Talk Nation Radio: Deirdre Enright on Freeing Innocent People from Prison

https://soundcloud.com/davidcnswanson/talk-nation-radio-deirdre-enright-on-freeing-innocent-people-from-prison

Deirdre Enright is director of investigation for the University of Virginia Law School’s Innocence Project Clinic. Enright previously worked at the Virginia Capital Representation Resource Center, where she represented clients and consulted on cases in all stages of capital litigation, with primary focus on federal and state post-conviction proceedings and Supreme Court certiorari review. After graduating from the University of Virginia Law School in 1992, Enright worked as a staff attorney at the Mississippi Capital Defense Resource Center. We discuss the work of freeing innocent people from prison.
 
Total run time: 29:00

Host: David Swanson.
Producer: David Swanson.
Music by Duke Ellington.

Download from LetsTryDemocracy or Archive.

Pacifica stations can also download from Audioport.

Syndicated by Pacifica Network.

Please encourage your local radio stations to carry this program every week!

Please embed the SoundCloud audio on your own website!

Past Talk Nation Radio shows are all available free and complete at
http://TalkNationRadio.org

and at
https://soundcloud.com/davidcnswanson/tracks

Talk Nation Radio: U.S. Mass Incarceration, Police Militarization, and Crimes Against Palestinians

https://soundcloud.com/davidcnswanson/talk-nation-radio-us-mass-incarceration-police-militarization-and-crimes-against-palestinians

Two guests this week: Jeff Fogel and Ntebo Mokuena.

 

Jeff Fogel is a candidate for Commonwealth’s Attorney here in Charlottesville, Virginia. After graduating from Rutgers School of Law in 1969, Jeff received a fellowship to work providing legal services to indigent residents in Newark, New Jersey.  After several years, he left that position to become a highly touted criminal defense lawyer.  Recognizing that he was limited in impact by representing one criminal defendant at a time, Jeff moved into a civil rights practice with the hope of having an impact on the criminal justice system while preserving the constitutional rights of everyone.  Jeff has practiced in NJ, NY, PR and, for the last 10 years, Virginia. He has been the executive and legal director of the ACLU of New Jersey and the Legal Director of the Center for Constitutional Rights while teaching civil rights, civil liberties and trial practice at Rutgers and NYU School of Law. See http://fogelforcca.us

 

 

Ntebo Mokuena is a senior at American University and is majoring in Political Science with a gender, race,  and politics concentration along with a minor in Art History and a certificate in Women, Policy, and Political Leadership. She was born and raised in the DC area and on campus is involved with Students for Justice in Palestine, which is a decentralized student group that supports the BDS movement and self determination of Palestinians. The group is part of the Community Action and Social Justice coalition. See https://m.facebook.com/AmericanSJP/

 

Useful links with regards to Israel-U.S. police exchange programs:

http://mondoweiss.net/2016/01/enforcement-training-terrorism

https://www.amnesty.org/en/countries/middle-east-and-north-africa/israel-and-occupied-palestinian-territories/report-israel-and-occupied-palestinian-territories/

http://blog.amnestyusa.org/middle-east/with-whom-are-many-u-s-police-departments-training-with-a-chronic-human-rights-violator-israel/

https://electronicintifada.net/content/police-training-programs-twin-us-israeli-racism/9834

https://www.kravmaga.com/programs/law-enforcement-military/force-training-division-law-enforcement

 

Total run time: 29:00

Host: David Swanson.
Producer: David Swanson.
Music by Duke Ellington.

Download from LetsTryDemocracy or Archive.

Pacifica stations can also download from Audioport.

Syndicated by Pacifica Network.

Please encourage your local radio stations to carry this program every week!

Please embed the SoundCloud audio on your own website!

Past Talk Nation Radio shows are all available free and complete at
http://TalkNationRadio.org

and at
https://soundcloud.com/davidcnswanson/tracks

Why Release the Torture Report Now

A young man was tortured in Chicago this week. It wasn’t an act of the Chicago police. It was live streamed on Facebook. And the President of the United States declared it an horrific hate crime.

The President did not advise “looking forward” rather than enforcing the law. Nor did he hold open the possibility that the crime might have served some higher purpose. In fact, he didn’t excuse the crime in any way that might help recommend it for imitation by others.

Yet this same president has forbidden the prosecution of U.S. government torturers for the past 8 years and has now seen fit to keep a four-year-old Senate report on their torture secret for at least 12 years more.

Some people in the United States would maintain that environmental and climate policy should be based on facts. Some other people (there is very little overlap between the two groups) would tell you that U.S. policy toward Russia should be based on proven facts. Yet, here we are readily accepting that U.S. torture policy will be based on burying the facts.

The primary author of the Senate Torture Report, Dianne Feinstein, calls it “a total exposé of the ineffectiveness of torture.” Yet, here comes President Trump, openly promising to engage in torture because of its effectiveness (morality and legality be damned), and both Obama and Feinstein are content to leave the report hidden. That is to say, Feinstein insists it should be made public now, but she is not herself taking the step of making it public.

Yes, although the U.S. Constitution makes the Congress the most powerful branch of government, centuries of imperial empowerment has persuaded pretty much everyone that a president can censor the Senate’s reports. But if Feinstein truly believed it mattered she would find the courage of a whistleblower and take her chances with the Justice Department.

The chances of Donald Trump releasing (or reading) the report seem slim but possible. If Obama really wanted to bury the report for good he would leak it now and announce that Russians were responsible. Then it would be everyone’s patriotic duty not to report on or look at it. (Debbie Wasserman who?) But our public interest, having paid for the report (not to mention the torture) is in immediate disclosure without shenanigans.

Not long after a petition was launched demanding that Obama release the report, he announced that he would protect it from feared destruction by keeping it secret for 12 years or more. A much surer way to protect it from destruction would be to make it public.

It’s been four years since the Senate “Intelligence” Committee produced this 7,000-page report. It’s hard enough for a 7,000-page document to go up against myths, lies, and Hollywood movies. But it’s a truly unfair fight when the document is kept secret. Only a 500-page censored summary was released two years ago.

NPR’s David Welna recently reported on this topic, in a manner typical of U.S. media, saying: “President-elect Trump . . . campaigned on bringing back torture which was outlawed during the Obama administration.”

In fact, torture was outlawed by, among other laws, the Eighth Amendment, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture (joined by the U.S. during the Reagan administration), and the anti-torture and war crimes statutes in the U.S. Code (Clinton administration).

Torture was a felony throughout the period of time covered by the Torture Report. President Obama forbade prosecution, although the Convention Against Torture requires it. The rule of law has suffered, but some measure of truth and reconciliation remains possible — if we are allowed to know the truth. Or rather: if we are allowed to have the truth re-confirmed in an authoritative document guaranteed to be taken seriously.

If we are denied the truth about torture, lies will continue to justify it, and it will continue to claim victims. The lies will claim that torture “works” in the sense of compelling the production of useful information. In reality, of course, torture “works” in the sense of compelling victims to say what the torturer desires, including such gems as “Iraq has ties to al Qaeda.”

Torture can produce war, but torture is also produced by war. Those who recognize that war is used to sanction murder have few qualms about adding the lesser offense of torture to war’s toolbox. When groups like the ACLU oppose torture while promoting war they tie both hands behind their back. The dream of a torture-free war is illusory. And when wars are not ended, and torture is transformed from a crime into a policy choice, torture continues, as it has during the Obama presidency.

Some Democrats are offended that the Clintons will join Donald Trump at his inaugural celebration. What do they make of Obama sheltering Trump advisor Dick Cheney from a central portion of his criminal resume?

Suing Saudi: Congress Is Right, Stephen Kinzer Is Wrong

Now there you have two things that I never expected to write. How often is Congress right about anything or Stephen Kinzer wrong? Congress wants 9/11 victims’ families to be able to sue Saudi Arabia for its role in those crimes. Kinzer does not.

It’s not that he doesn’t care about victims’ families. It’s not that he’s worried about disturbing relations with the Saudi monarchy (which could perhaps stop selling the United States the fossilized poison it uses to ruin the earth’s climate, or stop buying U.S. weapons and working with the U.S. military to blow up little children in Yemen, or perhaps increase or decrease its support for ISIS depending on which of those options the U.S. makes up its mind to oppose). No, Kinzer’s concern is that if you let one set of criminals be held accountable for their crimes, other criminals might be held accountable for their crimes as well.

Kinzer’s is an argument designed to win over Congress (which doesn’t really answer to rational argumentation) or the President (who already agrees with it). But it’s not an argument that should win over you or me.

“Americans have a right to be furious with some foreign governments,” writes Kinzer. “People in other countries have an equal right to be furious with the United States. We best address that fury not with lawsuits, but by changing the way we approach the world.”

If laws are to “address fury” I’d like to abolish every last one of them, domestic and international, as an embarrassment to our species. In reality, the best laws are powerful tools with which to “change the way we approach the world.” Obamesque “looking forward” — that is, granting immunity to all powerful law breakers and wishing they wouldn’t continue their law breaking — does not work. Neither, of course, does bombing families in Libya or Syria based on the flimsy allegation that someone powerful managed to break a law that happened to be the one law not to ignore that day.

Kinzer’s concern that suing Saudi Arabia could result in law suits against the United States is misguided nationalism. Why does suing Saudi Arabia not bother him? Why does suing the United States bother him? If Saudi Arabia kills large numbers of people, every nonviolent tool at our disposal ought to be used to put an end to that, to deter its repetition, to seek restitution, and to work for reconciliation. And the exact same applies to the U.S. government.

This was the pretense at Nuremberg, that victor’s justice would someday become universal justice, that the people of the United States would want their own government held to the rule of law. This is why 37 thousand U.S. citizens thanked Spain for trying to prosecute U.S. officials for war crimes a few years ago, when the U.S. government had made clear that it would never do so itself. Instead it brought pressure to bear on Spain that shut down the prosecution.

Of course, a country that doesn’t want to be sued (by its own people as well as foreigners) could abide by the rule of law or enforce its treaty obligations itself, as legally required to do anyway. Of what real use is a law that a blatant violator cannot be brought to court over? The UN Charter and the Kellogg-Briand Pact make seven current U.S. wars illegal, plus numerous drone killings if you claim they constitute “war.” They’re illegal as murder is you claim they do not constitute “war.” Kidnapping, torture, spying, sabotaging — these things are crimes. Those instances of these crimes that are in the past should indeed be brought to court in the present, unless the United States sees its way clear to apologizing and making restitution to the satisfaction of the victims.

But here’s the real problem. If disputes could be taken to court, instead of to war, potential terrorists would become potential litigants, and Pentagon propaganda for the next war would become a lawsuit instead. Did the latest “Hitler” really truly use the wrong kind of weapon? Don’t bomb the residents of his capital. Take him to court instead. Take him to arbitration. Take him to a truth and reconciliation commission. Because if you don’t, if you bomb some cities instead, you should have to expect that victims families will be taking you to court.

If U.S. officials find that they must constantly be looking over their shoulders to make sure they aren’t going to be taken to court, they will simply be joining the rest of us who are — horror of horrors! — obliged to comply with every existing law every day of the year.

Impeach and Prosecute Tony Blair

The Chilcot report’s “findings” have virtually all been part of the public record for a decade, and it avoids key pieces of evidence. Its recommendations are essentially to continue using war as a threat and a tool of foreign policy, but to please try not to lie so much, make sure to win over a bit more of the public, and don’t promise any positive outcomes given the likelihood of catastrophe.

The report is a confused jumble, given that it records evidence of the supreme crime but tries to excuse it. The closer you get to the beginning of the executive summary, the more the report reads as if written by the very criminals it’s reporting on. Yet the report makes clear, as we always knew, that even in 2001-2003 there were honest people working in the British, as also in the U.S., government — some of whom became whistleblowers, others of whom accurately identified the planned war as a crime that would endanger rather than protect, but stayed in their jobs when the war was launched.

Chilcot makes clear that the attack on Iraq was illegal, against the British public, against the international community and the UN Charter, expected to increase terrorism, based on lies about terrorism and weapons, and — like every other war ever launched — not a last resort. Chilcot records, as reality-based reporting always has, that Iraq claimed honestly to have no nuclear, biological, or chemical weapons. Chilcot fails to explain with any clarity that one cannot legally or morally attack another nation even when it does have such things.

Chilcot does make clear the extent to which France was pushing back against war, along with Russia and Germany and Chile and China. The key supporter of U.S. war plans was the UK, and there is some possibility that a UK refusal to join in this crime might really have done some good.

But Chilcot steers away from criminal responsibility, and from the damage done by the crime. It avoids the Downing Street Memo, the White House Memo, Hussein Kamel, the spying and threatening and bribing involved in the failed effort to win UN authorization, Aznar’s account of Bush’s admission that Saddam Hussein was willing to leave, etc. This is a report that aims for politeness and tranquility.

Not to worry, Chilcot tells us, as nothing like this will happen again even if we just let the criminals walk. Chilcot claims bizarrely that every other war before and since has been defensive and in response to some attack, rather than an act of aggression like this one. Of course, no list of those other wars is provided.

Even more bizarrely, Chilcot claims that Blair and gang literally never considered the possibility that Iraq had no “weapons of mass destruction.” How you make all kinds of assertions, contrary to your evidence, that Iraq has weapons without considering the question is beyond me. But Chilcot credits with great significance the supposedly excusing grace of groupthink and the passion with which people like Blair supposedly believed their own lies. Chilcot even feeds into the disgusting lie that Blair pushes to this day that Iraqis chose to destroy their own country while their occupiers nobly attempted “reconstruction.”

Despite itself, however, Chilcot may do some good. In the United States, when James Comey describes crimes by Hillary Clinton and assures us they should not be prosecuted, most people can be counted on to lie back and accept that blindly or even fervently. Yet our friends in Britain appear less than eager to accept the attitude with which Chilcot has reported on the supreme international crime.

Tony Blair may now be impeached as he needs to be. Yes — sigh — one can and should impeach people no longer in office, as has been usefully done in both British and U.S. history. Removal from office is one penalty that sometimes follows a conviction at a trial following an impeachment; it is not itself the definition of impeachment. Blair should be tried and convicted by Parliament. He should also be put on trial by the International Criminal Court or, better, by a special tribunal established for Iraq as for World War II or Yugoslavia.

The victors in World War II used the Kellogg-Briand Pact to prosecute the losers for the new crime of launching a war. Blair violated both the Kellogg-Briand Pact and the newer, yet never used, United Nations Charter, which also bans war. While Kellogg-Briand allows no exceptions, the exceptions in the UN Charter were famously not met in the case of the war on Iraq or, for that matter, any other recent western wars.

You can sign a petition urging Blair’s impeachment and prosecution here. Of course the goal must be to build momentum for holding the chief (U.S.) war criminals accountable, pursuing truth and reconciliation, and making massive reparations to the people of Iraq and their region. What the U.S. needs is action, not a 7-year “investigation.” Our own Chilcot report, better in fact, was written long ago.

The Chilcot report could, against its own wishes, move us in that direction.

Have a Chilcot Fourth of July

This Fourth of July, U.S. war makers will be drinking fermented grain, grilling dead flesh, traumatizing veterans with colorful explosions, and thanking their lucky stars and campaign contributors that they don’t live in rotten old England. And I don’t mean because of King George III. I’m talking about the Chilcot Inquiry.

According to a British newspaper: “The long-awaited Chilcot report into the Iraq war is reportedly set to savage Tony Blair and other former government officials in an ‘absolutely brutal’ verdict on the failings of the occupation.”

Let’s be clear, the “brutal” “savaging” is metaphorical, not of the sort actually done to Iraq. By the most scientifically respected measures available, the war killed 1.4 million Iraqis, saw 4.2 million injured, and 4.5 million people become refugees. The 1.4 million dead was 5% of the population. The invasion included 29,200 air strikes, followed by 3,900 over the next eight years. The U.S. military targeted civilians, journalists, hospitals, and ambulances. It used cluster bombs, white phosphorous, depleted uranium, and a new kind of napalm in urban areas. Birth defects, cancer rates, and infant mortality have soared. Water supplies, sewage treatment plants, hospitals, bridges, and electricity supplies were devastated, and not repaired.

For years, the occupying forces encouraged ethnic and sectarian division and violence, resulting in a segregated country and the repression of rights that Iraqis had enjoyed even under Saddam Hussein’s brutal police state. Terrorist groups, including one that took the name ISIS, arose and flourished.

This enormous crime was not a well-intended project that experienced a few “failings of the occupation.” It was not something that could have been done properly, or legally, or morally. The only decent thing that could have been done with this war, as with any war, was not to start it.

There was no need for yet another investigation. The crime has been out in the open from the start. All the obvious lies about weapons and ties to terrorists could have been true and still wouldn’t have justified or legalized the war. What’s needed is accountability, which is why Tony Blair may now find himself impeached.

Holding UK accomplices to the crime accountable is not a step toward getting them to squeal on their U.S. bosses, because the secrets are all in the open. But perhaps it can set an example. Perhaps even a UK-free European Union will someday take steps to hold U.S. criminals to account.

It’s too late, of course, to dissuade President Obama from expanding on Bush’s abuses by holding Bush accountable. But there is the problem of the next president (with both major parties nominating people who supported the 2003 invasion), and the problem of a subservient Congress. There is also the screaming need, ever more urgent, for massive reparations to the people of Iraq. That step, required by justice and humanity, would of course cost less financially than continuing the never-ending wars in Iraq, Syria, Pakistan, Afghanistan, Libya, Yemen, and Somalia. It would also make the United States safer.

These articles of impeachment were introduced in the U.S. House of Representatives by Congressman Dennis Kucinich on June 9, 2008, as H. Res. 1258

Article I
Creating a Secret Propaganda Campaign to Manufacture a False Case for War Against Iraq.

Article II
Falsely, Systematically, and with Criminal Intent Conflating the Attacks of September 11, 2001, With Misrepresentation of Iraq as a Security Threat as Part of Fraudulent Justification for a War of Aggression.

Article III
Misleading the American People and Members of Congress to Believe Iraq Possessed Weapons of Mass Destruction, to Manufacture a False Case for War.

Article IV
Misleading the American People and Members of Congress to Believe Iraq Posed an Imminent Threat to the United States.

Article V
Illegally Misspending Funds to Secretly Begin a War of Aggression.

Article VI
Invading Iraq in Violation of the Requirements of HJRes114.

Article VII
Invading Iraq Absent a Declaration of War.

Article VIII
Invading Iraq, A Sovereign Nation, in Violation of the UN Charter.

Article IX
Failing to Provide Troops With Body Armor and Vehicle Armor.

Article X
Falsifying Accounts of US Troop Deaths and Injuries for Political Purposes.

Article XI
Establishment of Permanent U.S. Military Bases in Iraq.

Article XII
Initiating a War Against Iraq for Control of That Nation’s Natural Resources.

Article XIIII
Creating a Secret Task Force to Develop Energy and Military Policies With Respect to Iraq and Other Countries.

Article XIV
Misprision of a Felony, Misuse and Exposure of Classified Information And Obstruction of Justice in the Matter of Valerie Plame Wilson, Clandestine Agent of the Central Intelligence Agency.

Article XV
Providing Immunity from Prosecution for Criminal Contractors in Iraq.

Article XVI
Reckless Misspending and Waste of U.S. Tax Dollars in Connection With Iraq and US Contractors.

Article XVII
Illegal Detention: Detaining Indefinitely And Without Charge Persons Both U.S. Citizens and Foreign Captives.

Article XVIII
Torture: Secretly Authorizing, and Encouraging the Use of Torture Against Captives in Afghanistan, Iraq, and Other Places, as a Matter of Official Policy.

Article XIX
Rendition: Kidnapping People and Taking Them Against Their Will to “Black Sites” Located in Other Nations, Including Nations Known to Practice Torture.

Article XX
Imprisoning Children.

Article XXI
Misleading Congress and the American People About Threats from Iran, and Supporting Terrorist Organizations Within Iran, With the Goal of Overthrowing the Iranian Government.

Article XXII
Creating Secret Laws.

Article XXIII
Violation of the Posse Comitatus Act.

Article XXIV
Spying on American Citizens, Without a Court-Ordered Warrant, in Violation of the Law and the Fourth Amendment.

Article XXV
Directing Telecommunications Companies to Create an Illegal and Unconstitutional Database of the Private Telephone Numbers and Emails of American Citizens.

Article XXVI
Announcing the Intent to Violate Laws with Signing Statements.

Article XXVII
Failing to Comply with Congressional Subpoenas and Instructing Former Employees Not to Comply.

Article XXVIII
Tampering with Free and Fair Elections, Corruption of the Administration of Justice.

Article XXIX
Conspiracy to Violate the Voting Rights Act of 1965.

Article XXX
Misleading Congress and the American People in an Attempt to Destroy Medicare.

Article XXXI
Katrina: Failure to Plan for the Predicted Disaster of Hurricane Katrina, Failure to Respond to a Civil Emergency.

Article XXXII
Misleading Congress and the American People, Systematically Undermining Efforts to Address Global Climate Change.

Article XXXIII
Repeatedly Ignored and Failed to Respond to High Level Intelligence Warnings of Planned Terrorist Attacks in the US, Prior to 911.

Article XXXIV
Obstruction of the Investigation into the Attacks of September 11, 2001.

Article XXXV
Endangering the Health of 911 First Responders.

 

Should Criminalizing War Start by Pretending It’s Legal?

cover_18_Abolishing_WarThere’s a terrific new book on abolishing war called Abolishing War: Criminalizing War, Removing War Causes, Removing War as Institution. The authors are Johan Galtung, Erika Degortes, Irene Galtung, Malvin Gattinger, and Naakow Grant-Hayford. Johan Galtung, who was recently on my radio show, is brilliant as always, drawing on vast knowledge and wisdom.

As the book’s subtitle suggests, it proposes three types of approaches to eliminating war: “three approaches to have war join slavery and colonization in the dust-bin of history. No question of picking and choosing, they belong together and the more seamlessly, the better.” I couldn’t agree more, and will be drawing on the ideas in this book in the work we do at World Beyond War.

The book’s longest section is on criminalizing war, and it offers an argument I haven’t seen before. I think there’s great value in the argument, and that it can augment others. Nonetheless, I’m going to quibble with it.

Here is a book that practically quotes the arguments of the Outlawrists of the 1920s without mentioning them. It recommends, as its first recommended course of action right on the inside of the front cover, recreating Japan’s Article 9 for all states. And yet it largely ignores and bizarrely dismisses the existence of the Kellogg-Briand Pact, from which Article 9 derives (and which it practically quotes) and which already applies to most large nations.

The book’s second recommendation is to somehow build on the Universal Declaration of Human Rights’ “implicit” criminalization of war. Nowhere is it explained how an implicit criminalization of war is more useful than an explicit one. In fact, Irene Galtung rather wistfully imagines how nice it would be to have an explicit one. Nowhere is the problem mentioned that the United Nations, as “implicit” criminalizer of war, legalizes defensive and otherwise UN-authorized wars — two loopholes that have been stretched and abused to effectively allow any Western war whatsoever. This is, of course, in contrast to the Kellogg-Briand Pact, which bans all war and requires that nations settle all of their disputes entirely peacefully.

In the one instance where the book refers to the Kellogg-Briand Pact, it claims that, “this opens two huge loop-holes: use of force by non-members, and by and on non-states.” There are a number of errors in this claim. One of them is chronological. There were no laws banning war prior to Kellogg-Briand. In forbidding war between nations, the pact took war away in many cases from many major wagers of war. The pact was open to and remains open to all nations. Any nation that is not a member can simply send a letter to the U.S. State Department and instantly become a member. So, the so-called loophole for non-members is one that has been closing and could close further, but it wasn’t opened by the pact. War was legal for all states against all states prior to 1928.

What about non-states? The states that made the pact considered, and still to this day consider, war by non-states to be illegal. In fact, they consider illegal almost any action, if not the very existence, of most entities that might wage war without being a state. Within states, killing by anyone other than the state, is forbidden by national laws and by customary standards of law — as outlined, in fact, by the strategy pursued in the book by Galtung et alia — on which, more in a second. The bigger shortcoming is the failure to outlaw war by a member state against a non-state, but most such wars are also wars on the populations of states and often against the will of the governments of those states, often — indeed — against yet other states using proxies to wage war for them. A shortcoming, moreover, is not a condemnation of a useful step as counterproductive; it’s just a shortcoming requiring an additional step forward.

Clearly Galtung does not really think that criminalizing war between nations is an unhelpful step. He wants to do it singly, nation by nation, modeled on Japan’s Article 9 (which arguably has the very same shortcomings as the Kellogg-Briand Pact, plus the shortcoming of only applying to a single nation). Of course, Article 9 is under threat, and somewhat similar statements in the Constitutions of Italy and Germany and other nations are even less adhered to. But Galtung is right: bans on war in national constitutions should be strengthened, defended, and complied with. Doing so, however, presents a problem of logic in dismissing the Kellogg-Briand Pact as unhelpful. Never mind the purity of heart of its creators (its creators in fact were masses of people who brought legislators to it kicking and screaming) or the perfection of compliance by its members heretofore. If Japan launches a major war next year, Galtung will still want Article 9 upheld — or he should; I will. The Kellogg-Briand Pact is a law clearly banning all war for most major nations, including the least likely nations to agree to newly creating such a law today. Other nations could sign onto it and urge their fellow members to comply with it. Malaysia, for example, could choose to become a member of the pact and suddenly find itself a leader among its members by advocating for compliance — and for accountability and reparations and reconciliation — exactly as it would have to do with eternal vigilance if it instead used its own version of Article 9, only in this case with the major war makers of the world formally committed in clear language to compliance as well.

Because war is, in a major way, already illegal, calls to criminalize it ring in my ear a bit hollow, a bit like the rhetoric of the U.S. Congress proposing over and over again, year after year, to re-criminalize torture, rather than prosecuting torturers under long-standing laws. But the approach to criminalizing war proposed by Irene Galtung certainly has some merit. It doesn’t exactly claim that war is now legal, but it does claim that in written law it is legal, and this strikes me as dangerous.

The argument that Irene Galtung makes is not unrelated to the argument I have long made about drone murders, namely that murder is illegal under national law and customary international law. And it is nearly identical to the argument that Marjorie Cohn and other lawyers make for the illegality of torture under customary international law — only applied to war rather than torture.

Irene Galtung’s idea is that customary international law is higher than written international law or written national law. The problem, as she readily admits, is that — being unwritten — it is highly controversial. Still, what’s needed is an act of interpretation not entirely unlike the interpretation of a written law. Galtung claims that all national constitutions provide a right to life, and that the right to use deadly force in self-defense exists only when such use is necessary for self-defense. War is deadly force, simply on a larger scale, and it is never necessary, as there are always alternatives. Therefore, logically, even if you’d be hard-pressed to get many well-paid lawyers or human rights organizations or governments or judges to admit it, war is a crime.

This argument (which I have, of course, only sketched very roughly) is smart, logical, and educationally useful. I plan to repeat it often. But what appeals to “customary law” come down to are attempts to radically change legal custom on the authority of current legal custom (reinterpreted). That this couldn’t be helped by also pointing to existing laws like the Kellogg-Briand Pact is difficult for me to imagine. In fact, later in the book the authors cite the UN’s Declaration of the Right of the Peoples to Peace. That we have a right to peace means that we have a right to the absence of war. The Declaration states that it:

“Emphasizes that ensuring the exercise of the right of peoples to peace demands that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United Nations.”

The weakness is in those last few words, as the Charter contradicts itself and permits war. The Kellogg-Briand Pact lacks that particular weakness. I would love someday to hear a clear statement from Johan Galtung on what weaknesses he thinks its carries that justify its dismissal from public awareness and use.

You Should Watch Making of a Murderer

There’s a 10-hour documentary on Netflix with more to teach us than all the combined episodes of Star Wars. (Yes, it’s nice to see a storm trooper refuse to fight, but only until he gleefully joins in the killing for the other side, with all his victims still in masks so that we, the executioner audience, don’t have to see faces die.)

Making of a Murderer is a hugely important film, and it is in fact quite suspenseful. And I am about to SPOIL the plot for you. So please STOP READING until you’ve watched the film if you want it to include suspense. (To give you time to watch something so lengthy, I’ll also spoil the rest of the NCAA basketball season and tournament for you. Virginia wins.)

HAVE YOU STOPPED READING IF YOU DON’T WANT THE PLOT SPOILED?

Good.

I’m going to assume you’ve seen Making of a Murderer or are not concerned about the element of suspense.

The reason I find a need to write about this is because it exposes a silent epidemic. If child abuse or rape or child labor or some other horror were never talked about, an article or book exposing an unknown epidemic would be quite valuable. And, historically, a video documenting such a thing would be remarkable.

This past year, videos filmed primarily on telephones have exposed the long-pre-existing epidemic of U.S. police murdering unarmed people. We still don’t know the full size of that epidemic. It will of course pale beside something like cancer, while dwarfing other horrors about which we are trained to obsess, such as Islamic terrorism.

Making of a Murderer exposes something else that police do. But this is a horror that cannot be documented in a 5-minute video. It takes 10 hours. What police, together with prosecutors do, on a significant scale but a scale we have not yet tried to measure, is this: they frame innocent people and send them to prison.

The psychology involved is tantalizing but a bit of a distraction. When a police officer shoots an unarmed kid, we can ask whether the act grew out of sadism or racism or fear or carelessness. The fact is it grew out of impunity. When police and prosecutors — and judges and juries — railroad innocent people to prison, we can ask whether they’ve acted out of malice, ignorance, fear, or recklessness. The fact is that they’ve acted out of a sense of untouchable power.

That every level of law enforcement is twisted by racism is well documented in The New Jim Crow, among other places. We know that ugly and ignorant views regularly influence what police and prosecutors do. But Making of a Murderer is a true story of white people framing innocent white people with crimes. The victims of this frame-up are poor, poorly educated, and of markedly low intelligence and social skills. Various prejudices may have been at work. But primarily what’s revealed in the documentary is the power of the presumption of guilt that comes with all criminal accusations, combined with the power of the presumption of innocence that in our culture belongs to the police, and only to the police.

During the explosive growth of the U.S. prison system, most people have gone to prison under plea bargains. That many innocent people have falsely pled guilty to plea bargains in order to avoid the risk of a higher penalty has been well documented, although we have no idea of the true scale of this phenomenon. Among those who go to trial in the United States, we know also that a significant number of innocents are found guilty. One reason we know this is that in a tiny fraction of cases there is DNA evidence to be tested that can prove innocence, and — particularly during the 1980s — there have been cases in which that evidence was maintained but not tested. Later testing has resulted in numerous exonerations.

Those lucky cases in which DNA evidence was available to free an innocent were not unlike most other cases in the manner in which a false guilty verdict was arrived at. As I’ve noted before, Brandon Garrett’s Convicting the Innocent: Where Criminal Prosecutions Go Wrong examines the prosecutions of the first 250 people exonerated by DNA testing. Of the 250, 76% were misidentified by an eyewitness — most of the witnesses having been led to that act by police and/or prosecutor, some of them badgered and threatened, others merely manipulated. Invalid forensic science expertise contributed to 61% of the convictions, much of it willfully manipulated, some fraction perhaps attributable to well-intentioned but negligent incompetence. Informants, mostly jailhouse informants, and most of them manipulated and bribed by police or prosecutor, helped out in 21% of the trials. In 16% of the cases, the accused supposedly confessed to the crime, but these “confessions” tended to be the result of police intimidation, manipulation, brutality, and simple lying. Garrett fears that similar problems infect the U.S. justice system as a whole. I have no doubt that they do.

In Making of a Murderer we see police produce a false confession, witnesses provide false testimony, the FBI provide false scientific evidence, and — in a rape case toward the beginning of the story — an eyewitness led by police into misidentifying a rapist. That earlier crime puts the protagonist in prison for 18 years before a DNA exoneration. Once free, he files a suit for $36 million that threatens to expose numerous crimes by the police who framed him for rape. But at that moment, they frame him for murder.

One of the police and prosecutors’ main tools is the media. They produce a false confession by their victim’s 16-year-old nephew that proves too ludicrous to be used in court. They never call him as a witness against his uncle. But the jury pool has already been overwhelmingly contaminated by the dramatic tale fed to the media. Many years ago, I reported on the production by the Culpeper, Virginia, police of a false confession by a low-IQ man named Earl Washington. The transcript of the confession was absurd. When asked a straight-forward question, Washington would guess, and always guess wrong. He didn’t know any of the facts of the case. But the questioner would then feed him the facts and ask “Isn’t that right?” and Washington, aiming to please, would agree. Some states have since required the videotaping of interrogations and confessions.

In the case of Making of a Murderer there is enough videotape of the questioning of the 16-year-old to make crystal-clear what happened. And yet it didn’t do a damn bit of good. The kid had no money and therefore no expert defense. His lawyers and his jury blew it. But his uncle had two huge advantages. First he had been exonerated for an earlier crime. The fact that the police were out to get him was widely recognized. The local police department was forbidden to take part in the investigation of the new crime, and took part anyway, and happened to find key evidence. Second, Steve Avery — that’s the name of this innocent man — settled his $36 million suit for $400,000 and used that money to hire excellent attorneys.

Now, having excellent attorneys is very rare but far from unheard of. Wealthy people have them all the time. But having attorneys who actually believe you’re innocent is virtually unheard of. And having attorneys willing to argue that the police framed you is the most extreme rarity. Avery had all of these things, and it still was not enough.

What can we do? Sign this petition to free Steve Avery and his nephew Brendan Dassey.

What can we do about the thousands who could not afford to go to trial, could not afford a good lawyer, could not devise any means to persuade their good lawyer to believe them, and/or could not convince their good layer who believed them to risk his or her career by taking on the police department?

I think we have to work to encourage the production of films that will make the phenomenon of frame-ups as well known as the phenomenon of police murder. It’s either that or get people to start reading.

 

Video and Audio of Pilots Who Bombed Hospital

There is video and audio. It exists. The Pentagon says it’s critically important. Congress has asked for it and been refused. WikiLeaks is offering $50,000 to the next brave soul willing to be punished for a good deed in the manner of Chelsea Manning, Thomas Drake, Edward Snowden, and so many others. You can petition the White House to hand it over here.

The entire world thinks the U.S. military intentionally attacked a hospital because it considered some of the patients enemies, didn’t give a damn about the others, and has zero respect for the rule of law in the course of waging an illegal war. Even Congress members think this. All the Pentagon would have to do to exonerate itself would be to hand over the audio and video of the pilots talking with each other and with their co-conspirators on the ground during the commission of the crime — that is, if there is something exculpatory on the tapes, such as, “Hey, John, you’re sure they evacuated all the patients last week, right?”

All Congress would have to do to settle the matter would be to take the following steps one-at-a-time until one of them succeeds: publicly demand the recordings; send a subpoena for the recordings and the appearance of the Secretary of “Defense” from any committee or subcommittee in either house; exercise the long dormant power of inherent contempt by locking up said Secretary until he complies; open impeachment hearings against both the same Secretary and his Commander in Chief; impeach them; try them; convict them. A serious threat of this series of steps would make most or all of the steps unnecessary.

Since the Pentagon won’t act and Congress won’t act and the President won’t act (except by apologizing for having attacked a location containing white people with access to means of communication), and since we have numerous similar past incidents to base our analysis on, we are left to assume that it is highly unlikely that the hidden recordings include any exculpatory comments, but more likely conversation resembling that recorded in the collateral murder video (“Well it’s their fault for bringing their kids into a battle.”)

There isn’t actually any question that the U.S. military intentionally targeted what it knew to be a hospital. The only mystery is really how colorful, blood-thirsty, and racist the language was in the cockpit. Left in the dark, we will tend to assume the worst, since past revelations have usually measured up to that standard.

For those of you working to compel police officers in the United States to wear body cameras, it’s worth noting that the U.S. military already has them. The planes record their acts of murder. Even the unmanned planes, the drones, record video of their victims before, during, and after murdering them. These videos are not turned over to any grand juries or legislators or the people of the “democracy” for which so many people and places are being blown into little bits.

Law professors that measure up to the standards of Congressional hearings on kill lists never seem to ask for the videos; they always ask for the legal memos that make the drone murders around the world part of a war and therefore acceptable. Because in wars, they imply, all is fair. Doctors Without Borders, on the other hand, declares that even in wars there are rules. Actually, in life there are rules, and one of them is that war is a crime. It’s a crime under the U.N. Charter and under the Kellogg-Briand Pact, and when one mass-murder out of millions makes the news, we ought to seize that opportunity to draw attention, outrage, and criminal prosecution to all the others.

I don’t want the video and audio recordings of the hospital bombing. I want the video and audio recordings of every bombing of the past 14 years. I want Youtube and Facebook and Twitter full, not just of racist cops murdering black men for walking or chewing gum, but also of racist pilots (and drone “pilots”) murdering dark-skinned men, women, and children for living in the wrong countries. Exposing that material would be a healing act beyond national prejudice and truly worthy of honoring Doctors Without Borders.