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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Paid Law School Externships Will Ruin the Experience


By Olympia Duhart

As the American Bar Association considers lifting the ban on paid externships, a simple truth bears repeating: Money changes everything. Under the current standards, law students cannot be compensated for work they do for school credit. This policy should remain in place because separating compensation and “study outside the classroom” is a crucial step toward safeguarding the academic integrity of the externship.

Yes, law students need money. They also need experience. Rolling back the prohibition on allowing students to receive pay and credit for the same work is an “easy fix” that ignores some key realities.

First, it will limit the ability of government and nonprofit institutions to attract students. Next, it will tempt employers to exploit the students under their supervision. Further, it will impair the educational objectives of the externship. It shifts the externship focus from things that are in the best interest of the students to tasks that are in the best interest of the employer. Driven by a need to maximize profits, some of the employers will engage inexperienced student workers in tasks that have little educational value. For example, inviting a student to reflect on a courtroom observation has an incredibly high instructive value; however, that same experience is not likely to be billable to a client. Profit and pedagogy do not always align.

What’s more, revoking the standard also collides with other important objectives for legal education. The A.B.A. has promoted legal education that encourages self-reflection, outcome measures and ethical participation in the practice of law. Even the most conscientious employer – pulled in different directions by clients and practice demands – may not be able to effectively pursue these goals. As they gain new experience, law students need mentors and educators. At the very least, the current standard incentivizes education, not making money.

But the truth is that something has to be done.

Given the alarming rate of tuition increases, law schools must finally take responsibility for the rising cost of legal education. A small paycheck will not do much to defray the high debt load most students must absorb to become lawyers. Instead, we need to dig deeper to make law school more affordable for students, especially those students interested in public interest work.

Allowing students to earn nominal pay from an externship simply is not the answer. They won’t earn much money, and they may not gain the type of experience that meaningfully contributes to their legal careers. Shifting the focus from academic study to earning pay will significantly transform the externship experience — and not for the better.

This article was originally published by New York Times on 9/18/14.  Read it here.

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Obama Declares Perpetual War

By Marjorie Cohn

President Barack Obama escalated the drone war he has conducted for the past five and a half years by declaring his intention to “degrade and ultimately destroy” the Islamic State, also known as ISIS, or ISIL. Since August 8, Obama has mounted at least 154 airstrikes in Iraq. He will send 475 additional US troops, increasing the total number in Iraq to about 1,600. Obama announced he would conduct “a systematic campaign of airstrikes” in Iraq, and possibly in Syria. But, not limiting himself to those countries, Obama declared the whole world his battlefield, stating “We will hunt down terrorists who threaten our country, wherever they are . . . if you threaten America, you will find no safe haven.”

If, indeed, there were an imminent threat of attack on the United States, Obama would be legally entitled to launch a military operation. The United Nations Charter, which prohibits the use of military force, allows an exception when a country acts in self-defense. Under the well-established Caroline doctrine, the “necessity for self-defense must be instant, overwhelming, leaving no choice of means, and no moment for deliberation.” The only problem is, Obama admitted, “We have not yet detected specific plotting against our homeland.” Citing only the vague possibility of future “deadly attacks,” Obama nevertheless declared a perpetual war with no specific end time.

The only other exception to the UN Charter’s prohibition on military force is when the Security Council has given its approval. Obama said he would chair a meeting of the Council in two weeks’ time to “mobilize the international community.” But the Charter requires that the Council countenance the military operation before it occurs. The proposed resolution the Council is slated to adopt will reportedly call on countries to criminalize recruitment and travel of foreign fighters that join extremist military forces, and require the sharing of airline passenger information. It will not, however, authorize military force. Obama’s war violates the UN Charter, a treaty the United States has ratified, making it part of US law under the Supremacy Clause of the US Constitution.

Obama’s war also violates the War Powers Resolution, which permits the president to introduce US Armed Forces into hostilities or imminent hostilities only in three situations. First, after Congress has declared war, which has not happened in this case. Second, in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” which again, has not occurred. Third, when there is “specific statutory authorization.” Obama has not asked Congress to authorize his military attacks.

Indeed, Obama declared, “I have the authority to address the threat from ISIL.” He was relying on the Authorization for the Use of Military Force (AUMF) that Congress passed in 2001, which President George W. Bush used to invade Afghanistan. But that AUMF only authorized force against individuals, groups and countries that “planned, authorized, committed or aided” the September 11 terrorist attacks. ISIS did not even exist in 2001. In fact, Ayman al-Zawahiri, al-Qaeda’s leader, formally kicked ISIS out of al-Qaeda earlier this year.

When it passed the 2001 AUMF, Congress specifically rejected the Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” Moreover, in the National Defense Authorization Act of 2012, Congress specified, “Nothing in this section is intended to . . . expand the authority of the President or the scope of the [2001 AUMF].”

Apparently, Obama is also relying on the 2002 AUMF, in which Congress authorized the president to use the armed forces as he determines necessary and appropriate to defend the national security of the United States against the continuing threat posed by Iraq, and to enforce all relevant UN Security Council resolutions regarding Iraq. But since that threat and those resolutions were aimed at Saddam Hussein’s weapons of mass destruction, that license, too, has ended. Indeed, in June, the White House declared that the 2002 AUMF “is no longer used for any US government activities.” That means Obama’s current war is not simply a continuation of Bush’s Iraq war, and the 2002 AUMF does not provide Obama with legal license to mount his military attacks.

The War Powers Resolution requires Obama to secure a new Congressional authorization for his war within 60 days of launching “hostilities,” or he must withdraw US forces within 30 days. The 60-day period runs out on October 7. Obama apparently feels unconstrained to comply with this law.

During the 2008 presidential campaign, Obama told the Boston Globe, “The President does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Earlier this year, Obama said, “no country can maintain its freedom in the face of continual war.” Yet that is exactly what he is doing with his declaration of perpetual war.

Obama is violating both US and international law. He is also risking even more blowback against the United States. The US government has destabilized the region with Bush’s Afghanistan and Iraq wars, and Obama’s killing of thousands of people with drones. Many Sunnis are less afraid of ISIS than they are of the puppet Shiite government the United States installed in Iraq, which tortured, raped, murdered and arbitrarily detained Sunnis during the last two and a half years.

ISIS is a brutal group. But Obama is imploring Congress to fund the New Syrian Army, which according to The New York Times, “went on to behead six [captured] ISIS fighters.”

Playing both ends against the middle, Obama wants to fight ISIS in Syria without emboldening President Bashar Assad, who is also fighting ISIS. And Obama reserves the right to bomb in Syria, a sovereign country, in defiance of Assad. Obama is playing with fire.

Besides being illegal, Obama’s war promises to exacerbate the volatile situation in the region, resulting in more hostility against the United States. Obama has said in the past there is no military solution to this conflict. He should use his leadership in the Security Council to secure a cease-fire, create a peacekeeping force, mount an embargo of all arms being sent to the region, and pursue a regional diplomatic solution enlisting Iran and Syria in the process. Perpetual war is not the answer.

This article was originally published in Truthout on 9/15/14.  Read it here.


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