Are American War Crimes Above the Law?

By Alan Gilbert, from his blog Democratic Individuality

Sam Morison, a Department of Defense lawyer for prisoners in Guantanamo, sent the following letter about the violation of the rule of law there. Big Brother monitors the phone conversations (the only ones allowed) between lawyers and the prisoners in violation of the principle of lawyer-client confidentiality. Further, the Pentagon acts covertly to prevent the New York bar ethics committee from asserting this principle (one might also imagine that the lawyer in question is simply a sycophant – seehereand here).

Marjorie Cohn of the ACLU also states what is at issue in the Haditha massacre mainly of women and children below. Here, too, we see American “justice” – there is only denial of aggression, occupation and even these hideous crimes – at work. No punishment…

The American government, without trials, however, often provides arbitrary punishments – in Guantanamo, Bagram and Abu Ghraib, 100 died in American custody by Pentagon statistics, many were tortured, all were indefinitely detained, none accorded rights. Since the Bush-Cheney era, “law” in the United States appears to be a misnomer. And Obama has added to this: murder far from the battlefield of American citizens without any judicial proceeding, and when rarely acknowledged, only with the assertion that “evidence” exists by a public relations flack…

Jennifer Robinson, a lawyer for Julian Assange, ran into Eric Holder and Dr. Sharon Malone, his wife, at a showing of a documentary Slavery by Another Name about the horrors of continued enslavement, poor blacks forced to work as convict labor for large companies in the post-Civil War South, at the Sundance film festival (my 16 year old was at the festival, too, with his school, though not at this documentary). Breathing while being black in the South was of course until (and often since) the civil rights movement a crime.

In the film, Malone spoke of an uncle born 30 years after slavery and yet himself enslaved through the prison system. Holder, who I suspect is a decent man doing often very bad things (a bit like Obama), responded to her first genuinely – of course, they agreed about the movie; his wife had named the moral issues. Then, realizing who she was, he moved abruptly into official capacity. The bureaucratic iron mask was needed. For one might add to Assange and the issue of American torture the system of mass incarceration today – 2.3 million prisoners – 25% of the world’s prisoners – 5.1 million on probation, many black teenagers as well as Chicanos and poor whites denied any possibility of a achieving a decent life, unable to vote or live in public housing or gain employment, because of “possession” of marijuana- over which Holder currently presides (see Michelle Alexander, The New Jim Crow, and , here, hereand here).

Here the split in many official personalities – visible in how many civil servants in the Bush era could no longer stand it, quit and spoke the truth – and perhaps in Holder himself, imposed by working for a government that carries out crimes against innocents, comes to the fore.

The shift in tone, Robinson reports, is chilling…

As Sam suggests, the chasm between decency and American war criminalty inspires both surface amusement – did even MASH get to this? – sadness – is this, at last, America? – and outrage.

“Alan,

I thought you would find this post at Simple Justice blog (http://blog.simplejustice.us/) interesting and amusing. The public should bear this in mind the next time Gen. Mark Martins, the new chief prosecutor at DoD, issues yet another press release or speech extolling the virtues of the “reformed” military commissions over which he presides. On paper, they look reasonable; in practice, it’s still a joke.

Best, Sam”

NYSBA to Gitmo Defense: We Don’t Care

The Department of Defense lawyers who are charged with defending the enemies of our nation sit in an office in Virginia, where the talk on telephones provided by the DoD and type their papers and emails on computers provided by the DoD. Just to be sure, the DoD thought it best to have each of them sign off on a consent form that since the government owns all that stuff, the DoD has the authority to monitor it. Every last bit.

It sounded a little screwy to the defense lawyers, since it flies against every ethical precept of client confidentiality they had ever learned. Not that anyone was necessarily surprised about it, the government preferring to know more rather than less, but these are lawyers, even if they get a DoD paycheck and work on DoD computers.

The directive from the Convening Authority for the Office of Military Commissions to the Office of Chief Defense Counsel came in August, 2010. Figuring this might be a bit of a problem, and completely unwilling to sell their clients out, one of the lawyers who was admitted to practice in New York sought an ethics opinion from the New York State Bar Association on the demand.

There was no doubt that they had a firm grasp of their ethical obligation to keep their clients’ privileged communications confidential from the DoD, but it would prove enormously useful to have an official ethics opinion that said so, something to roll up and smack the guy from the Convening Authority in the face.

So on September 1, 2010, the request was sent to the New York State Bar Association for an ethics opinion. Bearing in mind that the DoD lawyers defending the Gitmo detainees have no independent ethical overseer, and look to their bar of admission for their ethical determinations. They are admitted in one state, situated in another and, as here, representing detainees at tribunals on a military base in Cuba. Cuba, unfortunately, offers little on the ethical proscription front, but then, its law doesn’t apply at Guantánamo anyway.

Notably, unlike some other states, New York ethical discipline is handled by a disciplinary committee under the auspices of each of the four Appellate Divisions of the state. The NYSBA is a voluntary association, rather than the controlling association for all lawyers, and one of the services it provides is ethics opinions upon request. The opinions aren’t binding, but provide guidance and some persuasive authority. More importantly, by seeking and adhering to an NYSBA ethics opinion, one can demonstrate good faith reliance that will serve to vitiate any subsequent claim on deliberate unethical conduct.

So while it’s not the final word, it matters and helps. And the DoD lawyers really needed some help staring down the government on behalf of their enemy combatant clients, who may be the only group in America without a Facebook fan page.

A few weeks later, a draft opinion arrives as a “head’s up” on the final, setting forth in painful detail everything the DoD lawyers believed to be true, that they could not allow the government unfettered access to their clients’ confidences. Duh. Just hold on a bit longer, brother, and the cavalry would arrive. The official opinion was on its way, with few if any changes, concluding that they may enjoy the government’s largesse, but were still lawyers obliged to protect their clients. Not quite a stretch as ethics opinions go.

A few weeks went by. Then a few months. Silence. Tumbleweeds blew down Broadway in Manhattan, and the DoD lawyers began scratching their heads, wondering whether the government intercepted the opinion in the mail. No such luck. About March 14, 2011, the very official NYSBA opinion arrived.

We conclude that we lack jurisdiction to resolve your question because the New York Rules of Professional Conduct (the ”New York Rules”) do not apply to the situation you describe. The jurisdiction of this committee is limited to questions arising under the New York Rules. The committee is charged with interpreting the New York Rules by answering questions of professional conduct that are governed by these rules. In your case, the threshold choice of law question is whether your conduct is governed by the confidentiality provision of the New York Rules (i.e., Rule 1.6), or by the confidentiality provision of some other jurisdiction — e.g., those of the state in which your office is physically located or the rules, if any, adopted by the military commissions before which you practice. Unless the confidentiality provision of the New York Rules applies to your work, this committee lacks jurisdiction to provide you an answer.

They lack “jurisdiction”? They have no jurisdiction. Over anyone. Anywhere. Ever. This is an NGO, a voluntary association where a bunch of guys who raise their hand when somebody asks, “anybody want to be on the ethics committee?”

The informal response, “not a formal opinion,” was signed by Roy Simon, Hofstra Law School’s Howard Lichtenstein Distinguished Professor of Legal Ethic and chair of the committee. He went emeritus in September 2011. According to his CV:
Member (1995-present) and Immediate Past Chair (2008-2011) of the New York State Bar Association Committee on Professional Responsibility. This Committee responds to ethics inquiries from attorneys regarding the New York Rules of Professional Conduct, and the Committee comments on proposals affecting regulation of lawyers.

Or fails to respond to ethics inquiries when they’re too busy cowering in the corner. Maybe he forget that part.

The unanswered question is whether between the time of the draft opinion and the ultimate display of worthlessness embodied by the “informal response,” someone, oh say from the DoD or some other jumble of initials using government computers, “reached” the committee to convince them to keep their nose out of government business?

Or whether the committee, perhaps its chair, decided that it wasn’t good for them to become embroiled in the thorny question of how a New York lawyer should ethically address a government demand for wholesale access to his client’s confidences. After all, it’s one thing for the lawyers whose butts are on the line in the defense of enemy combatants to bear the risk of ethics, but why would anyone who joined a bar association committee in New York want to take a risk pissing off the government?

Despite the manifest failure of the NYSBA ethics committee to show the slightest interest in ethics or fortitude, defense lawyers have persisted in their refusal to consent to the government’s monitoring of their work, and the Chief Defense Counsel concluded that the DoD demands violated fundamental ethical proscriptions and directed all defense lawyers to refuse.

While the lawyers in the service of the military have demonstrated the guts to stand firm on their ethical responsibilities to their clients, the contrast between their position and the utter failure of the NYSBA ethics committee couldn’t be more clear, and more of a disgrace. How nice that a bunch of self-important bar association guys get to pad their resumes with their committee assignments, while punting at the first sight of risk.

The NYSBA’s “informal opinion” on ethics is to run away from their responsibility if there is any chance it might be controversial. Not the underlying ethical issue, about which there was nothing controversial at all, and it was about as clear and easy as any ethical question could be. Rather, upsetting the powerful government is a risk that bar association players aren’t willing to take. Sorry, Gitmo defense lawyers, but your ethics just aren’t worth the risk.

Tuesday, January 31, 2012 by Common Dreams
The Haditha Massacre: No Justice for Iraqis
by Marjorie Cohn

They ranged from little babies to adult males and females. I’ll never be able to get that out of my head. I can still smell the blood.This left something in my head and heart. -Lance Cpl. Roel Ryan Briones

Last week, Staff Sgt. Frank Wuterich was sentenced to a reduction in rank but no jail time for leading his squad in a rampage known as “The Haditha Massacre.” Wuterich, who was charged with nine counts of manslaughter, pled guilty to dereliction of duty. Six other Marines have had their charges dismissed and another was acquitted for his part in the massacre.

What was the Haditha Massacre? On November 19, 2005, US Marines from Kilo Company, Third Battalion, First Marine Division killed 24 unarmed civilians in Haditha, Iraq, execution-style, in a three to five hour rampage. One victim was a 76-year-old amputee in a wheelchair holding a Koran. A mother and child bent over as if in prayer were also among the fallen. “I pretended that I was dead when my brother’s body fell on me and he was bleeding like a faucet,” said Safa Younis Salim, a 13-year-old girl who survived by faking her death. Other victims included six children ranging in age from 1 to 14. Citing doctors at Haditha’s hospital, The Washington Post reported, “Most of the shots … were fired at such close range that they went through the bodies of the family members and plowed into walls or the floor.”

The executions of 24 unarmed civilians were apparent retaliation for the death of Lance Cpl. Miguel Terrazas when a small Marine convoy hit a roadside bomb earlier that day. A statement issued by a US Marine Corps spokesman the next day claimed: “A US Marine and 15 civilians were killed yesterday from the blast of a roadside bomb in Haditha. Immediately following the bombing, gunmen attacked the convoy with small-arms fire. Iraqi army soldiers and Marines returned fire, killing eight insurgents and wounding another.” A subsequent Marine version of the events said the victims were killed inadvertently in a running gun battle with insurgents.

Both of these stories were false, and the Marines knew it. They were blatant attempts to cover up the atrocity, disguised as “collateral damage.” Congressman John Murtha, a former Marine, was briefed on the Haditha investigation by Marine Corps Commandant Michael Hagee. Murtha said, “The reports I have from the highest level: No firing at all. No interaction. No military action at all in this particular incident. It was an explosive device, which killed a Marine. From then on, it was purely shooting people.” Marine Corps officials told Murtha that troops shot a woman “in cold blood” as she was bending over her child begging for mercy. Women and children were in their nightclothes when they were killed.

The Haditha Massacre did not become public until Time magazine ran a story in March 2006. Time had turned over the results of its investigation, including a videotape, to the US military in January. Only then did the military launch an investigation. These Marines “suffered a total breakdown in morality and leadership, with tragic results,” a US official told the Los Angeles Times. Murtha said, “Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood.” Many of our troops suffer from post-traumatic stress disorder, or PTSD. Lance Cpl. Roel Ryan Briones, a Marine in Kilo Company, did not participate in The Haditha Massacre. T.J. Terrazas was his best friend. Briones, who was 20 years old at the time, saw Terrazas after he was killed. “He had a giant hole in his chin. His eyes were rolled back up in his skull,” Briones said of his buddy. “A lot of people were mad,” Briones said. “Everyone had just a [terrible] feeling about what had happened to T.J.”

After the massacre, Briones was ordered to take photographs of the victims and help carry their bodies out of their homes. He is still haunted by what he had to do that day. Briones picked up a young girl who was shot in the head. “I held her out like this,” he said, extending his arms, “but her head was bobbing up and down and the insides fell on my legs.” “I used to be one of those Marines who said that post-traumatic stress is a bunch of bull,” said Briones, who has gotten into serious trouble since he returned home. “But all this stuff that keeps going through my head is eating me up. I need immediate help.”

Murtha told ABC there was “no question” the US military tried to “cover up” the Haditha incident, which Murtha called “worse than Abu Ghraib.” His high-level briefings indicated to him that the cover-up went “right up the chain of command.” The Bush administration set rules of engagement that resulted in the willful killing and indiscriminate slaughter of civilians. In particular, U.S. troops in Iraq operated in “free-fire zones,” with orders to shoot everything that moves. Attacks in civilian areas resulted in massive civilian casualties, which the Bush administration casually called “collateral damage.”

Like other grave breaches of the Geneva Conventions, these acts of summary execution and willful killing are punishable under the US War Crimes Act. Commanders have a responsibility to make sure civilians are not indiscriminately harmed and that prisoners are not summarily executed. Because rules of engagement are set at the top of the command chain, criminal liability extends beyond the perpetrator under the doctrine of command responsibility. George W. Bush, Dick Cheney, and Donald Rumsfeld should be charged with war crimes.

A few days after the story of The Haditha Massacre became public, US forces killed eleven civilians after rounding them up in a room in a house in Ishaqi near Balad, Iraq, handcuffing and shooting them. The victims ranged from a 75-year-old woman to a six-month-old child, and included three-year-olds and five-year-olds and three other women as well. A report by the US military found no wrongdoing by the US soldiers.

Allegations that US troops have engaged in summary executions and willful killing in Iraq have also emerged from other Iraqi cities, including Qaim, Abu Ghraib, Taal Al Jal, Mukaradeeb, Mahmudiya, Hamdaniyah, Samarra, and Salahuddin. There are similar accusations stemming from incidents in Afghanistan as well.

Many people in Iraq are outraged as the legal books close on The Haditha Massacre. They are also perturbed at the US drones flying over Iraqi skies in Baghdad to protect the largest US embassy in the world that, even after the United States “pulled out” of Iraq, still houses 11,000 Americans protected by 5,000 mercenaries. “Our sky is our sky, not the U.S.A.’s sky,” Adnan al-Asadi, acting Iraqi interior minister, said. The US military left Iraq because the Iraqis refused to grant US soldiers immunity for crimes like those at The Haditha Massacre.

The 24 Haditha victims are buried in a cemetery called Martyrs’ Graveyard. Graffiti on the deserted house of one of the families reads, “Democracy assassinated the family that was here.”

Marjorie Cohn, a professor at Thomas Jefferson School of Law and past President of the National Lawyers Guild, is the deputy secretary general for external communications of the International Association of Democratic Lawyers, and the U.S. representative to the executive committee of the American Association of Jurists. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law and co-author of Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd). Her anthology, The United States and Torture: Interrogation, Incarceration and Abuse, is now available. Her articles are archived at http://www.marjoriecohn.com

When a WikiLeaks lawyer runs into Eric Holder
During a chance encounter at Sundance, I pressed the attorney general about his plans for Assange — and his legacy
BY JENNIFER ROBINSON

“Slavery by Another Name,” a documentary based on the 2009 Pulitzer Prize-winning book by Douglas Blackmon, premiered this year at the Sundance Film Festival. The story was new to me: Between the Emancipation Proclamation and the beginning of World War II, tens of thousands of African-Americans were arrested on phony charges, slapped with massive fines they could not pay, and then sold into labor to some of the biggest industries in the country to work off their debt. I didn’t expect to learn that slavery essentially continued for decades after the Civil War. And I also didn’t expect – on vacation from my legal work advising WikiLeaks and Julian Assange — to bump into Attorney General Eric Holder. Having spent the week before Christmas at Fort Meade, Md., attending the Pvt. Bradley Manning hearing – Manning is charged with passing classified material to WikiLeaks — I knew what I had to ask him.

As the last of the audience settled into their seats, the woman in front of me turned and took photos of people behind me. It was subtle, but others looked their way and smiled, nodding in acknowledgment. Not subtle enough. I turned too. I noticed a smiling, handsome African-American couple two rows back. On many occasions, I’ve been asked in interviews to respond to Holder’s public statements about the U.S. government’s criminal investigation into Assange and WikiLeaks. But there he was, in person, just steps away. I could not pass up this opportunity.

In November 2010, Holder announced a full criminal investigation into WikiLeaks, aimed at prosecuting Assange over the release of thousands of cables that embarrassed the U.S. government by revealing candid discussions among diplomats and corruption and human rights abuse around the world. Since that time, we learned of a secret grand jury investigation in Virginia. WikiLeaks supporters’ Twitter accounts have been subpoenaed. Media reports have long speculated about Assange’s imminent indictment in the U.S., possibly under the Espionage Act. (Assange is currently under house arrest in the U.K. pending his appeal of a decision that he be extradited to Sweden to face sexual assault charges.) A key concern is the threat of onward extradition from Sweden to the U.S. where Assange – based on Holder’s earlier announcements – risks being prosecuted for his work as editor and publisher of WikiLeaks, activity that we believe is protected by the First Amendment.

Holder has refrained from making public comments about WikiLeaks of late, leading many to believe the U.S. might not prosecute Assange. But it was apparent during the Manning hearing that concerns about the U.S. seeking Assange’s extradition are justified. Repeated references were made to the relationship between the Manning proceedings and the Justice Department’s ongoing criminal investigation into Assange and WikiLeaks. Manning’s defense counsel stated explicitly that the Justice Department had an interest in plea-bargaining with Manning in order to get him to implicate Assange, and argued that the number of charges against Manning (particularly those carrying life imprisonment) was designed to pressure him into making a deal. Government officials seated behind the prosecution were suspected of involvement in the grand jury process, but refused to identify themselves to us or to journalists. One was later identified as the Justice Department lawyer responsible for the WikiLeaks-related Twitter subpoenas.

The grand jury is secret. Government lawyers at the Manning proceedings – a public hearing – refused to identify themselves or state their interest. Our appeals to military courts for full access to the Manning proceedings, the court documents and the evidence have been denied. The Australian government claims to have no information from the U.S. as to whether they will prosecute Assange and seek his extradition, but it does not appear to have asked for that information or sought any diplomatic assurances from the U.K., Sweden or the U.S. that Assange be able to travel home to Australia after the Sweden case is resolved.

WikiLeaks, the world’s most famous/infamous source of information, and its lawyers are, ironically, short on necessary information. Who better to ask for that information than the attorney general himself?

As the lights dimmed and the film began, I wondered: How could I speak to Eric Holder?

Soon, however, I was overwhelmed by Pollard’s compelling film. Casting a light on the murky period between the end of the Civil War and the beginning of the modern civil rights movement, the film documents how the practices of convict labor rendered the 13th Amendment’s protections meaningless for millions of African-Americans living in the South.

These facts come alive through Pollard’s interviews with the ancestors of African-Americans who suffered during this period, emphasizing how these practices are part of living memory. Among them is Dr. Sharon Malone, the attorney general’s wife. She speaks eloquently about her uncle, who was born nearly 30 years after slavery ostensibly ended, but was one of the thousands pulled back into the forced labor system. Her testimony is powerful, and makes clear that every Southerner’s life is touched by this history, whether black or white.

What struck me most watching the film was the shameful inaction of the federal government and, specifically, the Justice Department, in failing to prosecute those responsible or taking action to end these practices, which continued for more than 80 years after the supposed abolition of slavery. While considering the historical legacy of that shameful inaction, I began to think about Eric Holder’s legacy — and the irony of his support for a film about the need to look back in order to look forward. After all, the film laments government inaction on slavery at the turn of the century. Today we lament Holder’s inaction on torture.

Holder insists on looking “forward, not back” when it comes to accountability for torture, dropping all cases of alleged illegal treatment of post-9/11 detainees by the CIA and its contractors. (Interesting that Holder, the same man advocating a forward-looking approach, said in 2010 that if the Justice Department could not identify a law under which to prosecute Assange, they would create one.)

While CIA torturers receive immunity from prosecution, Holder just announced that the Justice Department has charged a former CIA agent, John Kiriakou, for allegedly disclosing information to journalists about a CIA agent who engaged in waterboarding during interrogations.

Holder does not prosecute U.S. torturers; he prosecutes those who speak out about U.S. torture. Will Julian Assange be next?

“Slavery by Another Name” received a standing ovation from the Sundance audience, and deservedly so. As the crowd filed out, I made my way over to Eric Holder. A young woman requested a photo with him, and I was asked by one of his Secret Service detail to take it. I did as requested.

Then I took the opportunity to ask the attorney general a few questions.

“Mr. Holder, I just wanted to say how powerful I thought your wife’s contribution was to the film and how great it is to see you here, as attorney general, supporting it.” My praise was genuine.

“Thank you, I am a very lucky man,” he responded, warmly and sincerely. I agreed.

I then explained that what struck me about the movie was the government’s unwillingness to take action. “What came through most for me was this sense of historical legacy.” I said. “As attorney general, do you ever think about how your time in office will be remembered?”

“Of course,” he replied, adding he is very conscious of the historical legacy he’s creating.

“That’s interesting,” I responded, “because I am a lawyer for WikiLeaks and Julian Assange.” Slightly taken aback, a flicker of recognition crossed his face. “How do you think history will reflect upon your treatment of WikiLeaks and Assange?”

The young woman who requested the photo gasped audibly, whispering, “Whoa, this is major,” to the person next to her. Others gathered closer to listen.

“Eric” instantly becomes Holder, and responds in the professional manner of a politician. “The release of confidential information is a very serious matter, and we have to draw the line somewhere.” As he spoke, I recalled a conversation at the Manning hearing in December with a senior national security reporter who admitted he felt the news media would be at risk if Assange were prosecuted. One wonders where Holder’s line will be drawn — and what it will mean for journalism globally.

Holder continued to emphasize the grave harm he believes the leaked cables caused to U.S. national interests and “even to countries that [Assange] would likely support,” but that he “cannot get into the detail of the harm caused.” These blanket but unspecified allegations about harm allegedly caused by WikiLeaks’ publications (and those by the New York Times, the Guardian, Der Spiegel, Le Monde, El Pais and numerous other newspapers worldwide) have been common in U.S. government statements.

“Then will the Department of Justice state publicly whether or not you intend to prosecute Julian?” I asked.

Holder’s answer was short as he walked away: “We will see.”

Jennifer Robinson is a London-based media and human rights lawyer who advises Julian Assange and WikiLeaks. Follow her on twitter @suigenerisjen

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