THE VERY IMPORTANT LAST FIVE TRUTHOUT (.ORG) ARTICLES BY MARJORIE COHN
In honor of Marjorie Cohn, Professor of Law at Thomas Jefferson School of Law in San Diego, California, and her TruthOut (.org) articles which she has been absent from writing and posting for the past two months, I hereby post the following series of her last five excellent and very important articles leading up to that absence, as her at-least-weekly articles of truth have been very much missed on TruthOut and by this blogger:
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Marjorie Cohn | Big Brother Bush Is Listening
Marjorie Cohn | Bush Mouthpiece Defends Illegal Spying
THE HAYDEN CHARADE
("Big Brother" is Watching
All of Us to See Who is a
"Good Citizen" or "Not")
By Marjorie Cohn
t r u t h o u t | Perspective
Monday, 22 May 2006
[Copyright (c) 2006 in the
U.S.A. and Internationally
by t r u t h o u t (.org)
and/or Marjorie Cohn.
All rights reserved.]
In his testimony before the Senate Intelligence Committee on Thursday, General Michael Hayden promised to promote autonomy and objectivity in the CIA if confirmed as its new director. Hayden assured the senators he would provide "hard-edged assessments" and be tolerant of dissenting views on intelligence matters. "When it comes to speaking truth to power," Hayden declared, "I will lead CIA analysts by example. I will... always give our nation's leaders the best analytic judgment."
The evidence, however, suggests precisely the opposite. As head of the National Security Agency, this 4-star general walked in lockstep with his commander in chief, George W. Bush. Hayden helped designed the illegal program of spying on our telephone calls and emails and then repeatedly defended it when interrogated by the senators at his hearing, citing "legal" opinions of Bush's hired guns in the Justice Department.
Rather than providing the White House with a neutral assessment of Iran's nuclear capabilities, we can expect Hayden to give Bush the "intelligence" the president seeks to justify his war on Iran. Things did not run as smoothly as Bush would have wished under the last two CIA directors. He had to dispatch Dick Cheney to the CIA several times to furnish the "intelligence" he needed to rationalize his war on Iraq.
Senator Carl Levin (D-Mich.) asked Hayden if he was "comfortable" with under secretary of defense for policy Douglas Feith's personal intelligence-analysis cell, which hyped a link between Iraq and Al Qaeda. Hayden said he wasn't comfortable with it and protested that he wasn't aware of a lot of the activity going on leading up to the Iraq war.
But when questioned about Colin Powell's use of false WMD information to support his infamous appearance before the United Nations in the run-up the war, Hayden made a telling admission.
In response to Levin's question about the legal standard for declassifying information in the public interest, Hayden said, "We used that in Powell's speech. George [Tenet] had to call me for three tapes." Hayden was right in the middle of the preparation for Powell's disingenuous presentation.
Hayden, who will be the third director of the CIA in two years, will salute and march to Bush's agenda. The nation's chief spook will shape the "intelligence" to fit Bush's policy of regime change in Iran.
Hayden vowed to "reaffirm CIA's proud culture of risk-taking and excellence." Not one of the senators, from either party, interrogated Hayden about the CIA's checkered past.
There was no mention of the CIA's 1953 coup that ousted Iran's democratically-elected president Mohammed Mosadeq and replaced him with the US-friendly tyrant, the Shah Reza Pahlavi. The 1979 Iranian revolution lead to the overthrow of the Shah's regime and the rise of Islamic fascism under the leadership of the Ayatollah Khomeini, providing a model of theocracy for much of the Muslim world.
Absent was any reference in the hearing to the CIA's support for Osama bin Laden in his fight against the Soviet Union in Afghanistan. The defeat of the USSR there, and the rise of the Mujahedin, enabled the Taliban to come to power....
Today we are reaping what the CIA sowed in Iran and Afghanistan.
None of the senators asked Hayden about the CIA's torture manuals, which have been utilized by myriad Latin American dictators to repress their people.
Much of the CIA's risk-taking is nothing to be proud of. There is no indication that Hayden will bring new integrity to the CIA.
Hayden's defense of the NSA's warrantless surveillance program was incredible. When questioned about the Fourth Amendment's standard for searches and seizures, Hayden assured the senators that he had consulted with his relatives who are in law school for legal advice.
The Fourth Amendment says the people shall be secure from unreasonable searches and seizures, and that no warrant shall issue but upon probable cause. For more than a century, the Supreme Court has held that in order to be reasonable, a search or seizure must be supported by a search warrant based on probable cause and issued by a judge. Only when certain narrowly-defined exceptions apply can the government dispense with a warrant.
Hayden and his law student relatives have reversed that presumption. He told the senators that only reasonableness, not a warrant, is necessary to intercept our private communications. Hayden said the NSA uses a probable cause standard. But the Supreme Court has consistently declared that a judge must determine whether probable cause exists.
When confronted with USA Today's report that the NSA is collecting data on tens of millions of Americans, monitoring the calls we make and receive, Hayden refused to confirm or deny it.
Two of the long-distance companies named in that article, Verizon Communications and BellSouth, both facing lawsuits for invasion of privacy, have denied giving the government these records. AT&T has refused comment.
Interestingly, Bush issued an executive order on May 5 that allows Director of Intelligence John Negroponte - Michael Hayden's boss - to authorize a company to conceal activities related to "national security." Thus, we cannot trust the denials by Verizon and BellSouth.
Like Bush's warrantless eavesdropping on calls where one party is abroad, the NSA's massive data collection is illegal.
Both of these programs violate the Foreign Intelligence Surveillance Act, or FISA, which clearly requires a warrant issued by a FISA court judge.
It is illegal for the NSA to collect phone numbers from phone companies unless the FISA court authorizes it.
Telephone records that show what numbers have called a specific telephone are captured by a "trap and trace" device. A "pen register" shows what number a specific telephone has called.
The law on pen registers and trap and trace devices requires that a court order be obtained either under FISA or Title III, the criminal wiretap law.
In order to intercept communications, the NSA would have to demonstrate to the court that the person whose calls are being targeted is an agent of a foreign power or that the information is relevant to an ongoing terrorism investigation.
The Patriot Act allows the FBI to use a national security letter - a kind of administrative subpoena - to obtain these records. But Congress specifically withheld this subpoena power from the NSA, which must convince the FISA court that the information is relevant.
There is no evidence that NSA has obtained court orders before obtaining the phone records of millions of Americans.
There is evidence, however, that the FBI is using national security letters to go after journalists critical of the administration. Brian Ross from ABC News told Amy Goodman on Democracy Now! that the government's methods are changing the way he operates. It makes his work "very, very difficult," he said. "And, you know, you sort of have to start thinking, I guess, like some sort of Mafia capo," Ross noted. "You make your phone calls with bags of quarters at pay phones, if you can find them anymore. It's chilling to say the least." So much for a free press.
Last year, the FBI issued a total of 9,254 national security letters, targeting 3,500 citizens and legal residents.
In October 2002, while serving as NSA director, Hayden misled Congress about the extent of the NSA's warrantless domestic surveillance. Senator Ron Wyden (D-Ore.) told Hayden at the hearing, "I now have a difficult time with your credibility."
Earlier this year, Hayden made more misleading statements in an appearance before the National Press Club. He said, "The intrusion into privacy is also limited: only international calls." In fact, the NSA is collecting data on millions of purely domestic calls.
Hayden ducked several questions, deferring his answers to the closed session that followed the public hearing on Thursday. Senators who hear his secret testimony are forbidden to publicize it. Hayden refused to publicly answer seven questions posed by Senator Dianne Feinstein (D-Calif.) about whether the NSA has sought FISA warrants for pen register and trap and trace devices; whether terror suspects in secret CIA prisons are likely to remain incommunicado until the war on terror ends; whether there is periodic review of what useful intelligence can be gathered by interrogations of terrorists held for years with no contact with Al Qaeda; whether "water boarding," recently classified as torture by the UN, is acceptable; whether the CIA will obey laws and treaties in light of the Detainee Treatment Act; whether Hayden agreed with the CIA inspector general's conclusion that certain interrogation techniques constitute cruel, inhuman or degrading treatment prohibited by the Convention Against Torture; whether Hayden agreed with estimates that Iran is some years away from nuclear weapons capability; and whether the CIA has received new guidance from the Justice Department about acceptable interrogation techniques since the passage of the Detainee Treatment Act.
Although Hayden pledged objectivity in his opening statement, he let slip his real intention under questioning by Levin. Hayden said the war on terror "is fundamentally a war of ideas. And we have to skew our intelligence to support the other elements of national power as well." Hayden admitted he will skew the intelligence to fit Bush's agenda.
During the hearing, Wyden nailed it. He asked Hayden, "Where is the independent check, General, the independent check that can be verified on these programs that the newspapers are reporting on?"
James Madison wrote in 1822: "A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors must arm themselves with the power which knowledge gives."
General Michael Hayden as CIA director will see to it that we continue to be kept in the dark about how our liberties are swiftly vanishing. The future of our democracy is at stake. (Subtitle and/or emphasis added by Wolf Britain.)
Marjorie Cohn is a professor at Thomas Jefferson School of Law, President-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. She writes a weekly column for the great and powerful t r u t h o u t website.
________
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. t r u t h o u t has no affiliation whatsoever with the originator of this article nor is t r u t h o u t endorsed or sponsored by the originator.)
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Marjorie Cohn | Setting the Conditions for War Crimes
THE HADITHA MASSACRE
(The U.S. Government Is Now
Habitually Initiating and
Perpetrating War Crimes)
By Marjorie Cohn
t r u t h o u t | Perspective
Tuesday, 30 May 2006
[Copyright (c) 2006 in the
U.S.A. and Internationally
by t r u t h o u t (.org)
and/or Marjorie Cohn.
All rights reserved.]
They ranged from little babies to adult males and females. I'll never be able to get that out of my head. I can still smell the blood. This left something in my head and heart.
--- Observations of Lance Cpl. Roel Ryan Briones after the Haditha Massacre
On November 19, 2005, Marines from Kilo Company, 3rd Battalion, 1st Marine Regiment, 1st Marine Division based at Camp Pendleton allegedly killed 24 unarmed civilians in Haditha, Iraq, in a three to five hour rampage. One victim was a 76-year-old amputee in a wheelchair holding a Koran. A mother and child bent over as if in prayer were also among the fallen. "I pretended that I was dead when my brother's body fell on me, and he was bleeding like a faucet," said Safa Younis Salim, a 13-year-old girl who survived by faking her death.
Other victims included girls and boys ages 14, 10, 5, 4, 3 and 1. The Washington Post reported, "Most of the shots ... were fired at such close range that they went through the bodies of the family members and plowed into walls or the floor, doctors at Haditha's hospital said."
The executions of 24 unarmed civilians were conducted in apparent retaliation for the death of Lance Cpl. Miguel Terrazas when a small Marine convoy hit a roadside bomb earlier that day.
A statement issued by a US Marine Corps spokesman the next day claimed: "A US Marine and 15 civilians were killed yesterday from the blast of a roadside bomb in Haditha. Immediately following the bombing, gunmen attacked the convoy with small-arms fire. Iraqi army soldiers and Marines returned fire, killing eight insurgents and wounding another."
A subsequent Marine version of the events said the victims were killed inadvertently in a running gun battle with insurgents.
Both of these stories were false and the Marines knew it. They were blatant attempts to cover up the atrocity, disguised as "collateral damage."
The Marine Corps paid $38,000 in compensation to relatives of the victims, according to a report in the Denver Post. These types of payments are made only to compensate for accidental deaths inflicted by US troops. This was a relatively large amount, indicating the Marines knew something was not right during that operation, according to Mike Coffman, the Colorado state treasurer who served in Iraq recently as a Marine reservist.
Congressman John Murtha, D-Pa., a former Marine, was briefed on the Haditha investigation by Marine Corps Commandant Michael Hagee. Murtha said Sunday, "The reports I have from the highest level: No firing at all. No interaction. No military action at all in this particular incident. It was an explosive device, which killed a Marine. From then on, it was purely shooting people."
The Haditha massacre did not become public until Time Magazine ran a story about it in March of this year. Time had turned over the results of its investigation, including a videotape, to the US military in January. Only then did the military launch an investigation.
These Marines "suffered a total breakdown in morality and leadership, with tragic results," a US official told the Los Angeles Times.
"Marines over-reacted because of the pressure on them, and they killed innocent civilians in cold blood," Murtha said.
Murtha's statement both indicts and exonerates the Marines of the crime of murder.
Murder is the unlawful killing of a human being with malice aforethought. Premeditation and deliberation -- cold-blooded planning -- are required for first degree murder. Complete self-defense can be demonstrated by an honest and reasonable belief in the need to defend oneself against death or great bodily injury. The Marines might be able to show that, in the wake of the killing of their buddy Terrazas by an improvised explosive device, they acted in an honest belief that they might be killed in this hostile area. But the belief that unarmed civilians inside their homes posed a deadly threat to the Marines would be unreasonable. An honest but unreasonable belief in the need to defend constitutes imperfect self-defense, which negates the malice required for murder, and reduces murder to manslaughter.
An honest but unreasonable belief in the need to defend constitutes imperfect self-defense, which negates the malice required for murder, and reduces murder to manslaughter.
Many of our troops suffer from post traumatic stress disorder, or PTSD. Lance Cpl. Roel Ryan Briones, a Marine in Kilo Company, did not participate in the Haditha massacre. TJ Terrazas was his best friend. Briones, who was 20 years old at the time, saw Terrazas after he was killed. "He had a giant hole in his chin. His eyes were rolled back up in his skull," Briones said of his buddy.
"A lot of people were mad," Briones said. "Everyone had just a [terrible] feeling about what had happened to TJ."
After the massacre, Briones was ordered to take photographs of the victims and help carry their bodies out of their homes. He is still haunted by what he had to do that day. Briones picked up a young girl who was shot in the head. "I held her out like this," he said, extending his arms, "but her head was bobbing up and down and the insides fell on my legs."
"I used to be one of those Marines who said that post-traumatic stress is a bunch of bull," said Briones, who has gotten into serious trouble since he returned home. "But all this stuff that keeps going through my head is eating me up. I need immediate help."
A key quote from a Marine officer could be used to show premeditation -- and thus malice -- in support of a possible murder charge against the shooters. An article in yesterday's San Diego Union-Tribune which is reprinted from the New York Times News Service, cites a report by "one Marine officer" that "inspectors suspected at least part of the motive for the killings was to send a message to local residents that they would 'pay a price' for failing to warn the Marines about insurgent activity in the area."
Curiously, that paragraph is missing from the same story in both the print and online editions of yesterday's New York Times. For some reason, the Times had second thoughts about that paragraph, and removed it, after the copy had been sent to other papers over the wire.
Regardless of how those who may ultimately be charged with murder fare in court, a more significant question is whether George W. Bush, Dick Cheney and Donald Rumsfeld will be charged with war crimes on a theory of command responsibility.
Willful killing is considered a war crime under the US War Crimes Act. People who commit war crimes can be punished by life in prison, or even the death penalty if the victim dies. Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to stop or prevent it.
Bush, Cheney and Rumsfeld are knowingly prosecuting a war of aggression in Iraq. Under the United Nations Charter, a country cannot invade another country unless it is acting in self-defense or it has permission from the Security Council. Iraq had invaded no country for 11 years before "Operation Iraqi Freedom," and the council never authorized the invasion.
A war that violates the UN Charter is a war of aggression.
Under the Nuremberg Tribunal, aggressive war is the supreme international crime.
Hagee flew from Washington to Iraq last week to brief US forces on the Geneva Conventions, the international laws of armed conflict and the US military's own rules of engagement. He is reportedly telling the troops they should use deadly force "only when justified, proportional and, most importantly, lawful." This creates a strong inference that our leaders had not adequately briefed our troops on how to behave in this war.
This, combined with the evidence that US forces are committing torture based on policies from the highest levels of government, as well as reports of war crimes committed in places such as Fallujah, served to put Bush, Cheney and Rumsfeld on notice that Marines would likely commit war crimes in places such as Haditha. Our highest leaders thus should have known this would happen, and they should be prosecuted under the War Crimes Act.
Murtha told ABC there was "no question" the US military tried to "cover up" the Haditha incident, which Murtha called "worse than Abu Ghraib." Murtha's high-level briefings indicated, "There was an investigation right afterward, but then it was stifled," he said.
"Who covered it up, why did they cover it up, why did they wait so long?" Murtha asked on "This Week" on ABC. "We don't know how far it goes. It goes right up the chain of command."
Murtha said the decision to pay compensation to families of the victims is strong evidence that officers up the chain of command knew what had happened in Haditha. "That doesn't happen at the lowest level. That happens at the highest level before they make a decision to make payments to the families."
Haditha is likely the tip of the iceberg in Bush's illegal war of aggression in Iraq.
"We have a Haditha every day," declared Muhanned Jasim, an Iraqi merchant. "Were [those killed in Haditha] the first ... Iraqis to be killed for no reason?" asked pharmacist Ghasan Jayih. "We're used to being killed. It's normal now to hear 25 Iraqis are killed in one day."
"We have a Fallujah and Karbala every day," Jasim added, referring to the 2004 slaughter by US forces in Fallujah and bombings by resistance fighters in the Shiite city of Karbala.
In Fallujah, US soldiers opened fire on houses, and US helicopters fired on and killed women, old men and young children, according to Associated Press photographer Bilal Hussein.
"What we're seeing more of now, and these incidents will increase monthly, is the end result of fuzzy, imprecise national direction combined with situational ethics at the highest levels of this government," said retired Air Force Col. Mike Turner, a former planner at the Joint Chiefs of Staff.
Senator John Warner, R-Va., head of the Armed Services Committee, pledged to hold hearings on the Haditha killings at the conclusion of the military investigation. "I'll do exactly what we did with Abu Ghraib," he told ABC News.
Warner's pledge provides little solace to those who seek justice. Congress has yet to hold our leaders to account for the torture by US forces at Abu Ghraib prison. Only a few low-ranking soldiers have been prosecuted. The Bush administration has swept the scandal under the rug.
During the Vietnam War, the US military spoke of winning the hearts and minds of the Vietnamese people. But in 1968, US soldiers massacred about 400 unarmed elderly men, women and children in the small village of My Lai. A cover-up ensued, and it wasn't until Seymour Hersh broke the story that it became public.
"America in the view of many Iraqis has no credibility. We do not believe what they say is correct," said Sheik Sattar al-Aasaaf, a tribal leader in Anbar province, which includes Haditha. "US troops are very well-trained and when they shoot, it isn't random but due to an order to kill Iraqis. People say they are the killers."
Graffiti on one of the Haditha victims' houses reads, "Democracy assassinated the family that was here."
So much for winning the hearts and minds of the Iraqi people.
We must pull our troops out of Iraq immediately, and insist that our leaders be held to account for the war crimes committed there. (Subtitle and/or emphasis added by Wolf Britain.)
Marjorie Cohn is a professor at Thomas Jefferson School of Law, President-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. She writes a weekly column for the great and powerful t r u t h o u t website.
________
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. t r u t h o u t has no affiliation whatsoever with the originator of this article nor is t r u t h o u t endorsed or sponsored by the originator.)
"Go to Original" links are provided as a convenience to our readers and allow for verification of authenticity. However, as originating pages are often updated by their originating host sites, the versions posted on TO may not match the versions our readers view when clicking the "Go to Original" links.
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For background, see:
Marjorie Cohn | Bush Setting Up Attack on Iran
Marjorie Cohn | Aggressive War: Supreme International Crime
STOP THE BEAST( ! )
(The U.S. Government's Military-
Industrial "Death Machine" is
Completely Out of Control ! )
By Marjorie Cohn
t r u t h o u t | Perspective
Monday, 5 June 2006
[Copyright (c) 2006 in the
U.S.A. and Internationally
by t r u t h o u t (.org)
and/or Marjorie Cohn.
All rights reserved.]
To date, the Iraq War represents the fullest and most relentless application of the Bush Agenda. The "freer and safer world" envisioned by Bush and his administration is ultimately one of an ever-expanding American empire driven forward by the growing powers of the nation's largest multinational corporations and unrivaled military.
--- Antonia Juhasz, The Bu$h Agenda: Invading the World, One Economy at a Time
In an annual security conference on Saturday, Donald Rumsfeld assured the audience, "We don't intend to occupy [Iraq] for any period of time. Our troops would like to go home and they will go home."
Why, then, would the United States be building an enormous embassy in Baghdad and a base so large it eclipses Kosovo's Camp Bondsteel, which had been the largest foreign US military base built since Vietnam?
The new embassy, which occupies a space two-thirds the area of the national mall in Washington DC, comprises 21 buildings that will house over 8,000 government officials. It has a huge pool, gym, theater, beauty salon, school, and six apartment buildings.
The gargantuan military base, Camp Anaconda, occupies 15 square miles of Iraqi soil near Balad. The base is home to 20,000 soldiers and thousands of "contractors," or mercenaries. The aircraft runway at Anaconda is the second busiest in the world, behind only Chicago's O'Hare airport. And, depending on which report you read, between six and fourteen more US military bases are under construction in Iraq. It doesn't appear we'll be leaving anytime soon -- or anytime, really.
Bush's trumped-up war on Iraq has claimed nearly 2,500 US military lives and tens of thousands of Iraqi lives. Thousands of US soldiers suffer in military hospitals, most with head injuries, many missing limbs. Thousands more have PTSD. Our economy is in shambles from the war and Bush's tax-cuts-for-the-rich. And America's moral standing in the world continues to plummet.
So, with all the construction activity in Iraq, and with an overextended military and an under funded budget, how could the Bush administration possibly consider expanding the fight and attacking Iran? Logic and reason say it couldn't happen and shouldn't happen. But this administration has rarely paid much heed to logic and reason.
The plan to attack Iran has long been in the works. Bush gave us a preview in January 2002 when he inaugurated it into his "axis of evil." His 2006 National Military Strategy says, "We may face no greater challenge from a single country than from Iran." On Saturday, Donald Rumsfeld called Iran the world's leading terrorist nation. Does any of this have a familiar ring to it?
To understand why the US may attack Iran, one must consider the underlying motive of US militarism. The recent US strategy is calculated to maintain economic, political and military hegemony over oil-rich areas of the world. A 1992 draft of the Pentagon Defense Planning Guidance on post Cold War Strategy that was leaked to the New York Times said, "Our overall objective is to remain the predominant outside power in [the Middle East and Southwest Asia to] preserve US and Western access to the region's oil."
Truthout writer Dahr Jamail, an independent journalist who spent eight months in occupied Iraq, told a gathering at Thomas Jefferson School of Law on Friday that the US has been conducting ongoing special operations inside Iran. He cited unmanned surveillance drones flying over Iran. Jamail predicts Bush will invade Iran before the November election.
Former CIA analyst Ray McGovern agrees with Jamail's prediction, but thinks it will happen in June or July. "There is already one carrier task force there in the Gulf, two are steaming toward it at the last report I have at least -- they will be there in another week or so," McGovern said on the Alex Jones Show.
Team Bush is following the same game plan used in the run-up to Iraq -- hyping a threat that doesn't exist and going through the motions of diplomacy.
Bush & Co. are not motivated by rationality. They act in the interests of the huge corporations, at the expense of humanity. During the Bush years, oil companies have earned record profits. Dick Cheney's Halliburton has landed many of the juiciest contracts in Iraq. New Iraqi laws that US ambassador Paul Bremer put in place lock in significant advantages for US corporations in Iraq, including corporate control of Iraq's oil.
Neoconservative Thomas Friedman, in a March 1999 New York Times article illustrated by an American flag on a fist, accurately summed up US foreign policy:
For globalism to work, America can't be afraid to act like the almighty superpower that it is ... The hidden hand of the market will never work without a hidden fist -- McDonald's cannot flourish without McDonnell Douglas, the designer of the F-15. And the hidden fist that keeps the world safe for Silicon Valley's technologies is called the United States Army, Air Force, Navy and Marine Corps.
As long as we allow our government to pursue this strategy, Abu Ghraibs and Hadithas will continue to emerge, our soldiers and thousands of people in other countries will continue to die, and our economy will continue toward bankruptcy. It is up to us to stop the beast -- now! (Subtitle and/or emphasis added by Wolf Britain.)
Marjorie Cohn is a professor at Thomas Jefferson School of Law, President-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. She writes a weekly column for the great and powerful t r u t h o u t website.
________
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. t r u t h o u t has no affiliation whatsoever with the originator of this article nor is t r u t h o u t endorsed or sponsored by the originator.)
"Go to Original" links are provided as a convenience to our readers and allow for verification of authenticity. However, as originating pages are often updated by their originating host sites, the versions posted on TO may not match the versions our readers view when clicking the "Go to Original" links.
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For background, see:
Marjorie Cohn | Navy Judge Finds War Protest Reasonable
FIRST (COMMISSIONED) OFFICER
PUBLICLY RESISTS WAR
(Totally Justified Refusal
to Serve in Illegal Wars
is Growing Very Rapidly)
By Marjorie Cohn
t r u t h o u t | Perspective
Thursday, 8 June 2006
[Copyright (c) 2006 in the
U.S.A. and Internationally
by t r u t h o u t (.org)
and/or Marjorie Cohn.
All rights reserved.]
Yesterday, US Army First Lieutenant Ehren Watada became the first officer to publicly state his refusal to obey an order to deploy to Iraq. Lieutenant Watada said at a press conference in Tacoma, Washington, "The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war." He stated, "An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq."
Citing "deception and manipulation ... and willful misconduct by the highest levels of my chain of command," Lt. Watada declared there is "no greater betrayal to the American people" than the Iraq war.
The "turning point" for Lt. Watada came when he "saw the pain and suffering of so many soldiers and their families, and innocent Iraqis." He said, "I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable." Lt. Watada felt he "had the obligation to step up and do whatever it takes," even if that means facing court-martial and imprisonment.
Lt. Watada asked me to speak about the legality of the war at his press conference.
I cited the Nuremberg Charter, which set forth the three most serious crimes: crimes against the peace, war crimes, and crimes against humanity. The US Army Field Manual 27-10, art. 28, incorporates the prohibition against these three crimes. The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.
The United States Is Committing a Crime Against the Peace in Iraq
The Nuremberg Tribunal called the waging of aggressive war "essentially an evil thing ... to initiate a war of aggression ... is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.
Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US, or any other country, for 12 years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones."
Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused to give its stamp of approval. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.
Moreover, the Constitution gives only Congress, not the President, the authority to declare war. Congress cannot delegate that authority to the President. Even if Congress could delegate the war power to the President, it cannot authorize the President to execute an aggressive war.
The United States Is Committing War Crimes in Iraq
Violations of the laws of war, memorialized in the Hague and Geneva Conventions, constitute war crimes.
All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment. These prohibitions are memorialized in the Army Field Manual 27-10, art. 506. The Pentagon is trying to remove Article 3 Common from the newly revised instructions that go with the Manual. The implication is that the Defense Department intends to treat prisoners inhumanely.
Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture or inhuman treatment, and willfully causing great suffering or great bodily harm are grave breaches.
The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians at Haditha and in other Iraqi cities are war crimes.
Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their inferiors were committing war crimes and failed to stop or prevent them. However, it is unlikely that Attorney General Alberto Gonzales will charge Bush, Cheney or Rumseld with war crimes.
The United States Is Committing Crimes Against Humanity in Iraq
Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.
The dropping of 2,000-pound bombs in residential areas of Baghdad during "Shock and Awe" were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a "weapons-free" zone, with orders to shoot anything that moved, was a crime against humanity.
Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: "No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
The Uniform Code of Military Justice, in articles 90-92, sets forth the duty of military personnel to obey lawful commands. The Nuremberg Principles, which are part of US law, provide that all military personnel have the obligation not to obey illegal orders. The Army Field Manual 27-10, sec. 609 and UCMJ, art. 92, incorporate this principle. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States ... "
The Bush administration is committing crimes against the peace, war crimes and crimes against humanity in Iraq. Lieutenant Ehren Watada is correct when he says this is an illegal war. I salute his courage. (Subtitle and/or emphasis added by Wolf Britain.)
Marjorie Cohn is a professor at Thomas Jefferson School of Law, President-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. She writes a weekly column for the great and powerful t r u t h o u t website.
________
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Read more of Marjorie Cohn's columns.
For background, see:
Marjorie Cohn | UN to US: Close Guantanamo
Marjorie Cohn | US Force-Feeding Prisoners at Torture Camp
Marjorie Cohn | Bush Plays Politics With Guantanamo "Gulag"
Marjorie Cohn | Close Guantanamo Prison
Marjorie Cohn | Supremes Consider Kangaroo Courts
SPINNING SUICIDE
(By Telling Lie Upon Lie that
Tortured Prisoners Committed
Suicide as "An Act of
Asymmetrical Warfare")
By Marjorie Cohn
t r u t h o u t | Perspective
Monday, 12 June 2006
[Copyright (c) 2006 in the
U.S.A. and Internationally
by t r u t h o u t (.org)
and/or Marjorie Cohn.
All rights reserved.]
They are smart, they are creative, they are committed. They have no regard for life, neither ours nor their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.
--- Rear Adm. Harry B. Harris Jr., Commander, Joint Task Force, Guantanamo
Three men being held in the United States military prison camp at Guantanamo Bay, Cuba, killed themselves by hanging in their cells on Saturday. The Team Bush spin machine immediately swept into high gear.
Military officials characterized their deaths as a coordinated protest. The commander of the prison, Rear Adm. Harry B. Harris Jr., called it "asymmetrical warfare."
Colleen Graffy, the deputy assistant secretary of state for public diplomacy, said taking their lives "certainly is a good PR move."
Meanwhile, George W. Bush expressed "serious concern" about the deaths. "He stressed the importance of treating the bodies in a humane and culturally sensitive manner," said Christie Parell, a White House spokeswoman.
How nice that Bush wants their bodies treated humanely, after treating them like animals for four years while they were alive. Bush has defied the Geneva Conventions' command that all prisoners be treated humanely. He decided that "unlawful combatants" are not entitled to humane treatment because they are not prisoners of war.
Article 3 Common to the Geneva Conventions requires that no prisoners, even "unlawful combatants," may be subjected to humiliating and degrading treatment. Incidentally, the Pentagon has decided to omit the mandates of Article 3 Common from its new detainee policies.
Bush resisted the McCain anti-torture amendment to a spending bill at the end of last year, sending Dick Cheney to prevail upon John McCain to exempt the CIA from its prohibition on cruel, inhuman and degrading treatment of prisoners. When McCain refused to alter his amendment, Bush signed the bill, quietly adding one of his "signing statements," saying that he feels free to ignore the prohibition if he wants to.
Bush & Co. are fighting in the Supreme Court to deny the Guantanamo prisoners access to US courts to challenge their confinement. The Court will announce its decision in Hamdan v. Rumsfeld by the end of this month.
This hardly sounds like a man who believes in humane treatment for live human beings.
The three men who committed suicide, Mani bin Shaman bin Turki al-Habradi,Yasser Talal Abdulah Yahya al-Zahrani, and Ali Abdullah Ahmed, were being held indefinitely at Guantanamo. None had been charged with any crime. All had participated in hunger strikes and been force-fed, a procedure the United Nations Human Rights Commission called "torture."
"A stench of despair hangs over Guantanamo. Everyone is shutting down and quitting," said Mark Denbeaux, a lawyer for two of the prisoners there. His client, Mohammed Abdul Rahman, "is trying to kill himself" in a hunger strike. "He told us he would rather die than stay in Guantanamo," Denbeaux added.
While the Bush administration is attempting to characterize the three suicides as political acts of martyrdom, Shafiq Rasul, a former Guantanamo prisoner who himself participated in a hunger strike while there, disagrees. "Killing yourself is not something that is looked at lightly in Islam, but if you're told day after day by the Americans that you're never going to go home or you're put into isolation, these acts are committed simply out of desperation and loss of hope," he said. "This was not done as an act of martyrdom, warfare or anything else."
"The total, intractable unwillingness of the Bush administration to provide any meaningful justice for these men is what is at the heart of these tragedies," according to Bill Goodman, the legal director of the Center for Constitutional Rights, which represents many of the Guantanamo prisoners.
Last year, at least 131 Guantanamo inmates engaged in hunger strikes, and 89 have participated this year. US military guards, with assistance from physicians, are tying them into restraint chairs and forcing large plastic tubes down their noses and into their stomachs to keep them alive. Lawyers for the prisoners have reported the pain is excruciating.
The suicides came three weeks after two other prisoners tried to kill themselves by overdosing on antidepressant drugs.
Bush is well aware that more dead US prisoners would be embarrassing for his administration, especially in light of the documented torture of prisoners at Abu Ghraib and the execution of civilians in Haditha.
More than a year ago, the National Lawyers Guild and the American Association of Jurists called for the US government to shut down its "concentration camp" at Guantanamo. The UN Human Rights Commission, the UN Committee against Torture, UN Secretary General Kofi Annan, and the Council of Europe, have also advocated the closure of Guantanamo prison.
Bush says he would like to close the prison, but is awaiting the Supreme Court's decision. At the same time, however, his administration is spending $30 million to construct permanent cells at Guantanamo. (Subtitle and/or emphasis added by Wolf Britain.)
Marjorie Cohn is a professor at Thomas Jefferson School of Law, President-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. She writes a weekly column for the great and powerful t r u t h o u t website.
________
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. t r u t h o u t has no affiliation whatsoever with the originator of this article nor is t r u t h o u t endorsed or sponsored by the originator.)
"Go to Original" links are provided as a convenience to our readers and allow for verification of authenticity. However, as originating pages are often updated by their originating host sites, the versions posted on TO may not match the versions our readers view when clicking the "Go to Original" links.
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posted by Wolf at 8/12/2006 10:11:00 pm
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