a great victory for President Bush. After all, who needs to worry about the missing weapons of mass destruction or the lack of ties between Hussein and the perpetrators of the Sept. 11 attacks, now that we've caught the "Butcher of Baghdad"?

Bush is likely to gain some political mileage from Hussein's arrest. But the terrorism Bush's war has unleashed in Iraq is likely to continue or increase, and Hussein can no longer be blamed for it now that he's in custody.

The media have treated us to wall-to-wall coverage of Hussein's arrest -- including shots of a doctor looking into Hussein's mouth as he grimaces. This violates the Geneva Convention, which forbids subjecting prisoners to humiliation and public ridicule. We have not, however, been reminded that Hussein was one of the United States' main allies in the 1980s when he used chemical weapons given to him by the United States.

Will Hussein really "face the justice he denied to millions," as promised by Bush the morning after Hussein's arrest? The new Iraqi criminal tribunal statute under which Hussein will likely be tried was established with $75 million of U.S. money by the administration's handpicked Iraqi Governing Council and approved by the Pentagon and the State Department. It is the first criminal tribunal that has no international or U.N. involvement. Its decisions will also be tainted because it was created while Iraq was under occupation.

Bush has once again thumbed his nose at the International Criminal Court, which was developed during a 50-year period by international legal experts and scholars to try genocide, war crimes and crimes against humanity. None of the three existing tribunals -- the International Criminal Court, the Yugoslav and Rwanda tribunals -- allow for the death penalty; yet, the new Iraqi court may well permit capital punishment. Will Hussein be executed right before the U.S. election next November?

Moreover, Iraq must afford defendants the fair trial rights guaranteed in the International Covenant on Civil and Political Rights, which Iraq has ratified. It requires that the accused be brought promptly before a judge, informed of the charges against him, and be afforded a speedy, public and fair trial with the presumption of innocence, counsel of his choice and the privilege against self-incrimination. The United States, which has also ratified this covenant, has denied all of these rights to the prisoners at its Guantanamo Bay, Cuba, prison camp.

Fortuitously, Hussein's arrest came right after the Bush administration was put on the defensive by the revelation that Vice President Dick Cheney's former company, Halliburton, overcharged U.S. taxpayers $61 million for delivering oil to Iraq. The arrest of Hussein is also likely to deflect criticism from Bush's preferential awarding of lucrative Iraq reconstruction contracts to countries that backed his war on Iraq, in violation of the rules of the World Trade Organization.

Perhaps the most tragic aspect of this media spectacle is that it distracts us from the hell our troops are facing for no good reason in Iraq. Not only has the Bush administration denied us the right to mourn with the families of dead soldiers as the caskets return shielded from media cameras, it has withheld some Purple Hearts so the hundreds of wounded cannot be accurately tallied.

Notwithstanding the arrest of Hussein, we must call on our government to turn the administration of Iraq over to the United Nations and bring our troops home immediately.

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Bush Gunning for Regime Change in Cuba

In a brazen move to solidify his electoral support among Cuban-Americans in Florida, George W. Bush is gunning for another "regime change." Last week, Bush announced the formation of a commission to "plan" for a Cuban change in government.

No country has the right to change the regime of another. The International Covenant on Civil and Political Rights, a treaty ratified by the United States and thus part of the supreme law of the land under our Constitution, recognizes self-determination as a human right and guarantees all peoples the right to "freely determine their political status and freely pursue their economic, social and cultural development."

One need only look at the mess Bush has created in Iraq to understand the wisdom of this principle. Iraq is completely destabilized, the infrastructure has been demolished, thousands are without work, water, electricity and medical care. Many say they were better off under the tyrannical rule of Saddam Hussein. That choice was up to the Iraqis, not the United States.

What if Sweden decided that the United States needed a regime change, because of the high number of people living below the poverty level, without jobs or health care, the police brutality on our streets and in our prisons, the execution of innocent people, and the indefinite detention and inhumane treatment of 600 people in Guantanamo for nearly two years? Would Sweden have the right to impose "regime change" on the United States?

Since Fidel Castro's socialist revolution in 1959, every U.S. President from Dwight D. Eisenhower through George W. Bush has maintained a cruel economic embargo--now a blockade--against Cuba. The embargo began as a means to foment unrest among Cubans in the hopes they would overthrow the Castro government. More recently, it has been maintained as a vehicle to pander to the anti-Castro Cuban-Americans in Florida who wield tremendous political clout in the U.S. electoral system.

The Association for World Health found that the embargo had "caused a significant rise in suffering--and even deaths in Cuba." The Cuban people are denied access to half the new medicines on the world market, and are unable to buy some life-saving medical supplies because the U.S. punishes countries which trade with Cuba. Fatal heart attacks have increased because the U.S. pacemaker monopoly refuses to sell to Cuba.

In spite of the punishing blockade against it, Cuba has the highest literacy rate in the Americas and one of the highest in the world. The life expectancy in Cuba is the longest in Latin America and one of the longest in the world. Cuba's universal health care system puts ours to shame.

To further its political agenda, our government is in denial about the advances Cuba has made in rates of literacy, health care, and low infant mortality.

Cuba is not a threat to the United States. Yet, Bush is opportunistically setting the stage for a regime change in Cuba. The people of Cuba have the right to determine their own system of government, free from the "plans" of George W. Bush.

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Assassination and Display in Iraq: The Killings of Uday and Qusai Hussein in International Law

Last week the US military assassinated Uday and Qusai Hussein in a villa in Mosul, Iraq. Hundreds of troops armed with automatic weapons, rockets, rocket-propelled grenades, and tow missiles, and dozens of vehicles and aircraft, attacked four people armed with AK-47 automatic rifles. Mustapha, the 14-year old son of Qusai, was also killed in the operation, along with another individual who was apparently a bodyguard.

The subsequent firestorm of media coverage momentarily diverted public attention from the Bush administation's failing Iraq war - its vain attempts to find any weapons of mass destruction or link between Saddam Hussein and Al Qaeda, the White House's admission that the President used false information in his State of the Union address, and the continuing deaths of American soldiers in an occupation with no end in sight.

The assassinations prompted chest-thumping and back-slapping all around. Even Senator Ted Kennedy joined British Prime Minister Tony Blair, The New York Times and the Washington Post, in congratulating Bush on the good news. Then, after reportedly reflecting on the pros and cons, Secretary of Defense Donald Rumsfeld gave the go-ahead to display the grisly photographs of the Hussein brothers' reconstructed bullet-riddled faces. The Pentagon didn’t want to appear to be “gloating,” but Rumsfeld thought the photos would convince skeptical Iraqis that Uday and Qusai were indeed dead, which would reduce the attacks on U.S. troops and encourage informants to come forward without fear of retaliation by the old regime.

Both the targeted assassinations and the photographic display violated well-established principles of international law. Targeted, or political, assassinations are extrajudicial executions. They are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. Extrajudicial executions are unlawful, even in armed conflict. In a 1998 report, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted that “extrajudicial executions can never be justified under any circumstances, not even in time of war.”

The International Covenant on Civil and Political Rights, a treaty ratified by the United States, prohibits the arbitrary denial of the right to life, a right so fundamental, there can be no derogation from it even in “time of public emergency which threatens the life of the nation." The U.N. General Assembly and Human Rights Commission, as well as Amnesty International, have all condemned extrajudicial executions.

After the Senate Select Committee on Intelligence disclosed in 1975 that the CIA had been involved in several murders or attempted murders of foreign leaders, President Gerald Ford issued an executive order banning assassinations. Although every succeeding president has renewed that order, the Clinton administration targeted Osama bin Laden in Afghanistan, but narrowly missed him.

In July 2001, the U.S. Ambassador to Israel denounced Israel’s policy of targeted killings, or “preemptive operations.” He said “the United States government is very clearly on the record as against targeted assassinations. They are extrajudicial killings, and we do not support that.”

Yet after September 11, former White House press secretary Ari Fleischer invited the killing of Saddam Hussein: “The cost of one bullet, if the Iraqi people take it on themselves, is substantially less” than the cost of war. Shortly thereafter, George W. Bush issued a secret directive, which authorized the CIA to target suspected terrorists for assassination when it would be impractical to capture them and when large-scale civilian casualties could be avoided. In November 2002, Bush reportedly authorized the CIA to assassinate a suspected Al Qaeda leader in Yemen. He and five traveling companions were killed in the hit, which Deputy Defense Secretary Paul Wolfowitz described as a “very successful tactical operation.”

Nearly sixty years ago, the U.S. government opposed the extrajudicial executions of Nazi officials who had committed genocide against millions of people. U.S. Supreme Court Justice Robert H. Jackson, who served as chief prosecutor at the Nuremberg War Crimes Tribunal, told President Harry Truman: “We could execute or otherwise punish [the Nazi leaders] without a hearing. But undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would … not set easily on the American conscience or be remembered by children with pride.”

Americans should not feel pride in the public display of the gruesome photos of the assassinated Hussein brothers. The First Geneva Convention requires combatants to ensure that the dead are not despoiled. Reconstruction of their faces violates this treaty, which also provides that the dead be honorably interred; Islamic law requires immediate burial. When Iraqis displayed images of captured U.S. troops, Bush demanded that the POWs be treated humanely, and he warned that anyone who mistreated them would be tried for war crimes. But Bush didn’t complain when American media outlets featured Iraqi prisoners down on their knees, blindfolded and handcuffed. What’s good for the goose is good for the gander.

Uday and Qusai Hussein should have been arrested and tried in Iraqi courts or an international tribunal for their alleged crimes. George W. Bush cannot serve as judge, jury and executioner. This assassination creates a dangerous precedent, which could be used to justify the targeted killings of U.S. leaders. The display of the photographs may backfire and turn the brothers into martyrs who stood against the foreign invaders. It could also result in even more violence against U.S. troops.

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Affirmative Action Counteracts Centuries of Racism

Since the U.S. Supreme Court's recent momentous affirmative action decisions, the talking heads have railed against "reverse discrimination," a term that entered our vernacular 25 years ago with the Regents of the University of California v. Bakke opinion.

But focusing on equal rights for whites misses the point. Justice Ruth Bader Ginsburg, in her separate opinions in the Michigan cases, hits the nail on the head. In her dissent in Gratz v. Bolinger, where the court struck down the University of Michigan's undergraduate admissions program, she decries the majority's view that judicial inspection of all official race classifications should be judged by the same standard of review. This would be appropriate, she writes, if our country were "free of the vestiges of rank discrimination long reinforced by law."

Ginsburg documents the large disparities between whites and minorities in earning power, unemployment rates, poverty levels and access to health care and quality education. She also discusses institutional racism. Ginsburg then says that the issue presented in Bakke -- where a white man claimed discrimination because blacks were admitted before him -- is categorically distinct from the issue presented in Brown v. Board of Education -- where the Supreme Court said that black kids have the right to go to the very same schools as white kids.

Ginsburg reinforces this distinction with reference to international treaties, saying "Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality," citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination Against Women.

The United Nations Human Rights Committee, which administers the International Covenant on Civil and Political Rights, has determined that affirmative action may involve preferential treatment, and as long as it is needed to correct discrimination in fact, "it is a case of legitimate differentiation."

Illegitimate differentiations have been maintained for years. The children of alumni -- who are primarily white -- have always been granted preference in admission at the elite universities (e.g., George W. Bush). This system has served to discriminate against the children of non-alumni, or non-whites.

Justice Clarence Thomas, dissenting in the law school decision, Grutter v. Bolinger, where the court held that race can be used as a factor to achieve diversity in higher education, says "blacks can achieve in every avenue of American life without the meddling of university administrators." He focuses on the stigma attached to blacks who take positions in "the highest places of government, industry or academia," saying "it is an open question today whether their skin color played a part in their advancement."

Thomas apparently wonders whether he himself benefited from affirmative action when he was admitted to Yale Law School and appointed to the Supreme Court. In any event, he disingenuously seeks to slam the door behind him, and deprive future generations of black students the opportunities that were available to him.

Thomas misses the point. As Justice Sandra Day O'Connor writes for the majority in Grutter, "By virtue of our Nation's struggle with racial inequality, such [minority] students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences."

In my own criminal procedure classes, the perspectives of African-American students about racial profiling which enrich the classroom discussion could not be duplicated by their white counterparts. Indeed, according to O'Connor, "Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized."

Read on >>

Affirmative Action Counteracts Centuries of Racism

Since the U.S. Supreme Court's recent momentous affirmative action decisions, the talking heads have railed against "reverse discrimination," a term that entered our vernacular 25 years ago with the Regents of the University of California v. Bakke opinion.

But focusing on equal rights for whites misses the point. Justice Ruth Bader Ginsburg, in her separate opinions in the Michigan cases, hits the nail on the head. In her dissent in Gratz v. Bolinger, where the court struck down the University of Michigan's undergraduate admissions program, she decries the majority's view that judicial inspection of all official race classifications should be judged by the same standard of review. This would be appropriate, she writes, if our country were "free of the vestiges of rank discrimination long reinforced by law."

Ginsburg documents the large disparities between whites and minorities in earning power, unemployment rates, poverty levels and access to health care and quality education. She also discusses institutional racism. Ginsburg then says that the issue presented in Bakke -- where a white man claimed discrimination because blacks were admitted before him -- is categorically distinct from the issue presented in Brown v. Board of Education -- where the Supreme Court said that black kids have the right to go to the very same schools as white kids.

Ginsburg reinforces this distinction with reference to international treaties, saying "Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality," citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination Against Women.

The United Nations Human Rights Committee, which administers the International Covenant on Civil and Political Rights, has determined that affirmative action may involve preferential treatment, and as long as it is needed to correct discrimination in fact, "it is a case of legitimate differentiation."

Illegitimate differentiations have been maintained for years. The children of alumni -- who are primarily white -- have always been granted preference in admission at the elite universities (e.g., George W. Bush). This system has served to discriminate against the children of non-alumni, or non-whites.

Justice Clarence Thomas, dissenting in the law school decision, Grutter v. Bolinger, where the court held that race can be used as a factor to achieve diversity in higher education, says "blacks can achieve in every avenue of American life without the meddling of university administrators." He focuses on the stigma attached to blacks who take positions in "the highest places of government, industry or academia," saying "it is an open question today whether their skin color played a part in their advancement."

Thomas apparently wonders whether he himself benefited from affirmative action when he was admitted to Yale Law School and appointed to the Supreme Court. In any event, he disingenuously seeks to slam the door behind him, and deprive future generations of black students the opportunities that were available to him.

Thomas misses the point. As Justice Sandra Day O'Connor writes for the majority in Grutter, "By virtue of our Nation's struggle with racial inequality, such [minority] students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences."

In my own criminal procedure classes, the perspectives of African-American students about racial profiling which enrich the classroom discussion could not be duplicated by their white counterparts. Indeed, according to O'Connor, "Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized."

Read on >>

Dropping the Ball on Torture: The US Supreme Court Ruling in Chavez vs. Martinez

The use of torture to obtain information from suspects has become an important topic in fighting the war on terror. In December, for example, the Washington Post reported that CIA officials at Bagram air base in Afghanistan used interrogation techniques that could constitute torture.

In Chavez v. Martinez, decided May 27, the United States Supreme Court was presented with a golden opportunity to address the issue of torture in the context of a 42 U.S.C. §1983 claim against police. Acting like a deer staring into the headlights of an oncoming truck, the high court failed to take decisive action. The facts of this case were egregious.

Oliverio Martinez was riding his bicycle to his girlfriend’s house when two Oxnard police officers ordered him to dismount, spread his legs, and place his hands behind his head. A frisk of Martinez yielded a knife and an altercation ensued. Martinez was shot five times, leaving him paralyzed and blind.

On the way to the hospital and in the emergency room, Officer Ben Chavez repeatedly interrogated Martinez. In response to Chavez’ questions about what had occurred during the altercation with the officers, Martinez said several times, “I am dying” and “I am choking.” At one point, Martinez told Chavez, “I want them to treat me,” and he later asked Chavez, “Aren’t you going to treat me or what?”

The District Court found that Martinez “had been shot in the face, both eyes were injured; he was screaming in pain, and coming in and out of consciousness while being repeatedly questioned about the details of the encounter with the police.” Martinez admitted taking the officer’s gun and pointing it at the police; he also admitted that he regularly used heroin. At no time did Chavez Mirandize Martinez, who was never charged with a crime.

Both of Martinez’s constitutional arguments, violation of his Fifth Amendment privilege against self-incrimination and violation of his Fourteenth Amendment due process rights, were sustained by the Ninth Circuit Court of Appeals.

The U.S. Supreme Court was so fractured it produced six separate opinions. Six justices agreed that Martinez could not recover against Chavez for violation of Martinez’s privilege against self-incrimination, since he had not been criminally prosecuted. Five justices, writing for a Court unable to agree on whether Martinez’s due process rights had been violated by Chavez, punted that issue back to the lower court.

It is well-settled that police methods so brutal and offensive to human dignity that they shock the conscience violate the due process clause. Justice Clarence Thomas, writing also for Chief Justice William Rehnquist and Justice Antonin Scalia, was satisfied that Chavez’s interrogation of Martinez did not constitute a due process violation. Thomas admitted that “police torture or other abuse that results in a confession is [not] constitutionally permissible [even if] the statements are not used at trial.” Thomas’s denial of Martinez’s due process claim, however, is an implicit rejection of the notion that police used torture to elicit statements from Martinez.

Three justices – John Paul Stevens, Anthony Kennedy, and Ruth Bader Ginsburg – discussed this case with reference to torture. Stevens felt so strongly that Chavez’s conduct rose to the level of torture, he began his separate opinion with the following words: “As a matter of fact, the interrogation of respondent was the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods.”

Kennedy wrote separately: “A constitutional right is traduced the moment torture or its close equivalents are brought to bear. Constitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place. These are the premises of this separate opinion.” In Kennedy’s words, Martinez’s “blinding facial wounds made it impossible for him visually to distinguish the interrogating officer from the attending medical personnel. The officer made no effort to dispel the perception that medical treatment was being withheld until Martinez answered the questions put to him … Martinez begged the officer to desist and provide treatment for his wounds, but the questioning persisted despite these pleas and despite Martinez’s unequivocal refusal to answer questions.”

Justices Stevens and Ginsburg agreed with Kennedy, who wrote that “severe compulsion or even torture” violates the right against compelled self-incrimination, and that the “use of torture or its equivalent in an attempt to induce a statement violates an individual’s fundamental right to liberty of the person,” a violation of due process.

In her separate opinion, Ginsburg cited with approval Stevens’s characterization of “Martinez’s interrogation as ‘the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods’.” She also quoted E. Griswold in The Fifth Amendment Today, who analogized “the struggle to eliminate torture as a governmental practice” with the privilege against self-incrimination, “one of the great landmarks in man’s struggle to make himself civilized.”

None of the justices mentioned the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention is an international treaty ratified by the United States and therefore part of our supreme law under the Supremacy Clause of the Constitution. The Convention’s definition of torture includes any act of a public official, by which severe mental suffering is intentionally inflicted on a person to obtain information or a confession, or to coerce him. Chavez’s conduct fits the Convention’s definition of torture.

The justices should not have hesitated to underscore our duties under the Torture Convention. Indeed, Justices Stevens, O’Connor, and Souter have advanced international law to support their opinions in other cases.

The Supreme Court’s failure to definitively resolve this case is disturbing. The Court must face the difficult issues arising from the “war on terror” without trepidation. The same day the Court announced its decision in Chavez v. Martinez, it refused to review whether the hundreds of secret deportation hearings since September 11, 2001, violated the First Amendment, and indeed, the International Covenant on Civil and Political Rights, another treaty ratified by the United States.

Litigators must educate judges about the international jurisprudence that has been incorporated into our domestic law. Jurists must incorporate treaty principles into their decisions. And hopefully, Oliverio Martinez, who was subjected to incomprehensible anguish in that ambulance and emergency room, will receive some relief for his suffering.

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A Double Standard on Torture: The U.S. Should Practice What We Preach

The Bush administration has a double standard on torture and human rights violations as it prosecutes the "war on terror." While trying to convince the American people in his State of the Union address that war with Iraq is necessary, President George W. Bush marshaled accusations that Saddam Hussein has tortured his people to coerce confessions. Yet in the same speech, Bush sanctioned extrajudicial killings by the United States. He said that more than 3,000 suspected terrorists had been arrested but many others had met a "different fate," so they would no longer cause us problems. Even more recently, Human Rights Watch and other human rights monitoring groups have expressed concern that the United States has actually been using torture to extract information from prisoners.

The evidence of American torture and associated inhumane conduct is especially disturbing. In December of last year, the documentary "Massacre in Afghanistan" was aired on German television, to the consternation of the U.S. State Department. It shows interviews with eyewitnesses to the torture and slaughter of 3,000 Taliban POWs, who surrendered to U.S. and allied Afghan forces. The film demonstrates the complicity of the American army command in the killing of these 3,000 men. Some of the prisoners died from suffocation while being transported in closed containers that lacked any ventilation. An Afghan soldier who traveled with the convoy reported he was ordered by an American commander to fire shots into the containers to provide air, knowing he would hit the men inside. One of the drivers recounted the fate of survivors of the transport - dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers looked on. These allegations suggest evidence of war crimes and crimes against humanity under the statute of the new International Criminal Court. It is precisely liability for actions such as these that Bush sought to escape when he endeavored to remove the United States' signature on this treaty last year.

A week after the documentary was shown in Germany, the Washington Post reported that "stress and duress" tactics were being used on captured al Qaeda operatives and Taliban commanders who are being interrogated at the CIA's secret detention center at the U.S.-occupied Bagram air base in Afghanistan. Those who remain uncooperative may be kept standing or kneeling for hours, wearing black hoods and spray-painted goggles. Some are kept in awkward, painful positions and deprived of sleep with a bombardment of lights for 24 hours. According to the Post: "While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary." At least two prisoners are known to have died at Bagram base, one of a pulmonary embolism, the other of a heart attack. The article quotes "Americans with direct knowledge and others who have witnessed the treatment," who reported that MPs and U.S. Army Special Forces troops beat captives and confined them in tiny rooms. Many are blindfolded, thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep. They also report prisoners being bound to stretchers with duct tape for transport. This was the treatment that U.S. citizen John Walker Lindh received, which proved the driving force behind the government's agreement to a plea bargain. Attorney General John Ashcroft sought to avoid testimony about Lindh's mistreatment while in captivity.

The Post also reported in March that the U.S. government was secretly sending terrorism suspects to countries such as Egypt and Jordan for interrogation, where they would be subjected to torture. This practice is known as "rendition." One U.S. diplomat is quoted as saying: "These sorts of movements have been occurring all the time. It allows us to get information from terrorists in a way we can't do on U.S. soil."

These actions of the U.S. government constitute direct violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights, which also proscribes torture. Both of these treaties, which the U.S. has ratified, forbid torture even in wartime. Alarmed at the Post report about torture undertaken or condoned by the U.S., Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken "to clarify that the use of torture is not US policy." Roth reminded Bush that, "U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world." The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven't ratified the Torture Convention. The U.S. government's practice of torture is unjustifiable and a clear violation of international law.

The Bush administration has been emboldened to engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: "This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off." Indeed, in his speech, Bush said: "All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let's put it this way - they are no longer a problem to the United States and our friends and allies." Bush was likely referring to the November 2002 assassination of an alleged al Qaeda leader in Yemen by the CIA. Besides violating the Torture Convention and the jus cogens norm prohibiting torture, extrajudical killings, or summary executions, violate the Covenant on Civil and Political Rights.

Many of the detainees at Guantanamo Bay, Cuba and the U.S. mainland have also been victims of torture and other cruel, inhuman or degrading treatment by the U.S. government. In Guanatanamo, prisoners have been locked in 8-foot by 8-foot cells 24 hours a day, with one 15-minute exercise break each week. A class action filed by the Center for Constitutional Rights in April 2002, alleged that prisoners in the U.S. were beaten into unconsciousness, bloodied, pushed, kicked in the face, teeth loosened, head slammed against the wall, thumbs bent back and called terrorists. Likewise, many foreign nationals who came forward to register recently with the Immigration and Naturalization Service pursuant to Ashcroft's order, reported being forced to sleep standing up, or were hosed down before they went to sleep on cold concrete floors in frigid temperatures, according to the Los Angeles Times. These constitute violations of the Torture Convention. Amnesty International has reiterated the U.S. government's international obligations to refrain from violating the Torture Convention and the Covenant on Civil and Political Rights in Afghanistan, in Guantanamo and in the United States.

Victims of torture may have a cause of action in U.S. courts under the Alien Tort Claims Act and the Torture Victim Protection Act. There have been 27 cases brought in U.S. federal courts, in five circuits and nine districts, in which the Convention Against Torture was used successfully. Last year, a judge in Georgia awarded compensatory and punitive damages to plaintiffs, based in part on the Covenant on Civil and Political Rights, in a lawsuit brought by four Muslim refugees from Bosnia-Herzegovina against a former Bosnian Serb police officer under the Alien Tort Claims Act and Torture Victim Protection Act.

Thus far, primarily immigration lawyers and attorneys with foreign-born clients have used the Torture Convention in their litigation. There is, however, great potential to assert the treaty to support U.S. client claims as well, particularly under the Torture Victim Protection Act.

The United Nations has taken steps to make countries that engage in torture accountable to the international community. In December 2002, the U.N. General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the UN Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.

While decrying human rights violations in other countries as it furthers Washington's agenda, the Bush administration refuses to be accountable for its own transgressions. As U.S. Senior District Judge Jack Weinstein (E.D.N.Y.) wrote last year: "The United States cannot expect to reap the benefits of internationally recognized human rights - in the form of greater worldwide stability and respect for people - without being willing to adhere to them itself." During his speech, Bush celebrated "the cause of human dignity." His words, however, ring hollow.

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Bush and The Geneva Convention: Begging the Question

In a striking example of double-talk, President George W. Bush has announced that the United States will apply the Geneva Convention to the captured Taliban fighters in Guantanamo, but won’t classify them as prisoners of war. This is like being half pregnant. The Geneva Convention Relative to the Treatment of Prisoners of War spells out how prisoners of war must be treated. Bush’s statement that he will apply the Geneva Convention to the Taliban prisoners is tantamount to a declaration that they are POWs.

Bush says his decision will result in “no change” in the treatment of the captives, because they’re already generally being treated consistent with the Geneva Convention. Bush’s non-decision is admittedly calculated to remind other rogue nations who might capture U.S. fighters that our soldiers must be granted the protections of the Geneva rules.

The Geneva Convention Relative to the Treatment of Prisoners of War requires that the status of captured persons be determined by a “competent tribunal” should “any doubt arise” about whether they are prisoners of war. Meanwhile, they must be afforded the protections of the Geneva Convention.

Despite widespread doubt around the world, the Pentagon says there is no doubt at all about the status of the Guantanamo captives But White House spokesman Ari Fleisher’s statement that the drafters of the Geneva Convention didn’t contemplate international terrorists belies the Pentagon’s insistence that there is no doubt about their status. The United States can’t have it both ways.

The Pentagon has taken it upon itself to classify the captives as “unlawful combatants” in order to deny them the rights spelled out in the Geneva Convention. These rights include humane treatment and the right not to be interrogated or coerced into providing information. The U.S. government is admittedly interrogating the captives. And from its steadfast refusal to consider them POWs, it is surely using coercion to get them to talk. Moreover, keeping human beings in small outdoor cages does not qualify as humane treatment.

Even if a competent tribunal were to decide that some of the captives are not POWs, then our government is still duty bound to follow two other treaties we’ve ratified - the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. The Torture Convention forbids the use of physical or mental coercion for the purpose of getting information, and the ICCPR prohibits compulsion to get someone to confess guilt. Keeping human beings in cages constitutes inhuman and degrading treatment, which is proscribed by both of these treaties.

George W. Bush and his administration have demonstrated a consistent unwillingness to follow our international treaty obligations. By refusing to ratify the Kyoto Protocol and disavowing the Anti-Ballistic Missile Treaty, our government has sent a strong message to other countries that we have no respect for our legal obligations. The treaties we have ratified are not simply abstract international principles. Under the Constitution, they are part of our domestic law and bind our government to respect them.

In an unprecedented move, the United States was voted off the United Nations Commission on Human Rights last year. It should come as no surprise that other countries are unimpressed with our human rights hypocrisy - demanding that foreign nations uphold human rights while flaunting our own human rights responsibilities. President Bush ended his recent State of the Union address with these words: “We choose freedom and the dignity of every life.” The captives at Guantanamo are human beings, who may or may not have committed crimes. The United States government must adhere to its treaty obligations; it must also take the high road and treat all human beings with dignity and respect.

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The WTO: A New World Government Dedicated to the Principle That Property Interests Are More Sacred Than Human Rights

What brought more than 50,000 trade unionists, environmentalists, human rights and social justice activists from all over the world into the streets of Seattle in late November and early December of last year to protest the World Trade Organization? They all understood: "Economic globalization is the number one threat to the survival of the natural world." The global transfer of economic and political power from national governments to multinational corporations is a disaster for human rights, the environment, social welfare, agriculture, food safety, workers' rights, national sovereignty and democracy.

This article analyzes the role and function of the World Trade Organization, which is dedicated to 'free trade' for trans-national corporations. It seeks to unveil the WTO's myth that everyone's interests will be protected if trade is allowed to flourish unfettered. In contrast to the National Lawyers Guild's unifying principle - that human rights are more sacred than property interests - the WTO's raison d'etre is the elevation of property interests above the protection of human rights.


THE BENEFITS OF GLOBALIZATION DON'T TRICKLE DOWN

In a 1999 human development report, the United Nations found that even though globalization has resulted in skyrocketing net capital flows in countries such as Indonesia, prosperity has not trickled down. The gap between rich and poor has increased geometrically because of the global trading system.

As a result of globalization, wages of low-income workers in the United States have dropped, while corporate profits have soared to record heights. The affected workers include large numbers of women and people of color. In developing countries, poverty has increased as governments have slashed funding for food and social programs in order to promote export-oriented agriculture.

In the six years since the enactment of NAFTA, poverty in Mexico has increased as wages have dropped. The United States trade deficit with Mexico has mushroomed. Most NAFTA-related job losses have occurred in the apparel and electronics industries, prime employers of women and people of color. A study by the International Labor Organization reported a "widening earnings gap between TCF [textile, clothing and footwear] workers in higher and lower-income countries."


THE WTO: ACCOUNTABLE TO WHOM?

Globalization has been a boon to the multinational corporations - at the expense of of us all. Ironically, the states that have joined the WTO have ceded it the power to prevent them from protecting their own people because they are economically beholden to the multinational corporations.

Who runs the WTO? A self-anointed group of security-cleared trade advisors to the WTO, it is a veritable "Who's Who" of representatives of global corporations and industrial interests, including several Fortune 500 corporations. Further, representatives of the 135 WTO member countries meet in secret, excluding non-governmental organizations representing labor, environmental, human rights and social justice interests.

Any WTO member country can challenge rules or laws of another country as "trade barriers." Moreover, the WTO has the power to levy huge fines against offenders. Its enforcement mechanism emanates from a structure encompassing all three branches of government - legislative, executive and judicial - and aspiring to wield more power than the United Nations. Indeed, the U.S. has committed itself to abide by WTO rulings while it has routinely ignored UN resolutions opposing its actions. In a 1994 speech promoting United States approval of the WTO, GATT Director General Peter Sutherland said, "Governments should interfere in the conduct of trade as little as possible." Not surprisingly, WTO rulings have upheld the interests of trans-national corporations in every instance that an environmental, labor, health and safety, or human rights protection has been challenged as a 'trade barrier."

ENVIRONMENTAL PROTECTIONS = 'TRADE BARRIERS'

The WTO contains no specific agreement on the protection of the environment. Articles I, III, XI and XX, which are derived from GATT, actually militate against protecting the environment.

Article I - Most Favored Nation Treatment - prohibits governments and citizens from setting standards that favor goods produced under more environmentally sustainable conditions. For example, the WTO ruled in 1998 that a country cannot place restrictions on the importation of products such as shrimp, based on the way they are produced. In that case, the restriction was aimed at protecting endangered sea turtles.

Article III - National Treatment - restricts nations from giving more favorable treatment to domestic goods that may be produced in a safer, more humane or environmentally friendly manner. A pre-WTO GATT ruling struck down a United States law that banned the importation of tuna caught in nets lethal to dolphins. The Acourt said that no distinction could be made between the process and the product. In other words, the end justified the means.

Article XI - Elimination of Import and Export Controls - specifies that WTO members cannot limit imports or exports of resources or produce across their borders, effectively eliminating a nation=s right to allocate its own natural resources. This provision nullifies the prohibition against trade in endangered species. Hundreds of species are becoming endangered each year, drastically upsetting the balance of nature.

Article XX - General Exceptions - provides that nothing in the WTO agreement shall prevent measures necessary to protect human, animal or plant life, or health or natural resources. WTO apologists frequently cite this article as evidence that human and environmental concerns are protected. But whenever it has been invoked, a trade dispute panel found a rationalization to avoid its application. Thus far, the WTO study group on trade and the environment has focused more on avoiding environmental impediments to trade than on protecting the environment. The WTO struck down an Environmental Protection Agency (EPA) rule requiring gasoline refineries to produce cleaner gas in order to reduce air pollution. As a result, the EPA, which administers the Clean Air Act, was forced to lower its standards to allow dirtier gasoline.

In each and every environmental case that has come before it, the WTO has ruled against protecting the environment and in favor of protecting the interests of big business.


FOOD HEALTH AND SAFETY PROTECTIONS = 'TRADE BARRIERS'

The World Health Organization reported in 1996 that the globalization of the food supply was a growing cause of illness worldwide. Under its rules, countries are not required to maintain minimum health and safety standards, but can be penalized for setting higher standards than those set by the WTO. The WTO Agreement on Sanitary and Phytosanitary Measures restricts what governments can do to regulate food and agriculture for the protection of the environment, human, animal and plant health and the food supply.

Many countries base their health and food safety regulations on the Aprecautionary principle, where the substance stays off the market until proven safe. Two WTO rulings turn the precautionary principle on its head. In one case, the European Union banned the non-therapeutic use of artificial beef hormones, citing several studies showing that these hormones could cause cancer. The United States successfully challenged Canada and the European Union. The ruling demanded a showing of scientific certainty that hormones cause cancer and thereby voided the ban. The European Union refused to cave in to U.S. pressure and was hit with $115 million in WTO-authorized trade sanctions.

The United States also successfully challenged Japan=s health-related pesticide residue testing regulations for agricultural imports. Because Japan=s standards exceeded those of the WTO, Japanese people must now accept produce with higher levels of toxic pesticides than their own government deems safe.

The WTO threatens the health and safety of everyone but the global corporations.

HUMAN RIGHTS = 'TRADE BARRIERS'

In Burma (Myanmar), Asoldiers committed serious human rights abuses, including extra judicial killing and rape, according to a U.S. State Department report. The Special Rapporteur to the UN Commission on Human Rights reported Aextrajudicial, summary or arbitrary executions and enforced disappearances, torture, abuse of women and children by government agents.@ Violations of the rights of women - particularly Aforced labor, sexual violence and exploitation, including rape@ - were also documented. The International Labor Organization found that the civilian population, especially women and children, was being used for forced labor.

In 1966, Massachusetts enacted a law barring companies that do business with Burma from bidding on large public contracts in the state. But the European Union and Japan challenged the Massachusetts law as unfair Ato the trade and investment community. They cited the WTO 1994 Agreement on Government Procurement, which prohibits consideration of non-commercial factors, such as human rights, in governmental purchasing decisions.

A U.S. district court in Massachusetts ruled in 1998 that municipalities and states cannot interfere in foreign policy when there is a "great potential for disruption and embarrassment." That ruling was upheld by a federal appellate court in 1999. The case is currently pending in the United States Supreme Court, so the WTO challenge is on hold.

China will soon join the WTO. Human rights violations by China created controversy within the United States Congress before it granted China Amost-favored nation trading status. The contradiction was aptly described by Lhadon Tethong, a Canadian-born Tibetan who represents Students For A Free Tibet:
The idea that the world trade organization can supersede sovereign countries laws is really terrifying when you think of it from the aspect of human rights.

We are insisting that China take some responsibility and deal with the worsening situation in Tibet, in Inner Mongolia, in E. Turkestan, in China itself.

Ideally, we would like to work toward some economic sanctions, like the divestment campaigns that brought an end to apartheid in South Africa.

But once China gets into the WTO - which looks imminent - it can challenge any economic leverage we have and argue that it is a barrier to free trade.

We have a duty and an obligation to press for the idea that yes, trade is not a bad thing, but let=s play at a fair level, a level where trade does not undermine a people=s right to self-determination.


The WTO has consistently chosen the protection of property over the sanctity of human rights.


LABOR PROTECTIONS = 'TRADE BARRIERS'

The WTO has delegated jurisdiction over labor matters to the International Labor Organization (ILO). But the ILO, unlike the WTO, has no enforcement power when it finds violations of labor rights. The United States has ratified only 11 of the 182 conventions of the ILO. Most of the conventions ratified by the U.S. deal with maritime labor. Only two of them deal with fundamental human rights - the Abolition of Forced Labour Convention and the Worst Forms of Child Labour Convention.
According to the ILO, more than 250 million children between the ages 5 of 15 work full-time or part-time around the world. Although the 1995 Fourth International Conference on Women in Beijing ensured the protection of the Agirl child,@ many millions of girls still work as prostitutes. Children are bonded laborers, welders or rubbish pickers. The only labor protection currently written into WTO rules is that countries may restrict imports of goods produced with prison labor. If a country wished to ban imports on goods produced with child labor or apply a trade sanction on a country that was violently repressing an independent labor union, the WTO could strike it down as a Atrade barrier.

Not coincidentally, the day after the Seattle protesters shut down the WTO, President Bill Clinton suggested that labor rights be enforceable by trade sanctions. But this noble gesture would take decades to implement.


INTELLECTUAL PROPERTY RIGHTS ARE NOT 'TRADE BARRIERS'


Although the economic trading rights of WTO countries trump environmental protections, labor rights, health and safety precautions, and human rights, intellectual property rights are indelibly enshrined in the WTO agreements.

The WTO Multilateral Agreements contain Trade-Related Aspects of Intellectual Property. 'TRIPS' is a bad trip. For centuries, indigenous peoples in many countries have developed herbs, seeds and plants for use as food and medicine. 'TRIPS' gives foreign corporations the right to take traditional indigenous seed varieties developed by small farmers, 'improve' them with slight genetic alteration and patent them. In order to use them, the people who originally developed them must buy them back at exorbitant rates.

Some countries call it biopiracy. India has seen mass demonstrations protesting this practice. New hybrids that have displaced native seeds are vulnerable to pest attacks. Farmers are forced to buy costly pesticides, which often puts them out of business. There has been an epidemic of farmer suicides in parts of India that used to be prosperous agricultural regions before the Aecological and social disaster caused by biopiracy.

But protection of Aintellectual property goes beyond merely bankrupting farmers. It can be deadly. When Thai companies made AIDS drugs available at a cost well below that of United States drug companies, the U.S. - on behalf of the drug companies - threatened a WTO TRIPS challenge for patent infringement. Thailand, which depends on the U.S. for 25% of its exports, was effectively blackmailed into stopping the manufacture of cheaper AIDS drugs.

According to UNICEF, 1.5 million infants die every year, primarily from fatal infant diarrhea caused by the replacement of breast feeding with artificial formulas.

Gerber Food claimed on its packages that its infant formula would insure healthy babies, and bolstered the claim with photographs of fat, healthy babies. Guatemala enacted a law, modeled after the World Health Organization Code of Marketing of Breast Milk Substitutes, to protect infant health. It required that formula producers clearly state the superiority of breast feeding on their labels. All of Guatemala=s domestic and foreign suppliers of formula changed their packaging to comply. The country=s infant mortality rates dropped dramatically. Gerber, however, induced the United States State Department to threaten a WTO challenge based on the company's intellectual property claim to its labeling. In response, Guatemala amended its law to exempt imported baby food products.

Intellectual property rights are well protected by the WTO - at the expense of human beings.


THE WTO VIOLATES INTERNATIONAL AND U.S. DOMESTIC LAW

Both the Charter of the United Nations and the International Covenant on Civil and Political Rights (ICCPR) memorialize human rights and fundamental freedoms that must be respected by state parties. Treaties ratified by the United States become part of the supreme law of the land under the U.S. Constitution and are thus binding domestic law.

The UN Charter was ratified by the United States in 1945. By signing and ratifying the Charter, the U.S. and other UN member countries pledge to respect the principles of "equal rights and self-determination of peoples," and agree to promote "higher standards of living, full employment, and conditions of economic and social progress and development."

Further, the ICCPR, which the U.S. ratified in 1992, guarantees to all people the right to freedom of association, including the right to form and join trade unions. Also ensured under the ICCPR is the right to self-determination of all peoples, to freely pursue their economic, social and cultural development, and for their own ends, to freely dispose of their natural wealth and resources.

The Charter on Economic Rights and Duties of States, passed by the UN General Assembly in 1974, recognizes the political sovereignty of nation states to protect their public interest by regulating foreign investment. Member nations are granted the authority to supervise the operations of trans-national corporations within their jurisdictions, by establishing performance requirements to ensure foreign investments serve the economic and social and priorities of national development.

Trans-national corporations have social obligations, since the formation of capital is a social process which depends on the labor of others. The Charter on Economic Rights and Duties of States requires all developed countries to cooperate with developing countries - establishing, strengthening and developing their scientific and technological infrastructures and scientific research and technological activities - in order to help expand and transform the economies of the developing countries. Under the Charter, every state has the duty to cooperate in promoting the steady and increasing expansion and liberalization of world trade. However, the Charter creates the corresponding duty of states to cooperate in improving the welfare and living standards of all peoples, particularly those of the developing countries.

The WTO - which serves the interests of trans-national corporations, including many U.S. corporations - systematically violates these international laws. WTO's defenders advocate 'free trade' but, in practice, free trade does not result in fair trade. Free trade theorists claim that the rising tide of trade will 'lift all boats,' providing economic benefits to all sectors of society. The only boats, however, that have been lifted so far are yachts. Former Canadian agricultural minister Eugene Whelan observed, AThese deals aren=t about free trade. They're about the right of these guys [corporate agribusinesses] to do business the way they want, wherever they want.

As detailed above, the UN Charter establishes the primacy of human rights and equality for all nations. The International Covenant on Civil and Political Rights guarantees the right to form and join trade unions as well as the right of all peoples to self-determination. Finally, the Charter on Economic Rights and Duties of States obligates developed countries to help developing countries transform their economies and improve their welfare and standards of living.

In stark contrast, under the WTO, any national, state or municipal law that may protect labor, the environment, health and safety or human rights, may be struck down if considered a barrier to trade by the faceless bureaucrats and corporate hustlers who are now empowered to decide these matters.


THE STRUGGLE CONTINUES

The anti-WTO demonstration in Seattle followed a tradition of protest in the United States. A century ago, working people organized sit down strikes aimed at the bosses who exploited their labor. In the 1950s and 1960s, civil rights activists marched and demonstrated against the pernicious system of racism in the U.S. And close on the heels of the Civil Rights Movement, masses of people from all walks of life joined together to stop the War in Southeast Asia. In each instance, these struggles for justice and dignity have resulted in social change. Because they fought and died for labor rights, workers gained the 8-hour day and the minimum wage. Because masses of people marched on Washington and Memphis, and because of sacrifices of people like Martin Luther King, Jr., the Civil Rights Act was born. Because hundreds of thousands of students at campuses across the country demonstrated, and masses of GI's refused their orders, the killing in Southeast Asia was stopped. And because people demonstrated in Seattle, the delegates to the secret meeting of the World Trade Organization were forced to consider labor, environmental, health and human rights protections as more than simply "trade barriers ." Because people were in the streets, the media was forced to broadcast their demands for "Fair Trade, Not Free Trade."

Perhaps the most unique feature of the Seattle protests was the international diversity of the demonstrators. People from all over the world - many from countries where struggles for human rights and freedoms have persisted for centuries - joined together for common humanitarian goals. They were saying that it must be the people, not the WTO, who control our lives.
The WTO establishes the primacy of property interests over human rights. It also threatens the peace and security of the world, in direct violation of the UN Charter. There is no limitation placed by the WTO on trade in weapons, which may pose a major threat to international peace and security. The survival of our global community is at stake.

Since 1937, members of the National Lawyers Guild have been instrumental in providing legal support for those struggling for human rights and fundamental freedoms. That tradition continued with our legal defense for the protesters in Seattle and Washington D.C. In keeping with our motto that human rights shall be more sacred than property interests, "the Guild will continue to work Ain the service of the people."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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