Global Rights Forum

Global Teleconference on Human Trafficking Launched live from Washington D.C.

2011-11-11T09:15:00.007-05:00

On October 27th at Crowell & Moring LLP, the ABA Section of International Law hosted a global teleconference on the international instruments adopted in response to the trafficking problem, their intersections with domestic law, and the numerous impediments to stemming the growth of this transnational problem.

The program, "Human Trafficking: Is the Solution Beyond the Scope of Domestic Legal Mechanisms?", drew over 100 registrants. Some partners for this event included the International Federation of Women Lawyers (FIDA) Nigeria, Lagos Branch; Tahirih Justice Center; ChildHope UK; Stop Modern Slavery; Shared Hope International; the D.C. Human Trafficking Task Force; and the International Models Project on Women’s Rights The program was moderated by Martina Vandenberg (Jenner & Block) and featured presentations by Prof. Dina Haynes (New England Law|Boston), Amanda Gray (Senior Protection Associate, U.N. High Commissioner for Refugees) and Ann Jordan (Director of the Program on Forced Labor and Trafficking, Center on Human Rights and Humanitarian (AU-WCL). A link to the full recording of the teleconference is below!

To listen to the full recording of the teleconference click: here

Photos: Seated at the table are (left) Martina Vandenberg (Partner, Jenner & Block) and (right) Ann Ford (Director of the Program on Human Trafficking and Forced Labor in the Center for Human Rights and Humanitarian Law, American University Washington College of Law).

JoAnne Richardson (left) is Senior Program Manager, International Division, National Center for State Courts.

War Crimes Fugitive, Goran Hadzic, Arrested and Awaiting Transfer to ICTY

2011-07-21T13:38:00.004-04:00

Serbia Arrests Goran Hadzic, the Last War Crimes Fugitive Wanted by the ICTY

By Elizabeth Turchi, Esq. LL.M.

War crimes fugitive, Goran Hadzic on Mt. Fruska Gora, Serbia Wednesday July 20, 2011 upon his arrest by Serbian officials. Photo: AP / Politika

It has certainly been an eventful summer for International Criminal Law. If you looked on the docket list of the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY)[1] this past Spring, you would have seen the names of two war crimes fugitives: Ratko Mladic and Goran Hadzic listed as still “At Large” like they have been for nearly a decade. In May, however, Mladic, a lead architect of the 1995 Srebrenica massacre, perpetrated during the 1991-95 Balkan Wars, was arrested by Serbia and extradited to the ICTY in the Hague Netherlands. Yesterday, the last remaining fugitive, Goran Hadzic, 53, was arrested by Serbian officials after 8 years in hiding.

Prompted by the Mladic arrest, the ABA’s Section of International Law, International Human Rights Committee (IHRC) reached out to Colonel Linda Strite Murnane, ICTY’s Senior Legal Officer, for her insight into the Mladic Extradition. We requested Ms. Murnane speak in an IHRC Free Teleconference scheduled for Thursday July 21, 2011[2] along with Professor, William Dunlap of Quinnipiac University School of Law. In preparing for a teleconference on Mladic, we could not have asked for better timing of Hadzic's arrest, which came yesterday on Mt. Fruska in Serbia. Hadzic’s attorney, Toma Fila told reporters in Belgrade that his client had waived his right to appeal a Serbian war crimes court order allowing his extradition to the (ICTY). There is talk that Hadzic could arrive at the Hague as early as Friday July 22.^nd

Per his June 4, 2004 ICTY indictment, Hadzic faces 14 counts of Crimes Against Humanity, and war crimes for the systematic murder and torture of Croatian civilians during the bloody 1991-1995 ethnic wars resulting in the break up of the former Yugoslavia. The ICTY has indicted 161 people since the court was established by the UN Security Council in 1993, mostly for war crimes ranging from Genocide to Grave Breaches of the Geneva Conventions of 1949.

Hadzic, will in all likelihood be the last accused to be tried by the (ICTY), perhaps marking the beginning of the end of the effort to bring justice to the victims. Now, with Hadzic finally in the dock, the ICTY may shut down in 2015 as scheduled, with no pending cases left behind. On Wednesday, Judge O-Gon Kwon, the acting head of the court, called the Hadzic arrest "a milestone in the tribunal's history."

Some are speculating that the two recent arrests of Mladic and Hadzic signal a turning point for Serbia’s ambitions to enter the European Union. In 2006, the E.U. suspended accession talks with Serbia over its lack of cooperation with ICTY, and kept them frozen for more than a year. Regardless of Serbia’s motivations, the judicial process, delayed by nearly a decade of Mladic and Hadzic on the lam, can now proceed. It is important to note that Hadzic and Mladic are presumed innocent until found guilty. The judicial process is integral to victims’ healing, to personal accountability, and to the future protection of human rights.

[1] See the ICTY website, www.icty.org

[2] To dial-in to the Teleconference, 1-877-464-2827, Code 84945474. A recording of the Teleconference will be made available for future listening on the ABA SIL website.

Free Teleconference - The Arab Spring and U.S. Government Policy

2011-07-14T14:59:00.003-04:00

Please join us Thursday, July 28, 2011, from 12:00 p.m. – 1:00 p.m. EDT for a FREE teleconference on the Arab Spring and U.S. Government policy, proudly presented by the International Human Rights Committee of the ABA Section of International Law in cooperation with Human Rights Watch.

The Arab Spring is an explosion of human rights expression that has challenged the U.S. Government’s former strategy and alliances with former partners and enemies in the Middle East. This free teleconference will dissect the U.S. Government’s shifts in policy and recommendations on how the U.S. Government might deal with this unprecedented moment of regime change and interest in human rights.

Speakers include Joe Stork, Deputy Director, Human Rights Watch, Middle East and North Africa Division; Heba Fatma Morayef, Researcher, Human Rights Watch, Middle East and North Africa Division; and Gary Sick, Adjunct Professor, Columbia University of International and Public Affairs, Former White House National Security Adviser for Presidents Ford, Carter, and Reagan, Former White House aide on Iran during the Iranian Revolution (moderator).

The speakers are on the cutting edge of monitoring human rights in the Middle East and making policy recommendations to the U.S. Government and other sovereign nations. They will discuss how USG policy has shaped the Arab Spring, positive and negative; ways the USG has used its leverage to influence human rights, positive and negative; multi-country review of Human Rights Watch’s coverage; and Human Rights Watch’s recommendations to the USG.

Dial-in Details:
U.S. and Canada Dial-in #: 877-464-2827
International Dial-in: 706-643-9966
Passcode #: 80960731

Free Teleconference - The Extradition of Ratko Mladić to the International Criminal Tribunal for the Former Yugoslavia (ICTY)

2011-07-14T14:02:00.001-04:00

Join us by telephone on Thursday, July 21, 2011, from 2:00 - 3:00 p.m. EDT for a free teleconference on the extradition of Ratko Mladić to the International Criminal Tribunal for the Former Yugoslavia (ICTY). The program is sponsored by the International Human Rights Committee and co-sponsored by U.S. Lawyers Practicing Abroad Committee.

The recent arrest of Mladić in Serbia and his extradition to the Hague to stand trial for war crimes has provided new work for the ICTY and affected its forecasted budget.

Linda Murnane, Chief of Court Management and Support Services, ICTY, will provide discussion, and William Dunlap, Professor, Quinnipiac University School of Law, will moderate. Ms. Murnane will discuss the arrest of Mladić; obligation of States to cooperate; legal process of transferring the accused; impressions of ICTY at time of capture; how Mladić's capture has affected ICTY's budget; and what happens next.

Ms. Murnane will also discuss her experience serving as ICTY’s Senior Legal Officer, Chief of Court Management and Support Services, and former Acting Head of Chambers. She will describe the different approaches to criminal conduct in war that are handled at ICTY and the U.S. Air Force where she previously served for ten years as a military judge.

A 30-minute question and answer period will follow Ms. Murnane’s presentation.

Ms. Murnane’s views do not represent the official position of the United Nations or the ICTY.

To register and obtain call-in information, please visit the following link: https://apps.americanbar.org/aba_timssnet/meetings/tnt_meetings.cfm?action=long&primary_id=IC10159&webtextid=59984&Subsystem=MTG&related_prod_flag=0.

In the Wake of Griswold v. Driscoll: A Present Day Discussion on Recognition and Remembrance of the Armenian Genocide

2011-07-07T16:34:00.003-04:00

Join us for the following FREE teleconference on Thursday, July 14, from 12:00 - 1:00 p.m. EDT, presented by ABA Section of International Law International Human Rights Committee.

The Armenian Genocide has remained a powerful topic for people of both Armenian and Turkish decent for nearly 100 years. This topic has gained additional focus in the wake of Griswol...d et al v. Driscoll.

Griswold, filed in October 2005 by the Assembly of Turkish American Associations (ATAA) alongside two high school teachers and a student, alleged certain educational materials limited free speech by not including resources that presented “contra-genocide” viewpoints. In August 2010, the First Circuit of Appeals upheld a US District Court ruling that prevented the case from moving forward after a five year battle.

In March, lead attorney Harvey Silverglate argued before a three-judge panel that the educational curriculum in question amounted to a “21st-century library” and should be protected from censorship. On behalf of the panel, retired U.S. Supreme Court Justice David Souter, did not directly address the issue of the Armenian Genocide in his opinion. Instead, Souter focused on whether the issue fell under free speech protection and the panel’s ultimate decision that the case could not go forward.

“The Court of Appeals’ decision is a major victory for sound education on the Armenian Genocide,” Van Krikorian of the Armenian Assembly of America, said in a statement. “The Court defended free speech … and struck a blow to the spurious tactics used by genocide deniers to engage under the pretext of debate.”

This teleconference will provide an overview of the issues dealt with in Griswold et al v. Driscoll and a brief overview of the history of the Armenian Genocide and the state of recognition both domestically and abroad.

Speakers include Mark Fleming, Wilmer Cutler Pickering Hale and Dorr LLP; Sonya Nersessian, Immediate Past Chair, Armenian Bar Association; and Professor Peter Rosenblum, Columbia Law School (moderator).

Dial-in Details:

U.S. and Canada Dial-in #: 877-464-2827
International Dial-in: 706-643-9966
Passcode #: 81684988

Free Teleconference - The Arab Spring: Documenting Human Rights Abuses

2011-07-02T02:08:00.001-04:00

Please join us Thursday, July 7, from 12:00 - 1:00 p.m. EDT for a free teleconference, "The Arab Spring: Documenting Human Rights Abuses," proudly presented by the ABA Section of International Law International Human Rights Committee in cooperation with Human Rights Watch. The Arab Spring is an explosion of human rights expression but, at the same time, it has led to brutal crack-downs against human rights activists, journalists, and civilians by regimes with a vested interest in the status quo. This free teleconference will provide a first-hand look at what is happening on the ground. The speakers, Sarah Leah Whitson, Executive Director, Human Rights Watch, Middle East and North Africa Division; Nadim Houry, Senior Research and Beirut Director, Human Rights Watch, Middle East and North Africa Division; and Peter Rosenblum, Professor, Columbia Law School, are on the cutting edge of collecting facts in human rights crises in the Middle East. They will discuss methods for documenting human rights abuses; perils of gathering facts during regime change; multi-country review of Human Rights Watch’s coverage; relevant international laws; challenges and opportunities; and Human Rights Watch’s strategy and advocacy.

Dial-in Details:
U.S. and Canada Dial-in #: 877-464-2827 International Dial-in: 706-643-9966 Passcode #: 80956720

International Pro Bono Service in Times of Disaster: Perspectives on Service in Haiti

2011-06-14T14:55:00.000-04:00

Begins: Jun 23, 2011 12:00 PM
Ends: Jun 23, 2011 01:30 PM
(All times are local per meeting location)

This brown bag telephonic program will feature Jayne Fleming, Pro Bono Counsel at Reed Smith. Ms. Fleming has handled more than 30 asylum matters, in addition to supervising dozens more at Reed Smith and in partnerships between the firm and asylum clinics at Penn Law School and Boalt Hall School of Law. Her work focuses in particular on gender-based violence and on the representation of torture survivors from Sudan, Russia, Kazakhstan, Eritrea, Syria, Rwanda, Central America, and Haiti.

Since the devastating earthquake in Haiti in January 2010, Ms. Fleming has worked extensively to assist to victims of gender-based violence. She will share her perspectives about marshaling and engaging in international pro bono support for traumatized persons, including with respect to working in the midst of disaster conditions, marshaling information for evidentiary proffers when records have been destroyed, and sustaining interest and participation as critical need for legal services continue.

Blow the Whistle on Violence Against Women in Haiti

2011-06-09T16:02:00.004-04:00

In the displacement camps of Haiti, women face life-threatening violence every day.

Camps are overcrowded, without secure shelter, lighting or police patrolling. Sexual violence is rampant. Women and girls are attacked and raped in their tents, on the way to the latrine and while trying to bathe behind bits of plastic sheeting.

You can take a stand. Blow the whistle on violence against women.
A woman with a whistle in her hand has a simple but powerful tool to call for the help of her community when she faces an attacker.

MADRE works with KOFAVIV, a grassroots Haitian organization created by and for rape survivors to distribute whistles in the camps, to offer urgent care to rape survivors and to demand an end to sexual violence in the camps.

Your contribution of...

$100 purchases 50 whistles

$500 purchases 250 whistles

$1000 purchases 500 whistles

Donations should be annotated to say, "ABA-Blow the Whistle Campaign" in the memo line of a check or "in honor of box" for online donations.

Even one whistle can save a woman's life. Watch this video to hear one woman's story and to learn more about this campaign: http://www.youtube.com/watch?v=taEZsv99gFc.

For more information about MADRE's work to end sexual violence in Haiti, visit http://www.madre.org/.

CEDAW Teleconference Materials

2011-05-17T22:57:00.002-04:00

Please join us tomorrow, May 18, from 11:00 a.m. - 12:30 p.m. for a free teleconference discussing global perspectives on the impact of CEDAW on legal reform efforts regarding rights of women. Included below is a powerpoint presentation for the program.

Penny Wakefield (moderator) has recently authored an article, CEDAW Ratification: Backseated Once Again, which provides useful insight into U.S. failure to ratify CEDAW.

Do You Know CEDAW? You Should.

2011-05-14T17:56:00.001-04:00

The word “CEDAW” may not ring a bell even for committed women’s rights supporters in the United States. But the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW) is a landmark international women’s rights agreement that almost every country in the world has ratified in the 30-plus years since its introduction. The only countries that have not are Iran, Somalia, Sudan, three small Pacific Islands—and the U.S. This Wednesday, the International Human Rights Committee of the ABA Section of International Law is offering a valuable opportunity to all who want to learn more about the convention, its impact internationally, and its prospects here at home.

What does CEDAW mean for ratifying countries? Countries that ratify CEDAW affirm that women’s rights are human rights and commit themselves to ending discrimination against women and girls. CEDAW provides a practical blueprint for these efforts and has had a real impact on women and girls around the world. Guided by CEDAW, policymakers and advocates internationally have taken important steps toward stopping sex trafficking and domestic violence, expanding girls’ educational opportunities, providing access to maternal health care, and ensuring women’s right to vote.

Empowerment of women also leads to more prosperous, stable, peaceful societies. Institutions such as the World Bank and the World Economic Forum recognize that empowering women is one of the most effective paths for international development and for building stable communities. Improving the lives of women and girls worldwide thus is of great importance not only for those individuals, but also for global prosperity and our national security.

The United States should have a seat at the table when the international community discusses how best to continue to promote progress for women and girls. Ratification also would create an important opportunity for continuing our own national conversation about how best to overcome persistent barriers women still face here at home. By ratifying CEDAW, the U.S. would continue a proud tradition of advancing human rights and strengthen our role as a global leader in standing up for the rights of women and girls. The National Women’s Law Center, as a co-chair of the CEDAW Task Force of the Leadership Conference of Civil Rights, is working to ensure that we join the international community in ratifying CEDAW and affirming our commitment to women’s empowerment.

To learn more about CEDAW, about the National Women’s Law Center’s efforts in support of ratification, and about the impact of CEDAW internationally, register for “However Long the Night”: Global Perspectives on the Impact of CEDAW, a free teleconference being held this Wednesday, sponsored by the International Human Rights Committee of the ABA Section of International Law. Or, if you are in Washington, D.C., register to attend in person. It’s time for all of us to understand CEDAW’s promise.

Emily J. Martin

Vice President and General Counsel, National Women’s Law Center

Domestic Violence Victims Seek Protection Using International Human Rights Law

2011-05-04T10:24:00.001-04:00

During my law school tenure, a number of cases and decisions caused me great consternation. However, fewer, if any, caused greater gut-wrenching than Castle Rock v.Gonzales, 545 U.S. 748 (2005).

On June 22, 1999, after obtaining a restraining order against her estranged husband, Jessica Gonzales (now Lenahan) contacted Castle Rock (Colorado) police because her husband had taken her 3 little girls from in front of her home during the late afternoon, directly violating the order. At 7:30 PM, police arrived at the home and Ms. Gonzales showed them the restraining order, which read on the back:

“WARNING: A KNOWING VIOLATION OF A RESTRAINING ORDER IS A CRIME … YOU MAY BE ARRESTED.”

Additionally, a further notice to law enforcements stated:

YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING ORDER. YOU SHALL ARREST...” (Emphasis added.)

The police officers, having been shown the restraining order and informed that no previous visitation arrangements were made, told Ms. Gonzales to wait until 10:00 PM and if her daughters were not returned by then, to contact the police again. Near 8:30 PM, her husband phoned to tell her that he had taken the girls to an amusement park in Denver, Colorado. At 10:00 PM, the girls had not been returned, so Ms. Lenahan phoned the police. There was no response for 2 hours, so she went to the police station. At 3:10 AM, her husband showed up at the police station and opened fire. After an exchange of shots, the husband was killed and the truck that he arrived in contained the dead bodies of the 3 girls.

Ms. Gonzales sued the town of Castle Rock for violating her Fourteenth Amendment Due Process rights arguing that she had a property interest in having the restraining order enforced, and that the town’s police department did not take her interest seriously. The case reached the Supreme Court, where Justice Scalia delivered a majority opinion holding that Ms. Gonzales did not have such a property interest. Justice Scalia opined that deference should not be given to the Tenth Circuit’s determination that the restraining order was grounded in Colorado law because the order’s language was little more than contractual boilerplate language providing the police with relatively unfettered discretion on how to respond to situations involving restraining orders.

The Castle Rock decision stunned advocates working to eliminate domestic violence and brought into question the U.S.’ sincerity regarding women’s rights, particularly if the highest court of the land could render so callous a decision.

As advocates searched for a solution, determined that the wrongful state action which blatantly disregarded the protection of women and children’s rights should be remedied, they were confounded by the proposition that the Supreme Court was the final arbiter in the Castle Rock matter. Nevertheless, Columbia Law School students and professors, recalling that “international law is part of our law,” found another avenue of justice for Ms. Lenahan, her children and other victims and survivors beyond the Supreme Court of the United States. Paquete Habana.

Discussed in a recent ABA International Human Rights Committee teleconference, “Domestic Violence as a Human Rights Violation,” link provided infra, while the U.S. may not have ratified Covenant on the Elimination of all forms of Discrimination against Women (CEDAW), the U.S. is nevertheless a Party to other international legal instruments, including, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). Thus, the U.S. has an obligation to ensure that the rights provided under these international instruments are protected, and that obligation not only extends to non-U.S. persons, but to U.S. persons as well.

Recognizing that international human rights doctrine provides a basis for remedies against state actors, in 2005, the Human Rights Law Clinic and the American Civil Liberties Union (ACLU) filed a petition on behalf of Ms. Lenahan with the Inter-American Commission of Human Rights, arguing that U.S. law enforcement has an obligation to respond to calls of domestic violence and the U.S. has a duty to hold law enforcement accountable. Specific to international human rights law are charges involving the rights of non-discrimination, family life/unity, Due Process, petition of government, personal security, and special protections for victims of domestic violence. The fundamental issue is whether a government has a duty to remedy the situation when it knows or should know that human rights violations are being committed.

In September 2008, the Commission agreed to hear Gonzales v. U.S. on the merits, and the hearing subsequently took place in October 2008.

Challenges with respect to Gonzales v. U.S. stem from the fact that international orders from the Commission and other international human rights judicial bodies are not technically enforceable. This has been a long-acknowledged disadvantage of international human rights law. However, if the Commission finds for Ms. Lenahan, the U.S. will be morally obligated to ensure its laws comport with international human rights laws that recognize the critical need for protecting the rights of women and children, particularly the abused and vulnerable.

The decision from the Inter-American Commission on Human Rights in Gonzales v. U.S. is pending, perhaps forthcoming this August (2011).

The ABA IHRC teleconference can be accessed through this link. Additional information and resources are available on the Human Rights Law Clinic of Columbia Law School’s web site and on the ACLU’s web site.

Respectfully,

Max Elliott, J.D.

"However Long the Night" Global Perspectives on the Impact of CEDAW (Convention to Eliminate all Forms of Discrimination Against Women) on Legal Reform Efforts Regarding the Rights of Women

2011-05-02T21:18:00.007-04:00

Join us in person (Crowell & Moring LLP, Washington, DC) or by telephone on Wednesday, May 18 from 11:00 a.m. - 12:30 p.m. for "However Long the Night" Global Perspectives on the Impact of CEDAW (Convention to Eliminate all Forms of Discrimination Against Women) on Legal Reform Efforts Regarding the Rights of Women.

This FREE teleconference is proudly presented by ABA Section of International Law International Human Rights Committee and co-sponsored by ABA SIL Africa Committee, ABA SIL NGO and Not-for-Profit Organizations, and Committee ABA SIL Women's Issues Network (WIN) ABA IMPOWR (International Models Project on Women's Rights), and in cooperation with ABA Section of Individual Rights and Responsibilities - Women's Rights Committee, District of Columbia Women's Bar Association: International Law Forum, Amnesty International USA, and TransAfrica Forum.

The United States remains one of the few nations in the world that has not ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). This 90-minute non-CLE program will provide a concise overview of the history, development and implementation of CEDAW, including the status of CEDAW ratification in the United States. Afterwards, our panel of women’s rights advocates and lawyers from around the world will deliver short presentations on the advocacy strategies for eradicating discriminatory laws and fostering gender-equality law reform efforts that have been effective (or unsuccessful) in their countries.

Participants will gain an understanding of the treaty provisions of CEDAW; understanding of CEDAW’s status internationally and in the US; awareness of how CEDAW has been utilized by advocates and lawyers internationally to advance women’s rights; and awareness of opportunities to support gender reform projects that utilize CEDAW to advance women’s rights.

Speakers:

Emily Martin, Vice President and General Counsel, National Women's Law Center, Washington, DC
Mahdere Paulos, Former Judge to the High Court in Addis Ababa, Ethiopia; Former Executive Director, Ethiopian Women Lawyers Association (EWLA), Washington, DC
Carolyn Reynolds, Executive Director, Women's Issues Network of Belize (WIN-Belize); Commissioner, Belize National Women's Commission Belize City, Belize
Rosa Celorio, Human Rights Specialist, Special Rapporteurship on the Rights of Women Inter-American Commission on Human Rights, Washington, DC
Penny Wakefield, Executive Board, ABA Center for Human Rights, Washington, DC (moderator)

Please register at the link above. Registration closes prior to the event.

Domestic Violence as a Human Rights Violation: Jessica Lenahan (Gonzales) v. US

2011-04-20T17:42:00.005-04:00

The ABA Section of International Law's International Human Rights Committee in Cooperation with the Human Rights Clinic at University of Miami School of Law is pleased to announce a FREE teleconference on April 26, 2011 at 2:00 p.m. EDT discussing the use of international human rights systems to address domestic violence cases.

The teleconference will introduce participants to the Jessica Gonzales case that was filed with the Inter-American Commission on Human Rights; discuss the use of international human rights mechanisms to address domestic violence issues, and; engage in a comparative analysis of European human rights mechanisms and how the case might have been adjudicated in Europe.

Jessica Gonzales, a domestic violence survivor from Colorado whose three children were killed when local police failed to enforce a restraining order against her estranged husband, filed suit against the Town of Castle Rock that went before the U.S. Supreme Court. The Commission's acceptance of jurisdiction in this matter marks the first time the Commission has been asked to consider the nature and extent of the U.S. Government's affirmative obligations to protect individuals from private acts of discriminatory violence.

Speakers:

Professor Caroline Bettinger-Lopez, Director of the Human Rights Clinic at University of Miami Law
Professor Margaret B. Drew, Professor of Clinical Law and the Director of Domestic Violence and Civil Protection Order Clinic at University of Cincinnati College of Law
Jessica Sandberg, Family Law attorney at The Law Firm of Jessica Sandberg; Co-Chair of the American Bar Association Section International Family Law Committee
Vivian Huelgo, Chief Counsel to the Commission on Domestic Violence of the ABA (moderator)

Listeners are invited to e-mail their questions during the call to Vivian at vivian.huelgo@americanbar.org. Vivian will read your questions to the moderators at the end of the presentation.

For resources on the Jessica Gonzales case, please visit the links below:

Gonzales webpage (Columbia Law School)
Jessica Gonzales v. United States: An Emerging Model for Domestic Violence & Human Rights Advocacy in the United States (Harvard Human Rights Journal, Vol. 21, 2008)
Domestic Violence & Human Rights Advocacy Manual
Merits Hearing Summary [(in English, Spanish, and Portuguese), Oct. 22, 2008]
Bringing Human Rights Home (Columbia Law School)
Jessica Gonzales v. United States of America (University of Miami Law)

The Office of UNHCR to Commemorate 60th Anniversary of the UN Refugee Convention at John Jay College

2011-04-14T15:50:00.000-04:00

PANEL DISCUSSION ON PROTECTION GAPS & RESPONSES: CHALLENGES & OPPORTUNITIES

The Center for International Human Rights (CIHR), John Jay College of Criminal Justice, City University of New York and the New York Liaison Office of the High Commissioner for Refugees (UNHCR) are organizing an event commemorating the 60th Anniversary of the 1951 Convention relating to the Status of Refugees and the 50th Anniversary of the 1961 Convention on the Reduction of Statelessness. The focus of this event is a discussion of the gaps in the implementation of the international protection framework for displaced and stateless persons. The event will take place at John Jay College on the sixth floor of the BMW building (555 West 57th Street), room 615/616, on Wednesday, April 27, 2011, 5:00-7:00 p.m.

WELCOMING REMARKS: Jeremy Travis, President, John Jay College of Criminal Justice, and

Anne-Christine Eriksson, Deputy Director, UNHCR Liaison in New York

PANELISTS:

· Susana B. Adamo, Associate Research Scientist, Center for International Earth Science Information Network (CIESIN), The Earth Institute, Columbia University

· Bill Frelick, Director, Refugee Program, Human Rights Watch

· Janice Marshall, Deputy Director, Policy and Law Pillar, Division of International Protection, UNHCR

· Lori Nessel, Professor of Law & Director, Center for Social Justice, Seton Hall University School of Law

MODERATOR: George Andreopoulos, Director, Center for International Human Rights & Professor of Political Science, John Jay College & The Graduate Center, CUNY

Forced displacement, statelessness, and mixed migratory movements remain prominent global issues in terms of their magnitude and complexities. Conflict, violence, and persecution continue to cause displacement. At the same time, a myriad of social, economic, political, and environmental factors, such as population growth, urbanization, climate change, water scarcity, and food and energy insecurity are exacerbating conflict and combining in other ways that oblige people to flee their countries. The 1951 Refugee Convention, which is central to the protection regime, has proved flexible enough to accommodate new forms of persecution, however, the complexity of the current factors affecting cross-border displacement is resulting in gaps in the response to current protection challenges. Gaps in international protection occur primarily in three ways:

· Through insufficient accessions to relevant instruments,

· through inadequate implementation of existing treaties, and

· through gaps in the existing international protection framework.

Statelessness is often referred to as the “forgotten problem,” despite the fact that citizenship is necessary for fully realizing one’s human rights. There is limited accession to the 1961 Statelessness Convention and related international treaties, there are obstacles to the acquisition of nationality and even the size of the statelessness problem is not comprehensively mapped.

New responses are needed to address the gaps and obstacles in protection of the displaced and stateless. The Panel Discussion will serve as a forum to:

· Analyze and assess situations of forced displacement which may not be covered by the 1951 Refugee Convention and explore plausible responses to the challenges posed by them.

· Analyze the statelessness problem and identify effective ways to reduce it.

RSVP by Wednesday, April 20, 2011 to CIHRJJCRSVP@gmail.com

http://www.jjay.cuny.edu/events.php

Religious Freedom and Religious Persecution: Pakistan's blasphemy laws

2011-04-12T10:05:00.005-04:00

The International Human Rights Committee of the American Bar Association’s Section of International Law is presenting a timely CLE brownbag teleconference on the topic of “Religious Freedom and Religious Persecution.”

Join prominent Human Rights Lawyer and President of Pakistan’s Supreme Court Bar Association, Ms. Asma Jahangir and a panel of other distinguished speakers as they address current controversies around the globe. Ms. Jahangir will be joined by Elizabeth Cassidy of the US Commission on International Religious Freedom and Mr. David Matas an international human rights lawyer.

Pakistan’s “blasphemy laws” have been the subject of much recent controversy and are also blamed for two high profile assassinations. Earlier this year, Salman Taseer, the powerful governor of Pakistan’s most populous state of Punjab was gunned down by his own bodyguard for his pursuit of amendments to the laws. Recently a Christian, Mr. Shahbaz Bhatti, Pakistan’s minister for minority affairs was gunned down by religious extremists, allegedly for his views on the blasphemy laws.

It is not clear how far Pakistani politicians are willing to go in order to prevent misuse of the blasphemy laws, which carry the death penalty for those convicted of insulting the Prophet Mohammad. Some argue that it would be enough to ensure that the cases of those accused of blasphemy be heard by higher courts better qualified to interpret the laws fairly and less likely to be swayed by the mob pressure which can be used to get convictions in lower courts.

Others argue that the actual wording of the laws needs to be amended if they are to be fairly applied. The original blasphemy law, introduced in British India in 1860, imposed a prison term of up to two years for any damage to a place of worship or sacred object carried out “with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion…”

The current provision in the Pakistan Penal Code, as amended in 1986, both introduces the death penalty for insulting the Prophet, and drops the concept of intent. According to Section 295-C of the Penal Code, “Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly defiles the sacred name of the Holy Prophet Muhammed (peace be upon him) shall be punished with death, or imprisonment for life and shall also be liable to fine.”

This omission of the need to prove malicious intent has opened the door to some of the more absurd accusations of blasphemy, many of which are made against Muslims — like a student accused of blaspheming in an answer on an exam paper, or a doctor who threw out a business card from a salesman named Mohammed. It is unclear whether the misuse of the laws can be stopped without the reinsertion of the notion of intent in some form. Whether Pakistan and other parts of the world will be able to achieve a resolution to the situation remains to be seen.

Join our teleconference for a discussion of the blasphemy laws and other topics such as the treatment of Falun Gong in China, the Koran burning in the USA and other incidents that are worthy of the attention of the international human rights committee.

Please click on the link above for event details.

Event Details:

ABA Section of International Law, International Human Rights Committee
Co-sponsored by ABA SIL NGO and Not-for-Profit Organizations Committee
With the Support of the Washington State Bar Association Civil Rights Law Section
Thursday, April 14, 2011, 11:00 a.m. – 12:30 p.m. EDT

There are reports from all over the world of abusive and murderous actions taken against individuals because of their religious beliefs. From Koran burning in the United States to blasphemy laws in Pakistan to persecution of the Falun Gong in China, there is evidence of religious persecution globally. While the religious persecution may vary in form or location, all these incidents raise a common concern about human rights established under international conventions. In this CLE, we will discuss the legal framework behind the right to freedom of religion as a human right; the legal issues that are raised by religious persecution; and the legal recourse available to those who experience religious persecution in the context of both international and domestic law.

Participants will gain an:

Awareness of current concerns and incidents of religious persecution globally
Understanding of human rights related to religious freedom under existing international law and conventions
Awareness and better understanding of legal issues related to specific incidents of religious persecution
Understanding of legal recourse available to victims of religious persecution under international law

Speakers:
Elizabeth K. Cassidy
Deputy Director for Policy and Research,U.S. Commission on International Religious Freedom (USCIRF)
Washington, DC

Asma Jahangir
President, Supreme Court Bar Association of Pakistan; Director, AGHS Legal Aid Cell
Lahore, Pakistan

David Matas
International Human Rights Lawyer; Co-Author, "Bloody Harvest: The Killing of Falun Gong for Their Organs"
Winnipeg, Manitoba, Canada

Moderator:

Mohammad A. Syed
Senior Attorney in the Antitrust Section of King & Ballow Law Offices
Nashville, Tennessee
If you have any questions, call ABA International at 202-662-1660 or e-mail us at intlaw@americanbar.org

Cost:
Section Members, NGO Lawyers, Academic Lawyers $45
Non-Section Lawyers $75
Young Lawyers $15
Law Students (no CLE credit) Free
Other Listeners (no CLE credit) Free

Special Low-Cost CLE on Religious Freedom and Religious Persecution - April 14

2011-03-31T17:03:00.003-04:00

Please join us on Thursday, April 14, 2011, from 11:00 a.m. – 12:30 p.m. EDT for a CLE teleconference on Religious Freedom and Religious Persecution presented by the ABA Section of International Law, International Human Rights Committee, and co-sponsored by the ABA SIL NGO and Not-for-Profit Organizations Committee with the Support of the Washington State Bar Association Civil Rights Law Section.

There are reports from all over the world of abusive and murderous actions taken against individuals because of their religious beliefs. From Koran burning in the United States to blasphemy laws in Pakistan to persecution of the Falun Gong in China, there is evidence of religious persecution globally. While the religious persecution may vary in form or location, all these incidents raise a common concern about human rights established under international conventions. In this CLE, we will discuss the legal framework behind the right to freedom of religion as a human right; the legal issues that are raised by religious persecution; and the legal recourse available to those who experience religious persecution in the context of both international and domestic law.

Participants will gain an: Awareness of current concerns and incidents of religious persecution globally; Understanding of human rights related to religious freedom under existing international law and conventions; Awareness and better understanding of legal issues related to specific incidents of religious persecution; and Understanding of legal recourse available to victims of religious persecution under international law.

Speakers:

Elizabeth K. Cassidy
Deputy Director for Policy and Research,
U.S. Commission on International Religious Freedom (USCIRF)
Washington, DC

Asma Jahangir
President, Supreme Court Bar Association of Pakistan
Director, AGHS Legal Aid Cell
Lahore, Pakistan

David Matas
International Human Rights Lawyer
Co-Author, "Bloody Harvest: The Killing of Falun Gong for Their Organs"
Winnipeg, Manitoba, Canada

Moderator:

Mohammad A. Syed
Senior Attorney in the Antitrust Section of King & Ballow Law Offices
Nashville, Tennessee

Registration Rates:

Section Members, NGO Lawyers, Academic Lawyers
$45

Non-Section Lawyers
$75

Young Lawyers
$15

Law Students (no CLE credit)
Free

Other Listeners (no CLE credit)
Free

To register, visit the following link.

ENFORCEMENT AND MONITORING OF SENTENCES IN THE MODERN WAR CRIMES PROCESS: EQUAL TREATMENT BEFORE THE LAW?

2011-03-29T12:36:00.001-04:00

Human Rights Seminar Series 20100-2011
The Center for International Human Rights, John Jay College of Criminal Justice

Assessing Human Rights: Monitoring Mechanisms

The purpose of this year’s seminar is to examine how monitoring mechanisms are utilized to assess compliance with international human rights norms and standards. This subject is especially pertinent in light of the recent report submission by the US government to the UN High Commissioner for Human Rights as a part of the Universal Periodic Review (UPR) procedures of the UN Human Rights Council. Specifically, the seminar will focus on how these monitoring mechanisms can be used to hold States accountable to their international obligations and as tools for advocacy. The seminar will explore the monitoring mechanisms of charter and treaty based bodies, as well as extra-conventional mechanisms and the supplemental monitoring of non-governmental organizations.

The Center for International Human Rights, John Jay College of Criminal Justice, The CUNY PhD/MA Program in Political Science, & The Global Studies Collective Cordially invite you to attend:

ENFORCEMENT AND MONITORING OF SENTENCES IN THE MODERN WAR CRIMES PROCESS: EQUAL TREATMENT BEFORE THE LAW?

Richard Culp
Associate Professor of Public Administration John Jay College of Criminal Justice; Doctoral Faculty in Criminal Justice, City University of New York (CUNY)

THURSDAY, APRIL 7, 2011
6:00-8:00 P.M.
ROOM C197

GRADUATE CENTER OF THE CITY UNIVERSITY OF NEW YORK (CUNY)
365 FIFTH AVENUE
NEW YORK CITY

For more information & to RSVP contact: Rebecca Landy at rlandy@jjay.cuny.edu

UNROW Clinic, in cooperation with IHRC, to host program on Illegal Intercountry Adoption

2011-03-28T21:40:00.001-04:00

Please join us on Monday, April 4, 2011, at 6:30 p.m. at American University (Washington, D.C.) for a program presented by the UNROW Human Rights Impact Litigation Clinic of American University Washington College of Law in cooperation with the ABA's International Human Rights Committee, “Stolen Children: Illegal Practices in Intercountry Adoption and the Need for Reform.” The panel will bring together various experts to discuss the legal, social, and ethical dimensions of illicit intercountry adoptions and the path toward reform.

The keynote speaker, Norma Cruz, is a Guatemalan grassroots activist and recipient of the U.S. Department of State’s designation “2009 International Woman of Courage.” Ms. Cruz has become a world renowned human rights defender through her tireless campaign to document cases of violence against women in Guatemala, promote justice for women, and call for an end to illicit adoption. During the program, Ms. Cruz will tell the stories of Guatemalan parents who have lost their children to illicit intercountry adoption. She will also describe the advocacy efforts of her organization, Fundación Sobrevivientes (Survivors Foundation), on behalf of the mothers whose children have been taken in an illegal and lucrative supply chain for international adoptions.

Washington College of Law's Office of Special Events & Continuing Legal Education office is offering pre-approved CLE credit for Pennsylvania (and by reciprocity, New York and New Jersey) and Virginia. Attorneys seeking CLE credits from other states can get the credits approved retroactively.

To register for the event, please go to the following link.

State of Illinois Convicts Human Trafficker

2011-03-28T10:59:00.001-04:00

On 24 March 2011, the State of Illinois concluded its first human trafficking trial, which resulted in a conviction against 46-year-old Troy Bonaparte. The State made it known that pimping is trafficking and the jury unanimously agreed that, while often considered only an international crime, human trafficking will not be tolerated domestically, at least not in Illinois.

Bonaparte was arrested during a multi-municipality effort in August 2010. Material witnesses for the State were 3 prostituted women, 2 of whom were from out-of-state and who Bonaparte recruited and kept in a hotel room, using violence, threats of violence and intimidation. Customers were obtained by advertisements placed on an Internet web site.

At trial, the State’s closing argument and rebuttal were crucial, as the closing argument explained the elements of trafficking, recruiting, and harboring to the jury. The rebuttal fleshed out the law even more, emphasizing that consent was not required for a finding of guilty of human trafficking. By making clear that the purpose of the law is to protect everyone, including marginalized and vulnerable women and girls, the State ensured the jury that a guilty verdict was a way to protect all of society.

Bonaparte, charged with 2 counts of involuntary servitude, 2 counts of trafficking in persons, and 1 count of pandering, was found guilty on all charges. He faces up to 30 years in prison.

The Illinois human trafficking statute, amending the Criminal Code of 1961, was passed in 2006 and largely comports with the United States' federal Trafficking Victims Protection Act of 2000, both of which support the international human rights law norm, R2P, the Responsibility to Protect. Aligning domestic law with international human rights law is essential for ensuring the rights of all are uniformly respected.

Respectfully, Max Elliott, J.D.

IHRC to Host Free Non-CLE Teleconference: A "How To" Guide to Representing Asylum Seekers Pro Bono

2011-01-17T08:04:00.003-05:00

Please join the Committee for a free non-CLE teleconference on Wednesday, January 19, from 12 p.m. to 1 p.m. EST providing a "how to" guide to representing asylum seekers. The panel includes:

Ani E. Ajemian, Co-Chair, International Human Rights Committee
Anita Sharma, Asylum Attorney/Coordinator for the PAIR Project
Reena Arya, Managing Attorney, Refugee Protection Program at Human Rights First

The panel will discuss the elements of an asylum case and relevant law; the importance of pro bono representation; how to get involved; and war stories on representation experiences. Please register at the following link.

Launch of the Mary Robinson Speaker Series on Business & Human Rights (October 26, 2010 - New York City)

2010-10-07T12:22:00.000-04:00

The trustees and staff of Business & Human Rights Resource Centre are pleased to invite you to the inaugural event in the Mary Robinson Speaker Series in New York City on October 26 at 6 pm. The Resource Centre is honored that Mary Robinson will launch this annual business and human rights series as the first speaker.

Mary Robinson is one of the world’s leading human rights advocates. As President of Ireland (1990-1997) and as UN High Commissioner for Human Rights (1997-2002), Mary Robinson brought world attention to human rights challenges and called for greater commitment and action to make rights a reality for all. She has continued her work on behalf of human rights through many activities, including as founder and President of Realizing Rights: The Ethical Globalization Initiative and as a member of the Elders, a group of eminent global leaders brought together by Nelson Mandela to support peace-building and help address major causes of human suffering. In recognition of her lifetime commitment to human rights, she was awarded the US Presidential Medal of Freedom by President Barack Obama in 2009.

The Mary Robinson Speaker Series pays tribute to Mary’s human rights leadership and her contribution to the field of business and human rights. It will bring together each year a diverse audience to reflect on key challenges and opportunities in this field.

This year’s inaugural event will open with comments on Mary’s achievements by well-known individuals who have worked closely with her. She will be introduced by:

John Ruggie, Professor at Harvard and UN Special Representative on business & human rights
Lucas Benitez, Co-Director of Coalition of Immokalee Workers
Alexandra Guáqueta, responsible for human rights at Cerrejón Coal (Colombia), a member of the Global Business Initiative on Human Rights

Mary will reflect on her work for human rights and the importance of the private sector respecting human rights. This will be followed by an interview of Mary by Ray Suarez, PBS NewsHour Senior Correspondent, and questions from the audience.

We hope that you will join us for what promises to be an inspiring and insightful evening.

Venue: Caspary Auditorium, Rockefeller University, New York City
1230 York Avenue (at East 66th Street) on Manhattan's Upper East Side

Schedule: Doors open: 5:45 pm
Event begins: 6:00 pm
Post-event reception: 7:45 pm

Admission is free, but reservations are required to attend, so please RSVP by Oct. 5 to Greg Regaignon to ensure you have a space: regaignon@business-humanrights.org or +1 909-626-0260

Roma IDPs on Lead Poisoned ground in Kosovo

2010-10-06T09:59:00.000-04:00

NM and others v. UNMIK

5 October 2010, Phoenix, AZ

Dianne Post, Attorney for 155 Roma IDPs in Kosovo

In 1998 when NATO troops came into Kosovo, Albanian drove the Roma out. A community of 10,000 had been living for centuries in a mahalla near the river. But the Albanians wanted revenge and the land; they got both.

The Roma were relocated onto lead poisoned land. A local activist, Paul Polansky from Iowa, told the UNDP and later UNMIK that the land was poisoned and the Roma could not stay there. They promised to move them within six months. It is now 12 years - they are still there. The predictable results have occurred - miscarriages, babies with half a kidney, mental retardation, damaged eyes, convulsions, early deaths. After four-year-old Jenita Mehmeti died, the law suits started.

While at European Roma Rights Centre, I hired a local attorney to file a criminal complaint under Kosovo law. Nothing happened. The prosecutors are hired by UNMIK. Then I hired a different lawyer to file adverse possession claims for the property. He stole the money. I filed a claim with the European Court of Human Rights. They dismissed it for lack of jurisdiction without even giving it a number.

I filed a complaint against UNMIK under A/RES/52/247 on 10 February 2006 in New York and to date, the UN has taken not one step forward in resolving that complaint. No procedural rules or timelines exist that can force the UN to actually adjudicate the claim once it is filed. Thus, the procedure is a sham designed to deprive parties of their rights by failing to offer a remedy.

Given the refusal of the UN to act, I filed with The Human Rights Advisory Panel in Kosovo after it was constituted in 2008. A year later, 8 June 2009, they found the complaint admissible and wrote a very positive decision. Rather than respond to the merits, UNMIK changed the rules and on 17 October 2009 issued Administrative Direction No. 2009/1 that prohibited the Human Rights Panel from hearing any complaints that had been or could be filed under the third party complaint system of A/RES/52/247. The Panel then adopted a decision on 31 March 2010 in case 26/08 reversing their admissibility decision of 8 June 2009.

The Panel found “regretfully” that, since they are a creature of UNMIK, they have no jurisdiction to examine their own functioning in comparison with human rights standards. Therefore, they must comply with the Administrative Direction and find that the complaint is inadmissible on the basis that the third- party process is an available remedy.

As the Panel states, normally they would consider if that alleged remedy is in fact available, effective and capable of providing redress. Clearly, it is not. However, the Administrative Direction 2009/1 removes this jurisdiction from the Panel and they must simply concur with UNMIK that the third party process is sufficient – in spite of the facts.

The Panel then considered if some of the claims could come under the third party process and some under the Panel and concluded that they did, but since the facts and claims are so interlocking, it would be nonsensical to deal with substantive claims at the UN and procedural claims at the Panel. So it declared the entire claim inadmissible.

The Panel did leave one tiny door open. They said that the complaint could be resubmitted to the Panel after the completion of the third party process. However, the UN simply will never complete the third party process, leaving the Roma forever in limbo. Second, all claims must be submitted to the Panel by 31 March 2010 – the same day that the decision was made (mailed rather than emailed to the attorney who did not receive it until May). To resolve this issue, the Panel determined that it did have the power to create “special procedures” not covered by the Rules and allow the claim to be resubmitted.

In October 2009, the UK firm of Leigh Day filed a claim for another group of Roma in the same camps who had not signed on the earlier complaint. The response to them has been the same as the response to me. We will get to it in "due course". I guess that is like "with all deliberate speed".

Because of the intransigence of the UN and their failure to follow the Rule of Law, an international advocacy group has grown from the local activist. It is currently trying to get a petition to President Obama to put the remaining Roma in Bondesteel, the large U.S. base in Kosovo, until suitable housing can be procured. The web site and petition is at www.toxicwastekills.com I hope you will all sign the petition and get others to sign.

If any attorneys are interested in working on this case with me, please contact me at postdlpost@aol.com

Upcoming Human Rights Events at Columbia University

2010-09-29T09:03:00.001-04:00

October 13. Kathryn Sikkink, “The Justice Cascade.”

5:30 p.m., Kraft Center, 606 West 115th Street.

Kathryn Sikkink, the seminal figure in the creation of the modern field of international human rights in political science, will preview her forthcoming book on the turn to individual criminal accountability for crimes against humanity and genocide, The Justice Cascade (Norton). Sikkink, the Regents Professor and holder of the McKnight Presidential Chair in Political Science at the University of Minnesota, is the co-author of Activists Beyond Borders: Advocacy Networks in International Politics, which won the prestigious Grawemeyer Award for Ideas Improving World Order. A Fellow of the American Academy of Arts and Sciences, Sikkink earned her Ph.D. in political science at Columbia University in 1988.

Discussants: Richard Dicker, director of Human Rights Watch's international justice program; Robert O. Keohane, Professor of Public and International Affairs, Princeton University, and past president of the American Political Science Association.

Beverages and hors d’oeuvres at 5:30; Sikkink’s presentation at 6.

October 20. Beth Simmons, “Mobilizing for Human Rights.”

5:30 p.m., 1501 International Affairs Building, 420 W. 118th Street.

Beth Simmons, the Clarence Dillion Professor of International Relations in the Harvard government department, will present her 2009 book, Mobilizing for Human Rights, which Kathryn Sikkink praised as “the most important new work by a social scientist on international law and human rights.” Her previous book, Who Adjusts? Domestic Sources of Foreign Economic Policy, won the 1995 American Political Science Association Woodrow Wilson Award for the best book in government, politics, or international relations. A Fellow of the American Academy of Arts and Sciences, Simmons earned her Ph.D. in government at Harvard University in 1991.

Discussants: Kenneth Roth, President, Human Rights Watch; Professor Alexander Cooley, Barnard College political science department.

Beverages and hors d’oeuvres at 5:30; Simmons’s presentation at 6.

November 11. The Politics of International Corruption Ratings.

4:00 p.m., International Affairs Building, 420 W. 118th Street.

Mlada Bukovansky, is Associate Professor of Political Science at Smith College. Her work examines the role of evolving norms and institutions in the international system. She is the author of Legitimacy and Power Politics: the American and French Revolutions in International Political Culture (Princeton University Press 2002) and is currently working on a book Hypocrisy and Legitimacy in International Institutions: Hegemony, Contestation, Corrosion. Bukovansky has published extensively on the rise of the “anti-corruption” regime.

Nathaniel Heller is Managing Director of Global Integrity, a leading non-governmental organization that generates, synthesizes, and disseminates information on governance and corruption trends around the world, including the annual Global Integrity Index. Heller is an award-winning journalist who has also worked at the State Department and served as a foreign policy fellow to the late Senator Kennedy. He oversees the methodology development and recruitment of experts for the Global Integrity Index.

Tim Frye is the Marshall D. Shulman Professor of Post-Soviet Foreign Policy and Director of Columbia University’s Harriman Institute. His research and teaching interests are in comparative politics and political economy with a focus on the former Soviet Union and Eastern Europe. He is the author of Brokers and Bureaucrats: Building Markets in Russia, (Michigan Press 2000) and Incredible Transformation: Building States and Markets after Communism (Cambridge University Press 2010). He is currently working on a book manuscript, Property Rights and Property Wrongs: What Russia Teaches Us About the Rule of Law. He has worked as a consultant for the World Bank, the European Bank for Reconstruction and Development, and the U.S. Agency for International Development.

Feb. 10. New Research on Transitional Justice.

5:15 p.m., 1501 International Affairs Building, 420 W. 118th Street.

Aryeh Neier, founder of Human Rights Watch and currently President of the Open Society Institute, and Tina Rosenberg, winner of the 1995 National Book Award for “The Haunted Land: Facing Europe’s Ghosts after Communism,” serve as discussant for new scholarly research on transitional justice, with an emphasis on the post-communist states. Discussing their new or forthcoming books are:

Monika Nalepa, professor at Notre Dame University, author of Skeletons in the Closet: Transitional Justice in Post-Communist Europe (Cambridge University Press, 2010), answers the puzzle of why so many transitional justice laws were passed by neo-Communist parties and explains how lustration strategies dealt with the unreliability of information in the archives.

Lara Nettelfield, professor at Simon Fraser University and a post-doctoral fellow at the Harriman Institute Columbia, is the author of Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal's Impact in a Postwar State (Cambridge University Press, 2010), which former Hague prosecutor Richard Goldstone has called “essential reading, well balanced and realistic.”

Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law, and Associate Director, Center for International Law, at New York Law School, and Visiting Professor, London School of Economics, coined the term transitional justice in her book, Transitional Justice (Oxford 2000). She will preview her forthcoming book, Humanity’s Law.

Leslie Vinjamuri, professor at the University of London School of Oriental and African Studies, author of “Trials and Errors: Principle and Pragmatism in International Justice,” International Security, winter 2003-04, and a forthcoming book on transitional justice.

Beverages and hors d’oeuvres at 5:15; panel begins at 5:45.

Human Rights Group at American University Calls for Establishment of War Crimes Tribunal for Sri Lanka

2010-09-24T15:51:00.000-04:00

On September 22, 2010, the UNROW Human Rights Impact Litigation Clinic, based out of the American University Washington College of Law, released a report, "Accountability Now: The Need for a War Crimes Tribunal Regarding Sri Lanka," calling for the establishment of a new international tribunal to prosecute those most responsible for the crimes committed during the conflict. A press release for the report can be found at the following link.

IHRC to Host Free Teleconference on Segregation: Europe's Roma and the U.S. Civil Rights Movement

2010-09-24T14:02:00.001-04:00

You are cordially invited to a free tele-conference sponsored by the ABA SIL International Human Rights Committee with Prof. Jack Greenberg, Columbia Law School, titled “Segregation: Europe’s Roma and the U.S. Civil Rights Movement” on October 1, 2010 from 10:30 am EDT to 11:30 am EDT.

Prof. Greenberg will discuss Roma in Europe who live in poverty and attend segregated schools. Their plight is one of the most pressing Civil Rights issues of our time. Prof. Greenberg will:

Discuss European laws and court decisions outlawing discrimination;
Explain why European laws and decisions have, thus far, had little or no impact on segregation of Roma children;
Compare the Roma’s situation with the U.S. Civil Rights movement.

Prof. Greenberg’s remarks will be based upon research in Eastern Europe, an article titled Report on Roma Education Today: From Slavery to Segregation and Beyond in the May issue of Columbia Law Review, and decades of legal experience as Director-Counsel of the NAACP Legal Defense Fund.

Prof. Greenberg is one of the foremost Civil Rights figures in the United States. He argued one of the cases that constituted Brown v. Board of Education and then served as Director-Counsel of the NAACP Legal Defense Fund for 23 years. He is author of Crusaders in the Courts, a history of the NAACP Legal Defense Fund.

To participate, please dial 1-712-432-1600 (USA) and input Participant Access Code 136017#. Participants will be muted but may unmute/remute (using “*6”) during the QNA of 30 minutes at the end of the teleconference. Please remain on mute while not speaking to avoid complications with feedback. The teleconference is limited to 96 participants, so please join early to ensure participation on a first come, first served basis.

Additional Materials Relevant to IHRC Program on the UN Human Rights Council

2010-09-24T06:10:00.002-04:00

In anticipation of today's 12:30 ET program on the UN Human Rights Council (see announcement below), the following sources may be of interest:

General Assembly Resolution 60/251 (2006), which created the Human Rights Council;
the most recent Democracy Coalition Project Report on the voting behavior of Human Rights Council members;
and the transcript and conclusions from a Brookings Institution-Carter Center program on U.S. Engagement with the Human Rights Council in February 2010.

The Council's web site can be found at the following link.

Materials Relevant to IHRC Program on the UN Human Rights Council

2010-09-22T05:10:00.001-04:00

In anticipation of Friday's program on the UN Human Rights Council (see announcement below), the following reports and web sites may be of interest:

Human Rights Watch, "Curing the Selectivity Syndrome: The 2011 Review of the Human Rights Council";
International Service for Human Rights, "Council Monitor";
Amnesty International, "Human Rights Council";
Freedom Watch, "The UN Human Rights Council Report Card: 2009-2010";
UN Watch, "Evaluation of 2010-2013 UN Human Rights Council Candidates."

IHRC to Host Free Teleconference: An Introduction to the UN Human Rights Council

2010-09-16T08:40:00.002-04:00

Please join the International Human Rights Committee on Friday, September 24, from 12:30 to 2:00 p.m. ET, for a free teleconference on the UN Human Rights Council. The UN Human Rights Council succeeded the UN Commission on Human Rights in 2006 and is responsible for strengthening the promotion and protection of human rights around the globe.

Lawrence Moss, an international lawyer based in New York, will lead the discussion. Mr. Moss represented Human Rights Watch as Special Counsel in the negotiations to create the Council and the elections for its members, and has closely followed the development of the Council. He previously served as Chair of the Special Committee on the United Nations of the Association of the Bar of the City of New York and as the Association’s Representative to the United Nations. Mr. Moss authored "Will the Human Rights Council Have Better Membership than the Commission on Human Rights?" in 2006, and "Opportunities for Nongovernmental Organization Advocacy in the Universal Review Process at the UN Human Rights Council" (available at http://jhrp.oxfordjournals.org/cgi/content/short/2/1/122) and "Renewing America's Commitment to International Law" in 2010.

This teleconference will address the following topics:

mandate and procedures of the UN Human Rights Council;
election of Council members;
role of the universal periodic review mechanism, which allows assessment of the 192 Member States; and
special procedures of the UN Human Rights Council, which address specific country situations and thematic issues.

Recording of IHRC Teleconference: Plight of LGBT Individuals Living with HIV and AIDS in El Salvador and Honduras

2010-08-25T18:13:00.000-04:00

A recording of the Committee's free telconference addressing the plight of LGBT individuals living with HIV and AIDS in El Salvador and Honduras is available at the following link. This link will expire in a few weeks, so please download the recording if you are interested in listening to the program. If you are interested in contributing a piece to the blog addressing the plight of LGBT individuals living with HIV and AIDS in El Salvador and Honduras, please contact IHRC Vice-Chair Erin Palmer at erinlouisepalmer@hotmail.com.

"Not Worth a Penny" - Human Rights Watch paper addressing violence against LGBT in Honduras

2010-08-20T13:50:00.007-04:00

During the IHRC's most recent teleconference on the plight of individuals living with HIV/AIDS in El Salvador and Honduras, panel participant Dan Torres spoke of a Human Rights Watch Paper, "Not Worth a Penny," available at the following link, which addresses abuses based on gender identity and expression, including rape, beatings, extortion, and arbitrary detentions, by law enforcement officials in Honduras. For more information on Entre Amigos, an organization mentioned by panel participant Ana Montano working for respect for, and the defense of, the human rights of gays, bisexuals, lesbians, transsexuals, and inter-sex in El Salvador, please visit the following link. The web site for the AIDS Legal Referral Panel, which provides free and low-cost legal services to people with HIV/AIDS in the San Francisco Bay Area, can be found at the following link, and the web site for Proyecto Poderoso of the National Center for Lesbian Rights, which seeks to improve legal services for low-income LGBT people in rural California, can be found at the following link.

International Norms Relevant to Teleconference on the Plight of Individuals Living with HIV and AIDS in El Salvador and Honduras

2010-08-13T16:24:00.001-04:00

Included below please find a list of international norms relevant to the IHRC's teleconference on the plight of individuals living with HIV and AIDS in El Salvador and Honduras:

Yogyakarta Principals: A key event in the development of the Principles was an international seminar that took place in Yogyakarta, Indonesia, at Gadjah Mada University from 6 to 9 November 2006, which clarified the nature, scope, and implementation of States’ human rights obligations in relation to sexual orientation and gender identity under existing human rights treaties and law.
Universal Declaration Of Human Rights (1976)
International Conference On Population And Development (El Cairo, 1993)
World Conference On Human Rights (Vienna, 1993)
United Nations Declaration On Sexual Orientation And Gender Identity (2008)
Organization Of American States' Declaration On Sexual Orientation And Gender Identity, 37th General Assembly (Interamerican Legal Committee)
The Organization Of American States 38th General Assembly Passed By General Consent The Resolution AG/RES/2435(XXXVIII-O/08) Human Rights, Sexual Orientation And Gender Identity, Submitted By The Brazilian Delegation.

IHRC to Host Free Teleconference: The Plight of Individuals Living with HIV and AIDS in El Salvador and Honduras

2010-08-13T16:09:00.000-04:00

Please join the Committee on Friday, August 20, from 1:30 to 3:00 p.m. EST, for a free teleconference on the plight of individuals living with HIV and AIDS in El Salvador and Honduras, as well as mechanisms to combat hate crimes and other human rights abuses against individuals living with HIV and AIDS. Ana Montano,* attorney with the Immigrant HIV/AIDS Assistance Project, and Dan Torres,** Program Manager for Proyecto Poderoso, a joint LGBT civil rights project with California Rural Legal Assistance and the National Center for Lesbian Rights, will lead the discussion.

This teleconference will address the following topics:

Stigma, discrimination, and persecution faced by individuals with HIV and AIDS in El Salvador based on their perceived sexual orientation;
Proposal for a pro bono legal services program to provide representation for individuals living with HIV and AIDS in El Salvador;
Mechanisms used to combat hate crimes against individuals living with HIV and AIDS in Honduras; and
Collaboration between attorneys and U.S. embassies abroad to share ideas with local NGOs, law schools, and government officials to combat hate crimes committed against individuals with HIV and AIDS.

To participate in the teleconference, please use the following call-in information:

Dial-in Number: 1-219-509-8111

Participant Access Code: 153417

Participants who join the call are muted but may unmute themselves during the question and answer portion of the teleconference. It is important to remain on mute while not speaking to avoid complications with feedback. The teleconference is limited to 150 participants, so please join us early to ensure your participation. Participation in the teleconference is on a first come, first served basis.

*Ana Montano is an attorney with experience in immigration and civil rights law. She currently serves as the Immigration Staff Attorney at the AIDS Legal Referral Panel, a public interest law organization in San Francisco. Ms. Montano primarily works to protect the rights of clients seeking political asylum, in the United States, based on their fear of persecution for being gay and HIV+. Ms. Montano attended the University of California, Hastings College of Law during which she focused on the representation of the underserved. Ms. Montano worked with several human rights based non-profit organizations before starting law school. Ms. Montano’s current project is to establish pro bono legal services for low-income LGBT persons that are struggling with discrimination and persecution in Central America.

** Dan Torres, Staff Attorney/LGBT Program Manager for Proyecto Poderoso, a collaborative effort between California Rural Legal Assistance and the National Center for Lesbian Rights. Previously, Mr. Torres worked at the Immigrant Legal Resource Center organizing LGBT immigrants, conducting know your rights presentations, providing technical assistance to legal services and pro bono attorneys. Mr. Torres represented clients as a staff attorney at the California Rural Legal Assistance Foundation in Sacramento, worked as a clinical instructor at the UC Davis School of Law Immigration Law Clinic, and served as a staff attorney for the United States Court of Appeals for the Ninth Circuit.

IHRC to Host Free Teleconference: Student Involvement in International Human Rights Work

2010-03-23T11:13:00.001-04:00

Please join the Committee on Wednesday, March 31, from 12:00 to 1:30 p.m., EST, for a free teleconference discussing the work of the student law practicum of the University of Denver's Center for International Human Rights Law & Advocacy. This teleconference will address generally the role of student clinical law programs in addressing international human rights violations using the rule of law, and how students can get involved in international human rights work during law school. Professor Robert J. Golten, Director of the Center, and Charles Nicholas, a third-year law student in the Center's clinic, will provide the presentation for this teleconference. Lara O'Neill, Director of International Public Interest Programs at the University of Miami School of Law, will moderate this teleconference.

Professor Golten has extensive teaching experience in the areas of international human rights law, American Indian law, and natural resources and environmental law. He has started clinical law programs at three different law schools in Washington, D.C., and Colorado. In addition, he helped establish and/or advise clinical legal programs with an emphasis on human rights in East Africa, Central Asia, and Central and Eastern Europe. Charles Nicholas, as a student in the Center's clinic, has traveled to Nigeria to address the issue of corruption and extreme poverty in the country.

This teleconference will address the following topics:

how Charles became involved in the clinic and decided to go to Nigeria;
the nature of Charles's work in Nigeria and when he returned to the United States;
the goals of the clinic's project in Nigeria;
the scope of the Center's experiential practice; and
the history of the Center and its projects, including successes and challenges.

To participate in the teleconference, please use the following call-in information:

Dial-in Number: 1-219-509-8111
Participant Access Code: 153417

Participants who join the call are muted but may unmute themselves during the question and answer portion of the teleconference. It is important to remain on mute while not speaking to avoid complications with feedback. The teleconference is limtied to 150 participants, so please join us early to ensure your participation. Participation in the teleconference is on a first-come, first-served basis.

Please visit the Committee's Blog, Global Rights Forum (http://inhumrights.blogspot.com/), for additional information. If you are interested in contributing to the blog or have suggestions for teleconferences, please contact Committee Vice-Chair Erin Louise Palmer at erinlouisepalmer@hotmail.com.

IHRC to Host Free Teleconference: Justice Albie Sachs

2010-02-08T09:53:00.003-05:00

The International Human Rights Committee is hosting a free teleconference with Justice Albie Sachs, recently retired Justice of the Constitutional Court of South Africa, on Wednesday, February 17, 2010, from 2:00-3:00 p.m. EST.

Justice Sachs’ career in human rights activism started at the age of seventeen, when as a law student in Cape Town, he took part in the Defiance of Unjust Laws Campaign. The bulk of his work at the Cape Bar involved defending people charged under racist statutes and repressive security laws. After going into exile in 1966, he spent eleven years in England and eleven years in Mozambique as law professor and legal researcher. In 1988, he was blown up by a bomb placed in his car in Maputo by South African security agents, losing an arm and the sight of an eye. During the 1980s he helped draft the ANC’s Code of Conduct and statutes. In 1990, he returned home and as a member of the Constitutional Committee and the National Executive of the ANC took an active part in the negotiations which led to South Africa becoming a constitutional democracy. After the first democratic election in 1994, he was appointed by President Nelson Mandela to serve on the newly established Constitutional Court, from which he retired last fall. For additional information on Justice Sachs, please visit the following link.

Justice Sachs will discuss his new book, “Reason and Passion: The Strange Alchemy of Life and Law,” which addresses the following subjects:

Terrorism, Torture and the Rule of Law
Punitive Justice vs. Restorative Justice
Social and Economic Rights as Fundamental Human Rights
Does the Law Have a Sense of Humor?
The Secular and the Sacred: The Right of Same Sex Couples to Marry

To participate in the teleconference, please use the following call-in information:

Dial-in Number: 1-517-417-5200
Participant Access Code: 4204974

Participants who join the call are muted but may unmute themselves during the question and answer portion of the teleconference. It is important to remain on mute while not speaking to avoid complications with feedback. The teleconference is limited to 150 participants, so please join us early to ensure your participation. Participation in the teleconference is on a first come, first served basis.

IHRC to Host CLE on the Status of the Death Penalty Worldwide

2010-01-25T16:10:00.002-05:00

On Tuesday, February 2, from 11:30 a.m. to 1:00 p.m. EST, the International Human Rights Committee will host an CLE on the status of the death penalty worldwide. Our program will begin with a description of the historical underpinnings of the death penalty in a global context. Next, our experts will discuss the current status of the death penalty within the United States (among other countries). Finally, they will address global trends away from use of capital punishment. The panel discussion will take place within the context of international and domestic law as applied to the death penalty.

Panel participants include:

Lawrence G. Albrecht, Partner, First, Albrecht & Blondis, S.C., Milwaukee, WI (moderator
Sandra Babcock, Clinical Director, Center for International Human Rights at Northwestern University Law School, Chicago, IL
Richard C. Dieter, Executive Director, Death Penalty Information Center, Washington, D.C.
William A. Schabas, Director of Irish Centre for Human Rights, National University of Ireland, Galway, Galway, Ireland

Please click here to register. Registration for Committee members is $85.

IHRC to Host Free Teleconference: How to Litigate Human Rights Cases Using UN Treaties

2009-11-17T05:14:00.004-05:00

The International Human Rights Committee is hosting a free teleconference on Monday, November 30, from 12:30 to 2:00 p.m. EST, addressing how to litigate human rights cases using UN treaties. Noted civil liberties attorney, activist, and theorist Ann Fagan Ginger will provide the presentation for this teleconference.

Professor Ginger is founder and director of the Meiklejohn Civil Liberties Institute in Berkeley, California, which seeks to promote social change by increasing the recognition and use of existing human rights and peace law at the local and national levels. She has been a visiting professor of law at a number of schools in California and Washington. Her work in human rights law includes rigorous analysis of the relationship between U.S. law and international human rights standards.

This teleconference will address the following topics:

U.N. human rights treaties ratified by the United States;
how to use these treaties in litigation;
how these treaties relate to articles in the Universal Declaration of Human Rights;
treaty reporting requirements; and
how to use reporting requirements on local issues before city and state bodies.

To participate in the teleconference, please use the following call-in information:

Dial-in Number: 1-219-509-8111
Participant Access Code: 153417

Participants who join the call are muted but may unmute themselves during the question and answer portion of the teleconference. It is important to remain on mute while not speaking to avoid complications with feedback. The teleconference is limited to 150 participants, so please join us early to ensure your participation. Participation in the teleconference is on a first come, first served basis.

Please visit the Committee's Blog, Global Rights Forum (http://inthumrights.blogspot.com/), for additional information. If you are interested in contributing to the blog or have suggestions for additional teleconferences, please contact Committee Vice-Chair Erin Louise Palmer at erinlouisepalmer@hotmail.com.

IHRC Event: D.C. Bar Association's General Counsels Series (Department of Defense)

2009-10-29T16:42:00.000-04:00

The D.C. Bar Association, in cooperation with the International Human Rights Committee, will present an off-the-record brownbag program with Jeh C. Johnson, General Counsel for the Department of Defense, on Wednesday, November 4, from 12:15 to 1:30 p.m. EST, at WilmerHale (1875 Pennsylvania Avenue; DC). The cost is $15 for members of the ABA's Section of International Law.

ICTY Trial Aganist Karadzic Commences

2009-10-26T05:58:00.005-04:00

October, 26, 2009. The Hague.

Today, I stood in the visitor's line to get a place in the public viewing room of Courtroom I at the ICTY to watch the start of the prosecution against Karadzic for his role in a joint criminal enterprise to commit genocide through the massacre at Srebrenica in 1995 that resulted in over 8,000 deaths.

There were many people holding banners. One of them listed the names of people who died in the massacre and their dates of birth. They ranged from teenagers to people in the 60s, upon a quick glance. There were about ten vans with satellite dishes on top parked across from the ICTY. A group of people (mostly women) from Srebrenica came to the trial and was allowed in. Many of them wore head scarves. The other visitors and I standing in line were allowed through the first security checkpoint after the group had been admitted.

On the way in, I heard the guards tell a person (presumably an ICTY staff member) that she could not sit in the public viewing area because it was not for "staff." Apparently, many of the media could not sit there, either, and they were mostly based in the World Forum across the street with video screens to show the court proceedings. A few handfuls of people with laptops (possibly journalists) were inside the ICTY but they seemed to be based outside the courtroom in the lobby in front of the lobby TV screens broadcasting the court proceedings.

I went through the second security checkpoint and upstairs to Courtroom I and got a handheld translator (which seemed to cut off when I put it inside my blazer pocket so maybe it had a weak wireless signal). I took a seat in the back because it was, at least, near the center of the room with a view of the entire courtroom ahead. There was a large glass wall separating us, in the public gallery, from the courtroom but the judges were directly ahead of us and the prosecution to our right. Neither Karadzic nor any defense lawyers seemed to be in the courtroom (on our left hand side), just the prosecution (on our right).

The prosecutor was speaking, a caucasian woman with short grey hair. The judges huddled together and then one of them (of Asian ethnicity) announced that the proceedings would be adjourned until tomorrow at 2:15 pm when they will begin with the prosecutor's opening statements. The people in the public viewing gallery were upset at the delay and some shouted out, especially the older woman with a head scarf next to me. The viewers stood up even though the judges were all seated and we were supposed to observe courtroom decorum and sit ourselves. The guards seemed a bit concerned and asked us to sit but then the judges, themselves, got up.

I said to the older woman standing next to me and to a younger woman (in her 30s or 40s) standing in front of me, the simple word - "tomorrow." I gestured forward with my hands since I did not know if they spoke English. I thought they were upset that it was adjourned and, maybe, did not realize it was a temporary postponement. They understood but were not comforted.

The woman standing in front of me said, "we came all the way from Srebrenica." I thought to myself that these people may have lost family or friends in the massacre. I could see their anger and hurt. I realized there was not much I could say. To them, justice delayed (even one day) was justice denied. I reached forward and gave the woman a hug. She stood still and did not seem to react. I pulled back and then noticed that, within a couple seconds, she had started to cry, perhaps as a release triggered by my short and tentative embrace. Her eyes were red. She was upset. They had waited 14 years for this day and now they would have to wait another 24 hours.

I got a tea from the automatic machine in the ICTY lobby and watched everyone gather in the lobby and then outside in front of the main door of the ICTY but inside the tall iron gate. Reporters and cameramen spoke with the older woman that had been sitting next to me. I imagine she will be on Bosnian TV tonight. She sounded just as angy or even angrier as when we were in Courtroom I.

I finished my hot tea and went to the tram station and sat, waiting for the tram but thinking about the events of the morning. A woman with a dog passed by and asked me when the next tram would come. I thought she needed assistance. We saw that the last tram had come one hour earlier and that no further trams would arrive. She did not really need to know for herself but she was trying to help me snap out of it. She said she had noticed that a lot of people don't realize when the tram stops running. I think she was just out walking her dog and offered a little assistance.

A hug here. Some advice from a stranger there. These are the human elements that bind us and, maybe, give us a bit of faith in each other when broader events seem unfair or meaningless. The ICTY proceedings can be viewed live over the internet (if you are awake at that time in Europe) via http://www.icty.org/. The court's schedule is available here: http://www.icty.org/sections/TheCases/CourtSchedule

Best regards,
Rob Gaudet

Relevant Materials for International Human Rights Committee's Teleconference on the CIA and the Use of Torture to Combat Terrorism

2009-10-23T15:17:00.003-04:00

Please note the following materials of relevance to the upcoming teleconference on the CIA and the use of torture to combat terrorism:

Stuart Taylor Jr., "Torture: Stop Harassing the Lawyers," NationalJournal.com (Sept. 12, 2009)
Testimony of David Luban, Senate Judiciary Committee, Subcommittee on Administrative Oversight and the Courts, "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration" (May 13, 2009)
Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody (Dec. 11, 2008)
ICRC Report on the Treatment of Fourteen "High-Value Detainees" in CIA Custody (Feb. 2007)
CIA Inspector General's Report on Counterterrorism Detention and Interrogation Activities (May 7, 2004; released Aug. 24, 2009)

Torture is Illegal, Immoral and Counterproductive

2009-10-22T08:10:00.044-04:00

by Mike Pheneger, Colonel, US Army (Ret.), a participant in the International Human Rights Committee's teleconference on the CIA and the use of torture to combat terrorism

*Please click on the title of this post to read the post in its entirety.

I was stunned to learn that the United States government had authorized the torture of suspects captured during the War on Terror. I am not naïve. As a professional soldier, I know individuals captured by the US military have been abused in the past, but abuse usually occurs at the point of capture during or immediately after a fire-fight when tempers are hot and units have sustained casualties. Some prisoners were tortured, but this was an aberration not national policy. It is important that we ensure that the record of our involvement with torture is laid bare. That is the only way to ensure that we never again stride purposely and confidently down that dark path.

Our greatest presidents rejected torture and abuse. Washington refused to follow the British practice of torturing prisoners; he believed our new nation should be noted for its humanity. Lincoln believed that “military necessity shall not permit of cruelty.”

The Bush Administration abandoned our traditions and made a calculated decision to authorize torture as a matter of national policy. Immediately after 9/11, Vice President Cheney noted that we would have to go the “dark side” to counter the al-Qaeda threat. After 9/11, the administration “took the gloves off” and approved “harsh” interrogation techniques that individually and in combination amount to torture. Alberto Gonzales advised that Geneva Convention prohibitions against torturing and abusing prisoners did not apply to al-Qaeda and Taliban prisoners.

The torture policy and its “legal” justification were developed in secret by a small group of attorneys closely associated with the Vice President. They simply assumed that “harsh” interrogations would be necessary to obtain actionable intelligence. There is nothing in the public record to indicate that anyone with actual knowledge of or experience in interrogation participated in making the decision. Service Judge Advocates were frozen out of the process because they were considered “unreliable.” When Alberto Mora, then General Counsel of the US Navy, learned the Department of Defense was about to approve harsh interrogation methods, he brought his concerns to DoD General Counsel William Haynes. After unsuccessfully trying to bring Mora on board, Haynes froze him out of the process. The torture policies were not subject to the normal interagency coordination process that is designed to weed out really bad ideas.

The story of how we came to be torturers revolves around the case of Abu Zubaydah, the first significant member of al-Qaeda captured by the United States. Comments on the public record portray vastly different portraits of Zubaydah’s role in the organization and the importance of the information he provided. President Bush described him as “one of the top operatives plotting and planning death and destruction on the United States.” He was touted as al Qaeda’s “operations chief,” the number three man. Bush administration officials claim Zubaydah provided critical intelligence on al-Qaeda and its future plans. Indeed, under torture he provided information on a massive number of plots involving attacks on all manners of US targets triggering a spate of early terror alerts. Many of the targets he identified did not correlate with those favored by al Qaeda. Many administration statements were self-serving - designed to demonstrate the administration’s effectiveness in the war on terror and, later to justify the decision to use torture to obtain critical intelligence.

Many intelligence officials who had direct access to Zubaydah paint a different picture. To them, Zybaydah was a functionary, a logistician, a personnel clerk and a “travel agent.” The personal journals captured with him indicate that he suffered from severe mental illness. One intelligence officer stated that “we spent millions of dollars chasing false alarms.” Ron Suskind, author of The One Percent Solution, said we “tortured an insane man and jumped screaming at every word he uttered.” In one instance, he provided inaccurate intelligence that had profound consequences. Under torture, Zubaydah provided the “smoking gun” the Bush administration sought to justify the invasion of Iraq. He stated that Iraq and al Qaeda were involved in chemical warfare training. This was confirmed by another prisoner who had been rendered to Egypt and tortured. These statements were not true. When the torture stopped, Zubaydah recanted.

Officials who dispute administration claims of Zubaydah’s value do not deny that he provided some valuable intelligence. Even if he was not a “high level” al Qaeda member, he was positioned to provide insights into al Qaeda’s organization and personnel if not its future plans. The issue here is what agency obtained the accurate information and how. Would he have provided more and better information to the FBI had he not been tortured?

Zubaydah’s capture sparked a bureaucratic dispute between the FBI and CIA over which agency was to assume primary responsibility for interrogation of high-level prisoners and what interrogation methods were to be used. We know a lot about this dispute from Ali Soufan, the FBI Special Agent who was initially involved in Zubaydah’s interrogation; he testified under oath about Zubaydah’s initial interrogations, the contrasting methods used by the two agencies and the results achieved.

Abu Zubaydah was severely wounded when he was captured. The FBI and CIA flew in a physician from the United States to tend to his wounds. In initial interrogations conducted by Soufan and his partner, they immediately began to obtain accurate, actionable intelligence.

Soufan’s testimony describes two very different approaches to interrogation. The FBI used the “Informed Interrogation Approach” which is based on leveraging the interrogator’s knowledge of the prisoner’s culture together with information already known about him to get him to open up. Prisoners isolated from their traditional support seek human contact. A non-threatening approach to detainees who expect to be abused adds to his confusion and makes him more likely to cooperate. This approach requires interrogators to do their homework. Soufan testified that, during the first interrogation, he asked Zubaydah his name. He replied with an alias. Soufan then asked, “How about I call you Hani?” Hani was the nickname his mother used to address him as a child. Zubaydah was surprised, but the conversation began. The FBI/Army Field Manual approach is not “soft”. It is a knowledge based approach designed to “outwit” the detainee. The informed approach works quickly and effectively when employed by skilled interrogators.

Initial FBI interrogations produced valuable information, but then the CIA brought in a contractor who introduced harsh techniques which caused Zubaydah to shut down. At that point, FBI interrogators were re-introduced to retrieve the situation. For a time the Bureau and the Agency alternated in the interrogation of Zubaydah using their contrasting methods. FBI participants quickly became alarmed that the CIA’s contractor was engaging in torture. Soufan told a high-level FBI official that he had considered arresting some of the CIA personnel. Director Mueller wisely decided to withdraw FBI interrogators. Similar events occurred at Guantanamo. FBI personnel on-site became concerned about the treatment of prisoners and reported abuses to their headquarters. They were ordered not to participate in harsh interrogations. Much of what we know about the Guantanamo situation came from documents obtained through the ACLU’s Freedom of Information Act requests for documents on torture.

The administration ultimately charged CIA with responsibility for interrogating high-level detainees. Zubaydah then embarked on an odyssey of secret CIA sites in Thailand, Afghanistan, Poland, North Africa and Diego Garcia. He was finally sent to Guantanamo when the Bush administration decided to close the secret sites in 2006. During that odyssey he was subjected to increasingly harsh interrogation techniques.

CIA had dedicated, experienced case officers skilled in debriefing agents, but they had almost no experienced interrogators. Faced with a job for which they were ill-prepared, CIA consulted with James Mitchell, a psychologist who had experience with the Air Force’s Survival Evasion Resistance and Escape (SERE) program. SERE was a defensive program to expose selected military personnel (under carefully controlled and limited conditions) to interrogation techniques employed by totalitarian communist, fascist and third-world states. Interestingly, despotic states most often employed these techniques to obtain confessions, not “actionable intelligence.” Torture was an instrument of social control not intelligence. The United States considered these techniques torture and consistently condemned their use on human rights grounds. None-the-less the SERE methods were “re-engineered” for “offensive” use and used by CIA interrogators. Subsequently, some people involved in the decision making denied knowing the origin of techniques they had approved for use by the United States.

Not surprisingly, CIA personnel charged with responsibility for executing the program were concerned about the legality - if not the morality - of their actions. John Yoo, of the Justice Department’s Office of Legal Counsel, prepared a series of extraordinary Memoranda to provide legal cover for the new policy and approved specific interrogation techniques. A subsequent memorandum was prepared to approve techniques Secretary Rumsfeld approved for use by DoD elements. The New York Times’ Anthony Lewis correctly likened the memos to the “advice of a mob lawyer to a Mafia don on how to skirt the law and stay out of prison.” It is useful to briefly examine two of the memos to get an accurate picture of their Orwellian character.

The August 1, 2002 memo (called the Bybee memo) attempts to define torture out of existence. To be considered torture, the interrogator must cause physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture…it must result in significant psychological harm of significant duration, e.g. lasting months or even years.” By contrast, the Convention Against Torture and Cruel, Inhuman and Degrading (CID) Punishment defines torture as “severe pain or suffering, whether physical or mental.” Yoo argued that actions that were merely cruel, inhuman or degrading do not rise to the level of torture and are not subject to criminal sanctions. Mr. Yoo also considered defenses that could be employed if the courts did uphold his interpretation; these included “necessity” and “self-defense.”

Euphemisms concealed crimes. Interrogations were described as “enhanced”, “special,” and “robust.” The Bybee memo is clearly intended to inoculate torturers against future prosecution.

In addition to providing a legal justification for torture, the Bybee memo articulates an extremely dangerous view of Executive Power. Yoo argued that, after Congress passed Authorizations for the Use of Military Force for Afghanistan, the president, in his exercise of his Article II “commander-in-chief” power, is not limited by statute law, treaties ratified by the United States, or even the Constitution itself. “…If an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct the military campaign.” Courts will not read “a criminal statute as infringing on the President’s ultimate authority” in the conduct of war. “In war time, it is for the President alone to decide what methods to use to best prevail against the enemy.” There is a clear implication that in time of war the President’s authority as commander-in-chief of the armed forces trumps other constitutional provisions. This presumably includes the President’s very specific constitutional mandate to “take care that the laws be faithfully executed.” This view of executive power clearly suggests that the “separation of powers” and “checks and balances” - concepts the Founders carefully built into the fabric of the Constitution – are suspended in time of war.

A second memo, also dated August 1, 2002, approves ten specific interrogation methods for the “Interrogation of al-Qaeda Operative” Abu Zubaydah. It is clear that this memo was written after the fact to justify methods that had already been used on Zubaydah who had been captured four months earlier. It does appear that waterboarding was only used after the memo approved it. After asserting that Abu Zubaydah was a high-ranking member of al Qaeda who was withholding information about plans for attacks on the United States, the memo lists ten methods to “encourage him to disclose …crucial information.” “The techniques are: (1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.” For anyone remotely familiar with the actual use of these methods, the memo’s discussion of their use has a surreal quality. Several examples illustrate.

Walling is described as pulling “the individual forward and then quickly and firmly push(ing) the individual” so his shoulders hit a false wall. The individual’s head and neck are supported with a rolled hood or towel “to help prevent whiplash.” This “humanitarian” explanation is wrong. The actual purpose of the towel is to provide the interrogator with leverage to increase the force of the impact.

The facial or insult slap is not “intended to inflict physical pain that is severe or lasting.” The purpose is to induce shock, surprise, and/or humiliation. The problem is that method is repeated frequently over a short time. The correct name for this in practice is a beating.

The memo discusses the use of wall standing and stress positions. These methods can induce extreme pain and discomfort. The memo does not address duration.

Sleep deprivation “reduces the individual’s ability to think on his feet and, through discomfort associated with lack of sleep, to motivate him to cooperate.” Again, there is no discussion of duration. The KGB used the technique on Menachem Begin. He described the experience: In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep...Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it. The European Court of Human Rights considered it cruel, inhuman and degrading. At Guantanamo, guards used the “frequent flyer” program to deny sleep. Prisoners were denied sleep for days by frequent changes of cells 24 hours a day. A subsequent 2005 memo limited the use of sleep deprivation sessions to 180 hours (7 ½ days). This suggests that earlier sessions were longer.

Waterboarding requires that the subject be bound to an inclined bench with his feet elevated and a wet cloth placed over the nose and mouth. Water is then poured over the cloth from a height of 12 to 24 inches for 20 to 40 seconds. The procedure induces a “perception” of suffocation and incipient panic, the perception of drowning. Between applications, the cloth is removed to allow the individual to breathe “unimpeded for three or four full breaths.” The action could be repeated but only for 20 minutes in one application. The memo did not address the issue of frequency. Nor did the memo reveal that after WW II, the United States prosecuted Japanese who waterboarded US soldiers for war crimes. The 2004 memo imposed limits. The waterboard could only be used with a detainee during one 30-day period and no more than five days during that period. The waterboard could only be used for two sessions (the length of time the subject is strapped to the board) a day. Individual sessions could not last longer than two hours and no more than six 10 second applications during the session. The cumulative water application could not exceed 12 minutes in a 24 hour period. The CIA admits that it waterboarded three individuals. They subsequently destroyed tapes of the sessions.

In late 2006, the International Committee of the Red Cross was allowed access to the thirteen high-value detainees that were moved from CIA secret sites to Guantanamo. Detainees were interviewed separately and kept in isolation prior to the interviews, but the detainees’ accounts correlated. The 2007 report (leaked in April of 2009) called the CIA interrogation practices “inhuman” treatment that amounted to torture. The report provides insights on the duration issue. Several detainees reported being forced to stand for days in painful positions with their arms shackled overhead. Another reported being shackled for several months with a cycle of seven days of prolonged stress standing followed by two days of being allowed to sit or lie down. Prisoners were threatened with electric shocks, sodomy, and infection with HIV. Reading the report you cannot help but be struck by the similarity of what the detainees described and the techniques authorized in the memos.

In 2004, CIA Inspector General John Hilgerson attacked both the legality and effectiveness of the program. This led Jack Goldsmith, who replaced John Yoo in DOJ’s Office of Legal Counsel, to repudiate the earlier torture memos which he considered to be characterized by “deeply flawed” and “sloppily reasoned” legal analysis. The clear purpose of the 2005 Bradbury memo which addressed issues of frequency and duration was to place limits on what had been actual CIA practice. It revealed that Zubaydah had been waterboarded 83 times in August 2002. Khalid Sheik Mohammed was waterboarded 183 times in March 2003.

The United States torture program was not limited to secret overseas sites operated by the CIA. The Agency also ran the extraordinary rendition program. Suspected terrorists were kidnapped and rendered to other countries for interrogation. Most were countries known to use torture. Bob Baer, a former CIA case officer was widely quoted: "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear - never to see them again - you send them to Egypt." There have been at least 57 renditions to Egypt, Jordan, Syria, Morocco, and Pakistan since 9/11. We know that at least two individuals were rendered by mistake: Mohammed Arar, a Canadian who was picked up at JFK Airport in NYC, sent to Syria to be tortured and released after a year. Kahled al Masri, a German citizen was picked up and rendered to a US site in Afghanistan. Masri’s was a case of mistaken identity. The ACLU tried to obtain justice for al-Masri after his release, but due to the application of the “state secrets privilege” there is no legal redress for him in US Courts.

The efforts of Ireland, Sweden, the European Union, and the ACLU exposed the details of the extraordinary rendition program. The ACLU is currently pursuing legal action against Jeppeson Aviation, a CIA contractor that provided leased aircraft to render CIA detainees. As an aside, the whole operation of the program reveals that the CIA tradescraft is terrible. An Italian prosecutor successfully indicted 26 Americans and 7 locals in the kidnapping of Muslim cleric Osama Moustafa Hassan Nasr from Milan in February 2003. It is almost a case of keystone kops with CIA operatives overusing their personal cell phones and attempting to collect frequent flyer miles at hotels under their true names.

I doubt anyone in the Bush administration would like to discuss, on the record, the interrogation methods used on detainees in the extraordinary rendition program. CIA has not indicated how many individuals were waterboarded by other countries at our request.

The final element of the torture program involves Guantanamo and actions by the US military. A March 14, 2003 memo from the DOJ Office of Legal Counsel replied to a DoD request for guidance on legal standards governing military interrogations of alien unlawful combatants held outside the United States. The administration assumed that those who were sent to Guantanamo were dangerous terrorists. In justifying Guantanamo, Defense Secretary Rumsfeld declared in 2003 that the detainees housed there were “the worst of the worst.” General Dick Myers, then Chairman of the JCS and a War College classmate of mine, told the press that the detainees were so dangerous that if they were not hooded and chained to the floor of the plane, the detainees were “so vicious, if given a chance, they would gnaw through the hydraulic lines of a C-17 while they were being flown to Cuba.”

In the months after 9/11, we were desperate for intelligence on al Qaeda. Secretary Rumsfeld quickly became dissatisfied with the paucity of intelligence being generated through Guantanamo interrogation operations. Desperate for intelligence on al Qaeda, he issued he authorized 24 interrogation techniques including sleep deprivation, stress positions, and prolonged standing. In 2002 and 2003 Rumsfeld approved a variety of interrogation techniques including, stress positions, hooding, 20-hour interrogations, removal of clothing, exploiting phobias to induce stress (fear of dogs), prolonged isolation, sensory deprivation, forced grooming (shaving beards), sleep adjustment (deprivation), dietary and environmental manipulation (extreme heat/cold), false flag approaches, and isolation. Some have described these as “torture lite,” however, used in combination, they constitute torture. The application of these techniques is apparent in the logs of the interrogation of Mohammed al-Qahtani, believed to be the 20th hijacker who was barred entry into the US in August 2001.

Many Guantanamo abuses have been confirmed in FBI email and documents obtained by the ACLU as a result of its Freedom of Information Act request. Nearly half of the 450 agents working at Guantanamo reported observing or hearing about military interrogators using harsh techniques including religious abuses, sleep deprivation, and short-shackling (locking a detainee’s feet and hands together to prevent comfortable sitting or standing) for extended periods.

Unfortunately, Rumsfeld’s solution did not address the actual problem. Most detainees did not provide information on al Qaeda because they were not the dangerous al Qaeda members that Rumsfeld and Meyers described. Their characterizations of the Guantanamo detainees were totally inaccurate until late in 2006 when the CIA cleaned out its secret detention sites and deposited 13 “really bad guys” (including Khalid Sheik Mohammad and Abu Zubaydah) at Guantanamo. It is not clear whether Rumsfeld and Myers were purposely misleading the public or whether they simply didn’t know what they had. It might be a little of both. Of the 775 individuals detained in Guantanamo, 544 have been quietly released to 40 different countries. About 250 remain for the Obama administration to deal with. Only 5% of the detainees were actually captured by US personnel. 86% were turned over to the US by Afghan or Pakistani citizens for a bounty. Fifty-five percent of the detainees were determined not to have committed any hostile acts against the US or our allies. The actual number is probably higher.

When the Abu Ghraib scandal broke, the Bush administration characterized the situation as the illegal actions of a few rogue enlisted reservist prison guards. That is not true. When insurgencies broke out in Iraq and Afghanistan, local commanders were desperate for accurate intelligence. Interrogations were not meeting requirements. Secretary Rumsfeld sent Major General Miller, the Guantanamo commander, to Iraq to inspect detention operations at Abu Ghraib. Harsh tactics migrated from Guantanamo through “Tiger Teams” Miller sent to Iraq as trainers. Miller recommended that guards to soften up detainees for interrogators. General Miller has denied wrong-doing, but he subsequently invoked his right against self-incrimination in the courts-martial of two enlisted abu-Ghraib dog handlers.

In law there is a bright-line concept. This applies to interrogation operations. There must be a bright line that defines the difference between what is legal and acceptable and what is not. Once the line is blurred, violations escalate. I reviewed a number of documents obtained through the ACLU FOIA request that illustrate the problem. Once you begin to abuse prisoners, there are no effective limits. Escalation is inevitable. Abuse tolerated in one location will spread. In one case an Army interrogation Warrant Officer, persuaded an Iraqi Air Force general to surrender by threatening his family. The general was repeatedly beaten, held in isolation, and subject to significant abuse. The warrant officer staged a mock execution of one of the general’s sons. The general repeatedly refused to provide information on the growing insurgency. Finally, the warrant put the general head-first into the sleeping bag, bound him with communications wire and sat on him. The general died of a heart attack. The warrant officer was a trained interrogator – aware of limitations imposed by the Geneva Convention. He knew how to use approved interrogation techniques. However, he later claimed he did not know what was allowed and what was not. Maintaining a bright-line approach cures that problem.

Vice President Cheney and other Bush officials have continued to argue that what they authorized was not torture and that the methods they authorized provided critical intelligence. Evidence casts serious doubt on both assertions. In the case of Abu Zubaydah, it seems clear that FBI interrogations were productive, and CIA SERE based interrogations were not. There have been other claims that information obtained through “enhance” or “aggressive” techniques led to the disruption of terrorist plots. In most cases, there is insufficient information to verify the claim.

However, members of the Bush administration frequently used fear and claims of success to defend and justify programs that are illegal or unconstitutional. The recent report on the President’s Surveillance Program (PSP) (including warrantless wiretapping and other measures) by the Inspectors General of DoD, DoJ, CIA, NSA and the Office of the Director of National Intelligence illustrates that the evaluations of intelligence professionals do not support extravagant claims of the program’s importance by members of the administration. The FBI’s Robert Muller said the program produced information that was “of value” and “useful.” Earlier reports of complaints from lower echelons of the FBI said they were kept busy following false leads that used scarce resources that should have been allocated to more productive activities. The CIA IG said PSP information was used with other sources so it is difficult to attribute success specifically to the PSP. CIA analysts reported that the extreme secrecy of the program made it difficult for them to evaluate information because they did not know its source. The report concluded that most Intelligence Community officials “had difficulty citing specific instances where PSP reporting had directly contributed to counterterrorism successes. Anyone with experience in the Intelligence Community looking at the IG report would conclude that analysts were extremely skeptical and high-level officials offered only faint praise.

There are numerous reasons why the United States should abstain from torture.

Torture is a moral abomination. Torture is not consistent with our national ideals and our commitment to justice, the rule of law, and human dignity. To justify torture, our enemy must be portrayed as beyond redemption and acting without justification. There is also an element of racism. In resorting to torture, we sacrificed our moral authority, our moral leadership, and the legitimacy of our cause.

Torture is illegal. The United States was instrumental in the adoption of the Geneva Conventions to protect both combatants and non-combatants in time of war. Our tawdry efforts to define a new category of “enemy combatants” for the sole purpose of creating an unprotected category are unworthy of our nation. We are also signatories to the Convention on Torture, Cruel, Inhuman and Degrading Punishment. These treaty obligations have been incorporated in statute law. It is clear that actions sanctioned by the Bush administration violate US and international law.

Torture is not effective. A 2006 report by the Intelligence Science Board concluded there is almost no scientific evidence to back up the U.S. intelligence community's use of controversial interrogation techniques in the fight against terrorism. Experts believe some painful and coercive approaches could hinder the ability to get good information. Professor Shane O’Mara at Ireland’s Trinity College Institute of Neuroscience, argues that: "Solid scientific evidence on how repeated and extreme stress and pain affect memory and executive functions (such as planning or forming intentions) suggests these techniques are unlikely to do anything other than the opposite of that intended by coercive or enhanced interrogation."

Torture produces unreliable information. This does not imply that torture will never produce reliable information, but that the information it produces is inherently unreliable, especially just after 9/11. We were attempting to collect information on an entity we knew little about. During torture, the interrogator will signal their interests. To end the pain, the subject will manufacture a story to satisfy them. We may never be sure what they tell us is truth or fabrication. Daniel Coleman, a retired FBI official involved in Abu Zubaydah's interrogation, commented that after the CIA's use of coercive methods "I don't have confidence in anything he says, because once you go down that road, everything you say is tainted. He was talking before they did that to him, but they didn't believe him. The problem is they didn't realize he didn't know all that much."

Conventional interrogation techniques work. Perhaps the most astounding part of the administration’s decision to torture is that no one took the time to determine whether it was necessary. Skilled FBI interrogators have a solid record of success in obtaining critical information using the Informed Interrogation Approach. The decision to torture may be more about the psyche of the decision makers than the need for intelligence.

Torture is counter-productive in ways almost too numerous to recount.

The military Judge Advocates General oppose torture to protect the US military. They know that any interrogation techniques used by the United States will be used by now and in the future against captured US personnel.

Information obtained by torture corrupts the legal process. It will be extremely difficult if not impossible for the Obama administration to prosecute some al Qaeda detainees because much of the evidence against them was obtained by coercion.

Torture hinders cooperation with our allies in the War on Terror. Many European countries are reluctant to extradite terrorist suspects to the United States for fear they might be tortured. For a time, NATO forces in Afghanistan were prohibited from turning insurgents over to the United States because it was widely known that the US maintained a detention facility in Afghanistan where detainees were tortured.

Finally, it is bad strategy to adopt tactics than generate enemies faster than you can kill them. The photos of abu Ghraib and revelations about US torture radicalized many individuals in the Islamic world. The vast majority of Muslims do not support al Qaeda or terrorism, but there are fence sitters who can be tipped into their camp.

I would close by quoting several US generals who understand the dangers of torturing.

In September of this year, retired Marine four-star generals Charles Krulak and Joseph Hoar responded the Vice President Cheney’s defense of torture. They wrote: ‘we never imagined that we would feel duty-bound to publicly denounce a vice president of the United States, a man who has served our country for many years. In light of the irresponsible statements recently made by former Vice President Dick Cheney, however, we feel we must repudiate his dangerous ideas – and his scare tactics.” “What leaders say matters. So when it comes to light, as it did recently, that US interrogators staged mock executions and held a whirling electric drill close to the body of a naked, hooded detainee, and the former vice president winks and nods, it matters. The Bush administration had already degraded the rules of war by authorizing techniques that violated the Geneva Conventions and shocked the conscience of the world. Now Cheney has publicly condoned the abuse that went beyond even those weakened standards, leading us down a slippery slope of lawlessness.”

When he took command in Iraq in 2007, General Petraeus sent the following to his soldiers. He said that, to win, we have to secure the population and “occupy the moral high ground.” He cautioned that "Seeing a fellow trooper killed by a barbaric enemy can spark frustration, anger, and a desire for immediate revenge. As hard as it may be, however, we must not let those emotions lead us… to commit hasty, illegal actions.” He noted that: “Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary. Certainly, extreme physical action can make someone 'talk;' however, what the individual says may be of questionable value… In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. While we are warriors, we are also human beings."

IHRC to Host Free Teleconference: the CIA and the Use of Torture to Combat Terrorism

2009-10-07T07:20:00.014-04:00

On Monday, October 26, from 12:30 to 2:00 p.m. EST, the International Human Rights Committee will host a free teleconference on the CIA and the use of torture to combat terrorism. The teleconference will discuss CIA interrogation tactics and whether they constitute torture, as well as the relationship between torture and the rule of law in the context of CIA liability.

Panel members for this teleconference include:

Mike Pheneger: Mike Pheneger, Colonel, U.S. Army (Ret.), represents Florida on the ACLU's National Board and serves on the ACLU's National Executive Committee. Colonel Pheneger spent 30 years on active duty as a U.S. Army Intelligence Officer and served multiple Vietnam tours, retiring in 1993. He also served as an intelligence staff officer at the U.S. European Command and on the Army staff. He currently teaches courses on the Constitution, the Bill of Rights, terrorism, and geopolitical issues for the University of South Florida's Learning in Retirement Program. He holds a B.A. in History from Bowling Green State University (Ohio) and an M.P.A. from Shippensburg University in Pennsylvania. He is a graduate of the U.S. Army War College, the Command & Staff Course, U.S. Naval War College, and the Military Intelligence Officer's Advanced Course.

Hina Shamsi: Hina Shamsi is Senior Advisor to the Project on Extrajudicial Executions at NYU School of Law. Previously, Ms. Shamsi was a Staff Attorney with the National Security Project of the American Civil Liberties Union. She is a graduate of Northwestern University School of Law and Mount Holyoke College.

Stephen I. Vladeck: Stephen I. Vladeck is a Professor of Law at American University Washington College of Law, where his teaching and research focus on federal jurisdiction, national security law, constitutional law (especially the separation of powers), and international criminal law. Professor Vladeck was part of the legal team that successfully challenged the Bush Administration’s use of military tribunals at Guantánamo Bay, Cuba, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and has co-authored amicus briefs in a host of other lawsuits challenging the U.S. government’s surveillance and detention of terrorism suspects. Professor Vladeck earned a B.A. summa cum laude in History and Mathematics from Amherst College in 2001 and graduated from Yale Law School in 2004. He clerked for the Honorable Marsha S. Berzon on the U.S. Court of Appeals for the Ninth Circuit and the Honorable Rosemary Barkett on the U.S. Court of Appeals for the Eleventh Circuit.

Ben Wizner: Ben Wizner has been a staff attorney at the ACLU since 2001, specializing in national security, human rights, and first amendment issues. He has been involved in numerous post-9/11 civil liberties cases, including challenges to the CIA's extraordinary rendition program; lawsuits aimed at exposing FBI and Pentagon surveillance of non-violent protestors; and suits challenging unlawful airport security policies. He has traveled to Guantanamo Bay to observe and report on Military Commission trials. Wizner was a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He is a graduate of Harvard College and New York University School of Law.

To participate in the free teleconference, please use the following call-in information:

Dial-in Number: 1-219-509-8111

Participant Access Code: 153417

Participants who join the call are muted but may unmute themselves during the question and answer portion of the teleconference. It is important to remain on mute while not speaking to avoid complications with feedback. The teleconference is limited to 150 participants, so please join us early to ensure your participation.

ICC Issues Arrest Warrant for al-Bashir

2009-03-05T06:27:00.004-05:00

On March 4, 2009, Pre-Trial Chamber I of the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir for war crimes and crimes against humanity in relation to attacks against civilian populations of Darfur, Sudan.

The warrant includes 7 counts on the basis of al-Bashir's individual criminal responsibility: five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape), as well as two counts of war crimes (intentionally directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities and pillaging). The majority of the Chamber, with Judge Anita Ušacka dissenting, declined to include the crime of genocide in the arrest warrant based on the Prosecution's failure to provide reasonable grounds to believe that the government of Sudan acted with specific intent to destroy, in whole or in part, the Fur, Masalit and Zaghawa groups. The Judges noted, however, that the Prosecution may request an amendment to the warrant of arrest in order to include the crime of genocide if the Prosecution gathers additional evidence. See the Rome Statute for the statutory bases of these charges.

For more information, please see the ICC's Press Release. See also "ICC Faces Deferral of al-Bashir Prosecution."

Uighurs Denied Remedy of Release into U.S.

2009-02-18T20:57:00.017-05:00

On February 18, 2009, the Court of Appeals for the District of Columbia Circuit issued its opinion in Kiyemba v. Obama, a case addressing whether 17 Uighurs currently held in detention at Guantanamo Bay have the right to a remedy of release into the United States. Senior Judge A. Raymond Randolph (appointed by George H.W. Bush) authored the majority opinion, concluding that the Uighurs have no remedy of release into the United States because the political branches control exclusively the entry of aliens into the country. Judge Judith W. Rogers (appointed by Bill Clinton) concurred in the judgment, noting that the Executive has not yet determined if the Uighurs can be detained lawfully pursuant to U.S. immigration laws, but criticizing sharply the conclusion that the United States can indefinitely detain the Uighurs without a lawful basis for that detention.

Judge Randolph relied on the "ancient principle" that "a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion or admission." Judge Randolph denied that the Uighurs possess any constitutional right to a habeas remedy based on their lack of citizenship and detention at Guantanamo, which Judge Randolph concluded is not part of the sovereign territory of the United States. In addition, Judge Randolph rebuked the district court's reliance on the principle that where there is a right (in this case a right to habeas), there is a remedy, emphasizing that doctrines such as sovereign immunity and political question preclude remedies in many instances. Ultimately, Judge Randolph concluded that the courts have no power to order the remedy sought by the Uighurs.

Judge Randolph focused the second half of his opinion on responding to Judge Rogers' concurrence. He called her statements "confused and confusing" and emphasized that whether or not the United States can continue to detain the Uighurs under immigration law is irrelevant because the Uighurs have not applied for admission under immigration law. Judge Randolph stated that the courts need express authorization by law in order to review a determination by the political branches to exclude an alien from entry into the United States. In addition, Judge Randolph concluded that the Supreme Court's decision in Boumediene v. Bush extends constitutional rights to aliens only with regard to the Suspension Clause.

The majority opinion and Judge Rogers' concurrence differ in which party bears the burden. Judge Randolph requires statutory authority for the remedy sought - namely, release into the United States, and Judge Rogers requires a showing of unlawful detention, thereby warranting a remedy. As noted in Judge Rogers' concurrence, "the majority has recast the traditional inquiry of a habeas court from whether the Executive has shown that the detention of the petitioners is lawful to whether petitioners can show that the habeas court is 'expressly authorized' to order aliens brought into the United States."

Whereas Judge Randolph emphasized that the Uighurs are seeking "an extraordinary remedy," Judge Rogers emphasized that the Uighurs face potentially indefinite detention. What counsels in favor of permitting such an extraordinary remedy is that the U.S. government created this dilemma. Unlike an individual who is seeking entry into the United States, the Uighurs were forcibly captured and detained. What is most appalling is that the Uighurs are not - and have never been - enemy combatants, yet they face indefinite detention at Guantanamo. Although release into the United States may constitute an extraordinary remedy, the Uighurs are entitled to a remedy, and release into the United States appears to be the only remedy available in light of the potential torture they face if they return to China and reluctance of any third-party country to accept the Uighurs, as recognized explicitly by the U.S. government. Any denial of the only remedy available to the Uighurs renders the Supreme Court's decision in Boumediene meaningless and is fundamentally unfair.

See Kiyemba v. Bush: "Let’s Be Very Careful Here Before We Taint People Without Evidence", Circuit Court of Appeals Precludes Uighurs' Release into U.S., "Unchartered Territory": A Remedy of Release into the U.S. for GITMO Detainees. See also Deborah Pearlstein, Opinio Juris, Constitutional Right, no Gitmo Remedy.

Saleh v. Titan: Political Divisions in Determining Accountability of Private Military Contractors

2009-02-18T19:12:00.009-05:00

On February 10, 2009, the Court of Appeals for the District of Columbia Circuit heard oral argument in Saleh v. Titan, a case in which 250 Iraqi plaintiffs are attempting to hold accountable CACI International, Incorporated and L-3 Communications (formerly Titan Corporation) for allegedly committing torture, as well as other state law tort violations, in their provision of interrogation and translation services at Abu Ghraib and other prisons in Iraq. The case raises the familiar issue of accountability of private military contractors (PMCs) in the so-called war on terror. (For a good summary of the factual and procedural history of the case, see the following link from the Center for Constitutional Rights.) The panel, consisting of Judges Brett M. Kavanaugh (appointed by George W. Bush), Merrick B. Garland (appointed by Bill Clinton), and Laurence H. Silberman (appointed by Ronald Reagan), was unsurprisingly divided on ideological grounds.

On November 6, 2007, District Judge James Robertson issued a Memorandum Order granting Titan's motion for summary judgment, thereby dismissing the case against Titan, but denying CACI's motion for summary judgment and ordering a jury trial. Judge Robertson analyzed the level of control exercised by the U.S. government over the PMCs to determine whether the claims were preempted by the federal contractor defense. He concluded, "The critical differences between the ways that contract translators and contract interrogators were managed and supervised lead to different outcomes. Because the facts on the ground show that Titan linguists performed their duties under the exclusive operational control of the military, the remaining state law claims against Titan are preempted and must be dismissed. Because a reasonable trier of fact could conclude that CACI retained significant authority to manage its employees, however, I am unable to conclude at this summary judgment stage that the federal interest underlying the combatant activities exception requires the preemption of state tort claims against CACI. This does not mean that CACI may not successfully prove this affirmative defense at trial, but the task of sorting through the disputed facts regarding the military’s command and control of CACI's employees will be for the jury."

At argument before the Circuit Court, the judges questioned heavily both parties on the combatant activities exception under the Federal Tort Claims Act (FTCA), which divests district court jurisdiction over civil actions for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Judge Silberman emphasized that the exception applies to claims "arising out of" combatant activities of the U.S. military and not "claims against" the U.S. military, and therefore could include combatant activities engaged in by non-U.S. military personnel. Judge Garland countered that the FTCA is a liability statute and therefore the exceptions should be read narrowly. Judge Kavanaugh noted congressional silence about whether federal preemption applies in this context but stated that war time activity likely falls within the scope of implied preemption.

Ultimately, the decision whether to preempt liability based on the federal contractor defense depends on how the judges interpret congressional silence on the issue. Judges Silberman and Kavanaugh appear to subscribe to the idea that congressional silence supports the conclusion that preemption applies, especially in light of the Executive's primacy in war-related matters. Judge Garland, on the other hand, appears to support the conclusion that if Congress had intended to preclude liability for non-U.S. military personnel, it would have done so explicitly. As commonly transpires on the Court of Appeals for the D.C. Circuit, the outcome will likely be driven by each judge's political persuasions.

Closing Guantanamo: President Bush's Legacy in the Fight Against Terrorism

2009-01-23T07:36:00.004-05:00

President Barack Obama signed an executive order on January 22, 2009, to close the Guantánamo Bay detention center within one year and halt trials of detainees under the Military Commissions Act. The executive order is symbolic in its repudiation of the Bush Administration’s policies in the so-called war on terror, as well as its assurances that the United States will comply with its obligations under international law, including Article 3 common to the Geneva Conventions. (A separate order goes so far as to revoke President Bush's Executive Order 13440, which provided a controversial interpretation of Common Article 3, and to prohibit interrogators from relying on any interpretation of federal criminal law, the Convention Against Torture, Common Article 3, or the Army Field Manual issued by the Department of Justice between September 11, 2001, and January 20, 2009.) President Obama’s executive order will likely go far to counter negative perceptions of the United States and should limit the ability of terrorist organizations to fuel anti-United States sentiment and recruit individuals to their cause. As noted by Alberto Mora, Navy General Counsel, Guantánamo is one of the two leading causes of U.S. combat deaths in Iraq “because of the effectiveness of [this] symbol[] in helping recruit jihadists into the field and combat against American soldiers.”

By order of President Obama on January 20, 2009, Defense Secretary Robert Gates directed the Chief Prosecutor to seek continuances of 120 days in all pending military commissions proceedings. The Chief Prosecutor noted that the Obama administration’s review of the status of detainees held at Guantánamo may result in changes that would “(1) render moot any proceedings conducted during the pendency of the review, (2) necessitate re-litigation of issues, or (3) produce legal consequences affecting the options available to the Administration following its review.” Military Judges in commission proceedings involving Omar Khadr and five individuals charged in the September 11 attacks, including Khalid Sheik Mohammed, subsequently issued rulings granting the Chief Prosecutor’s request, stating that “the interests of justice served by continuing the proceedings to allow the new Administration sufficient time to review the Military Commission’s process and decide the proper forum to prosecute the accused or to make appropriate changes to the current commission rules and procedures and avoid unnecessary duplication of effort outweigh the best interests of the accused and public in a prompt trial.” According to a Washington Post article, the government has similarly sought and obtained delays in habeas proceedings of Guantánamo detainees before District Judge Reggie B. Walton, and SCOTUSblog reports that President Obama has ordered the Justice Department to review a detention case awaiting a Supreme Court ruling - although that case does not involve an individual held at Guantánamo.

Despite its goal “to affect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base . . . and promptly to close detention facilities at Guantánamo,” President Obama’s executive order contains few details regarding the structure and process for releasing, transferring, and/or prosecuting detainees currently held at Guantánamo, or the future of preventive detentions. The executive order does not address the status of detainees at Bagram Air Base in Afghanistan or other CIA holding facilities - although a separate order ensuring lawful interrogations calls on the CIA to close detention facilities. In addition, it is unclear whether detainees currently held at Guantánamo will be released or transferred to other military facilities - within the United States or abroad - or whether they will face trial. President Obama will need to determine whether to continue trial by military commissions - and if so, whether to modify the military commission procedure, whether to try detainees in federal courts, or whether to create a hybrid court. It is worth noting that even though military commissions are problematic, the political branches of government, as well as the judiciary, have developed and altered military commissions procedures in an attempt to comply with United States and international law. Whether federal courts are capable of prosecuting suspected terrorists and whether a hybrid court would correct the pitfalls of the military commissions process is questionable.

As noted by President Obama in a separate order addressing detention policy options, review of detention policy is multi-faceted and includes “apprehension, detention, trial, transfer, release, or other disposition of [the] individuals captured.” The fundamental downfall of Guantánamo stems from an initial failure to adhere to requirements under international humanitarian law regarding status determination hearings under Article 5 of the Geneva Conventions. Article 5 hearings are a screening mechanism designed to reduce the likelihood that non-combatants are detained and to ensure that individuals whose status is ambiguous are afforded proper protections under the Geneva Conventions. Article 5 hearings become increasingly ineffective as detainees are removed in time and distance from the battlefield. For that reason, status determinations before Combatant Status Review Tribunals, held subsequent to an individual’s capture, are flawed. This failure, in addition to the use of coercive interrogation practices, has marred the process of detention and may render subsequent prosecutions futile for those currently detained at the base.

Although President Obama’s executive order sends a message to the world regarding the United States’ commitment to the rule of law, it fails to address many underlying issues regarding closure of Guantánamo and the larger issue of treatment of detainees in the “war on terror.” The projected year that the Obama administration will need to close Guantánamo in no doubt stems from flaws in the Bush administration’s treatment of detainees, beginning with their capture and extending to their interrogation and prosecution. What President Bush has succeeded in accomplishing as “the decider” is far from what is best for this country and the fight against terrorism. Instead, President Bush has left a legacy of ill-thought-out and poorly executed policies that have led to the detention and mistreatment of innocent individuals and will lead to the delay in prosecution and potential release of the few bona fide terrorists detained in the “war on terror.”

One can only hope that President Obama’s efforts to correct the Bush administration’s detention policies at Guantánamo will not hinder his ability to develop a new detention policy in the “war on terror” that both respects the rule of law and protects the national security interests of the United States.

Video Evidence Links ICC Fugitive to New Crimes in the DRC

2008-12-31T17:24:00.005-05:00

A recent video available on the New York Times website shows Bosco Ntaganda leading rebel troops into the village of Kiwanja on the day over 150 civilians were massacred there. Mr. Ntaganda, alias the “Terminator,” is presently the military chief of staff of the Congrès National pour la Défense du Peuple (CNDP) whose leader is General Laurent Nkunda. Most observers, including Human Rights Watch and the civilian victims themselves, blame the CNDP for most of the atrocities that took place in Kiwanja on November 4-5, 2008. In the same New York Times video, Gen. Nkunda denies responsibility and offers an unconvincing alibi - that his troops were in control of the town the days before and after the attack, but left the town on the particular day the attack occurred. The video evidence proves otherwise and constitutes a substantial piece of evidence linking Mr. Ntaganda – and through chain of command General Nkunda – to fresh crimes against humanity committed in the Democratic Republic of the Congo (DRC).

Mr. Ntaganda, a Rwandan citizen, was formerly a commander in the Forces Patriotiques pour la Libération du Congo (FPLC), the military wing of a political party named the Union des Patriotes Congolais (UPC). It was for his role in recruiting child soldiers for the UPC that the International Criminal Court issued a warrant for his arrest in 2006. Mr. Ntaganda has since left the FPLC/UPC and has joined General Nkunda’s men who have become an increasingly powerful rebel force in the Eastern DRC. Numerous sources have predicted General Nkunda will be the next target of an arrest warrant from the International Criminal Court, given the ICC Prosecutor’s November 4, 2008 press release noting that his office has jurisdiction over crimes in the Kivus, as well as Nkunda’s growing notoriety domestically and abroad, for his responsibility in committing mass atrocities in the Eastern DRC.

It is precisely the chain of command linking General Nkunda and Mr. Ntaganda that makes this video evidence potentially damaging to both these men. For one, the video helps show Mr. Ntaganda’s involvement in the crimes in Kiwanja as a CNDP commander, and could implicate him as a direct perpetrator or for ordering his troops to commit crimes. Secondly, the video implicates General Nkunda through the doctrine of superior responsibility, presuming that Nkunda had command and control over his troops at the time the massacre occurred. Of course, the brief video on its own is insufficient to prove anyone’s guilt. In combination with other substantive evidence, however, the video could help hold those responsible for the massacres at Kiwanja. Linking a suspect to the scene of a crime on the day the crime took place is a valuable piece of evidence for any prosecutor.

Despite its significant evidentiary value, the New York Times video is disturbing for the same reasons for which it could be valuable. It directly links to new crimes against humanity one of the few persons on the earth for whom the ICC has issued an arrest warrant. As such, the video deals a direct blow to the idea that ICC warrants deter suspects from committing new crimes. One of the founding ideals of the ICC, as demonstrated in the Preamble of the Rome Statute, was its ability to use the threat of criminal punishment to prevent or deter persons from committing war crimes, crimes against humanity, and genocide. It is possible that such a deterrent effect was meant primarily for those who have yet to commit crimes, and not for those like Mr. Ntaganda who have already been charged with serious crimes that could carry a substantial prison sentence, and thus have “nothing to lose” in committing new crimes.

Ultimately, the video evidence is a good thing. Despite the disturbing trends the video indicates, with respect to both the ongoing attacks against civilians and the inability of the international community to reign in such abuses, the video could serve as primary evidence linking Mr. Ntaganda to subsequent crimes should he ever be tried before the ICC. While some may argue that Mr. Ntaganda should not be punished for these crimes because his arrest warrant only includes crimes from before 2006, the Prosecutor could easily amend the charges against Mr. Ntaganda to include these most recent attacks, and the Rome Statute clearly provides for such an amendment in article 58(6). Instead, the largest obstacle will likely be in arresting Mr. Ntaganda – a task that either the DRC, MONUC, or any neighboring state where Mr. Ntaganda happens to visit - must execute in order to bring some relief to the civilians in this war torn region.

-Nick Leddy
Washington, D.C.

ICC Faces Deferral of al-Bashir Prosecution

2008-12-05T07:21:00.004-05:00

On December 3, 2008, Chief Prosecutor of the International Criminal Court Luis Moreno-Ocampo briefed the 15-member United Nations Security Council on the situation in Darfur and urged the members to resist calls to defer investigation and prosecution of Sudanese President Omar Hassan al-Bashir under Article 16 of the Rome Statute. ICC Judges are expected to rule within a month whether to issue an arrest warrant for al-Bashir, as requested by Moreno-Ocampo in July of this year. The United States, however, has promised to block any delay absent significant humanitarian assurances.

Article 16 provides little guidance on the conditions that warrant such a deferral, but merely states, "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions." According to a Washington Post article, al-Bashir has persuaded the Arab League and the African Union to invoke Article 16. The Sudan Tribune reported in August 2008 that China and Russia would support such a deferral.

Moreno-Ocampo has accused al-Bashir of massive attacks against Darfur's ethnic Fur, Masalit, and Zaghawa, resulting in 35,000 deaths and 2.5 million displaced individuals. In his pleas to the Security Council, Moreno-Ocampo emphasized al-Bashir's role in ordering and then covering up these crimes. According to Moreno-Ocampo, al-Bashir used diplomacy to protect himself and other criminals, promising to dismantle Janjaweed militias and then failing to uphold that promise for the reserve forces; promising justice and then engaging in torture against those who could be witnesses; and promising ceasefires and then bombing schools. Moreno-Ocampo emphasized that "the international community cannot conceal [al Bashir's] crimes [genocide, crimes against humanity, and war crimes]."

For more information, see "Today's News: ICC Prosecutor says ruling on President Omar Al Bashir is imminent" and other links at the United Nations Radio web site, as well as "Sudan's Omar al-Bashir: a useful war criminal."

Hamdan Returns to Yemen: A New Beginning?

2008-12-03T05:44:00.008-05:00

On November 26, 2008, the U.S. government transferred Salim Ahmed Hamdan, Osama bin Laden's former driver and bodyguard, to Yemen to serve the remainder of his 66-month prison sentence for providing material support for terrorism. The decision to transfer Hamdan follows a jury trial before Military Judge Keith J. Allred in August 2008. During the trial, the U.S. government argued for a 30-year sentence, and stated that a life sentence would be appropriate. According to the New York Times, one prosecutor stated, "Your sentence should say the United States will hunt you down and give you a harsh but appropriate sentence if you provide material support for terrorism." On October 29, 2008, Military Judge Allred, in a brief Ruling on Motion for Reconsideration and Resentencing, refused the government's request that it reconsider its decision to credit Hamdan for 61 months served at Guantánamo before trial.

Despite the Supreme Court's rulings in Rasul v. Bush (holding that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with the war on terror and held at Guantánamo), Hamdi v. Rumsfeld (holding that due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker), Hamdan v. Rumsfeld (holding that Combatant Status Review Tribunals lack the power to proceed because their structure and procedures violate both the UCMJ and the Geneva Conventions), and Boumediene v. Bush (upholding the habeas corpus rights of Guantánamo detainees and holding that Combatant Status Review Tribunals are an inadequate substitute for habeas review), the U.S. government maintains that it has the authority to detain so-called enemy combatants - and even individuals who are not enemy combatants - indefinitely.

Colonel Lawrence Morris, the Pentagon's lead prosecutor, stated that the government will consider certain factors when considering transfer of a detainee overseas, according to the Washington Post. "The critical factor is that they are held accountable for their conduct and that they are disabled for the appropriate time period from their involvement in terrorism. When out leaders evaluate whether to return them somewhere that is foremost in their mind, and they would not return them unless they were satisfied on both fronts." It is unclear why the U.S. government, which sought a 30-year sentence for Hamdan and fought against Military Judge Allred's application of a credit for time served, would now believe that Hamdan will be "disabled for the appropriate time period from [his] involvement in terrorism." Perhaps, the U.S. government has transferred Hamdan to Yemen to avoid complicated questions that are sure to arise, such as whether to close Guantánamo and how to handle the release of detainees. In addition, keeping released Guantánamo detainees out of the United States avoids a PR nightmare related to the U.S. government's manufactured legal scheme in the "war on terror."

Hamdan is scheduled for release from a Yemeni prison on December 27, 2008. Approximately 100 individuals still held at Guantánamo are of Yemeni nationality. For more information on the Yemeni rehabilitation program for terrorists, see "Terrorists in Rehab."

Attacks in Mumbai

2008-12-02T07:00:00.003-05:00

For more information on the attacks in Mumbai, see

Andy Barr, Politico, "Bush on Mumbai: Nothing but violence and hopelessness";
BBC News, "Officials quit over India attacks";
Mark Magnier, LA Times, "Mumbai residents try to return to routines";
Damien McElroy, Telegraph, "Mumbai attacks: U.S. Intelligence warned India a strike from Pakistani group was planned";
Bill Roggio, The Long War Journal "Captured Mumbai attacker implicates Pakistani military, intel";
Matthew Weaver, Guardian, "Mumbai Attacks: 'It's war' declares Indian press."

Kiyemba v. Bush: “Let’s Be Very Careful Here Before We Taint People Without Evidence”

2008-11-25T06:54:00.008-05:00

On November 24, 2008, at 9:30 a.m., the Court of Appeals of the District of Columbia Circuit heard arguments in Kiyemba v. Bush. The panel, composed of Judges Judith W. Rogers (appointed by Bill Clinton), Karen LeCraft Henderson (appointed by George H.W. Bush), and A. Raymond Randolph (appointed by George W. Bush), questioned counsel for the Uighurs and the Solicitor General in a public hearing, followed by closed proceedings to address classified issues. The argument exceeded the 15 minutes allotted to each side, ending at approximately 10:30 a.m. The argument follows an order issued by the Circuit Court (see Circuit Court of Appeals Precludes Uighurs Release into U.S.) granting the government’s request to stay the release into the United States of 17 Uighurs held at Guantánamo, as directed by District Court Judge Ricardo M. Urbina. Although a Combatant Status Review Tribunal had ruled that the men were “enemy combatants,” the D.C. Circuit concluded that the government’s information that formed the basis for its conclusion was unreliable.

Judge Rogers, who dissented from the Circuit Court’s order granting the government’s stay, questioned the Solicitor General persistently concerning the basis for the government's authority to continue to detain the 17 Uighurs. The Solicitor General, representing the President of the United States, argued that the Executive has this authority on two grounds: (1) its authority under the Authorization for Use of Military Force to wind-up operations at Guantánamo and (2) its inherent constitutional authority to detain aliens before their entry into the United States – an authority the Solicitor General argued is not subject to review. Judge Rogers questioned the Solicitor General regarding its second ground for Executive authority, noting that the case cited in support of that argument, Shaughnessy v. Mezei, relates to continued detention of aliens under the immigration laws of the United States. In addition, counsel for the Uighurs argued that Mezei involved an individual attempting voluntarily to enter the United States, whereas the U.S. government detained the Uighurs against their will.

Judge Randolph, author of Circuit Court’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush – all reversed by the Supreme Court – stressed that the Supreme Court’s decision in Boumediene v. Bush, although stating that GITMO detainees have habeas corpus rights, does not give detainees other constitutional or statutory rights. Emphasizing that the Circuit Court has held that these individuals have no due process rights, Judge Randolph concluded that the court would have to go en banc to rule otherwise. Judge Randolph also stated that the government has already satisfied any requirement for “conditional release,” as mandated in Boumediene, because the Uighurs are merely awaiting relocation. Judge Randolph noted that under U.S. immigration laws, terrorists include any individuals who train to commit terrorist acts in any country. Judge Rogers, noting that the government’s brief refers repeatedly to the Uighurs “dangerousness,” chastised the Solicitor General for stating that at least some of these 17 men have trained with terrorists and pose a threat to U.S. national security. She stated forcefully, “Let’s be very careful here before we taint people without evidence.”

The government argues that the appropriate remedy here is to release the 17 Uighurs to a third country. As noted by the Uighurs' lawyers, however, the government’s continued efforts to relocate the Uighurs have been unsuccessful. The U.S. government has detained these individuals for seven years, and it is questionable whether their future detention would be anything but indefinite. Although the Solicitor General recognized that the Uighurs could seek a remedy under the immigration laws of the United States, he also conceded that the immigration laws of the United States do not apply to individuals held at Guantánamo. In addition, it is difficult to believe that the U.S. government would provide any discretionary relief, such as granting refugee status or parole, where it is the government that has argued consistently that these individuals are dangerous terrorists, despite the Circuit Court’s holding that the government had insufficient evidence to deem them enemy combatants. The government’s circular logic leads to the conclusion that although these individuals have a right to habeas they have no right to a meaningful remedy.

Judge Rogers and Judge Randolph questioned both parties heavily during the argument, at times raising their voices and talking over the parties and each other. Judge Henderson, notably silent throughout most of the argument, sat between Judges Rogers and Randolph, imposing a physical and symbolic barrier between their apparent disagreements over the disposition of Kiyemba v. Bush. The Circuit Court’s ruling on the government’s request for a stay provides evidence regarding each judge’s initial leaning regarding the merits of the case. Therefore, Judge Rogers will likely dissent from an opinion in which Judges Randolph and Henderson will likely hold that the 17 Uighurs held at Guantánamo – who are not enemy combatants – can be held indefinitely without judicial review. If the Supreme Court chooses to hear this case, however, it is possible that the Court will reverse such a decision, as it has reversed Judge Randolph’s prior decisions regarding the rights of GITMO detainees.

Economic, Social, and Cultural Rights in U.S. State Courts: An Unlikely Possibility

2008-11-19T20:34:00.013-05:00

The Opportunity Agenda recently released an updated version of Human Rights in State Courts: An Overview and Recommendations for Legal Advocacy. (To see an older version of the publication, click here.) The report states, "Federal constitutional and legislative protections tend not to include economic, social, and cultural rights that are an important part of the international human rights system. State courts, by contrast, often consider such protections and, in interpreting state law, have the independence to recognize a broader panoply of rights." Despite this statement, the publication notes only two state cases that acknowledge and apply the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the leading international agreement on these rights.

Unlike the International Covenant on Civil and Political Rights, the United States has not ratified the ICESCR. (It is worth noting that even a ratified treaty is subject to limited implementation if it is not self-executing.) Although the United States is a signatory to the ICESCR and although at least some principles embodied in the ICESCR are arguably customary international law meriting enforcement regardless of whether the treaty is ratified or implementing legislation exists, application of the ICESCR in the United States is minimal. The two cases cited by the Opportunity Agenda's report are a concurring opinion in a 1995 Connecticut Supreme Court case (233 Conn. 557 (Conn. 1995)), which relied on the ICESCR in part to argue that Connecticut's constitution requires a minimal welfare safety net for the poor, and a 1978 New Hampshire Supreme Court case (118 N.H. 713 (N.H. 1978)), which quoted the ICESCR to conclude that parents have natural rights over their children.

It appears to be far outside the realm of possibility that state courts will reference, let alone apply, the ICESRC. The recent presidential election in the United States revealed the deep-seated distaste that many U.S. citizens have for government provision of social rights. Many critics accused President-elect Barack Obama of being a socialist. As vice-presidential candidate Sarah Palin warned a crowd, "Friends, now is not the time to experiment with socialism." Many individuals agreed, claiming "Barack Obama is a socialist," "Barack Obama was a member of the New Party in the 1990s," and "[he] is a creature with at least two too many socialist ideas." Although Barack Obama won the election, many U.S. citizens voted for his opponent, and many of these individuals voiced concerns over Barack Obama's socialist tendencies.

In light of this harsh reaction to even a hint of socialism (despite that everyone in society benefits from social programs, such as health care, public transportation, education, and police forces), it is unsurprising that state courts have only rarely referred to the ICESCR, if at all. Because many state judges are elected, they are particularly sensitive to popular sentiment. In addition to our historical underpinnings, which reflect a desire to restrict government intrusions on the rights of citizens as opposed to mandating government provision of services, the U.S. population cannot seem to fight the urge to attack anything that smacks of socialism.

The Aftermath of Boumediene v. Bush

2008-11-11T09:25:00.004-05:00

On October 27, 2008, Judge Richard J. Leon of the U.S. District Court for the District of Columbia issued a decision on remand from the Supreme Court in Boumediene v. Bush. In the decision he addressed the definition of “enemy combatant” that the court will use in upcoming hearings in the case. Judge Leon rejected both parties’ proposed definitions, but also rejected the proposition that the judiciary should engage in defining the term. Judge Leon concluded that “the prudent and reasonable course under these circumstances is to review and evaluate the various iterations of the definition drafted by the Executive and/or Congress over the past four years and determine whether there is one version consistent with both the AUMF and Article II.”

Upholding a definition crafted by the Department of Defense for use in Combatant Status Review Tribunals and approved by the Supreme Court in Hamdan v. Rumsfeld, Judge Leon concluded that the term “enemy combatant” includes individuals “who [were] 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.”

Judge Leon will hold hearings in the Boumediene case on November 6, 7, 10, 11, 12, and 13. Portions of the hearing were public on November 6, 2008, but Judge Leon has closed the court to the presence of the public and the detainees based on national security concerns. As noted in the New York Times, the detainees’ lawyers have not been permitted to discuss classified evidence with their clients. Department of Justice Lawyers submitted an additional file of sealed evidence to Judge Leon and instructed the Judge to open the envelope if the evidence presented during the closed hearings is insufficient to justify continued detention.

“I Do Believe I Have Relevant Testimony To Offer”: Vandeveld, Military Commissions, and the Use of Exculpatory Evidence

2008-11-11T09:14:00.004-05:00

On October 21, 2008, the Pentagon announced that it had dropped war crimes charges against five detainees at Guantánamo Bay, Sufyiam Barhoumi, Binyam Mohammed, Noor Uthman Muhammed, Jabran Said Bin al Qahtani, and Ghassan Abdullah al Sharbi. The chief prosecutor at Guantánamo Bay, U.S. Army Colonel Lawrence Morris, has appointed new trial teams, and according to Clive Stafford Smith, a civilian attorney representing Mohamed, “The Military . . . plan[s] to charge [Mohamed] . . . after the election.” According to an article in The Guardian, Mohamed has accused the U.S. military of subjecting him to 18 months of torture, “including razor cuts to his genitalia.” Mohamed has sued the UK government in an attempt to procure evidence supporting his claim.

As reported by the New York Times, the former prosecutor for all five cases, Army Lieutenant Colonel Darrel Vandeveld, not only withdrew from these cases, but also criticized the Military Commissions Act trials as unfair at a pretrial hearing for a sixth detainee. Vandeveld resigned on September 9, 2008, and submitted a four-page affidavit related to the Office of Military Commission’s (OMC) trial in United States v. Mohammed Jawad. After Vandeveld resigned, he made himself available to testify on behalf of Jawad’s defense, claiming, “I do believe I have relevant testimony to offer.” According to an article in The Nation, the OMC barred him from doing so and ordered Vandeveld to undergo a mental health evaluation, despite no previous symptoms of psychological issues. As of October 20, 2008, Vandeveld was under a gag order regarding his potential testimony.

Vandeveld’s affidavit emphasizes his belief that OMC prosecutors fail to disclose potentially exculpatory or mitigating evidence to the defense in prosecutions of Guantánamo Bay detainees. As stated by Vandeveld, “evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense.” OMC accused Vandeveld, in his words, of “forming an attorney-client relationship with the detailed military defense counsel for Mr. Jawad” solely for his attempts to provide exculpatory and mitigating evidence or reasons why he could not provide such evidence.

Jawad is charged with attempted murder in violation of the laws of war, as noted in a Human Rights Watch account of the trial. Although Vandeveld initially discounted defense counsel’s assertions that the Afghan militia drugged Jawad and forced him to fight, he came to believe that Jawad was a juvenile at the time of the alleged crime based on a bone scan undergone at Guantánamo Bay, and therefore the U.S. military should have segregated Jawad from adult detainees in accordance with U.S. and international law. In addition, Vandeveld eventually conceded that Jawad was subject to abuse while in detention. Jawad’s trial will continue despite a motion to dismiss based on Jawad’s torture. In a decision on September 24, 2008, Military Judge Stephen R. Henley, noting that “[the] Accused has not apparently suffered any permanent physical injuries as a result of his detention in U.S. custody,” did not determine whether U.S. military personnel tortured Jawad and concluded that the remedy of dismissal was not appropriate.

Circuit Court of Appeals Precludes Uighurs' Release into U.S.

2008-10-22T08:07:00.014-04:00

On October 20, 2008, the Court of Appeals for the District of Columbia Circuit issued an order granting the government’s request for a stay in Kiyemba v. Bush. The stay applies to the district court’s order directing appellees release into the United States. (See “Unchartered Territory”: A Remedy of Release into the U.S. for GITMO Detainees). The order calls for an expedited appeal schedule, and the Court of Appeals will hear oral argument on November 24, 2008, at 9:30 a.m.

The panel is composed of Judges Karen LeCraft Henderson (appointed by George H.W. Bush), A. Raymond Randolph (appointed by George W. Bush), and Judith W. Rogers (appointed by Bill Clinton). Judge Randolph wrote the Court of Appeal’s decisions in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene v. Bush. In these decisions, the Court of Appeals denied the habeas rights of GITMO detainees and upheld the validity of military commissions to try GITMO detainees. Judge Rogers dissented in the Court of Appeal’s decision in Boumediene. The Supreme Court has disagreed with each of these decisions.

Judge Rogers filed a dissent from the order granting the government’s stay in Kiyemba, emphasizing that the government cannot continue to detain appellees and that their release poses no threat. She noted that the Court of Appeals had held that the government failed to present evidence supporting that one of the appellees was an “enemy combatant,” and the government then advised the district court that the 16 other Uighur detainees were not “enemy combatants.” She also noted that “[t]he [district] court’s release order was based on findings that are either uncontested by the government or clearly supported by the record.” In addition, the government presented no evidence that appellees pose a threat to the national security of the United States or the safety of any individual.

She then addressed the four factors considered in deciding whether to grant a stay: (1) the likelihood that the government will succeed on the merits, (2) the potential for irreparable harm to the government posed by the Uighurs release, (3) the Uighurs substantial interest in release, and (4) the public interest. With regard to the government’s likelihood of success on the merits, Judge Rogers concluded that the government’s argument that the political branches have “plenary powers over immigration” is “both inadequate and untrue.” The government has attempted to extend a unitary executive theory to the sphere of immigration and is attempting to use immigration statutes to bar release of GITMO detainees. In addition, Judge Rogers rejected the government’s argument that the Uighurs have no constitutional rights because they are outside the territory of the United States. This argument is disingenuous because the Uighurs were forcibly captured and taken to Guantánamo, where they were held for seven years, despite the government’s failure to ever show that they are “enemy combatants.”

Judge Rogers then balanced the potential harm to the government and the Uighurs. She stated that the harm of unlawful imprisonment faced by the Uighurs outweighs the potential “cloud over their status” the government would face if it did not maintain exclusive authority over admission of aliens and the winding up of detention policies at GITMO. With little discussion, Judge Rogers noted that the Uighurs have a substantial interest in release and emphasized the public's interest in maintenance of the writ of habeas corpus as “an indispensable mechanism for monitoring the separation of powers.”

This order provides a glimpse of how the Court of Appeals judges are likely to analyze the case on appeal. Because one of the factors considered in determining whether to grant a stay is likelihood of success on the merits, we know (at least pre filing of the parties’ briefs) how each judge feels about the merits of the case. Judge Rogers’ dissent notes the many inconsistencies in the government’s argument. The government cannot invoke immigration laws to preclude entry for individuals who were forcibly detained without any showing that they are “enemy combatants” and claim that they pose a national security and safety threat.

Status of Forces: Liability in Iraq

2008-10-20T21:31:00.002-04:00

A Status of Forces Agreement (SFA) between the U.S. and Iraqi governments has received recent attention in the press. The agreement specifically details liability for crimes committed by private military companies and U.S. military personnel in Iraq. Unfortunately, the text of the agreement is unavailable, and online sources provide few details about provisions of the agreement. White House Press Secretary Dana Perino stated in a press briefing on October 17, 2008, that she could not provide details on the jurisdictional issue, i.e., whether Iraqi courts will be able to try U.S. military personnel for abuses committed in Iraq.

A New York Times article notes that “the agreement would make private American security companies and other contractors subject to Iraqi justice in criminal cases.” This drastically alters Coalition Provisional Authority (CPA) Order 17, which provided immunity to foreign contractors from prosecution under Iraqi law. Despite calls to respect Iraqi law, CPA Order 17 concluded that “[c]ontractors [should] be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto.”

Unlike private military companies, U.S. military personnel retain immunity from Iraqi law unless thy engage in “serious or premeditated felonies . . . outside of their official duties.” A CNN article further notes that these individuals retain immunity as long as their actions occur inside U.S. facilities. Another provision in the SFA would establish a committee to review suspected crimes of U.S. military personnel and grant that committee the discretion to refer these matters to Iraqi courts, according to a New York Times article.

The SFA does not appear to address civil liability for private military companies. Private military companies are business entities, and business entities are often the most vulnerable to monetary sanctions in civil suits. The enforcement of criminal liability – and not civil liability – might result in criminal convictions of individual contractors, while private military companies face no sanction. With regard to U.S. military personnel, a number of questions arise. First, who will fall within the classification of “U.S. military personnel”? Second, what conduct will constitute “serious or premeditated felonies”? Third, what conduct will be considered on-duty or off-duty conduct? Fourth, who will compose the committee charged with referring matters to the Iraqi courts and what level of discretion will this committee have? This provision could quickly lose any force depending on how these terms are defined.

Historically, the U.S. government has prevented the Iraqi justice system from ensuring accountability and failed to prosecute wrongdoers within the United States. The U.S. government has taken advantage of the military services provided by private military companies. These companies act at the behest of the U.S. government, yet they are not affiliated with the government and are often composed of individuals who are not U.S. citizens. The U.S. government is thereby able to contract away liability for military action in Iraq. Although the SFA presents the opportunity for accountability, the terms of the agreement could result in more of the same.

“Unchartered Territory”: A Remedy of Release into the U.S. for GITMO Detainees

2008-10-16T07:27:00.004-04:00

On October 7, 2008, District Judge Ricardo M. Urbina issued an oral ruling calling for the release of 17 Guantánamo Bay detainees. The 17 men are Uighurs (Turkic Muslims) who said that at the time of their capture they were in Afghanistan seeking refuge from oppression in China. Although a Combatant Status Review Tribunal had ruled that the men were “enemy combatants”, the D.C. Circuit concluded that the government’s information that formed the basis for its conclusion was unreliable. The government admits that these individuals are “no longer enemy combatants” – implying that they were “enemy combatants” at some time – and urges the court to grant the Executive broad leeway in detaining these individuals indefinitely.

The Supreme Court recently held in Boumediene v. Bush that Guantánamo Bay detainees have habeas corpus rights, but left unclear what remedies are available to these detainees. The difficulties of the Uighurs case stem from the government’s inability to release the 17 individuals outside of the United States. As the government’s attorney stated, “there is no willing country and their own home country is one that U.S. policy prevents us from returning them to . . . forcibly because of humanitarian concerns.” The government presented the familiar argument that although the detainees have habeas corpus rights, there is no remedy for a violation of these rights. (The Bush administration raised this argument when it concluded that even if the Geneva Conventions applied to “enemy combatants” in the “war on terror,” the federal courts could not enforce the Conventions or provide a remedy.)

The government continues to argue its right to detain individuals based on their presumed guilt: “For the Court now to say that such individuals, individuals who have received paramilitary training on AK-47, Kalashnikov assault rifles, to be released into the United States because their original basis for detention is one the Government is no longer contesting would fundamentally alter and frankly chill the effective waging of war by the Executive.” This disingenuous argument ignores that the D.C. Circuit ruled that the government lacked sufficient evidence to conclude that these individuals were “enemy combatants.” In addition, the government relies heavily on principles akin to the political question doctrine, arguing that foreign policy issues are committed to the Executive branch and that the government must speak with one voice.

Although recognizing that “[n]ormally . . . the Court would have no reason to insinuate itself into a field normally dominated by the political branches,” Judge Urbina recognized that “[t]his is a problem that the Government’s making.” For almost seven years these individuals have been held in detention, and the government has not shown that they are “enemy combatants.” Judge Urbina applied a new test for determining the constitutionality of continued detention and concluded that (1) the Uighurs detention was effectively indefinite, (2) it is reasonably certain that the Uighurs will not return to the battlefield to fight against the United States, and (3) the government has not provided an alternative legal justification for their continued detention. Judge Urbina ordered the Uighurs immediate release into the United States.

The government unsuccessfully sought a stay in the District Court pending appeal of the court’s ruling. The government threatened that without a stay the Department of Homeland Security could detain the Uighurs upon their entry into the United States. Judge Urbina responded harshly that a threat “that [the Uighurs] may be descended upon by I.C.E. officials, arrested and taken into custody, that’s not how the three branches of government work together. That is not how things work.” In a one-page order, the D.C. Circuit granted the government's request for a stay on October 8th and set a deadline of October 16th for additional filings. It is uncertain when the D.C. Circuit will decide the issue.

Judge Urbina's ruling is not without problems. It potentially pits the Judiciary against the Executive generally and the Department of Homeland Security specifically. In addition, the supervision and management of the conditioned release of 17 individuals may present difficulties that the court is ill-equipped to handle. And although the D.C. Circuit has said that the government cannot support its contention that these men are "enemy combatants," they may nonetheless present security concerns. Is it fair and desirable to allow individuals into the country that we would not otherwise if it were not for the government-created situation at Guantánamo?

Obsession: the West's War Against Islam

2008-10-09T07:13:00.002-04:00

My sister sent me a link to a blog post with a first-hand account of an incident at a mosque in Dayton, Ohio. The first-hand account differs drastically in tone and content from an article in the Dayton Daily News covering the same incident. Although police concluded that there was no evidence of a “biased crime,” individuals within the mosque noted that the recent release of a DVD, Obsession: Radical Islam’s War Against the West, may have provoked the incident.

The Clarion Fund, a “non-profit, non-partisan” organization whose primary focus is “the most urgent threat of radical Islam,” engaged in a mass mailing of the DVD beginning on September 14, 2008. The group’s web page for the DVD touts that 28 million copies of the DVD have been distributed. The web site contains little information regarding the content of the DVD, but the imagery is strong. Emblazoned across the top of the screen is the DVD’s logo: the “O” of “Obsession” is the star and crescent symbol commonly associated with Islam, and the “n” is formed in part by a gun.

The DVD is viewable on YouTube. The DVD appears in ten six-minute video clips that must be watched individually. Although the DVD begins with a statement that not all Muslims are terrorists, it proceeds in broad generalizations to link Islam to terrorism and to compare Islam to Nazi Germany. One commentator goes so far as to note that the “war on terror” is “history repeating itself,” i.e., a failure to act tough in the war on terror will result tragedies akin to the Holocaust. The DVD includes a barrage of images of large groups of Muslims worshiping, calls by individual Muslims to attack the United States, and pictures of Arab children with guns. The images are terrorizing; they invoke panic and mistrust, and play on our fear of future attacks against the United States.

The most striking aspect of the DVD is its lack of specification; the DVD conflates terrorist groups and acts, and associates these groups and acts with one religion. At the beginning of the DVD, images of terrorist attacks abound. A map is filled with red dots demarcating the locations of terrorist attacks throughout the world. The red dots expand, seeping outward like blood. Nonetheless, there is no explanation of the groups who perpetrated these acts or the ideologies underlying their attacks. In fact, there is little by way of factual development throughout the DVD. Each attack is attributed to Islam without distinction.

Linking a religion to terrorism is dangerous and invites hate crimes, such as the incident at the mosque in Dayton. Making the war on terror synonymous with a “war against Islam” continues down a road that has threatened the rule of law in the United States. The war on terror is not a war in the traditional sense: there is no defined enemy, time limit, or rules that apply. Guantánamo is an example of the ways in which this limitless war has affected individuals from countries all over the world, some of whom have only the most attenuated ties to any wrongdoing. It is grievous error to engage in broadscale attacks that are not based on specified wrongdoing. In this manner “Obsession” and the Clarion Fund’s attacks against Islam commit the same mistakes of the Bush Administration and its war on terror. As a result, many innocent individuals are caught up in campaigns playing on racist and nationalist fear of "the other."