Friday, May 29, 2009

Misplaced Expectations: Human Rights and Executive Power

    9:34 AM   No comments

Source: Misplaced Expectations: Human Rights and Executive Power

by A. E. Souaiaia

Those who believe in top-down paradigm for the promotion of human rights norms are given another good example of the misplaced expectations as the new US administration tackles the legacy of abuse and human rights violations. I have consistently argued that legislating through executive order does not necessarily promote the long-term health of a human rights regime. When considering the fact that human rights abuses are primarily carried out by governments, it becomes evident that entrusting the protection of human rights to a government amounts to asking violators to look after the wellbeing of the victims: individuals, minority, and vulnerable groups.

Although the Obama administration, through a series of executive orders, intended to end the abusive and illegal practices such as torture and indefinite detention of suspects: In Guantanamo prison alone, a total of 779 people were detained for years, only to release 538 of these people without ever being charged of crime. Additionally, the extrajudicial spying on citizens conceived and practiced by the Bush administration was never fully addressed. Ultimately, the Obama’s executive orders rendered many pending or future court interventions in many of these matters moot. Not giving the courts an opportunity to issue a legal ruling regarding the extent of executive authority will deprive future victims from a powerful legal precedent on the one hand, and leave the door open for future administrations to reverse these executive orders or initiate a new regime of abusive and illegal practices.

Moreover, when the Obama administration conspicuously offered CIA (and some other intelligence and military officers) immunity, it unnecessarily undermined the very foundation that supported human rights redress. Given that governments, not other entities, perpetrate human rights abuses, the possibility of enforcing human rights laws and preventing human rights abuses becomes exceedingly difficult. For this reason, it is a fundamental principle that neither ignorance of humanitarian laws nor being a subordinate could free a person from responsibility. Human rights lawyers and activists worked hard to establish a consensus regarding the extent of culpability: anyone involved in violations of human rights—be he a commanding officer, an authorizing politician, and/or unranked officer or agent of the state—must be held accountable.

With this proposed immunity, not only will lower ranking (or unranked) agents receive virtual immunity, but even lawyers who provided the legal cover for violating the U.S. Constitutions and International Law, like John Yoo, may escape any significant legal inquiry. It is especially important that ambitious lawyers like Mr. Yoo are held to account for their uncritical and biased reading of the law to meet political goals. Their legal cover jeopardized the standing of the Constitution and compromised this nation’s commitment to civil and human rights. It can be argued that lawyers who are ideologues are just as much a threat to the Constitution as any enemy (foreign or domestic) and for this reason, they should be held responsible for their carelessness with the law which resulted in the undertaking of criminal acts such as torture.

Equally disturbing is the Obama administration’s decision to block the release of all documents related to torture and inhumane treatment of prisoners. As a presidential candidate, Barack Obama took issue with the argument advanced by other politicians that certain things ought to be kept “secret.” He adopted the view held by many other legal scholars that argued that, in a mature democracy, citizens could and citizens should be trusted and allowed access to information that would allow them to vote on substance not just style. Given this initial position, I can only surmise that party interests and political considerations are behind this change. There is no outright convincing argument that would justify blocking the release of all documents related to cases of torture and abuse of POWs. The pictures that were released already provide a good context to the extent of abuse and classifying the rest of the documents could, in fact, open the door to speculations and assumptions. In short, given that the public is now aware that illegal activities were sanctioned and practiced, only full disclosure and full transparency can help close this terrible chapter.

For the long term interest of the country, for the interest of keeping the hope for millions of victims of human rights abuses around the world, for the preservation and protection of a culture of respect to human dignity, this administration—more than any other—is asked to empower the institutions that have been the heartbeat of the human rights traditions: courts, NGOs, watchdog entities, civil society institutions, and free and independent press. This is accomplished by allowing the public full and unfettered access to critical information. Government actions about these matters in the form of executive orders are as temporary as Band-Aids; they mask the real wounds that must be treated properly, appropriately, and by the appropriate institutions.
Prof. A. E. Souaiaia is an Adjunct Faculty, College of Law, University of Iowa; he is the author of Contesting Justice: Women, Islam, Law, and Society.

Wednesday, May 6, 2009

John Yoo's war crimes

    7:06 AM   No comments
Why is one of the central perpetrators of a systematic torture regime teaching at Berkeley law school and welcomed in our most respectable opinion venues?

Glenn Greenwald

Apr. 02, 2008 | (updated below)

Yet again, the ACLU has performed the function which Congress and the media are intended to perform but do not. As the result of a FOIA lawsuit the ACLU filed and then prosecuted for several years, numerous documents relating to the Bush administration's torture regime that have long been baselessly kept secret were released yesterday, including an 81-page memorandum (.pdf) issued in 2003 by then-Deputy Assistant Attorney General John Yoo (currently a Berkeley Law Professor) which asserted that the President's war powers entitle him to ignore multiple laws which criminalized the use of torture:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.
As Jane Mayer reported two years ago in The New Yorker -- in which she quoted former Navy General Counsel Alberto Mora as saying that "the memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority" -- it was precisely Yoo's torture-justifying theories, ultimately endorsed by Donald Rumsfeld, that were communicated to Gen. Geoffrey Miller, the commander of both Guantanamo and Abu Ghraib at the time of the most severe detainee abuses (the ones that are known).

It is not, of course, news that the Bush administration adopted (and still embraces) legal theories which vest the President with literally unlimited power, including the power to break our laws. There are, though, several points worth noting as a result of the disclosure of this Memorandum:

(1) The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we're now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.

John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does? Here is what John Yoo is and what he did:

"It depends on why the President thinks he needs to do that." Yoo wasn't just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. If this level of depraved criminality doesn't remove one from the realm of respectability and mainstream seriousness -- if not result in war crimes prosecution -- then nothing does. ... read the rest of the article


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