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Ma’ale Adummin: Annexation and the Architecture of Apartheid

Sunday, January 3rd, 2010

Today we came away stunned, shocked and almost numb from our trip to East Jerusalem with Jeff Halper of the Israeli Committee Against House Demolitions. And when I say we, I mean my family—my wife and two children, 19 and 21. We have spent the last 10 days trying to get into Gaza from Egypt; demonstrating against the Gaza siege and joining demonstrations in Israel at the Erez crossing and protesting the evictions in the Sheikh-Jarrah area of East Jerusalem.  But nothing and I mean nothing prepared me for today and our trip through East Jerusalem and to Ma’ale Adummin, a city a few kilometers away. It was not the Palestinians we met although each had heart breaking stories. Rather it was our seeing first hand the deliberateness of the Israeli annexation project and its seeming inevibility. If you want to be made almost speechless stand at the edge of East Jerusalem and look out at a vast construction project on someone else’s land. Look out at the commission of a monstrous crime, open and notorious. As one of my children asked, “Why have the countries of the world done nothing to stop this?”  I said, “It’s worse, the U.S. and others have aided and abetted this crime.”


Today we traveled with Jeff through East Jerusalem and to what some, at least in the media in the U.S,. refer to as the settlement of Ma’ale Adummin. It is not a settlement, but a new city of 50,000 Israeli Jews, soon to be expanded to 70,000. Ma’ale Adummin, built on a hilltop, will ultimately be, or is already,  part of the expansion of East Jerusalem into a wider municipality that is called by some the “Jerusalem envelope.”   Before we drove through the valley to get to Ma’ale Adummin, Jeff showed us a bit of East Jerusalem. He pointed out the Israeli Ministry of Interior, the police headquarters and the courts, all now in East Jerusalem; all a means of asserting Israeli control over the area and its Palestinian inhabitants.  Then we went close to the 25 foot high concrete separation wall which will ultimately lock out Palestinians from Israel, Jerusalem and many cities, towns and settlements in the occupied territories.  On a knoll above that particular piece of wall we saw a prison and an interrogation center for Shabak, the Israeli internal security agency.


Jeff then drove us to a viewing site at the edge of East Jerusalem where we overlooked what is called by Israel area E1. It was a valley with roads criss-crossing it, a few houses and trees and on the distant other side, there it was, Ma’ale Adummin. While I had heard of area E1, I never understood what was meant. I think I understand it now. It is, at least the valley area I was looking at, the road system and land that will link Ma’ale Adummin to East Jerusalem and other settlements. Area E1 will also cut off Palestinians traveling north and south; they will be forced to make circuitous routes from one Palestinian area to another. And remember all of this land is in occupied territory including all of East Jerusalem. Israel’s actions are in flagrant violation of the Geneva Conventions.


As we drove toward Ma’ale Adummin Jeff took us to what are known as Areas A, B and C.  Area A is where there is full Palestinian control; B is where there is joint Palestinian and Israeli control; and C is where there is full Israeli control. It is in the C area of East Jerusalem where many of the house demolitions are occurring—another story for later. We also went to the Shuafat refugee camp in East Jerusalem where some 35,000 Palestinians live in poverty with no municipal services. We drove past small sheet metal shacks of Jumalat Bedouins who, like many Palestinians, are facing eviction. We saw field after field of olive tree stumps, 100 year old trees that once belonged to the Bedouins that had been cut down by the Israelis—insuring that Bedouins could not stay in or near East Jerusalem. We passed an almost completed road with a high metal wall separating two concrete strips; one side was for Palestinians and the other Israelis. Finally, we began our drive up to the city on the hill, Ma’ale Adummin.


What first strikes one is the color. The city is green and lush. There is grass everywhere and palm trees lining cleanly paved concrete roads. This is all in an area where water is almost non-existent and many Palestinians have no water. In the center of each of the roundabouts on the way up is an olive tree, but not just an ordinary olive tree, but a wide squat one that is perhaps 400 or even 500 years old, likely an olive tree likely taken from a Palestinian farm. At the entrance to the city is one of the more incongruous and Orwellian monuments to erect in this stolen city:  a huge white metal sculpture of two doves with wings unfolded sheltering a globe and inscribed on its base with the word—and it seems like a nasty joke—“Peace.” Peace, apparently defined, as the dismembering of the Palestinian people. As we continued our ride up we pass a suburban shopping mall with some big box stores, stores that are part of international chains that hopefully will become targets of the BDS movement.


We finally stop at the end of a street that could come out of any middle class suburb in America: neat houses and apartments with small yards. Ma’ale Adummin is called a dormitory community or as we would say, a bedroom community. Its residents work in Tel Aviv. They live here rather than in Jerusalem because of price (half that of Jerusalem) and lower taxes, not because of religious ideology. It is a secular community that can shop at the mall and will be able to drive to work in a few minutes on segregated roads. We went to a lookout over the E1 area and toward Jerusalem. As we looked down the hill we saw a construction site for a huge swimming pool—a swimming pool in this parched land where only the select have water. Across the valley we saw the building of the architecture of apartheid: the segregated roads and separation walls. I could have been standing in a white only town in South Africa, but I was standing in an Israeli Jewish only town in the occupied territories.



Why I Am Going To Gaza for New Years: Actions Need to Follow Words

Monday, December 14th, 2009

Almost a year ago, on the celebration of Martin Luther King’s birth and just as the Israeli military assault on Gaza was coming to a close, I wrote a piece titled, Israel in Gaza: A Time Comes When Silence is Betrayal.[1] In that piece I spoke of the role of American Jews and of Americans in remaining silent in the face of horrendous human rights violations perpetrated on Palestinians. I acknowledged that: “ For too long, and I do not exempt myself, most of us have stood silently by or made only a marginal protests about the massive violations of Palestinian rights carried out by Israel.” I pointed out that for “as long as this silence continues so will the U.S. billions in aid and arms that facilitates the killings of Palestinians.”

Since that time, I and many others, Jews and non-Jews alike, have come some distance toward breaking the silence. We knew while the assault was continuing that we were witnessing massive crimes. We watched as most of the world stood by. Gaza, I think for many of us, demanded that we no longer stand on the sidelines.

I must admit to my shock at reading the Goldstone Report, the report of the UN Fact-Finding Mission on the Gaza Conflict.[2] Fact by fact it documented violations of the laws of war and human rights law that were chilling. The report put the assault in the context of the responsibilities under law of an occupying power which Israel is in the West Bank, East Jerusalem and Gaza. It addressed the annexation of East Jerusalem, the building of the wall, 85% of which is illegally located in occupied territory, the pass laws and the settlements. It addressed the blockade of Gaza which began years before the December 2008 assault and the collective punishment of the Palestinian people. As to the war, the Report concluded that the “military operations were directed by Israel at the people of Gaza as a whole” to “punish them” and “in a deliberate policy of disproportionate force aimed at the civilian population.” Each example was more disturbing than the one before and the cumulative effect was horrifying: deliberate targeting of civilians, the intentional destruction of the infrastructure of Gaza including fuel supplies, the sewer system, the only flour mill and the Palestinian legislative building.

The killing statistics tell us almost all we need to know: over a thousand Palestinians were killed (estimates run from 1,166 to 1,444), most of them civilians; 13 Israelis lost their lives of which three were civilians. Imagine Gaza as an overcrowded prison, for that is what it is, with no ability for people to hide, escape or defend themselves. Then imagine an assault with impunity from the air, the sea and the land. Gaza was no accident. It was not a mistake. Israeli leaders justified the destruction of civilian objects: “destroy 100 homes for every rocket fired.” The Israeli government claimed that “there is really no distinction to be made between military and civilian objectives as far as government and public administration in Gaza are concerned.” [3]

After the Goldstone report there cannot be, if there ever was, any doubt about the need for investigation and prosecution of the criminality of the military assault on Gaza. Judge Goldstone is one of the most preeminent jurists in the world—he would be in my top 3—and I am not sure who the other two are. His credentials are impeccable. A South African courageously opposed to apartheid, a justice of the Constitutional Court of South Africa and the chief prosecutor of the special UN tribunals for Rwanda and the Former Yugoslavia—and a Jew as well. Yet, attack him and his report is exactly what Israel and the United States have done. The U.S. State Department called it “deeply flawed,” but did not elaborate. Israel, which had refused to cooperate in the investigation, said it was appalled and disappointed by the Report claiming it effectively ignored Israel's right of self-defense, makes unsubstantiated claims about its intent and challenges Israel's democratic values and rule of law. Even if Israel was acting in self-defense, although many would dispute this, that right does not grant permission to commit war crimes. And yes, the Report challenges Israel’s commitment to the rule of law: it does not seem to have a commitment when it comes to Palestinians. Despite these protestations, as Shakespeare wrote: “truth will come to light; murder cannot be hid long….but at the length truth will out.” Well it has, but truth still needs a push—a push into action.

That is why I am going to Gaza with the Code Pink Freedom March:[4] because truth needs a push. It’s straightforward. I want to break the blockade. I want to see for myself the damage caused the weapons bought with my tax dollars. I want it understood that Israel does not kill in my name. I want to follow words with actions.


[1] http://www.michaelratner.com/blog/?p=40

[2] http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/FactFindingMission.htm

[3] Goldstone at para. 379.

[4] http://www.gazafreedommarch.org/article.php?list=type&type=416

Muting Our Criticism of Obama: If We Don’t Speak Out Who Will?

Wednesday, December 9th, 2009

At a reception I attended the other day a progressive acquaintance came up to me and said the left “must stop bashing Obama. Keep doing it and he will lose the election. We should be thankful for what we have.” I am not sure he thought that I was one who bashed Obama or he just wanted to get that message out in the community. As it happens I do not “bash Obama” whatever that means; but I am sharply critical of a number of his policies and practices and those of his administration. (This is not to say I would have preferred McCain to win; I would not have and on some issues, mostly very safe ones, Obama has made some difference, e.g. Ledbetter Fair Pay Act, ending the HIV exclusion.) I responded to my acquaintance: “It won’t be the criticism of progressives that will lose him the election—we hardly have that kind of power. It is his own actions especially around economic issues that could make his reelection difficult; actions that have alienated and angered significant segments of the unemployed American population. I don’t do my work by thinking about whether it will help or hurt Obama in the next election. I don’t tailor principles to politics.”

In arguing that we should mute our criticisms of Obama we are being asked to accept administration actions that are unacceptable; practices that will involve the deaths of thousands and the violation of our own constitution and binding treaties. I have always believed we must advocate and act on principle and that is the way to make change. So when we see that Obama will continue the preventive detention scheme that underlies Guantanamo, that he will have detainees tried before military commissions, that he will continue the incommunicado detentions at Bagram and hide detainees from the Red Cross, we cannot and should not stand by in silence. We are seeing the continuation of Bush’s law and the deterioration of fundamental protections of freedom. When we see Obama hide illegal acts behind claims of “state secrets;” when he refuses to have the torture conspirators investigated and prosecuted; and when he even welcomes some of the conspirators into his administration, we must speak up. Granting impunity to officials who torture is to insure that we will again be a nation of torture and that the message heard by every petty dictator around the world is: “The United States can torture in the name of national security and so can we.” When we see officials of this administration attack the Goldstone report which documents war crimes in Gaza, we understand the deep hypocrisy of this government.

Nor can there be any screaming that is too loud in opposition to the wars that Obama is continuing without end. The July 2011 beginning withdrawal date from Afghanistan was shown to be a fiction within an hour of Obama’s speech. Obama like those before him accepts that “We are the United States and war is what we do.” Obama and the Presidents before him are bleeding our country and world. Of course, I do not expect miracles from one man on top of a huge national security establishment that is hard to buck. Rome was not built in a day and neither will it be dismantled in a day. But I don’t see a lot of dismantling going on. What I see is more and more building of a national security state—perhaps with a softer hand—and that is alarming.

As I said when I began this piece I do not think progressive and liberal criticisms on most of these issues or other disappointments such as Obama’s failure to end “Don’t Ask, Don’t Tell” will have much affect the next Presidential election. Even the war probably won’t have much to do with who is our next President. Obama took a safe course, at least for himself and the next election: he gave the generals roughly what they asked for and the Republican Secretary of Defense, like the cat that ate the canary, is smugly satisfied.

It seems likely to me that the economy will be Obama’s Waterloo. He has shoveled billions and billions into the big banks, and the wars and almost nothing into creating jobs and saving people’s homes. Regarding the jobs meeting he convened to help with ideas about how to reduce unemployment, he said there are “limits to what government can do and should do,“ and that he was open to “responsible” and “demonstrably good” ideas to create jobs. I don’t think that is what the over 15 million unemployed in the country wanted to hear. They need jobs and they especially did not want to hear Obama say there was not going to be enough money to do it. The danger here is not just that Obama will lose the next election; but it’s one we have already begun to see: a right wing populism that often occurs in times of great economic dislocation, income disparities and joblessness.

We are at a time of great economic insecurity; a time when fundamental rights are under threat from our own government and a time when we are the world’s warriors. Silence or passive acquiescence is complicity. Enough already! We can applaud Obama’s actions when they are right; we cannot and should not excuse or explain away his actions when they are wrong. If we don’t speak out, who will?

News and Analysis from the frontlines of the progressive movement Sartre, Existentialism and Marxism on the Question of Terror: Talking with Sartre

Monday, November 30th, 2009

Michael Smith and I have been reading John Gerassi’s new book, Talking with Sartre, Conversations and Debates.[1] The book is a shortened form of three years of on and off conversations Gerassi had with Sartre in the early 1970’s.  The book is utterly remarkable. It is as if you are  seated at the table with Sartre and asking him and debating with him questions on Marxism, existentialism, his life with Simone de Beauvoir, his depression, his plays, novels, political activism, and views about anti-colonial and revolutionary violence both before and after a revolution. In this short piece we write only about this latter subject—taken from the book– in which he takes positions which are almost never found in writings on the political left in the United States today. Even if one disagrees with Sartre, which Michael Smith and I do on some issues, it is a timely discussion in today’s world.

What Makes a Revolutionary?

Gerassi and Sartre discuss what makes a revolutionary. Sartre had great respect for Che and seems to have agreed with Che that “a true revolutionary is guided by great feelings of love.” However, Sartre also said that a revolutionary was possessed of both “hatred and love.”  Hating injustice and hating the enemy. Sartre believed it was necessary to hate the enemy in order for a revolution to succeed. As Sartre said,

“That’s very important hatred. Without it one stops too soon.  It happened in the French Revolution; I think it happens in every revolution, when those who do not hate the enemy suddenly say, Enough already, and stop short of accomplishing the complete restructuring of society, and the result is that the revolution is betrayed.” (56)

Executions in Cuba After the Revolution

Sartre then applies some of his thinking to the Cuban Revolution. Gerassi asks Sartre about Fidel putting on trial the Batista torturers where the evidence of their guilt was overwhelming. Gerassi says that even Time magazine claimed the trials were a catharsis and saved the country from a bloodbath of vengeance. Presumably, this was because the people would have taken justice in their own hands and enacted vengeance without trials. But then 365 torturers were executed and that showed that Fidel was “not just a bourgeois reformer but a genuine revolutionary” and Time and the United States condemned him.  Gerassi then asks what Sartre thinks of the executions when all knew including Fidel that the real culprits were the owners of United Fruit, IT&T and other corporations for who Batista exploited the people of Cuba.

Sartre answers “that under an ideal situation, the torturers could have been rehabilitated.” But he agreed with Fidel that at

“that moment a bloodbath had to be avoided, and these torturers were scum, after all, so if executing them for their proven crimes, even if the president of IT&T is ultimately responsible, will avoid that bloodbath, then ethically their execution was justified….”

However, Sartre points out that had the trials taken place a year later and there was no risk of a bloodbath, “then no, their executions would not have been justified.” (98-99)

Counter Terror Against Terror

Sartre was consistent on the question of the morality of counter terror against terror. (This is not to say he recommended it as a tactic.)  He supported the FLN in fighting the French for the liberation of Algeria even if that meant killings on the streets of Paris. In the context he even believed the Baader-Meinhof group was “totally justified.”  As Sartre says,

“Remember that context. The shah [of Iran] comes to Berlin and the students protest peacefully. They are severely beaten by the shah’s security goods and the German police who shoot and kill one student. Benno Ohnesorg.  The pro-US press then yells that the real responsible one was Rudi Dutschke [leader of the student protesters] and he is shot in the head. From a moral and a revolutionary point of view, the groups rampage of murders of German industrialists are absolutely justified. But…you see my problem–all ethics depend on circumstances.” (99)

And here is Sartre addressing the question of resistance by the Palestinians. Gerassi asks Sartre about the French GP (La Gauche Prolétarienne) which supports armed struggle by the Palestinians and considers the suicide bombers “freedom fighters.” Sartre answers “I have always supported counterterror against established terror. And I have always defined established terror as occupation, land seizure, arbitrary arrest, and so on, as does the Israeli left….” (191)

Conclusion: Michael Smith’s Analysis

Sartre was a revolutionary.  He was an existentialist, not a Marxist.  He derived his morality from his own unique philosophy involving action and commitment.  He brings his existential sensibility to the question of terror,   For Sartre it was a question of the terrorism of the oppressor versus the terrorism of the oppressed, on whose side he was resolutely on.

This question was taken up both in theory and in practice by the revolutionary Russian Narodniks of the l880s and by the Bolsheviks in that great laboratory of social struggle which was to culminate in the victorious Russian revolution of l9l7.  It is both historical and extremely contemporary.

The Narodniks, were skillful and accomplished self-sacrificing terrorists. They managed to kill over three thousand Tsarist officials.  It was Trotsky, who, like Sartre, stood in absolute moral solidarity with them, articulated a different, Marxist, strategy and critiqued the practice of individual terror.  He opposed it for three reasons.

First, it didn’t work. The Tsarists government simply replaced one dead functionary with another live one.  Second the terrorism took the onus of violence off the government, where it belonged, and placed it on the oppressed, and further stepped up its repression.  But the third reason for the Marxists like Trotsky was central.  All the bombs, assassinations, the violence’s a whole served to sideline the masses, it made them spectators.

Even if they looked on approvingly at the death of a hated official, which often they did, they did not have any part in their own struggle.  The current of revolutionary socialism condemned terrorism as a tactic because they believed the emancipation of the workers and peasants and their allies from class rule had to be achieved by the oppressed themselves if it were to be conclusive and lasting.  In the words of the International, the song that came out of the first great workers rebellion, the Paris Commune of l87l, “We want no condescending saviors.”   For Marxists, the self-activity of the masses was the absolute key.  To those who advocated terrorism they simply said, “Comrades, chose another path.”

Sartre’s talk with Gerassi on this subject is a passionate reprise of a crucially important and timely discussion given the U.S. engagement with the Muslim world.

Finally Some Great News: 23 Americans (Mostly CIA agents) Convicted in Italian Court for Renditions.

Thursday, November 5th, 2009

You may recall the case. The CIA was accused of a 2003 kidnapping of an Egyptian cleric, Abu Omar, from the streets of Milan, Italy. He was rendered to Egypt where he was tortured. A courageous Italian prosecutor, Armando Spataro, had been pursuing the case since that time over the objections of the Italian government. Luckily in Italy the prosecutors are independent of the political branches and Spataro, despite many attempted roadblocks, went ahead. Now the court has come down with convictions and jail sentences. Robert Seldon Lady, former CIA station chief in Milan got 8 years and 22 other Americans got 5 years. Utterly remarkable! The only problem is none of the defendants showed up for trial and the Italy was unwilling to ask for their extradition.

Despite this, the convictions are really earth shattering news although the New York Times asserts they will have “little practical effect.” Just ask the 23 convicted operatives if they agree with that sentiment. They are considered fugitives in 25 countries of the European Schengen area and subject to arrest. Upon arrest they will be sent to Italy to serve out their jail sentences. Already one of those convicted is suing the United States claiming she should have had received diplomatic immunity.(See list of 24 below.) And I wonder what those agents think about Stephen R. Kappes, who at the time of the kidnapping was the assistant director of the CIA’s clandestine branch and is said to have planned the rendition? He was not a defendant, having not been in Italy, but is currently Obama’s second ranking CIA official. So he is off the hook, at least for the moment, and can still enjoy Rome and Paris. So no wonder a U.S. spokesmen said the administration was “disappointed” in the verdicts.

Just think about the message these convictions send for the future even if these agents do not spend a day in jail. If you were a CIA agent, would you kidnap again? Would you waterboard? This is why prosecutions work. They act as a deterrence. No matter what happens now, no matter what the Obama administration does to get rid of these convictions e.g. getting Italy to give clemency, a clear message has been sent. Committing human rights atrocities even if done in the name of national security and for the most powerful state in the world does not give you immunity. I don’t think all such law breaking will cease, not by a long shot. However, the Italian courts have taken a powerful first step toward giving substance to the expression that no one is above the law.

The lesson the Obama administration should learn is that unless and until it holds U.S. officials accountable, other countries will.


The Schengen countries where U.S. officials will be arrested:

Austria Belgium Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Italy Latvia Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Slovakia Slovenia Spain Sweden Switzerland

Congress Should Not Reject the Goldstone Report

Tuesday, November 3rd, 2009

On Tuesday, November 3, Congress is poised to vote on H.Res.867, which calls on the “President and the Secretary of State to oppose unequivocally any endorsement or further consideration of the `Report of the United Nations Fact Finding Mission on the Gaza Conflict' in multilateral fora.’ ”

The Resolution instructs the Obama Administration to prevent further consideration of the Goldstone Report (as it is informally known) in any international body. For Congress to do so, without a hearing where Judge Goldstone can testify and based upon a Resolution rife with factual errors, makes a mockery of assertions by the United States that fundamental protections of human rights laws law apply equally to all. It leaves the United States, and especially Congress, without a thread of moral authority.

This Resolution is a rush to judgment. It is a rush to judgment made on the basis of serious factual errors and mischaracterizations of the Goldstone Report. The Goldstone Report documents in a dispassionate and even-handed manner “violations of international human rights and humanitarian law and possible war crimes and crimes against humanity” committed by all parties prior to, during, and after Israel’s assault on the occupied Gaza Strip in December 2008-January 2009.

The text of the Resolution is directly at odds with the actual mandate of the Fact-Finding Mission and its report. The Resolution asserts that the mandate of the Fact Finding Mission was aimed only at Israeli violations of the laws of war. This is a blatant lie. In a letter to the House Committee on Foreign Affairs, Judge Goldstone states that the mandate he “demanded and received clearly included rocket and mortar attacks on Israel and as the report makes clear was so interpreted and implemented.”

The Resolution claims that the Goldstone Report “repeatedly downplayed or cast doubt upon” allegations of Hamas committing war crimes. In fact, however, it examined Palestinian militants rocket and mortar fire into Israel and concluded that “these attacks constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity.”

It is likewise with the spurious claim in the Resolution that the report “denied Israel the right to self-defense.” The Goldstone report examined the conduct of the party’s conduct of the war and not the right of Israel to use military force. As Judge Goldstone said, “Israel’s right to use military force was not questioned.”

The United States provides $3 billion for weapons and military equipment every year to Israel. The Goldstone Report concluded that “ grave breaches of the Fourth Geneva Convention were committed by Israeli forces in Gaza: willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly. ” In these circumstances the United States has a special responsibility to insure that serious investigations are undertaken of the use of the weapons it supplies. Congress should not be blocking such an investigation.

Michael Ratner, an attorney, is President of the Center for Constitutional Rights.

How to Guarantee Prosecutions Won't Happen: Call for a Commission

Thursday, April 23rd, 2009

Today I awoke to read that a number of human rights type groups have called on President Obama to create a commission of accountability to investigate and report publicly on torture and the cruel and inhumane treatment of detainees. There is not a word in the petition about criminal prosecutions of the torture team. Yet, I know that some of these groups would say they still want prosecutions. Sadly, this call and a commission if set up, would almost guarantee that prosecutions won't happen.

Briefly, here is why. We have reached a critical political moment on this issue. Obama has been forced or pushed to open the door to prosecutions, an opening I thought would take much longer to achieve. If there was ever a time to push that door open wider and demand a special prosecutor it is now. We have documented and open admissions of criminality. We have Cheney and Hayden admitting what they approved these techniques; and Cheney saying he would approve waterboarding again. We have the Senate Armed Services Report detailing how the torture program was authored and approved by our highest officials in the Whitehouse and employed in Guantanamo, Iraq and Afghanistan. And we have thousands of pages of proof. There is public outrage about the torture program and the media in the US and the world are covered with the US misdeeds.

So at this moment, instead of human rights groups getting together and calling for a special prosecutor what do they do? Call for a commission. What this call does and it must be said strongly is take the pressure off what is the growing public push for prosecutions and deflects it into a commission. Outrage that could actually lead to prosecutions is now focused away and into a commission. Think if this list of human rights groups had demanded prosecutions. We would be closer and not farther from the goal.

I am sure some of these human rights groups will argue that a commission will or can be a first step to prosecutions. Sure, it is possible, but unlikely for the reasons I gave in a letter published in Harper’s and available on my blog. The commission process will drag on, statutes of limitation will run and the conclusion of the commission is likely to be: the US should not have tortured, but it was an extraordinary and dangerous moment after 9/11 and the torturers were acting in our best interest to avoid another 9/11. Prosecutions are not recommended.

I don’t think I need to repeat here why we need prosecutions. If we are to stop torture in the future we need to send the clear message that if an official tortures, prosecutions will follow. Without that message the next President or even this one, can again put us on the page of torture by signing another executive order. And don’t think that won’t happen no matter how many commissions reach results saying the US should not have tortured. It will and Cheney, Hayden and other have said so.

It is time to do what is necessary. Appoint a special prosecutor and insure that this country will not again be a country of torture.

Israel in Gaza: A Time Comes When Silence is Betrayal

Thursday, January 22nd, 2009

On the celebration of King’s birth I often read or listen to the anti-war speech that he gave at Riverside Church on April 4, 1967—"A time to break the silence". It was a powerful statement of his opposition to the Vietnam War. He spoke of how he was told to not oppose the war because his opposition would anger President Johnson and harm the civil rights movement. He was warned that “Peace and Civil rights don’t mix.”  King admitted he held back because of this possible consequence for too long and failed to speak out earlier.

I bring this up today when I think about Israel’s recent invasion of Gaza. While we are celebrating King’s birth and the inauguration of Barack Obama, Israel invaded Gaza killing over 1200 people, men women and children, and injured thousands. It targeted UN buildings, homes, mosques, police stations, universities and media outlets.  Thirteen Israeli soldiers were killed—a ratio of one hundred Palestinians for each Israeli. The international law violations have been well documented: disproportionate military force, attacks on civilian targets, collective punishment. The killings of the three daughters of a Palestinian doctor gave a face to those killed in way that numbers could not. Members of my broader family knew the doctor, had visited him in Gaza and heard from during the Israeli onslaught.  He was terrified for his family, but had no way out.

When I heard the news of the murders of the doctor’s children I was at the Sundance film festival and had just viewed an amazing and moving film about radical lawyer Bill Kunstler called Disturbing the Universe.  The film shows Bill in Chicago during the 1969 Chicago 8 trial. During the time of the trial Black Panther leader Fred Hampton was murdered by the Chicago police. Bill was appalled by the murder, but he did not just blame the Chicago police. He blamed himself and all white Americans. For it was white Americans that for too long had remained silent and accepted the pervasive racism and the murder of Blacks in our society.

This brings me to Gaza and role of American Jews and, in fact, of almost all Americans. For too long, and I do not exempt myself, most of us have stood silently by or made only a marginal protests about the massive violations of Palestinian rights carried out by Israel.  I recall a conversation I had some years ago with the political artist Leon Golub, famous for his outsized oil paintings of torture carried out by American mercenaries in Central America. Leon told me that he had been invited to attend a panel to address what it meant to be a Jewish political artist. He said he had never thought of himself as a “Jewish political artist” but only as a “political artist.”  Then he thought some more. Of the works of art he had made, none concerned Israel’s treatment of the Palestinians. And then he knew, at least for himself and probably many others: to be a “Jewish political artist” was to be an artist who avoided depicting the horrors inflicted on Palestinians. Of course, that is true for more than just artists. Many Jews who are very involved in human rights, ending poverty and war, and fighting for the underdog avoid criticism of Israel. They wrongly think that human rights are divisible; or that like ostriches they can hide their heads and pretend not to see what is clearly staring them in the face and makes them uncomfortable: the inhuman treatment of Palestinians.

Some of our willful blindness and refusal to act is a result of our ambivalence about condemning the actions of a people that have experienced pervasive antisemitism and the holocaust. Some of our hesitation to act results from the condemnation and opprobrium anyone, but especially Jews, encounter with even mild criticisms of Israel. Organizations that take a position against Israeli actions subject themselves to a loss of funding from foundations and individuals. Few can afford to do so.  As long as this silence continues, so will the U.S. billions in aid and arms that facilitates the killings of Palestinians. As long as this silence continues, more and more settlements will be built. As long as this silence continues, there will be more and more Gazas and more and more children murdered.

The lesson here is simple, but difficult to act on. We are, each of us, responsible for the murders in Gaza. Our silence is betrayal. Each time we hesitate to speak out; each time we moderate our condemnation we become accomplices in killing. The time, if there ever was one, to show courage is now.  Yes it will be difficult for many. As King said about the reluctance of some to oppose the Vietnam War:

“Nor does the human spirit move without great difficulty against all the apathy of conformist thought within one’s own bosom and in the surrounding world. Moreover when the issues at hand seem as perplexed as they often do in the case of this dreadful conflict we are always on the verge of being mesmerized by uncertainly; but we must move on.

We must take King’s words to heart.  We, each of us, “must move on.” We must begin somewhere even if it just means saying the issue is not off our agenda. Begin the discussion; begin to act; show that you care. And remember, “A Time Comes When Silence is Betrayal.”  That time has come.

Laws Broken with Impunity Today, Can and Will be Broken with Impunity Tomorrow

Monday, November 24th, 2008

In his first nationally televised interview, President-elect Barack Obama made this promise: "I have said repeatedly that America doesn't torture. And I'm gonna make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world."

Let there be no doubt that we have been a country of torture and cruel treatment. The Bush administration ran a worldwide kidnapping, detention, and torture program. The Bush administration tortured and abused prisoners in Guantanamo, Iraq, Afghanistan, Secret Sites, and rendered prisoners to other counties for torture.

We know this from the thousands of pages of official documents, testimony, and books that lay out what I call the torture program or torture conspiracy.

We know this from the many survivors of this cruel torture and abuse program. These are people we at the Center for Constitutional Rights represent: at Guantanamo, in Iraq, from Afghanistan and those who have escaped secret sites and rendition.

We know the names of many of the perpetrators—current and former officials of the government. Here are the names of a few of them:

  • Members of the Principals Committee: Cheney, Rumsfeld, Tenet,
  • Powell, Ashcroft, Rice and of course Bush—
  • Members of the War Council made up of their lawyers: Gonzales and Flannigan, Addington, Haynes and Yoo.

We know there were crimes committed. Many crimes.

Torture is prohibited by the Convention Against Torture: absolutely banned. There are no exceptions.
Torture, cruel, humiliating and degrading treatment are prohibited by the Geneva Conventions. Again there are no exceptions. Military necessity is not an exception.

These prohibitions have been enacted into our criminal law:

  • The anti-torture statute (18 USC sec.2340) and the war crimes statute (18 USC sec.2441)

The torture conspirators knew this. They knew their conduct violated these statutes. They went ahead anyway. But they were nervous. What if—as Gonzales said—sometime in the future a prosecutor wanted to go after them?

So they had to manufacture defenses: Assert that the President was above the law and could do no wrong. Argue that torture was not torture. Claim that torture could be used in self-defense. Assert that the Geneva Conventions were inapplicable. And finally push through Congress a retroactive narrow redefinition of war crimes they hoped would protect them.

These defenses will do them little or no good. But that I hope will be a question for a court and a jury in this country.

One thing I can promise you—if this country fails to act, other countries will. These so called defenses and even pardons will be completely irrelevant in prosecutions for the international crimes of torture and war crimes.

The question is what should be done beyond the obvious.

New executive orders; repeal of old orders and memos; declassification of what we don't know; that will help with ending the torture program now and giving us more knowledge.

But that will not be sufficient to, as Obama has pledged, "make sure we don't torture." The Obama administration may not; but what about the administrations after that and into the future.

And what about other countries who have looked to the United States as an example: The US tortured and committed war crimes—so can we.

The torture program was an assault on the prohibition against torture and war crimes—But it was also and importantly an assault on law itself.  Or as Scott Horton said in a recent Harpers article said: the administration waged war against the law itself. If laws can be broken with impunity today, they can and will be broken with impunity tomorrow. Not just laws against torture and war crimes, but any and all laws; any and all limits on government.

That is not remedied by only changing executive orders and laws going forward.  I am not convinced a Yoo/Addington-proof law can be drafted.

Insuring that this never happens again and limiting government does just that: it limits. This is why criminal investigation and prosecution is necessary.

Sadly some anonymous Obama team members and Democrats in congress are reluctant to take this step. Some claim it is looking backwards. It is not. Investigations and prosecutions are our insurance that limits on government will be adhered to in the future.

Investigation and prosecution send the warning to the future: Don't commit those acts again. You will be prosecuted.

As Jane Mayer said in her book The Dark Side:

This was the first time in history the United States sanctioned government officials to physically and psychologically torment US captives—making torture the official law of the land.

Let's make sure it's the last time in history by bringing the torture conspirators to justice.

A Preventive Detention Law: Throwing Gasoline on an Almost Extinguished Fire

Monday, November 17th, 2008

When I awoke this morning I saw the New York Times headline: "Post-Guantanamo: A New Detention Law?" (Nov. 15, 2008) I was afraid to read the article for I knew what was coming: some on the Obama team supported by a few liberals were considering a preventive detention law. I had feared this moment for a long time and now here it was.  If you don't know what preventive detention is just think about Guantanamo: its prisoners are held without charges and without trials.  They are jailed because of their alleged associations or alleged dangerousness.  We have spent long enough, almost seven years, trying to close down Guantanamo, end its unauthorized preventive detention scheme and repatriate its detainees.  Making permanent the disastrous preventive scheme that is Guantanamo, is akin to throwing gasoline on a fire that I hoped was almost extinguished. We must not let it happen.

A preventive detention scheme  would be a disaster for our country. It would send a message to the world that although Guantanamo will be closed, the practices that underlay it will continue.  Elisa Massimino, the executive director of Human Rights First got it right in the NYT:

"Not only do you not need a system of preventive detention, but it would perpetuate the problem of Guantánamo and put us right back in the same dead end we are in now."

Benjamin Wittes at the Brookings Institution got it dead wrong with his fear of “people being released in the name of human rights and doing terrible things.”   People would not be released in the name of human rights; they would be released because a trial process that has stood us well for over 200 years, found them not guilty. That process is not just about protecting the rights of the accused which is crucial, but is about insuring that we convict the right people not the wrong people, while those who may have committed crimes go free.

Wittes goes on in the NYT article to argue that Americans had to cross a “psychological Rubicon” and accept preventive detention.  That statement, without his realizing it, tells it all. Recall that the Rubicon was the river over which Roman legions were not to cross; they were forbidden in the Republic.  Caesar crossed the Rubicon with his legions and the Roman Republic quickly came to its end.  What Wittes and others fail to recognize is that a preventive detention law is a debasement of fundamental democratic principles and puts us on the path to a police state.

We are seeing preventive detention surface in part because of Obama’s promise to close Guantanamo.  While almost all of the 255 remaining there can be repatriatedor otherwise released to a safe country, the Bush administration claims that a few of them need to be brought to trial.  Obama has promised that these trials will not be the kangaroo military commissions set up and employed by Bush.

Alongside the claims that Guantanamo will be closed in a new administration, and that the sham military commissions will cease, have come proposals that Guantanamo’s closure will require a radical reworking of our justice system in order to ensure that those who the government asserts need to be imprisoned will continue to be held.  Frankly, this is the same assertion that in 2002 created Guantanamo for the alleged “worst of the worst,” without charge or process.

In 2008, with Guantanamo still evident as one of the most egregious symbols of the excesses of the Bush administration, the new claim is that preventive detention is necessary because in federal trials, prosecutors may not be able to get convictions because their evidence is classified or gained through torture.  There is no reason to believe what the government says on this question.  After seven years of government exaggerations about the men imprisoned at Guantanamo – only 25 [check number] of 775 are facing any charges, and over 500 have already been released without charge, trial or any process at all –it is safer to assume the government is again exaggerating the problems of federal trials to get what they want: a preventive detention law. Indeed, classified information is dealt with in federal terrorism trials all the time. There is a federal statute, the Classified Information Procedures Act, setting up a process for doing so and it has been used in scores, of terrorism trials. That issue is a red herring, and far too much is at stake to fall for it.

As to evidence from torture or coercion, it should not and cannot be used in any fair trial. This means that a prosecutor will need to present independent evidence. Considering that some people have made statements prior to capture and the government’ resources, this should not present insurmountable problems. If there is no such independent evidence, then there is no justification for the indefinite imprisonment in a preventive detention regime based solely on statements made from torture. This is not a reliable basis for imprisonment, and our society is above that.

Preventive detention cuts the heart out of any concept of human liberty; it permits the state to imprison people who have not committed any crime and to do so outside of the rules of a criminal law system that has been with us for more than 200 years.  The decision must be to close Guantánamo and other preventive detention centers: detainees need to be either charged and tried or released.  There is no middle ground.