(New Update – 10/28) (Part 2) Waterboarding the Fish: Stall Ball and Interagency Jedi Mind Tricks

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

John  Bellinger (Lawfareblog.com -http://www.lawfareblog.com/2014/10/the-convention-against-torture-extraterritorial-application-and-application-to-military-operations/), Beth van Schaak (Just Security.org http://justsecurity.org/16560/convention-torture/), and Jack Goldsmith (again at Lawfareblog.com – http://www.lawfareblog.com/2014/10/a-bit-more-on-the-debate-about-the-extraterritorial-scope-of-the-torture-conventions-provisions-on-cruelty/ ) have weighed in on the CAT and extraterritoriality. Charlie Savage has also been cranking out the articles (10/19, http://www.nytimes.com/2014/10/19/us/politics/obama-could-reaffirm-a-bush-era-reading-of-a-treaty-on-torture.html?_r=0, 10/26 – http://www.nytimes.com/2014/10/27/us/politics/peace-prize-laureates-urge-disclosure-on-us-torture.html) along with the New York Times Editorial of 10/20 – http://www.nytimes.com/2014/10/21/opinion/president-obama-and-the-convention-against-torture.html).

You would think there was a USGovernment interagency meeting this morning that the folks on the outside were trying to influence.

From these reports about the interagency process and the positions of State, Military and Intelligence, the consensus line of attack of the military and intelligence to CAT is the “effect on other treaties” of a US interpretation of jurisdiction that did not exclude what is called de facto jurisdiction.  The second line of attack more recently was a worry about unintended consequences on “military operations”.

Both of these efforts are trying to drown the fish in the sea (from noyer le poisson a French adage about efforts at misdirection, obfuscation, and side-tracking, or as I have come to call it waterboarding the fish) in an even bigger ocean.

(Second Update 10/28 In the spirit of Halloween in a Livestream presentation on October 28, 2014 (the link was at Just Security.org but the posting has disappeared – you can find a reference to it at https://its.law.nyu.edu/eventcalendar/index.cfm?fuseaction=main.detail&id=35395), Harold Hongju Koh referred to the three concepts at play in the flurry of exchange as the three bogeymen of  1) strict territorial application (jurisdiction, below), 2) complete displacement of human rights law by international humanitarian law in armed conflict (military operations, below), and 3) cascading (in Part 1 of these two posts).

On strict territorial application (jurisdiction) of the CAT,  he was of the view that the rest of the world simply does not accept that view.  On complete displacement (military operations) of the CAT, taking the example of religious belief, he said that human rights law remains present in armed conflict and is not completely displaced.  On cascading effects to other treaties by a position taken on the CAT, he said that each treaty has its own negotiating history and is taken on its own terms.  To think of some cascade of consequences from the USG decision on CAT to have extraterritorial application was absurd.)


A. Jurisdiction

This point may be too subtle for US foreign relations law types, but the CAT treaty language uses the word jurisdiction without a modifier of de facto or de jure in front of it.  That is the international obligation to which the United States has consented to be bound. As such, instead of being in international law, we are in the space of US foreign relations law interpretation in a manner inconsistent with the treaty language. The treaty text is the principal manner of interpreting a treaty as detailed in the Vienna Convention on Law of Treaties that – at least for a long time – was considered authoritative by the United States even if not signed on.  At the American Branch of the International Law Association this weekend, I understood that the approaches to treaties and the Vienna Convention on Law of Treaties have become degraded in the United States internal processes as the forces of massive resistance to international law attempt to push a reactionary line that is at least as old as the Bricker Amendment to human rights treaties.  So one can never be sure what U.S. foreign relations law gambit will be tried to push forward some notion of “flexibility.”  That is why it is important to remember the actual treaty language and the international law vision of that language when assessing the internal U.S. dynamics as we come toward a day of reckoning on what we have and have not done since the 2006 periodic review of the U.S. compliance with its obligations under the Convention Against Torture.

Now some would say that the U.S. foreign relations law gambits are appropriate – a sort of margin of appreciation line of attack – but if we left interpretation of the Torture Convention to those who have or want to torture we would end up with no peremptory norm. We should refrain from doing that from the point of view of international law but also from the point of view of the public trust of we Americans that we confide in our servitors of the State when they act on our behalf.

These points are not bureaucratic interagency Jedi CYA mind tricks. All in such meetings are servitors of the public and are to act to preserve that public trust in the institutions of government.

The de facto/de jure jurisdiction distinction is not about other treaties. It is about breaching the CAT through incorporating a very flawed DC Circuit distinction between de jure and defacto jurisdiction that tries to preserve areas of non-law for GITMO, Diego Garcia, rooms in facilities in servant states like Poland (Update 10-28 – Poland is appealing the Black Site rendition decision of the European Court of Human Rights – http://justsecurity.org/16755/poland-appeals-rendition-ruling/) as places of torture. It is about past manipulation of law to commit crimes and maintaining future space to manipulate law to commit crimes of torture.

Coupled with the stall ball on the release of the SSCI torture report, it is all about an effort by retrograde forces to keep themselves from accountability. Nothing more or less.

It demeans America and their offices that our public servants engage in this kind of small ball about a peremptory norm.

It also places our military soldiers in the unenviable position again of being asked to do bad things by suits (i.e. civilian leadership) and then – when the bad things come out as they inevitably do like Abu Ghraib – subjecting the soldiers to court-martial as they are at the bottom – not in the interagency Jedi mind trick gamespace. Sickening. Refluat Stercus

B. Military Operations

As the Article 16 gambit on extraterritoriality loses steam we can see the alternative gambit of unintended consequences on military operations being raised as a problem with the acceptance of the plenitude of CAT jurisdictional applicability.  There are at least three things that the uninitiated should understand about this.

First, the military operations meme is one that is used by the intelligence services as a way to seek to get their way by drawing on the popularity of the military in our system.  The “if you are against us, you are not supporting the troops” meme is one we have seen played over and over in these bureaucratic and political games.  It is aimed at freezing opposition and at garnering political support.  Particularly before an election, no elected official would want to be seen as “tying the military’s hands” or  “not supporting the troops.”  So those brave young men and women who bring tears of pride to your eyes when you see them are instrumentalized by the intelligence services for their nefarious ends.  We saw it in Abu Ghraib and Gitmo and we’ll see it again in the future.  So we should first understand that the full jurisdictional applicability of the CAT is about operations of the intelligence services notwithstanding the military operations language posited.

Now, the intelligence services have shown themselves over the past years as perfectly willing to torture people at the request of the President and – if caught – to let the military low level people take the heat and be court-martialed.  Our shadow report shows that.

So, we need to make sure that the full CAT jurisdiction is recognized for the intelligence overseas operations of torture to force them to confront that illegality when their leadership or the President attempts to task them with torture.  Maybe that is not wanted by the derring-do cowboys and cowgirls in that space, but so what?  They are given the chance to serve this country and that chance does not include torturing people in our name.  Even if the President wants them to do it.  For in such a setting, the President by definition is acting ultra vires.

Second, the military operations meme is also about a couple of complications that people have to understand.  Schematically the rendition, detention, and interrogation space can be viewed as the follows:

Rendition Detention Interrogation
Intelligence  XXXX XXXX  XXXX

To understand the concerns about the impact of the CAT on military operations one has to see those six boxes of operations in which a particular detainee might find themselves.

The first part of the argument being made is that international humanitarian law is the lex specialis and the CAT applies only in certain circumstances.  The displacing of the CAT in this line of argument is about – again – creating a space of lawlessness.

For example, during the War in Iraq in which the Geneva Conventions were said to apply, Jack Goldsmith wrote a memo when he was at OLC about the permissibility of transferring people out of Iraq (Rendition) for detention and interrogation.  Through some legal sophistry he was able to make a claim that such a transfer was not incompatible with the Geneva Conventions.  This memo was severely criticized in Jose E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT’L L. 175, 213 (2006) and other places for its severe misconstruing of the limitations of the Geneva Conventions.

If the Geneva Conventions and other international humanitarian law displace as the lex specialis the CAT as John Bellinger posits in his presentation above, then the effect is to leave in place the military operation of rendition to another country of someone in the theater of war.  Once in the foreign country, the effort at limiting CAT jurisdiction to only de jure jurisdiction kicks in to permit the local country to torture the person or, Americans in that local country in a hotel room or a remote barn, to torture the person as (so the argument would be run) they would not be in a de jure jurisdiction to which the US obligations under the CAT would be said to apply.  Some would say the Detainee Treatment Act of 2005 would  limit this, but of course that is only domestic law and maybe currently in some secret memo but certainly in a future time – with a scared Congress and a panicked Executive – artful language in a secret memo or law would be put in place to modify or reinterpret the Detainee Treatment Act of 2005 in a way that would seem obscure to the uninitiated but would reopen that loophole.  Can this happen?  Sure, we just saw it with the USA Patriot Act and its progeny.

(Update 10/28 – In preparing for the UN Committee Against Torture meeting next month, I was reading what the United States said back in 2006.  John Bellinger then is quoted as having said the following in the official minutes (the available version in French) :

5.     En ce qui concerne l’application du
droit des conflits armés aux opérations des États‑Unis en Afghanistan et en Iraq, M. Bellinger explique que les opérations de détention des États‑Unis en Afghanistan et en Iraq, ainsi qu’à Guantánamo, s’inscrivent dans le cadre d’un conflit armé, notamment contre Al-Qaida, ses groupes affiliés et ses partisans, et qu’à ce titre, elles sont régies par le droit des conflits armés, qui constitue la lex specialis applicable à ce type de situation. La Convention continue quant à elle de s’appliquer au traitement des détenus des prisons nationales américaines qui ne relèvent pas du droit des conflits armés. Quoiqu’il en soit, dans la mesure où la torture est interdite aussi bien par le droit des conflits armés que par les instruments relatifs aux
droits de l’homme tels que la Convention contre la torture, l’application du droit des conflits armés n’autorise en aucun cas les États‑Unis à commettre des actes de torture.”

In English, the detention operations in the armed conflicts are governed by international humanitarian law as the lex specialis  and the CAT applies to persons in US prisons.  Under either, the US cannot torture.  What this does not say is that the CAT applies in the armed conflict and extraterritorially (something John Bellinger is appearing to be saying at least in some circumstances now).  It makes a view of jurisdiction that is only to the territory of the United States for the CAT.  Also, what it does not address is the rendition or interrogation aspects of the three part rendition, detention, and interrogation apparatus.)

Maintaining the CAT jurisdictional applicability assures that the change of law domestically would be of no moment as an international law obligation on the United States as it would be internal law.  While we do have the last in time rule domestically , we also have the rule of international law noted in our Third Restatement of Foreign Relations Law (and hopefully not eliminated in the drafting of the Fourth Restatement), the Vienna Convention on the Law of Treaties and the draft Rules on State Responsibility that no state can extract itself from its international obligations through its domestic law.  This is bedrock international law that everyone in the field knows.

So the first part of the military operations canard is to allow military renditions to places where because of so called de jure jurisdiction only, detainees could be tortured or subject to cruel inhuman or degrading treatment.  This is not what the CAT permits, but the lex specialis argument allows that transfer to be done though the misinterpreted Geneva Conventions that is said to replace the prohibitions of the CAT.  Pretty artful, no?  Pretty sick.

A second aspect of this military operations canard is the idea of detention.  One of the key efforts done in the 2005 Stephen Bradbury memos and most likely in all the Yoo memos earlier and advice given was to examine when techniques were proper AS A MATTER OF DETENTION TECHNIQUES and when techniques were proper AS A MATTER OF INTERROGATION TECHNIQUES.  One of the favorite methods of getting away with torture and cruel inhuman and degrading treatment was to have it countenanced as an interrogation technique.  Then, when the Torture memos were revealed or Common Article 3 was said to apply in Gitmo, then the US Government could stop that technique AS AN INTERROGATION TECHNIQUE.  However, that same technique might be used on the same detainee in any event.  This time, however, it would not be pursuant to an interrogation chain of command, but pursuant to a detention chain of command.  If one is high enough up, then one can switch or mix techniques in between the two categories to one’s complete pleasure in  order to cause the detainee to suffer the treatment.  By classifying the detention as a military operation and having international humanitarian law displace as lex specialis the CAT, then one can have one’s cake (using the technique on the detainee) and eat it too (not be liable for a CAT or international humanitarian law obligation as one is not interrogating but one is merely “detaining”) violation. And there are able lawyers perfectly willing to write bastardized analyses to get you there.  Again, having the CAT apply in all circumstances and in all places of US jurisdiction obviates such kinds of games.

This and nine other false claims from the Bush era are unpacked and dismantled in more detail in Jordan Paust’s Barry Law Review article at http://ssrn.com/abstract=1989099.

C. On lawyering in the government

In 2006 when I led the effort in the American Society of International Law to pass the Centennial Resolution on the Laws of War and Detainee Treatment (http://www.asil.org/insights/volume/10/issue/12/asil-centennial-annual-meeting-adopts-resolution-use-armed-force-and) – only the 8th Resolution in its history, I met many headwinds.  At the Executive Council meeting one of the lines of attack against a resolution being done was that it would weaken the hand of people within the government who were countering the persons who were torturing.  John Bellinger was mentioned to me as one of those persons with his work by then as Legal Advisor at State.

Thus, as I have worked on the 2014 UN Committee Against Torture review, I have come to learn more about John’s role at the 2006 review of the United States by the UN Committee Against Torture.  John even comes back to it in his posting cited above. In my work with Civil Society people on the current 2014 review, the comments of those who were there from Civil Society then have been one’s of dismay with how the 2006 “put the best face on” US delegation presentation was done.

Now, with John Rizzo’s Company Man out (2014), John Rizzo describes the early parts of the interrogation techniques legal memo process as a meeting John Rizzo had at the White House with John Bellinger and others when he was on the legal staff of the National Security Advisor Condoleezza Rice.

“I wanted John in the loop from the beginning on the EITs for several reasons.  First, since George Tenet had indicated he was going to let his boss, Condi Rice, know about the issue, I thought that as a professional courtesy John should know as well.  Second, I knew that he was hurt and frustrated that the White House had cut him out of internal legal deliberations in the early days after 9/11, possibly because of tensions between him and Vice President Cheney’s chief legal advisor, David Addington (another guy I had met when he was a young lawyer at the CIA in the 1980s, and for whom I had great respect and affection).  Finally, and most important, I wanted as many lawyers as possible in the government’s national security establishment to be aware of the EITs from the get-go, to the extent the extreme sensitivity of the matter would allow.  DOJ involvement was essential to protect the Agency, but I wanted White House lawyers in the boat, too.  And I knew that John Bellinger, both for his own protection and because he was a good soldier, would  be sure to bring Addington and the White House counsel, Al Gonzales, along as well.  We would all be in this together, for better or worse.

After I gave him a brief overview of the impasse with Zubaydah and the proposed interrogation techniques the CIA was considering, John quickly set up a meeting in his office on April 16 (2002) with John Yoo, the number two guy in the OLC (Office of Legal Counsel), and Mike Chertoff, head of the Justice Department’s Criminal Division.” Pages 189-190

The rest of the chapter is well worth a read in naming many of the names from the inception of the torture program.

It is well worth a read to understand that the analyses we are being asked to follow by John Bellinger and  Jack Goldsmith cannot be seen in any sense as disinterested in these matters.  Nor can the whisperings one suspects of John Brennan around the White House as part of the game of stall ball and as part of the White House weighing in on the CAT review through the USG Interagency Process.

From what I read in the books and articles and documents, they are certainly witnesses to the crime of torture in the Bush regime with whom any prosecutor worth his or her salt would want to talk.

Thus, a grain of salt should be part of one’s appreciation of these efforts to waterboard the fish by reinterpreting CAT jurisdiction on the de facto/de jure distinction, on the military operations meme, or on any other new idea that very bright but wrong persons may present to the reader.






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I Went to Ferguson to Protect the Protesters. I Got Arrested Instead.

Justin_Arrest__1_.0 By Justin Hansford

The thing about jail is there is nothing to do. The novelty wears off after about five minutes. My cell was maybe 10-feet long and 8-feet wide, with a toilet, a faucet, and a sink. On the right was a metal bunk bed, and on the left was a third bed. Everything was made of cold metal. The mattress was thin and hard and worn and musky.

I’d been arrested earlier that day at a Walmart in Maplewood, Missouri, about 10 miles outside of Ferguson. I was there as part of Ferguson October, a historic, inspiring, and exhausting weekend of protests against the killing of Mike Brown and the pattern of racialized police violence that spawned it. I had been engaged in this struggle for months. At this particular moment, though, I wasn’t a protester or participant — I was a legal observer. But just like the nationally recognized journalists who have been arrested in Ferguson while fulfilling their professional duties, I found that no tradition of professional courtesy could save me from the urge to squelch political dissent.

I had until then never even seen the inside of a jail cell, not even for a field trip.

I am a law professor who teaches human rights law and race and the law, and I participated in Ferguson October because I couldn’t look at myself in the mirror if I didn’t contribute what I could to this movement taking place 10 minutes from my home. As a legal observer, I was hoping to document (and maybe, by my presence, prevent) police brutality against protesters. Local Walmarts were selected as protest sites to amplify the connection between the killing of John Crawford, which took place at a Walmart in Ohio, and the killing of Mike Brown. Both are case studies in police impunity, the criminalization of black youth, and the logical consequence of the two: police too often feel that instead of simply patrolling black and brown communities, they can go hunting in them, without punishment.

Without warning and before I could think, I was being led away with both hands behind my back.

I arrived at the Maplewood Walmart with my fellow activist and good friend Autumn Marie. She instructed me: “Go to the orange juice section. I’ll meet you there.” I did as told. I spent almost 10 minutes mulling over different types of orange juice while I was waiting for Autumn; the other customers must have thought that I was the most anal beverage shopper they’d ever seen. She finally arrived and gave me her phone and keys — as the legal observer, I would be able to safekeep them for her in the event that she was wrongly arrested for exercising her First Amendment rights. I took my shopping cart over to the pet food section, where the protesters had arranged to meet.

As we converged, the ten or so protesters began clapping and chanting, “Tell me what democracy looks like! This is what democracy looks like!” I stood to the side of the protesters and put on my neon green hat, which read “National Lawyers Guild Legal Observer.” About four other people emerged with neon green caps, and the sudden burst of neon comforted me — at least I was not alone as an observer. I tried to keep a safe distance from the protest, as instructed, close enough so that I could see but not in a way that obstructed the demonstration. This was not as easy as it seemed. Because of the way the aisles were designed, it became difficult to see what was happening, especially as protesters marched back and forth.

Customers began gathering and taking pictures with their cell phones. The clapping and chanting continued: “Hands up! Don’t shoot!” Meanwhile, the police wanted the protesters to leave. They waved their arms toward the door, and the protesters complied, making their way to the front of the store. I followed close behind. The protesters then locked arms and continued to chant. As I stood about 5 or 10 feet away, trying to not get in the way, my arm was suddenly twisted. I was being handcuffed.

Without warning and before I could think, I was led away with both hands behind my back. It was surreal. I was the first person arrested. The protesters were chanting and singing and making noise, and the police walked right past them to arrest me first. The only thing that differentiated me from a random customer standing and watching and taking pictures was my green legal observer hat. And there were four other legal observers there. The police walked right past them and arrested me. The only thing that differentiated me from the other observers was the fact that I was black.

As I was being shoved out of the Walmart, already in shock, I was met with another jolt: what seemed like a sea of maybe a hundred protesters, chanting, playing drums, and yelling “Hands up! Don’t shoot!” As police shoved me into the car, they chanted louder to show support. All I could do was look up in disbelief.  I had no idea that all of these people were outside.

An internet video live-streamer and fellow activist, Bassem, was shoved into the car right after me. He kept chanting along with the crowd, “Hands up! Don’t shoot!,” even in the car. Meanwhile my attention was focused on the handcuffs — instead of the plastic ties the police seemed to use most often, on me they had used actual metal cuffs. Each time I shifted, the cuffs seemed to get locked into an even tighter position.

We asked why we were arrested, and they said that it was for trespassing. Apparently, in some type of Kafkaesque legal mind-bender, the police had persuaded the manager to close the 24-hour Walmart. We were standing there while it was closed, so we immediately became trespassers, without having moved an inch or having entered the building with the knowledge it was closed. It actually would be a great law school exam question for my torts students this semester. (I’m hoping that they don’t read this.)

When we got to the station, we were searched. I was greeted then by yet another shock: a huge cheer and people calling out “Justin!” It turns out that the holding cells were full of activists who had participated in earlier protests, and once they saw me they exploded in excitement. “You’re a lawyer, how did they arrest you!?” “You’ve still got your green legal observer hat on, ha. That hat didn’t save you did it?” “Were they any other legal observers who were arrested? I guess not, all of the others weren’t black!”

The police made me take off my belt and the strings out of my shoelaces and rushed Bassem and me into a cell in the back of the jail. I was not allowed to join the holding pen where the other activists were. After a few minutes, Bassem and I were joined by local rapper Tef Poe and two other activists: the hip hop producer loose screwz and a college student from Detroit. I was really happy to see these familiar faces. All five of us were sitting in the cell, wondering what was going to happen to us. Bassem, who had been jailed before for everything from protests to traffic tickets, immediately lay down on the single bed on the opposite side of the cell from me, leaving me to sit cross-legged on a bunk. It didn’t occur to me until later that he probably knew from experience that this was the best location to get.

The police persuaded the manager to close the 24- hour Walmart. We immediately became trespassers without having moved an inch.

After our release, Tef Poe sent out a tweet that has resonated with me ever since: “I can’t stress enough that the most important part about jail is having good cell mates.” We talked through the night with each other, spending a good amount of time laughing — to keep from crying, I suppose. There was so much brotherhood that at times it felt like I was sitting in a small, cold, barbershop with bars. The first thing we did was make fun of the cops for forgetting to take my glasses and forgetting to take Bassem’s belt. Then we laughed about the fact that here I was in jail, not only as a lawyer but as a law professor! Then we talked about protest strategies: where we would protest next, what we could do better next time.

The men in the other cells had longer jail terms in store.  They were the life of the party, regaling us with prison stories and other tales of their exploits. One career prisoner claimed that he had been arrested more than 100 times, for everything from armed robbery to traffic tickets. Once word got out that I was a lawyer, I became the most popular prisoner in there. There were all sorts of supposedly hypothetical legal questions, with people asking about situations that a “friend” had gotten himself into and what he should do next.

Beyond their own cases, the other prisoners had a lot to say about race and the legal system. I write scholarship in this area and write about it often, but just like any other time when a theorist comes into contact with someone who is on the ground, I had to concede that my knowledge of the situation was more cerebral, lacking the emotions that they brought. However many books and law review articles I may read, I can never instinctively know as much about the law and what it is really about as someone who has spent years of his life in prison. What he knows that I can’t know is difficult to express in words. But I felt that, at certain moments on this night, the other prisoners appealed to me from a place of brotherhood and sought to communicate that knowledge to me.

Of the many things that struck me, I remember one prisoner saying, “Not all police officers are bad. Just like any other job, there are good apples and bad apples.” He had good reason to paint police with a broad brush, but instead he embraced a more empathetic, nuanced approach.

After we were taken out to the holding cells to get booked, the situation brightened. The women were in the adjoining holding cell, and we were energized by being able to talk to them.  Again, the number one question was, “Justin, how did they lock you up?  Weren’t you a legal observer?  Didn’t you have your green hat on?” I didn’t have a good answer for them. When my turn came, I took a mugshot and got fingerprinted.

It was at that point that the police tried to intimidate me.  One of the officers told me that we were going to be headed to the county jail, and that we were not going to be released for a long time. They gave me a blanket that was so filthy that it was surely a biohazard, and told me that I should get comfortable with it because I would be spending at least one night in jail, probably more. Although I saw their intimidation tactic for what it was, I didn’t make too much noise about it. I figured it would be pointless to argue with them. Instead I decided to relax and try to get some sleep. This never actually happened, thanks to the continuing questions and chatter from the prisoner in the jail cell across from me.

Justin, how did they lock you up? Weren’t you a legal observer? Didn’t you have your green hat on?”

In the early hours of the morning, the police began to free the activist prisoners one by one. Each time they took another one of us away, the jail became quieter and more oppressive. Although it was only for a brief time, more and more I experienced the violent nature of being caged.

I wasn’t surprised that Tef was first to get bailed out. He had a bevy of fans and supporters agitating for his release. I was surprised, though, at how desperately I wanted to be second, then third, then fourth. Every time the police walked by, all I could think about was whether I would be the next person released. I couldn’t get that anticipation out of my mind. On some deep-down level, even with my knowledge to the contrary, the officer who told me to expect a long jailing and a trip to county had an effect on my psyche. In the moment, I hated myself for wanting to be next. I should have been happy for my brothers and cell mates to get free. But even now, days later, I remember more than anything that anxiety and anticipation, almost as if it were a thick, burning knot in my stomach.

Protesting is an act of hope. It’s not altogether reasonable to believe that standing in a certain place, walking around in circles, chanting and clapping, can in some way create a better world. But it calls for a measure of determination to offset the inevitable fear of backlash, repression, arrest, and violence that accompanies any endeavor of speaking truth to power. I am proud of my efforts to protect the First Amendment rights of these protesters, and no attempt to criminalize this legal work will change that. Dissent makes our democracy dynamic, and in this case in particular, I share the dreams of those who protested that day and wish avidly that their hope is fulfilled.

The hope that animates this movement in Ferguson is the dream of new relationship with the police that is defined by mutual respect. The good news is that there are many ways to do that. The bad news is that any meaningful solution is going to require both the community and police to give up something they value.

For the community, it will entail giving up time and energy as a new culture of more vigorous citizen oversight of policing emerges. For the police, it will entail giving up a general culture of impunity, and being held accountable financially and professionally for excessive use of force and racial profiling in black and brown communities, perhaps for the first time in our nation’s history. As much pain as these changes might bring, and as difficult as it may be to get us there, making this transition is the only viable pathway to a future of racial harmony, peace, justice, and human rights.

As I walked out of the jail early the next morning, and I was met with cheers and embraces from my friends and fellow activists, I felt changed. Even now, I have difficulty in putting this into words. But in some way I think that night in jail removed from my mind the last vestige of any thought that I would be treated differently by the police because of the content of my character. I am a lawyer and law professor. I had a neon green hat on, and I stood to the side in silence, taking pictures. But watching and pretending to be neutral did not protect me. Having my dress slacks on pulled up around my waist did not protect me. In the eyes of the police, I was one thing: a young black male.

Standing to the side in silence is not an option for me.

This article was originally published on VOX on 10/24/14.  Read it here.

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Waterboarding the Fish: CAT Reservation USG Deliberation: It’s About the Torture

By Benjamin G Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

Charlie Savage recently reported on two points in the interagency on cruel inhuman and degrading treatment (CID).  The first is on the extent the provisions of the Convention Against Torture apply abroad and the second is the extent to which the Bush-Gonzales anomalous interpretation of the US reservation on CID as being both substantive AND territorial should be reaffirmed.

Contrary to Jack Goldsmith (http://www.lawfareblog.com/2014/10/the-debate-about-the-extraterritorial-scope-of-the-torture-conventions-provisions-on-cruelty-is-almost-certainly-not-about-usg-interrogation-policy/),  I believe it is about the torture.  The heart of the debate is NOT about Article 16 from the published reports but is about the US CID Constitutional standard reservation.  One might ask, why would the reservation be the focus?

The answer is straightforward. In the Reagan era, as described by then Legal Advisor Abraham Sofaer in his 2005 testimony, the view was that the Constitutional reservation was substantive and did not reflect a view that the CID prohibition did not apply abroad (unlike the torture prohibition).

Fast forward to Bush era legal sophistry and the reservation is reinterpreted in secret. When revealed at the Gonzales hearing in 2005, Congress moves the Detainee Treatment Act (with Bush signing statement) forward to return to the Reagan era view which the Obama Administration retains.

By trying to get a reaffirmation of the Bush-Gonzales anomalous view during this first CAT review of the U.S. since 2006, the effort is to try and recast the Bush anomaly in force between 2001 and 2005 as something other than what it was, a devious part of the effort to torture.  It is to try and normalize the abhorrent.

The Article 16 debate, now that Obama has conceded we tortured, is a further effort to then be able to retroactively say CAT did not apply at all to the folks in the CIA sites, Gitmo, and around the world in 54 countries in which we and our servant states tortured.

People of goodwill in the interagency should not let themselves be played by this thinly veiled CYA effort to do what the French call “noyer le poisson” or drown the fish in the sea. Or in this case, waterboard the fish and the law.

As the Who said, we won’t be fooled again.



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Religion and Revolution: The Promise of a Fresh Look

imgres.jpg by SpearIt

For students of religion and students of revolution, the upcoming dialogue between Cornel West and Bob Avakian should be a valuable lesson. Taking place at Riverside Church in New York City, this meeting of the minds has tremendous potential to advance understanding on the relationship between religion and revolution, which conventional wisdom tends to hold as mutually exclusive.

Cornel West is arguably the most important African-American intellectual alive today. His works are standard fare in African-American Studies, Religious Studies, and Theology programs, and he has been involved in movies, recording projects, and other activist work. His involvement includes projects like the Million Man March, Russell Simmons’ Hip Hop Summit, and working with religious leaders from different backgrounds, including Minister Louis Farrakhan, Al Sharpton, and Rabbi Michael Lerner.

Bob Avakian is the same age as West, but comes from a different era. Avakian has been the Revolutionary Communist Party’s national leader since 1979. Like West, Avakian has lived a controversial life and has spent decades organizing his political party in America. Prior to his leadership role in this organization, he was involved in the Free Speech Movement and the Black Panther Party.

Although this dialogue promises to tread new theoretical terrain, it will be successful only as much as it can keep its eye on the prize. That is, the talk must avoid getting bogged down in debates on the existence of God, theism v. atheism, or such other fruitless discussion. As these questions have been pondered by the best minds in world history since time immemorial, there is little likelihood that much more will be resolved in just a few hours.

Instead, the discussion should by-pass these tired theological quagmires, and focus on the ways religion and revolution are complementary, and specifically, how one can advance the other. This rare opportunity for genuine dialogue must not be consumed by retrenchment, neither by West’s will to preacher-man nor Avakian’s to toe the party line.

Finding common ground may seem impossible due to the gulf between Marxism and religion. After all it was Karl Marx who famously wrote: “Religion is the sigh of the oppressed creature…” This assertion, from history’s perspective, is unimpeachable since religion has always been manipulated as a means of social control. In the same breath, however, he claims religion is “the heart of a heartless world, and the soul of soulless conditions.” These conciliatory statements point to another undisputable truth: religion can be the heart and soul of revolutionary movement.

The takeaway from history is that theist and non-theist alike stand on common ground within a revolutionary framework. Hence, if the meeting begins on this premise, religion and Marxism may be presented more properly as different species within the broader genus of revolution.

To sight the most obvious example is the American Revolution. It is impossible to understand this era without a cursory understanding of religion’s role, which involved, according to the Library of Congress, “offering a moral sanction for opposition to the British.” Indeed for some, resistance to tyranny was a Christian duty, yet it is crucial to recognize that not everyone shared this religious fervor, and indeed some were religion-less. The point is that both contributed to the American Revolution’s success.

Beyond this revolution, it might be argued that every social revolution in the United States has a corresponding public theology. Whether considering the abolition of slavery, women’s rights, environmental justice, LGBT rights and more, it is clear that all have their genesis in the American church.

A dialogue between West and Avakian that is guided by a complementary ethos promises a better understanding of religion’s role in revolution. It has potential to build bridges where typically none exist, despite that revolution and religion at times are inseparable. Hence, this is an opportunity to expose why creating false binaries is flawed. The history of revolution belongs to both religious and secular thinkers alike, and building on this fact will itself advance the revolution.

This article was originally published by Huffington Post on 11/20/14.  Read it here.

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US Government Sanitizes Vietnam War History

by Marjorie Cohn

For many years after the Vietnam War, we enjoyed the “Vietnam syndrome,” in which US presidents hesitated to launch substantial military attacks on other countries. They feared intense opposition akin to the powerful movement that helped bring an end to the war in Vietnam. But in 1991, at the end of the Gulf War, George H.W. Bush declared, “By God, we’ve kicked the Vietnam syndrome once and for all!”

With George W. Bush’s wars on Iraq and Afghanistan, and Barack Obama’s drone wars in seven Muslim-majority countries and his escalating wars in Iraq and Syria, we have apparently moved beyond the Vietnam syndrome. By planting disinformation in the public realm, the government has built support for its recent wars, as it did with Vietnam.

Now the Pentagon is planning to commemorate the 50th anniversary of the Vietnam War by launching a $30 million program to rewrite and sanitize its history. Replete with a fancy interactive website, the effort is aimed at teaching schoolchildren a revisionist history of the war. The program is focused on honoring our service members who fought in Vietnam. But conspicuously absent from the website is a description of the antiwar movement, at the heart of which was the GI movement.

Thousands of GIs participated in the antiwar movement. Many felt betrayed by their government. They established coffee houses and underground newspapers where they shared information about resistance. During the course of the war, more than 500,000 soldiers deserted. The strength of the rebellion of ground troops caused the military to shift to an air war. Ultimately, the war claimed the lives of 58,000 Americans. Untold numbers were wounded and returned with post-traumatic stress disorder. In an astounding statistic, more Vietnam veterans have committed suicide than were killed in the war.

Millions of Americans, many of us students on college campuses, marched, demonstrated, spoke out, sang and protested against the war. Thousands were arrested and some, at Kent State and Jackson State, were killed. The military draft and images of dead Vietnamese galvanized the movement. On November 15, 1969, in what was the largest protest demonstration in Washington, DC, at that time, 250,000 people marched on the nation’s capital, demanding an end to the war. Yet the Pentagon’s website merely refers to it as a “massive protest.”

But Americans weren’t the only ones dying. Between 2 and 3 million Indochinese – in Vietnam, Laos and Cambodia – were killed. War crimes – such as the My Lai massacre – were common. In 1968, US soldiers slaughtered 500 unarmed old men, women and children in the Vietnamese village of My Lai. Yet the Pentagon website refers only to the “My Lai Incident,” despite the fact that it is customarily referred to as a massacre.

One of the most shameful legacies of the Vietnam War is the US military’s use of the deadly defoliant Agent Orange, dioxin. The military sprayed it unsparingly over much of Vietnam’s land. An estimated 3 million Vietnamese still suffer the effects of those deadly chemical defoliants. Tens of thousands of US soldiers were also affected. It has caused birth defects in hundreds of thousands of children, both in Vietnam and the United States. It is currently affecting the second and third generations of people directly exposed to Agent Orange decades ago. Certain cancers, diabetes, and spina bifida and other serious birth defects can be traced to Agent Orange exposure. In addition, the chemicals destroyed much of the natural environment of Vietnam; the soil in many “hot spots” near former US army bases remains contaminated.

In the Paris Peace Accords signed in 1973, the Nixon administration pledged to contribute $3 billion toward healing the wounds of war and the post-war reconstruction of Vietnam. That promise remains unfulfilled.

Despite the continuing damage and injury wrought by Agent Orange, the Pentagon website makes scant mention of “Operation Ranch Hand.” It says that from 1961 to 1971, the US sprayed 18 million gallons of chemicals over 20 percent of South Vietnam’s jungles and 36 percent of its mangrove forests. But the website does not cite the devastating effects of that spraying.

The incomplete history contained on the Pentagon website stirred more than 500 veterans of the US peace movement during the Vietnam era to sign a petition to Lt. Gen. Claude M. “Mick” Kicklighter. It asks that the official program “include viewpoints, speakers and educational materials that represent a full and fair reflection of the issues which divided our country during the war in Vietnam, Laos and Cambodia.” The petition cites the “many thousands of veterans” who opposed the war, the “draft refusals of many thousands of young Americans,” the “millions who exercised their rights as American citizens by marching, praying, organizing moratoriums, writing letters to Congress,” and “those who were tried by our government for civil disobedience or who died in protests.” And, the petition says, “very importantly, we cannot forget the millions of victims of the war, both military and civilian, who died in Vietnam, Laos and Cambodia, nor those who perished or were hurt in its aftermath by land mines, unexploded ordnance, Agent Orange and refugee flight.”

Antiwar activists who signed the petition include Tom Hayden and Pentagon Papers whistleblower Daniel Ellsberg. “All of us remember that the Pentagon got us into this war in Vietnam with its version of the truth,” Hayden said in an interview with The New York Times. “If you conduct a war, you shouldn’t be in charge of narrating it,” he added.

Veterans for Peace (VFP) is organizing an alternative commemoration of the Vietnam War. “One of the biggest concerns for us,” VFP executive director Michael McPhearson told the Times, “is that if a full narrative is not remembered, the government will use the narrative it creates to continue to conduct wars around the world – as a propaganda tool.”

Indeed, just as Lyndon B. Johnson used the manufactured Tonkin Gulf incident as a pretext to escalate the Vietnam War, George W. Bush relied on mythical weapons of mass destruction to justify his war on Iraq, and the “war on terror” to justify his invasion of Afghanistan. And Obama justifies his drone wars by citing national security considerations, even though he creates more enemies of the United States as he kills thousands of civilians. ISIS and Khorasan (which no one in Syria heard of until about three weeks ago) are the new enemies Obama is using to justify his wars in Iraq and Syria, although he admits they pose no imminent threat to the United States. The Vietnam syndrome has been replaced by the “Permanent War.”

It is no cliché that those who ignore history are bound to repeat it. Unless we are provided an honest accounting of the disgraceful history of the US war on Vietnam, we will be ill equipped to protest the current and future wars conducted in our name.

The article was first published at Truthout on 10/16/14.  Read it here.

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Guide my feet Lord on Torture

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Dear Colleagues,

Guide my feet Lord, while I run this race.

Guide my feet Lord, while I run this race.

Guide my feet Lord, while I run this race.

’cause I don’t want to run this race in vain. 

- Guide my feet Lord  (sung at Trinity Episcopal Church, Toledo, this morning) on youtube at http://youtu.be/erTa9FeJWKw

Please note the article below which describes the continuing mendacity in the military, intelligence, and White House with respect to compliance with US obligations under the UN Convention Against Torture about which Advocates for US Torture Prosecutions have made a shadow report to the UN Committee Against Torture, have spoken in the Civil Society delegation to the US Government on October 14, 2014, and will  speak on in several events during the UN Committee Against Torture review of the US periodic report about its compliance with these obligations during the week of November 11 in Geneva at the United Nations Palais des Nations and Palais Wilson.

I have no doubt that current and former military and intelligence senior officials who played key roles in enabling the torture are at the heart of this effort to backslide the United States.  They may think they are doing this in the best interest of the United States and in good faith, but let us not let even good intentions deter us.  I personally think it is nothing more than craven personal self-interest at work to try again – as they have done at every step of the process of getting accountability including in the still unreleased Senate Select Committee on Intelligence torture report – to deflect criticism from former President Bush and the senior leaders who authorized, aided and abetted, acquiesced in and facilitated torture in a program that spanned 54 countries.


I have sent before the Advocates for US Torture Prosecutions shadow report (http://www.blog.saltlaw.org/reminder-sign-on-possibility-for-the-un-committee-against-torture-shadow-report-of-advocates-for-us-torture-prosecutions/ and  http://warisacrime.org/content/shadow-report-torture) and I send it again as we are gearing up our final effort to solicit signatures from people of goodwill to reinforce our efforts to make the absolute prohibition on torture absolute in words and deeds for the US Government no matter how high one is in the separation of powers or in our federalism.  It is time for the mighty to be laid low, for the sin of the emperor to be recognized not as a mistake but as the crime it is, and for the public trust the people place in those leaders to be respected.

If you would like to join the shadow report, I would be grateful if you would send a message to Deborah Popowski of the Harvard International Human Rights Clinic at dpopowski@law.harvard.edu.

Thank you for your consideration of this message.



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ISIS, Latinos & the Brunt of Border Politics

isis-border3 by SpearIt

9/11 is the critical date in American Muslim history, and it may become increasingly important for Latinos as well. The word “critical” as used here aims to convey a sense of “crisis.” Arguably, the highpoint of crisis in modern Muslim history was the assassination of Malcolm X in 1965. This monument, however, hardly compares to the backlash against Muslims that followed 9/11.

With the country in shock and awe, the world watched with bated breath for news of the culprits. When the perpetrators were identified as extremist Muslims, African Americans breathed a sigh of relief. They fell under the assumption that respite was on the horizon after a three-decade-long onslaught by the justice system; for a moment it seemed that law and society were genuinely frightened by a new boogeyman.

Similar sighs of relief came from Latinos, who, like African Americans, sensed that the country had found a different object of wrath. Latinos had felt the harsh lash of the criminal justice system for several decades running, with imprisonment rates of Latinos ballooning. Mass imprisonment has been a major setback for underclass minority communities in states like California, Texas, Florida, and others holding large Latino populations. The bad luck of Muslims was seemingly good for Latinos like their African-American counterparts — it diverted fear and attention to a new scapegoat.

While they sighed, Muslims gasped, and rightfully so since Muslims would now be subject to policing and criminal justice like never before. Overnight, Muslims were tarred and blackened and were given a glimpse, if a privileged one, of the modern African-American experience. In essence, Muslims have been given a sense of the prejudice and violence that is norm to African Americans.

These perceptions among African Americans and Latinos, however, were short-lived: Latinos became quickly embroiled in border policing politics in Arizona and Texas, facing harsher scrutiny by law enforcement than the rest of the population. In New York, both groups were subject to mass stop and frisk campaigns, and more recently police killings of African-Americans have made it open season on black males, that is, made it business as usual.

For Latinos, the situation may become worse in the midst of claims that ISIS is operating in Mexico and entering the U.S. through the southern border. Although there has been pushback from Mexico and the Department of Homeland Security, therumors persist. If the American public believes that Mexico is indeed harboring ISIS, it would be a big boost for longstanding agendas of border reform. For proponents of beefed-up borders and stricter immigration policy, it would realize longstanding goals that have used vigilante border-patrols and stepped-up law enforcement to curb illegal immigration. These efforts subject Latinos to heightened scrutiny and law enforcement efforts. The more recent claims about ISIS will serve only to fuel the discrimination and oppression.

More critically, the Department of Justice has recently announced a pilot program to counter violent extremism. The plan has been critiqued, most notably because Muslims will be subject to greater scrutiny than other populations, and in particular, the Christian communities of domestic extremists. The claims that ISIS is in Mexico, then, effectively cast Latinos as potential communities for engagement.

However, there is little evidence or intelligence to support the idea that ISIS is actually operating in Mexico or that loyalists are infiltrating the southern border. More likely, statistically speaking, if ISIS is successful in entering the U.S., it will come through international air travel, not through the U.S.-Mexico border; and let us not forget the vast border to the north that affords a number of entry points.

Ultimately, if the American public buys into these claims, it will only add to the discrimination of Latinos. It will tie the plight of Muslims to Mexicans, and categorically implicate Latinos in the War on Terror; it will also become a license for greater brutality at the border. If the story is bought, regardless of its truth, Latinos will face increasing entanglement in the criminal justice system and increasing status as second-class citizens.

This article was first published in Huffington Post on 10/10/14.  Read it here.



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White House Announces Countering Violent Extremism Program: Is It Pretext for Spying on Muslims?

Unknown By Sahar Aziz

The Islamic State of Iraq and the Levant (ISIL) has captured international attention as the world witnesses in horror its brutality. Notwithstanding that most of ISIL’s victims are Muslim, its atrocities are reinforcing false stereotypes that something is inherently violent about Islam. As a result, the Obama administration is under pressure to scrutinize Muslim communities across the country. Hence the DOJ’s recent announcement of a pilot program to counter violent extremists (CVE) may be the latest effort at targeted surveillance and counterterrorism enforcement of Muslim Americans.

ISIL arose out of the political chaos that ensued after the U.S. invaded Iraq with no cogent exit strategy or understanding of the complex ethnic and religious tensions in Iraq. Indeed, ISIL fighters are primarily disgruntled Iraqi Sunnis abused by U.S.-supported former Prime Minister Nuri al-Maliki’s sectarian politics. Some fighters, the precise number is unknown, hold Western passports and use their English fluency to recruit Muslims living in the West. This phenomenon has understandably rattled the American government as it scrambles to identify who is susceptible to ISIL recruitment and whether those individuals will return to the U.S. to engage in terrorism.

To address these concerns, the U.S. Department of Justice’s CVE program purports to bring together community representatives, public safety officials, religious leaders, and U.S. Attorneys to improve local engagement and counter violent extremism. The stated objective is to keep the nation safe by developing more effective and inclusive ways to build a more just, secure, and free society for all Americans.

Notwithstanding the lofty rhetoric and neutral language, America’s CVE strategy is flawed for four reasons. First, it racially and religiously profiles Muslims. Indeed, most if not all of the governments “community engagement” CVE activities target Arab and South Asian Muslim communities. This is despite recent cases of terrorist groups in the Middle East recruiting individuals from various racial and ethnic backgrounds to avoid scrutiny by Western governments who profile Muslims in counterterrorism. Meanwhile, domestic right wing extremist groups are excluded altogether from such programs.

Second, CVE policies punish law abiding citizens and residents who openly and legally express their political oppositional views against American hegemony or orthodox religious practices by making them targets of surveillance, investigation, and prosecution. Muslim communities, therefore, suspect CVE programs are not so much about public safety as they are about religious and racial profiling. In turn, members of these communities become less willing to cooperate with law enforcement because they view CVE as merely political scapegoating at the expense of their liberty and livelihoods. When contextualized with America’s aggressive police tactics in the 1960s and 1970s against civil rights, Black Nationalist, and anti-war groups and the disproportionate focus on African Americans in the War on Drugs, such suspicions are not far-fetched.

Third, no law prohibits CVE meetings from serving as intelligence gathering operations for law enforcement to identify potential informants, target individuals for FBI voluntary interviews, and catalogue who’s who in Muslim communities. Nor are there any policies or oversight mechanisms ensuring the government delivers on its promises to reform rights-infringing policies. Indeed, tangible policy reforms arising from the community engagements are the anomaly rather than the norm.

Finally, CVE programs that purport to empower communities as stakeholders may perpetuate existing gender and class hierarchies within Muslim communities. The experiences of new immigrants are starkly different than third or fourth generation Americans notwithstanding a shared religious or ethnic background. Because many Muslim communities are lead by males, insensitivity to these circumstances risks making the government an unwitting enabler of gender bias, intra-community ethnic conflicts, and political disputes.

While the threat of ISIL is real, Muslims in America should not collectively pay the price every time an individual or group engages in political violence in the name of Islam. At a time when racialized over-policing of African Americans has gained national attention, overtly targeting Muslims only corroborates what many Americans have suspected for decades — systemic bias against minorities infects law enforcement.

Absent meaningful reforms, the latest round of CVE programs is likely to be no more than pretext for invidious discrimination to scapegoat politically vulnerable minorities for the failings of the state to protect the nation from the real terrorists.

This article was originally published in the Huffington Post on 10/1/14.  Read it here.

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“I’m Just a Kid”: Tariq’s Ordeal

By Marjorie Cohn

Last summer, Tariq Khdeir, a 15-year-old American citizen from Baltimore, accompanied his parents to the East Jerusalem neighborhood of Shuafat for a six-week visit with relatives. The first friend Tariq made when he arrived was his cousin, Muhammad Abu Khdeir, whom Tariq had not seen since he was four years old. “We had so much fun,” Tariq told a gathering at the national conference of the U.S. Campaign to End the Israeli Occupation in San Diego on September 19, 2014.

One night while he was in Jerusalem, Tariq saw some police with Muhammad. Tariq thought they had kidnapped Muhammad. Tariq wondered, “Is he gonna come back? Is he gonna come back alive”? But Muhammad did not come back alive.  In retaliation for the deaths of three Israeli teenagers, Muhammad was beaten and burnt alive by three Jewish extremists.

After Muhammad’s murder, people took to the streets in protest. Israeli Defense Force soldiers began firing rubber bullets at them. Incredulous, Tariq thought, “Is this really happening in front of me”? Then Israeli soldiers began to run after Tariq. Panicked, Tariq ran.

“There was a 10-foot drop in front of me. Everyone jumped, but they tackled me, zip-tied me, and punched me in the face,” Tariq said. “I was like a punching bag until I became unconscious.” The image of Tariq’s badly swollen, deformed face appeared on media reports throughout the world last July.

When Tariq awoke, his face felt “like a bubble, it hurt so much.” He wondered, “Are they gonna kill me”? After six hours in jail, Tariq was finally taken to the hospital. His father and his uncle told him he might come home or go to jail. Tariq thought, “How could I go to jail? They beat me up.” Tariq told the group, “I’m just a kid.”

Tariq was taken back to jail after he left the hospital. He had to remove the hospital gown and put on his bloody clothes. There were nine people in a tiny cell; it was impossible to sit down. Two days later, Tariq was released. He thought, “I’m finally going home.” But he was placed on house arrest. No charges were ever filed against him. “That’s what they do to all the Palestinians,” Tariq said.

“They took my cousins, and they’re still in jail, because they’re not American and they didn’t have a video that showed the brutality of the Israelis,” Tariq reported. “It’s inhumane.”

Tariq’s mother, Suha, said, “I cannot begin to describe the pain of seeing my dear son in prison after his viscous beating.” When she first saw Tariq, unconscious, with his swollen face in the hospital, “I didn’t recognize him; I didn’t know if he was alive. I didn’t know if he would survive.” Tariq was handcuffed to the hospital bed. Suha worried whether they would give him his antibiotics, whether they would take care of her son while he was in their custody. “The same people that beat him were now caring for him,” she said. “They told us 300 Palestinian teenagers would be killed for the three Israeli teens.”

Suha noted, “None of this would have happened if Israelis valued the lives of Palestinian Muslims and Christians as much as Israeli Jews.”

Keynote speaker Ali Abunimah followed Tariq and Suha at the conference. He mentioned that of the more than 2,100 Palestinians the Israelis killed in Gaza last summer, 521 were children. Most of the fatalities were civilians. More than one of every 1,000 Gazans were killed, and one percent of the entire population of Gaza were killed or injured.

Most of the weapons the Israelis employed in Gaza were artillery shells, which were used in unprecedented quantities. They are very inaccurate.

In response to Israeli demands that the Palestinians surrender their weapons, Abunimah asked, “Why talk about demilitarizing the oppressed? Let’s talk about demilitarizing the oppressor.”

After Mummahad was killed, the Israelis called it an “honor killing.” Muhammad’s father said, “they’ve killed my son twice.”

Two hundred Palestinian children are still in jail. Abunimah cited the “racist mentality” of many Israelis who chant, “Death to the Arabs.” Abunimah recalled President Barack Obama’s remark about “the shared values of the United States and Israel.”

Do those shared values include slaughtering civilians, torturing children, and holding people in custody indefinitely without charges?

Tariq did come back alive – but only because his beating was caught on tape and because he was a U.S. citizen.

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(Update 9/29) Reminder: sign-on Possibility for the UN Committee Against Torture Shadow Report of Advocates for US Torture Prosecutions

Benjamin G. Davis, Associate Prodessor of Law, University of Toledo College of Law

Dear Colleagues,

(Update sent to the Volokh Conspiracy, Lawfareblog, Just Security, Opiniojuris.org, Jurist.org, and War is a Crime.org – Volokh declined as they do not generally put these things up. So made a comment there and at Lawfareblog.Com on the Holder thread. War is a Crime put it up right away and sent it out).

This is just a reminder that the UN Committee Against Torture will be reviewing the U.S. Periodic report in November and the State Department will be meeting with Civil Society in October to evaluate the U.S. compliance with its international obligations under the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment.

This is the first such periodic review since 2006.

Advocates for US Torture Prosecutions has prepared a shadow report available at


and we are inviting persons and organizations who believe in maintaining the absolute prohibition on torture to sign on.

Persons interested should contact Deborah Popowski at dpopowski@law.harvard.edu of the Harvard International Human Rights Clinic on or before this Monday, September 29, 2014 if they wish to sign on.

Please consider passing this information also to organizations and interested persons so they are aware of this opportunity.

Thank you for considering this matter.


Sent from my iPhone

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