Politics and Social Justice Archive

To Hell with the Constitution: Obama Goes To War

Wednesday, March 30th, 2011

How is it that Congress isn't screaming at President Obama for usurping its power to take this nation to war against Libya? (Even Bushes #41 and #43 had their wars in Afghanistan and Iraq authorized.) And if Congress isn't screaming, then why aren't we? We should be. The power to make war impacts us all: it kills, it costs our dwindling treasury, and it has serious consequences.

Those are just some of the reasons why the Constitution doesn't allow the president to make the decision to go to war unilaterally — a fact that Obama, himself a former constitutional law professor, knows full well. If fact, when candidate Obama was asked if the president could bomb Iran without authority from Congress, he categorically responded: "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

Candidate Obama's letter perfect response reveals precisely how well he understands the framers' fear of giving the power to initiate war to the president. As James Madison, principal author of the Constitution wrote, "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature." Consequently, Article 1, section 8, cl. 11 states that Congress and only Congress can authorize the use of military force against another country. It makes no difference whether it's called war or a "military action" — Obama's term for the attack on Libya.

Some have argued that it would have made little difference for Obama to have asked for authority — that Congress would have approved the war anyway. Whether or not that's true, it's not the point. Had Obama gone to Congress there would have been the kind of public debate that's necessary in any country that calls itself a democracy.

A debate would have served several vital functions. It would have involved the American people in a momentous decision. It would have given Congress the option of rejecting Obama's war or putting conditions on it. Most importantly, it might have aired some difficult, vital questions: Why Libya and not the Ivory Coast, where thousands are being murdered? Why Libya and not Israel when it was killing 1,400 Palestinians in Gaza? Was this really a war about saving lives or was it about oil? Why is the African Union not supporting the war? Is this war really about regime change? Are not three wars in the Middle East and Central Asia, three too many?

Obama's decision is another shocking example of his grab for the kind of executive power he eschewed in his predecessor's administration — so long as he was still a candidate. Many of us had hoped that the ghost of Vietnam, our infamous Executive-made war, would be exorcised by this Nobel Peace Prize-winning President. Instead, Obama has brought this specter back from the dead.

Read the original article on The Huffington Post.

guantanamo Michael Ratner is the author of Guantanamo.

Why there should be a case against George W. Bush under torture law

Tuesday, February 22nd, 2011

Editor’s note: Michael Ratner is president of the Center for Constitutional Rights, a nonprofit legal and educational organization based in New York.

New York (CNN) — There was widespread support among scores of human rights groups and many others for recent efforts to have Switzerland open a preliminary investigation for torture against former President George W. Bush during his planned (and now canceled) visit to Geneva.

Our belief is that Bush violated U.S. and international law when he authorized torture, including the water boarding of detainees. Torture is a crime under a federal statute, Torture Statute, as well as under the War Crimes Act, and the Convention Against Torture, of which the U.S. was a major proponent.

The support for the investigation stems from Bush’s open admission that the authorized water boarding, the necessity people feel to hold torturers accountable if we are to end torture, and the utter failure of the United States to investigate Bush and others. The U.S., as the most powerful country in the world, is an example to the world: If the U.S. can openly torture, so can every other country.

There have been some naysayers to the attempts to internationally prosecute Bush and other officials. They have it wrong. They want a world in which if a country does not investigate its own torturers, then no other country should. They argue, as David Frum did in a recent column on this site, that efforts by the Center for Constitutional Rights and its partner legal organizations to seek criminal accountability of former President Bush in Switzerland amount to “law as a weapon of politics” and “assault upon the basic norms of American constitutional democracy.”

Let’s correct one major misconception some have about the basis for this action and how it relates to the U.S. legal system at the outset. The Convention Against Torture, which mandates that Switzerland and 146 other countries including the United States investigate and prosecute torturers, is part of U.S. law. Its ratification and its enforcement is part of our constitutional democracy.

The anti-American and anti-Constitutional acts were Bush’s decision to authorize torture and the U.S. failure to hold him accountable. Politics are being used as a weapon against the law by claims that these are policy choices. They are not. As the State Department Legal Advisor Harold Koh stated, torture can never be a “policy choice.” Likewise, the investigation and prosecution of our homegrown torturers is a legal obligation and should not be driven by politics.

Frum accuses CCR and others of demanding that “Switzerland override an American decision about which Americans should be prosecuted for violating American law.” Yes, it is true that the demand is for Swiss courts to investigate torture where the U.S. has not. But the U.S. decision was one that was not just about American law.

U.S. law includes an obligation for the U.S. to investigate and prosecute torturers, and through its ratification of the Convention Against Torture and its support of a provision for universal jurisdiction in the Convention, it recognizes the obligation for Switzerland to do so as well when a torturer is on their soil. Switzerland was being asked to do no more and no less than what the United States has committed to do itself.

There are to be no safe havens for torturers. None.

Torture is a crime that no circumstance — even national security — can ever justify. It cannot be redefined to make acts that have long been illegal suddenly permissible. The memos Bush relies on as a defense are no defense at all: as was found by the American prosecutor in Nuremberg, providing legal advice that justifies and leads to war crimes or torture is criminal. And it cannot protect from prosecution.

Torture is also one of the few crimes, like piracy, slavery and genocide, where there is a global commitment to prevent and punish its commission.

In 1980, a U.S. Court of Appeals declared that “the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.” The federal court judges found that because torture is a wrong that is so egregious and so widely condemned that it is of “mutual concern” amongst the nations of the world, a torturer could be brought to justice wherever found. The “mutual concern” to eradicate torture was expressed in the United Nations Convention Against Torture. President Reagan signed the treaty, and the U.S. became a party to the Convention in 1994.

It is only the failure of the U.S. to act — to abide by its own legal obligations — that would have resulted in Switzerland prosecuting Bush for torture. Or Spain, for that matter, where there are three on-going proceedings for torture involving U.S. officials, including one open investigation related to torture at Guantánamo where evidence is being taken.

The case against Bush in Switzerland is, in some ways, a commentary on law and politics in the United States. But not in the way Frum presents it. Sadly, it is a commentary on the failure of the U.S. legal system to demonstrate its strength and independence from politics.

Bush has openly admitted authorizing acts that constitute torture. The case against him will be investigated and tried — if not in the United States then in a country that has the courage to give meaning to its legal obligation to investigate and prosecute torturers.

The opinions expressed in this commentary are solely those of Michael Ratner.

Read the original article at Just Left.

guantanamo Michael Ratner is the author of Guantanamo.

Bringing the ‘Bush Six’ to Justice: Spain Cases Moving Along

Friday, January 7th, 2011

If those responsible for the Bush administration’s torture policy will not face charges in the US, then in Spain it must be.

Today, the Centre for Constitutional Rights filed papers encouraging Judge Eloy Velasco and the Spanish national court to do what the United States will not: prosecute the “Bush Six”. These are the former senior administration legal advisors, headed by then US Attorney General Alberto Gonzales, who violated international law by creating a legal framework that materially contributed to the torture of suspected terrorists at US-run facilities at Guantánamo and other overseas locations.

Friday’s filing provides Judge Velasco with the legal framework for the prosecution of government lawyers – a prosecution that last took place during the Nuremberg trials, when Nazi lawyers who provided cover for the Third Reich’s war crimes and crimes against humanity were held accountable for their complicity.

CCR would prefer to see American cases tried in American courts. But we have joined the effort to pursue the Bush Six overseas because two successive American presidents have made it clear that there will be no justice for the architects of the US torture programme, or any of their accomplices, on American soil.

Thanks to the US diplomatic cables recently released by WikiLeaks, we now know why seeking justice abroad has also been fraught with difficulty – why there have been so many delays and even dismissals. The same US government that will not pursue justice at home, not even when the CIA destroys 92 videotapes that show detainees being tortured, has put a heavy thumb on the scales of justice in other countries as well.

During the Bush presidency, the US intervened to derail the case of German citizen Khaled el-Masri, who was abducted by the CIA in 2003 and flown to Afghanistan for interrogation as part of the U.S. “extraordinary rendition” program—until they realized they had kidnapped the wrong man and dumped el-Masri on the side of an Albanian road. A leaked 2007 cable reveals the extent both of U.S. pressure and German collusion. In public, Munich prosecutors issued arrest warrants for 13 suspected CIA operatives while Angela Merkel’s office called for an investigation. In private, the German justice ministry and foreign ministry both made it clear to the US that they were not interested in pursuing the case. Later that year, then Justice Minster Brigitte Zypries went public with her decision against attempting extradition, citing US refusal to arrest or hand over the agents.

Will this toxic combination of American pressure and a European ally’s acquiescence derail justice in Spain, as well?

This 1 April 2009 cable, released 1 December 2010, shows Obama administration officials trying their best to stop the prosecution of the Bush Six. They fret that “the fact that this complaint targets former administration legal officials may reflect a ’stepping-stone’ strategy designed to pave the way for complaints against even more senior officials” and bemoan Spain’s “reputation for liberally invoking universal jurisdiction”. Chief Prosecutor Javier Zaragoza reassures the US that while “in all likelihood he would have no option but to open a case”, he does not “envision indictments or arrest warrants in the near future”, and will “argue against the case being assigned to Garzon” (a notoriously tough judge, who has since been removed from the case).

Judge Velasco, who has since been assigned to the case, has been scrupulous in his oversight. The Spanish court has thrice asked the US, in accordance with international law, “whether the acts referred to in this complaint are or are not being investigated or prosecuted”, and if so, “to identify the prosecuting authority and to inform this court of the specific procedure by which to refer the complaints for joinder”. Of course, no response to any of these requests has been received, because the Obama administration has no intention whatsoever of pursuing justice on this matter.

Democracy demands a fully functioning legal system – one that does not bend to hidden pressures and political agendas. We have faith that Judge Velasco will justify the US officials’ concerns about Spain’s independent judiciary, and its respect for international law, and move forward with the Bush Six case.

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Read this article on MichaelRatner.com.

guantanamo Michael Ratner is the author of Guantanamo.

A New Stage In The War On Dissent

Wednesday, October 20th, 2010

Michael Ratner is the president of the Center for Constitutional Rights [1], a leading organization in opposing the dismantling of civil liberties under the Bush, and now Obama, administrations.

He spoke with Nicole Colson about the recent raids on the homes and offices of antiwar and socialist activists in Chicago, Minneapolis and North Carolina–and why the Obama administration, despite claims to the contrary, has been disastrous when it comes to promises to protect our civil liberties.

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RECENTLY, ANTIWAR and socialist activists in Chicago, Minneapolis and North Carolina have had their homes and offices raided, and were given grand jury subpoenas. What is your take on these raids? What’s your sense of what the government is after?

THE RAIDS have all the earmarks of a fishing expedition–both the search warrants as well as grand jury subpoenas. They all claimed to be investigating “material support to terrorism,” in particular around both the Middle East and the country of Colombia. It appears to be a fishing expedition because the materials that were authorized to be seized and the subjects about which questions were to be asked were quite broad.

The search warrants were like wholesale seizure warrants. The FBI goes into five or six houses in Minneapolis, two houses in Chicago, some houses in North Carolina and Michigan as well, and seize everything. They take people’s cell phones, they take all the computers out, they take every document out. This broad language in the search warrants purports to allow the FBI to take everything in those offices.

And then the subpoenas, which require people to testify in front of the grand jury, they also are very open ended. Asking for everything people know about certain organizations, phone numbers, associates, friends, etc. So you would think if it was a narrowly tailored prosecution in which they thought there might be real criminal conduct, the focus would be much narrower.

So while it appears from the warrants they might have some suspicion about something (but who even knows if that suspicion is valid), they certainly don’t have very much, because they are going very, very broadly.

It’s something like looking for a needle in a haystack, in which they destroy many lives and chill people’s rights–and there may not even be a needle. And because of that, they are clearly encroaching on the First Amendment rights of people who are doing antiwar organizing and working to change U.S. foreign policy, particularly in the Middle East and in South America.

There are many problems, but one of the problems here is that the search warrants and subpoenas are so that broad, they cut directly into all kinds of First Amendment activities. So the people in Minneapolis, who were among the main organizers of some of the Republican National Convention demonstrations in 2008, then become the targets of the FBI or the Joint Terrorism Task Force–and their First Amendment activities, and their right to organize and oppose the government are therefore chilled or even prevented all together.

A broad, wholesale attack like this on the antiwar movement and on activists is bad for the people who were directly attacked, and it also tells all of us that the activities we undertake are subject to government surveillance and much more in this case–the actual seizure of the documents and grand jury subpoenas.

So it’s quite serious. It makes you very suspicious because it’s so broad. It was so coordinated, it was across the country, and they don’t really have that much, if anything.

A second problem is the ostensible reason for the search. The various warrants and subpoenas cite the law concerning material support for terrorism. And of course, that’s the material support statute.

A case arguing the unconstitutionality of that statute was recently argued by the Center for Constitutional Rights in the Supreme Court [Holder v. Humanitarian Law Project]. We lost. The Supreme Court, for the first time since 9/11, said advocacy or speech on behalf of an organization on the attorney general’s terrorist list is covered by the criminal statute–the material support of terrorism statute–if that speech is coordinated with, or you work with or have contact with, people in the alleged terrorist organization.

So once an organization is put on the terrorist list, if I only write an op-ed, and if I gather the information from the designated organization or have any contact with anybody there, even if it’s just asking for information, that might be interpreted as “coordination” with them, or some kind of material support for that organization. And there is no due process given before an organization is put on the list. It’s almost impossible to challenge. Oftentimes, placement on the terrorist list is a political decision.

So first you have the Supreme Court decision in June 2010, and then you have these raids a couple of months afterward. It makes you very suspicious that the current government is pushing the boundaries of the material support statute and reading it very broadly.

Organizations are going to be put in fear of any kind of opposition to U.S. foreign policy if there is a claim by the government that there is contact with organizations that are designated terrorists. Domestic American organizations that oppose U.S. foreign policy may well be chilled in their work.

COULD YOU say a little bit more about the way that the material support provision has been used since 9/11? There have been a number of really high-profile cases–particularly of Islamic charities, for example–where no violence was ever alleged to have occurred as a result of the so-called “material support,” so a lot of us on the left have seen this as a broader attempt to whip up support for the “war on terror.”

ONE OF the main uses of the material support statute, I think is to demonize organizations that the U.S. government doesn’t like. Had they had such a statue during the period of the African National Congress (ANC) opposition to the apartheid government in South Africa, they would have labeled that–and that’s how they thought of it in the U.S., under Reagan and before–as a terrorist organization. Any contacts with the ANC of any Americans opposed to apartheid would have been considered criminal.

There are two aspects to this. One is that the government can label, without any kind of hearing or way to challenge it, a foreign organization as a terrorist organization. The other is that any American contact with that organization or support for that organization is prohibited.

This is true even if that support is, as I said, by writings that are at all coordinated; by giving blankets to their hospital; by, according to the case we lost in Supreme Court, wanting to teach the [Kurdistan Workers Party] or the Tamil Tigers about the Geneva Conventions. Wanting to teach people peaceful means of resolving disputes, or wanting to get them to the negotiating table–when Jimmy Carter negotiates questions in the Middle East and he has contacts with Hamas or Hezbollah–those all are now prohibited.

So this statute is the favorite of prosecutors to go after people, because the smallest kind of contact with a designated terrorist organization can be considered material support. It’s an easy way to intimidate, wipe out and jail opponents of U.S. foreign policy, and an easy way to demonize organizations that many would call liberation organizations in other countries.

The provision has been used often. It is a favorite among prosecutors because you have to prove so little. So the Holy Land Foundation, which was the biggest Muslim charity in the United States, was accused of giving money to Hamas, but so indirectly that it’s hard to believe any of the facts in the case–it was giving it to groups that I think even the UN was giving to in Gaza. But somehow, they were supposed to believe or know that those groups were connected to Hamas, which has been put on the U.S. terrorist list.

The statute is used very broadly to say, “Muslims in this country and all their charities, what they’re doing is supporting terrorism.” When in fact, the vast majority of those charities–I obviously don’t know every one, but from what I know–gave aid to organizations they didn’t think were terrorist for starters, or on the list, and, secondly, they were giving humanitarian aid or doing things like teaching the Geneva Conventions.

Read the full interview at Just Left.

Michael Ratner is the author of Guantanamo.

On What Should Have Been John Lennon's 70th

Monday, October 11th, 2010

I spent time with John Lennon only once. It was at his and Yoko’s apartment on Bank Street in the West Village of NYC sometime in the early 70’s. I went to see him and Yoko with my law partner Margie Ratner. We had been asked to discuss with them the case of Michael X, a Black Power leader from the U.K. Michael X had left the UK and returned to Trinidad. While in Trinidad, where he was living on a commune, a police raid discovered two bodies and Michael X was accused, and many believed wrongfully, of murder. Prior to his arrest he fled to Guyana, but was eventually extradited, stood trial and was sentenced to death in Trinidad.

John and Yoko had known Michael X in the U.K. and had given him some support including the posting of bail for an alleged crime in the U.K. A friend of John and Yoko’s had contacted us and wanted us, along with the well-known radical lawyer Bill Kunstler, to get involved in helping save his life. I think they were firmly convinced of his innocence, but in any case, they stood firmly against the death penalty. What I recall on the issue of Michael X’s innocence was that at the time Michael X was in Trinidad Eric Williams was the Prime Minister. Williams was more like a dictator then an elected Prime Minister. (He ruled the country from 1956 -1981.) He saw Michael X as a troublemaker and a rival and probably had him framed him for the murders. Williams, who at one time had been progressive, was an absolute ruler and supposedly had even banned some of his own more radical books. So Margie and I were visiting John and Yoko to discuss what could be done to save Michael X’s life.

The apartment was a modest one. I think it was a downstairs/basement floor in an old narrow village brownstone. It was dark. We spent most of the time with Yoko. John was in the back bedroom. We had an animated conversation with her about Michael X and her knowledge of him from London. Yoko wanted to do whatever she could to save his life. We hit on a couple of strategies. One was to begin a defense committee, which would be made up of prominent people. The other was to send Margie, Bill Kunstler and me to Trinidad where we could visit Michael X, get some publicity and help in a clemency campaign. After about a half an hour, John joined us. He was somewhat quiet but, he, like Yoko, talked about Michael X and his disbelief in his guilt. He and Yoko said they would pay all our expenses and I think a fee on top. Margie and I readily agreed.

As it turns out I could not go to Trinidad, but Margie and Bill did. Margie came back shocked by her visit. Michael X was jailed in a stinking, filthy cage in which he could not stand up. Despite their visit, the attendant publicity and a powerful defense committee, clemency was denied and Michael X was hanged in May 1975.

I never met John again, but I did travel to Iceland for John’s birthday memorial in 2006 where on behalf of the Center for Constitutional Rights I received the LennonOno Grant for Peace from Yoko Ono. I gave a short acceptance speech focusing on the excesses of the so-called war on terror:

These are dark and difficult times. War, torture, detention without trial and gross human rights violations sadly characterize much of our present circumstances . . .. We have seen a return to the spying tactics of a generation ago, when John Lennon was hounded by the U.S. government for advocating peace.

(I wish I could say that things have changed: they have not.)

We concluded our visit by taking a small boat to an island where the Imagine Peace Tower was to be built. Yoko walked in circle where the tower was to stand and then our group and fifty or so Icelandic school children sang “Imagine.” There was not a dry eye.

Read the original post on Just Left.

Michael Ratner is the author of Guantanamo: What the World Should Know.