1-24-07, 1:00 pm
Editor's Note: Marjorie Cohn is a human rights lawyer and president of the National Lawyers Guild. Her book, Cowboy Republic: Six Ways the Bush Gang has Defied the Law, will be available this June.
PA: Civil rights and liberties have been seriously undermined over the last five years. While some people see the Patriot Act and warrantless wiretapping as the worst abuses, others say immigration policy has caused the most violations of civil and human rights. What is your take?
MC: I don't see a dichotomy between the two. I think it's all part of a concerted effort to push the Bush/neocon/evangelical agenda and crush dissent. If you look at history, in times of war and national crisis, the government has traditionally targeted both immigrants and dissidents. If you look at the Alien and Sedition Acts in the late 1700's and early 1800's, the Alien Enemies Act, the internment of Japanese and Japanese Americans during World War II, and of course, during the McCarthy period, the red-baiting and overreaction to the perceived threat of Communism you see two sides of the same coin. Right after 9/11 we saw a round up of people of Arab and Muslim descent, more than 1,200 people locked up with no charges. Many of them were abused and even tortured. Racial profiling and anti-immigrant bashing whipped up the frenzy in Congress for keeping immigrants out. At the same time there was a contradiction because Bush's friends in the corporations want immigrants for cheap labor. The Patriot Act actually creates this crime of domestic terrorism that's defined so broadly anyone who may at one time have participated in civil disobedience or even a labor picket could be targeted. The provision has been used to label environmental and animal rights activists as terrorists, and to preemptively use the Internet to infiltrate demonstration plans before they happen. A related issue is the use of high-power microwave devices that Secretary of the Air Force Michael Wine is advocating to try on citizens in crowd control situations to see if they work before use on the battlefield.
PA: Can you outline current US torture law with the passage of recent legislation?
MC: There has been no change in the United States' legal obligation to refrain from torturing prisoners. The United States has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Likewise, the United States has ratified the International Covenant on Civil and Political Rights. A treaty the United States ratifies becomes part of US domestic law under the supremacy clause of the Constitution. It's not just international law as the Bush administration would have us believe, but actually part of US law. Both of those treaties absolutely forbid torture at any time, and in fact cruel, inhuman, and degrading treatment and punishment as well.
Those two prohibitions have always been there. After a report that reached Senator John McCain's desk about egregious torture by some US troops in Iraq, he proposed an amendment to a military appropriations bill, the so-called McCain anti-torture amendment. What that amendment did was to re-affirm existing US law, which is that prisoners in US custody should not be subjected to cruel, inhuman or degrading treatment or punishment. While that amendment was being considered, Bush spoke strongly against it. In fact, he sent Cheney over to talk to McCain to try to get an exception for the CIA. McCain said no. Bush did not veto that bill. But then he did what he's done about 800 times, and that was to attach what is called a signing statement saying, 'I'm going to make sure this bill gets enforced only to the extent that I, as the commander-in-chief, think it is necessary.' Basically, he reserved the right to disobey it.
In the so-called torture memos that people in the Department of Defense and the Department of Justice wrote in 2002, under the auspices of now Attorney General Alberto Gonzales, they advised Bush on how to get around possible prosecution of high governmental officials under the US War Crimes Act. The US War Crimes Act was passed by a Republican Congress in 1996. It provides that violations of the Geneva Conventions Common Article III are war crimes, and those convicted can face life in prison or even the death penalty if the victim dies. What the Bush administration decided was that Common Article III does not apply to Al Qaeda. What that means is only people who qualify as prisoners of war under the Third Geneva Convention are entitled to humane treatment. But, in fact, there is no gap in the Geneva Conventions. Common Article III prohibits, among other things, outrages on personal dignity and humiliating and degrading treatment. Our War Crimes Act, which is a US statute, says that violations of Common Article III are war crimes, and people can be prosecuted for war crimes.
What Bush did was to push Congress to pass the Military Commissions Act of 2006, which redefined what constituted war crimes under the War Crimes Act and omitted outrages upon personal dignity and humiliating and degrading treatment. It also made immunity from prosecution under the War Crimes Act retroactive to 1997. This means that anyone in his administration who is liable for war crimes, and engaged in torture or in cruel, inhuman, or degrading treatment or punishment during the Afghanistan war, the Iraq war, or at Guantánamo, and secret CIA 'black sites' would be immune.
What the Military Commissions Act of 2006 also does is to strip away habeas corpus rights from all non-citizens, and that includes people who are lawful permanent residents. If a person was tortured or treated inhumanely, there would be no way to come to court and say that the Geneva Conventions were violated. The other thing the Military Commissions Act does is to define who is an unlawful enemy combatant and to allow Bush to define that. It would include citizens who speak out or write or give money to a charity they may not realize is connected with a group on Bush's list of terrorist organizations. The media talked mostly about habeas corpus-stripping provisions, which are unconstitutional. The Constitution allows Congress to suspend habeas corpus only in times of rebellion or invasion. Habeas corpus is a very important tool that someone who is being incarcerated or confined can use to go to court and have a judge determine whether he or she is being mistakenly held. What it means to lose habeas corpus is that thousands of prisoners in US custody around the world can be detained for the rest of their lives and will never be able to go to court.
PA: From your description it seems pretty easy for a citizen to be defined as an enemy combatant. It seems a matter of a mere technicality for a citizen to have habeas corpus rights suspended as well.
MC: No, the purported suspension of habeas corpus in this bill does not cover US citizens. But the question of the constitutionality of the suspension of habeas corpus is likely to go to the Supreme Court. In the Hamdan case, at the end of last term, the Supreme Court reserved the question of whether Congress has the right to suspend habeas corpus during this 'war on terror' and war on Iraq and war on Afghanistan. Look at José Padilla. He is a US citizen, but he was held indefinitely for years until his petition reached the Supreme Court. The legal issue before the Supreme Court was whether the president has the power to hold indefinitely a US citizen picked up in the US. On the eve of the due date for the government's brief in that case, they quickly filed criminal charges against Padilla, which didn't have anything to do with a 'dirty bomb' or with any terrorism in the US, and asked that he be transferred to civilian custody. The purpose was to keep the Supreme Court from ruling on this issue of whether the president has the right to indefinitely detain a US citizen like Padilla. That issue has not actually been decided by the Supreme Court.
PA: The National Lawyers Guild and others are working on the case of Luis Posada Carriles, who has admitted to be involved in terrorist activities. Can you fill us in?
MC: The Bush administration defines terrorist or terrorism very selectively. You mention the case of Luis Posada Carriles. He is a Cuban exile who has opposed the Castro administration and has engaged in a number of terrorist attacks against the Cuban government. He has been implicated in the 1976 bombing of a Cubana Airlines flight, which crashed off the coast of Barbados killing all 73 people aboard. Yet, Posada has never been charged with any crime. He is currently in a detention center in El Paso, Texas on an immigration violation. Despite calls from Venezuela and Cuba to extradite him, he actually may soon go free.
This is a real double standard. The Bush administration is invoking a law that prevents the release of an illegal immigrant who poses adverse foreign policy consequences for the US. That places them in an awkward position. They have to call him a terrorist to keep him in custody, and at the same time they are not going to prosecute him. To the Bush administration there is a good terrorist and a bad terrorist. Anyone who opposes Fidel Castro's government is a good terrorist, and those who support it are bad terrorists.
In fact, the case of the Cuban Five is a good example. These are five Cuban men who tried to get intelligence on this strong anti-Castro terrorist movement based primarily in Florida. They ended up being charged and convicted of crimes, and their cases are now pending. They have been sentenced to four life sentences and 75 years collectively for crimes including conspiracy to commit espionage and conspiracy to commit murder, even though the evidence is very thin.
They made a motion to change the venue out of Miami because of the hysterical anti-Cuban sentiment there. It was denied, and they were convicted. Then a three-judge panel of the Court of Appeals found in August of 2005, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment and extensive publicity both before and during the trial merged with the improper prosecutorial references.
The full panel of the 11th Circuit Court of Appeals this last August reversed the three-judge panel and agreed with the trial judge that the change of venue was not warranted. There are still several other legal issues pending in this case. I think perhaps Alice Walker, the famous writer, summed it up best in the introduction to her book, The Sweet Abyss. She said: 'Many of our leaders seem to view Florida's Cuban conservatives, including the assassins and terrorists among them, as people who vote.' That's really what the US-Cuba policy has been for the last 46 years.
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