Noah Leavitt

Doing Dirty Work Abroad

On Tuesday, Jan. 24, the Council of Europe announced the results of its long-awaited, months-long investigation into the possibility that torture victims have been shuttled around Europe to clandestine interrogation centers. The Council's investigations were led by Sen. Dick Marty of Switzerland, who, in the final report, excoriated European leaders for their complicity. Marty's findings also undermine U.S. denials that it does not practice torture overseas.

Marty's report is a zinger. He finds that the CIA conducted illegal activities in Europe by transporting and detaining prisoners while European governments looked on:

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Sun Tzu and the Art of Spying

Last week, White House spokeperson Trent Duffy provided the Bush administration's rationale for its extralegal program to spy on United States citizens. Duffy quipped: "The fact is that Al Quaida's play book is not printed on Page 1, and when America's is, it has serious ramifications. You don't need to be Sun Tzu to understand that."

Duffy was referencing the "big idea" of Sun Tzu's seminal work, "The Art of War," which could be stated as "the ideal strategy is to win without fighting -- to defeat the enemy before combat becomes necessary."

It was an odd but telling comment, and worth exploring for the critical insights it provides about Bush's views on spying and executive branch power.

It may at first seem strange to hear the White House praising an ancient Chinese Taoist thinker to justify a secret Executive Order that allows the National Security Agency to eavesdrop on phone conversations, email and other electronic communications without a court warrant. After all, this is the president who said in a December 1999 presidential debate that Jesus was his favorite political philosopher. And it is ironic, at the very least, for the born-again leader of the free world to be lauding a general from a despotic land who commanded his troops during a time of intense internal conflict.

Yet, Sun Tzu's work has been a staple of Asian business leaders for years, and has recently caught on with American CEOs. Dozens of management handbooks -- the kind you might half-heartedly thumb through in an airport bookstore when your flight has been delayed -- have drawn on Sun Tzu's military philosophy to find lessons for the corporate world. In the supercynical 1987 film "Wall Street," Gordon Gekko, the corporate raider, boasts: "I don't throw darts at a board. I bet on sure things. Read Sun Tzu."

Sun Tzu was a Chinese general who lived in the 6th century BCE, when the powerful Zhou Dynasty was in decline. Many regional feudal lords were competing with the king, and China was in a period of intense and prolonged civil war. Regarded as barbarians by other Chinese, the Zhou leaders appointed their own kinsmen -- or the kinsmen of their most trusted allies -- to rule over the various city-states. In order to convince their subjects of the legitimacy of their power, the Zhou invented a system of authority which they called the "Mandate of Heaven."

Sun Tzu was desperately worried about his nation becoming exhausted by war. He warned that "when you do battle, even if you are winning, if you continue for a long time it will dull your forces and blunt your edge. When your forces are dulled, your edge is blunted, your strength is exhausted, and your supplies are gone, then the other side will take advantage of your debility and rise up."

In order to avoid this national burnout, a leader should strive to keep the enemy off balance through extensive trickery -- "a military operation involves deception." Deception must be ongoing, and unpredictable: "Even though you are competent, appear to be incompetent. Though effective, appear to be ineffective."

Not surprisingly, Sun Tzu believed in the critical importance of spying. In his final chapter, "On the Use of Spies," Sun Tzu relates the importance of foreknowledge, which must come from people who intimately know the conditions of the enemy. He identifies five specific kinds of spies: the local, the inside, the reverse, the dead and the living. Because of their importance, "No one is given rewards as rich as those given to spies."

Yet, a deep current of Taoist moderation runs through Sun Tzu's advice, demanding clear limits and extraordinary discipline before undertaking serious campaigns such as war. In his own way, he was calling for a system of checks and balances. Thus, he warned, "One cannot use spies without sagacity and knowledge, one cannot use spies without humanity and justice"

In its dealings with the extralegal program to spy on U.S. citizens and others living in America -- or to extract information from them -- the White House has shown no sagacity, humanity or justice. Rather, the administration has done exactly the opposite of what Sun Tzu instructed.

Take sagacity. When Bush was unable to obtain top-level clearance for the wiretaps from then-Deputy Attorney General James Comey, two aides -- Andrew Card, White House chief of staff, and Alberto Gonzales, then-White House counsel -- went to George Washington University Hospital in a bizarre after-hours effort to get then-Attorney General John Ashcroft, who was recovering from gallbladder surgery, to sign off on it.

Humanity? This is the White House that supports extraordinary rendition of possible suspects to countries that torture freely in order to extract often inconsequential or fabricated information. Extraordinary rendition is when the CIA sends terror suspects to foreign intelligence agents without extradition proceedings. Suspects have been sent to Syria, Morocco, Egypt and Jordan, countries whose violent practices have been documented and condemned by the U.S. State Department's annual human rights report.

Like Nixon more than 35 years ago, Bush has ordered the NSA to conduct electronic snooping on communications of hundreds of people, including U.S. citizens. Unlike Nixon, however, this president has fully admitted spying and shown no remorse. Watergate settled Fourth Amendment law that the Executive Branch may not engage in wiretapping or other forms of electronic surveillance of the contents of private communications without probable cause and a warrant. Moreover, since the 1950s, the U.S. Supreme Court has clearly held that the president's power as commander in chief provides authority over the military and its battlefield operations but does not provide any comparable authority on matters at home.

Duffy, in quoting Sun Tzu, cavalierly told the American people that deception is the name of the game these days. In effect, he told the American people that they may as well distrust the administration, since the administration clearly distrusts them.

The American public recognizes the problems of applying corporate espionage strategies to the administration of the open democratic society of the United States. In the past few weeks, hundreds of letters to newspaper editors calling for impeachment proceedings have been published and posted online. Academics and lawyers are now openly assessing legal arguments to support impeachment proceedings.

And watchdog organizations are beginning to act. NGOs like Human Rights Watch have also advanced arguments that the alleged torture and other mistreatment of detainees, if proven, would amount to serious violations of U.S. criminal law, such as the War Crimes Act and the Anti-Torture Statute, and have called for a special prosecutor to investigate alleged mistreatment of detainees in U.S.-controlled detention facilities abroad.

And in late December, the ACLU sent a detailed letter to Gonzales calling for the appointment of an outside special counsel to investigate and prosecute criminal acts committed by any member of the Executive Branch in the NSA's warrantless surveillance of people in the United States over the past four years.

In the coming weeks, Congress plans to exercise its oversight role by holding hearings on the question of the legality of the Bush administration's eavesdropping program. Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, has pledged to make hearings into this program one of his highest priorities.

In a recent letter to Specter, Sen. Schumer, D-N.Y., also on the Judiciary Committee, said the Senate should also explore "significant concern about the legality of the program even at the very highest levels of the Department of Justice." Sen. Richard Lugar, R-Ind., the chairman of the Foreign Relations Committee, also supports hearings.

Rep. John Conyers has also argued that the president committed impeachable offenses because he and senior administration officials "countenanced torture and cruel, inhuman and degrading treatment in Iraq" at Abu Ghraib and other locations, as well as at Guantanamo Bay and the now-notorious "black sites" around the world, including those in Eastern Europe and Afghanistan.

Congress must act to put the brakes on Bush's Cold War-era projects before even larger spying programs are approved. The hearings on Samuel Alito -- no friend to civil liberties and individual rights -- are about to begin, and President Bush just kicked off a barnstorming tour to drum up support for the USA PATRIOT Act, many key provisions of which will expire February 3 unless Congress grants another extension.

Indeed, we can read Sun Tzu to know where Bush is heading. It is best, Sun Tzu said, when citizens are not involved in military campaigns. It is best, he said, to throw a blanket of silence, of darkness, over the nation on whose behalf the military is working.

That might have been great during a period of civil war 2,500 years ago. However, it is not relevant to a modern society with a system of checks and balances based on a written constitution -- a constitution the president has sworn to uphold, and whose violation can be grounds for impeachment.

Flipping Off Bush on Civil Liberties

As the election draws near, discussions of civil liberties have all but disappeared from the public discourse. Earlier questions about balancing civil liberties and national security seem to have been replaced by both candidates� need to prove that they are the toughest candidate possible, regardless of the consequences for Americans� precious civil liberties. But there are still important differences between the two men.

Bush and Cheney tell us that Kerry voted for the USA PATRIOT Act but now criticizes it. Kerry�s defense has been that as he has acquired more information about the law, he has rethought his understanding, which may cause him to appear as if he is changing his position. That answer may be accurate, but it does not get at the heart of the problems with the administration�s approach to civil liberties. If Kerry had wanted to be on the offense, rather than the defensive, he could have noted that almost every major sector of U.S. judicial, political, and civil society has flipped President Bush�s laws and practices that touch on civil liberties protection.

Really, President Bush�s entire record on civil liberties is a flop.


Flipping Bush in the Courts

Federal courts have taken the lead in flipping Bush�s civil liberties agenda. Take, for example, Mr.Yaser Hamdi.

Hamdi was the subject of an important U.S. Supreme Court decision this past summer. There, the majority of the Justices found that the Bush administration had been unconstitutionally holding Hamdi as an �enemy combatant� without charging him with any crimes, and without giving him access to his court-appointed lawyer or to the U.S. judicial system to review his complaints.

The Supreme Court ruled 8-1 against the administration�s arguments, completely flipping the White House�s claims that it could treat American citizens without regard to the Constitution.

Last month, Hamdi returned to Saudi Arabia. He was released in exchange for his agreeing not to bring claims against the United States for injuries suffered while imprisoned in Virginia and South Carolina.


Hamdi is but one example of a rapidly growing string of court decisions flipping the Bush�s problematic policies because they violate basic constitutional rights.

As attorney Elaine Cassel has recently pointed out in her new book,The War on Civil Liberties, the Bush administration has followed a predictable and increasingly failing pattern in prosecuting alleged terrorists: it makes dramatic, highly public allegations that distort the facts. It then accepts pleas to lesser charges in exchange for prison sentences that are unusually harsh for those lesser charges. Then it claims credit for �winning the war against terrorism.�

The Administration tried this in Detroit, where a year ago, Attorney General John Ashcroft boasted that he had won his major court victory in the war on terror by prosecuting a suspected terrorist sleeper cell. Yet, we recently learned in the New York Times that the prosecution was no victory at all � it was a farce, and one engineered by the highest levels of the Justice Department. Not only that, but in late August, the DOJ submitted a remarkable memorandum to federal judge Gerald Rosen in Detroit, admitting that its prosecution had been riddled with a pattern of mistakes and oversights.

This �victory� deserved to be flipped, and Judge Rosen did exactly that.

U.S. courts are even beginning to flip the almighty USA PATRIOT Act � the cornerstone of Bush�s civil liberties platform. For example, in January, a federal district court in California declared unconstitutional a section of the Act that prevented providing material support for groups accused of being terrorists because it was overly broad and vague and could apply to all kinds of non-terrorist groups.

More recently � in fact, just before the first presidential debate � a federal judge in New York struck down a major surveillance component of the PATRIOT Act that gave the FBI extraordinary power to demand information from companies without needing to obtain a court order. Frighteningly, that section also prevented recipients of the letters from ever revealing that they received the FBI demand for records. Judge Marrero wrote that such �all-inclusive sweeps� for information �had no place in our open society.�

And more challenges are on the way. A federal court in Michigan is considering a challenge to another section of the Act that allows the FBI to obtain an order to force any organization or business to turn over any tangible evidence that could relate to a terrorism investigation. Such cases will provide additional opportunities for courts to flip additional sections of Bush�s problematic legislation.


Flipping Bush in the Executive Branch

The courts are not the only sector of society that are throwing out Bush�s civil liberties practices � it is happening within the President�s own administration.

Recall that more than 13,000 Arabs and Muslims were detained and deported since September 11. Often, they were not charged with any offense, their families were not informed, and they were denied access to counsel. And recall that not a single one was charged with a specific act of terror.

Rightly, the Justice Department�s own Inspector General has been highly critical of this racially tainted, misguided type of �justice.� In addition, the Inspector General � an Executive Branch employee – has criticized the Administration because these detainees faced awful conditions in jails across the country where they awaited their fates.

Yet, at the same time as the Bush administration has been rounding up thousands of Muslims without demonstrating that any of them have any connection to terrorism, it has also been severely curtailing a broader investigation of non-terrorism related crimes. According to a recent Justice Department study, the FBI's shift from a broad attack on crime to an intense focus on counter-terrorism has resulted in tens of thousands fewer investigations into �traditional� crimes since 9-11.

While that report did not specifically criticize the DOJ, given the miserable record that the Bush administration has demonstrated in prosecuting terrorism cases, one cannot help but question the effectiveness of such policies in keeping our country safe and secure.


President Bush�s Own Flipping

Of course, President Bush has a well-documented history of changing his mind on civil liberties and domestic security questions.

For example, he initially opposed the creation of a Homeland Security office because he did not want to federalize law enforcement. (In a debate with Al Gore on October 11, 2000, he said, �I believe in local control of governments. I think we need to find out where racial profiling occurs and say to the local folks, get it done.�)

However, when political pressure increased after 9-11 for more coordinated intelligence and law enforcement operations, Bush created a massive new federal department, giving it billions of dollars to centralize power within the federal level, combining 22 agencies and more than 180,000 federal employees.

Kerry Gives a Few Clues

Compared to way the current administration regards civil liberties and national security, Kerry�s evolving positions on issues must be seen in a different light.

The most frequently cited example, of course, is Kerry�s change of heart on the PATRIOT Act � by now, most Americans know that Kerry voted for the Act and made some supportive statements about parts of it.

For instance, several weeks after the September 11 attacks, during a speech on the Senate floor, Kerry said he was �pleased at the compromise we have reached on the antiterrorism legislation, as a whole.� And on Fox News that same week – before President Bush signed the legislation – Kerry said the Act �streamlines the ability of law enforcement to do its job. It modernizes our ability to fight crime."

Since then, Americans � among them Senator Kerry – have watched as the untrammeled use of the PATRIOT Act and other tools of the Bush Administration�s domestic war on terror have been used recklessly, and have been crashing and burning around us.

With three years of lessons learned, of massive news coverage detailing the horrors of the detention of innocent immigrants, of American citizens held as enemy combatants, of outsourcing �tough� interrogations to countries where torture is practiced freely, of Abu Ghraib, Kerry now criticizes certain parts of the PATRIOT Act.

Can anyone blame him? To continue to support the Administration�s domestic war on terror in the face of three years of overwhelming factual evidence of misuse and outright failures would be naïve and misguided.

It is true that Kerry recently told the American Bar Association�s Journal that he believes �some provisions of the PATRIOT Act�like the money laundering provisions�must be made stronger.� He added that, �Others�like the library and �sneak-and-peek� search provisions�must be made smarter, to better protect privacy and freedom while allowing our government to do everything necessary to track down terrorists and defend America.�

Here are some questions those concerned about civil liberties should ask when choosing a Presidential candidate next week:

Which candidate is more likely to call for undermining the Bill of Rights by holding U.S. citizens incommunicado and without access to the courts?

Which candidate would ask residents to spy on each other, as the administration�s neighbor-spying-on-neighbor Terrorism Information and Prevention System (TIPS) program would have done?

Which candidate would instruct federal courts to close court hearings on routine immigration matters, as the Justice Department ordered in late 2001?

Which candidate would be more likely make arrangements for people in the U.S. who are potential suspects of terrorist-related crimes to be covertly transferred to countries that permit torture, in order to obtain information?


Flipped by the American electorate

If a sample of resolutions condemning the PATRIOT Act is any indication, a steadily growing portion of the American electorate appear more and more likely to flip Bush�s civil liberties agenda.

At the time of this writing, more than 358 communities in 43 states, including four state resolutions, covering about 55 million people, have passed resolutions and other public statements expressing concern about and opposition to the highly intrusive provisions of the PATRIOT Act, or the convoluted, rushed, secretive process by which it zoomed through Congress in the first six chaotic weeks after the September 11 attacks.

Not surprisingly, this list includes nearly all major American cities. Yet, it also includes such �hotbeds of liberalism� as Lincoln, Nebraska; Tumwater, Washington; Boone, North Carolina; and Jackson, Mississippi � places in solidly Republican territory that have seen the perils of Bush�s domestic security policy which treats the Constitution as a mere option to be ignored at the President�s whims.

The federal courts and the Department of Justice�s own Inspector General have overturned aspects of the administration�s policies that they say are direct violations of American�s civil liberties. On November 2nd, citizens will have a chance to say for themselves what they think of the civil liberties agenda of the past four years.

The War on Civil Liberties

Reviewed: Elaine Cassel, The War on Civil Liberties: How Bush and Ashcroft have Dismantled the Bill of Rights (Lawrence Hill Books, 2004)

This week, our nation somberly marks the third anniversary of the devastating attacks against New York and Washington D.C. In the three years since 9-11, America has, thankfully, not suffered a second terrorist attack.

Members of the Bush Administration – especially Attorney General John Ashcroft – have claimed that this is proof of the success of their anti-terror laws, and proof that extending and expanding these laws will make us even safer. Indeed, at the Republican convention, high-level politicians said that Congress must not only reauthorize, but strengthen such legislation.

But even if the laws are effective - and a very strong case can be made that they are not – can we afford the civil liberties cost? In her new book, The War Against Civil Liberties, Elaine Cassel reminds us how much the legal landscape has changed in this short period.

Indeed, Cassel argues that the past three years have altered America's constitutional order such that we may never again be able to enjoy the broad individual rights and presumptions that were the hallmark of our laws before 9-11. The Executive Branch, she persuasively contends, will never give up the power it has been given - and curtailment of our liberties will continue to expand, sweeping in broader and broader sections of the population.

Cassel, an attorney and author, is known for her popular blog covering the Justice Department, federal judiciary and Executive Branch. (She also is a guest columnist and book reviewer for this site). In less than 200 pages – one afternoon of reading – her timely book provides a sweeping yet nuanced look at how our constitutional rights have been drastically diminished since 9-11.

In her book, Cassel has neatly woven three years of national and international media coverage into a series of manageable examples – examples that allow the reader to quickly grasp her larger critical arguments. Cassel skillfully connects individual news stories to a much broader historical context.

Cassel's writing is informative and accessible while still being scholarly, making the book appropriate for both lawyers and non-lawyers - as well as for both newshounds and those new to these discussions.

The War Against Civil Liberties: The Legal Background

Cassel both explains and critiques the major laws at issue in the War on Terror: The 1996 Antiterrorism and Effective Death Penalty Act; the USA PATRIOT Act of 2001, and the Homeland Security Act of 2002. She demonstrates how these laws, especially viewed together, drastically undermine the Bill of Rights - shifting tremendous amounts of power to the Executive branch, severely compromising the American system of checks and balances.

Cassel also adeptly chronicles and comments on federal courts' rulings in a number of terrorism prosecutions - including the problematic cases of Zacarias Moussaoui, John Walker Lindh, and alleged terrorist cells in Lackawanna, Detroit, Portland, Seattle and Alexandria. She contends that in such cases, the courts have allowed violations both of the Fourth Amendment - which limits warrantless searches and seizures - and the Sixth Amendment, which guarantees a fair trial.

In addition, she focuses on two cases involving American attorneys – Lynne Stewart and Jesselyn Radack. Both have been targeted by the Justice Department.

Stewart allegedly aided communications by the terrorists she represented. But her attorney contends, and Cassel believes, she is really being persecuted for that representation itself.

Meanwhile, Radack spoke out against the infringement of John Walker Lindh's constitutional rights, while she was at the Department of Justice - contending that his interrogation violated his Fifth Amendment right against self-incrimination. Her conscientiousness was punished.

The War Against Several American Citizens

In particular, Cassel focuses on the two famous "enemy combatant" cases that involve American citizens - Hamdi and Padilla. As Cassel explains, in practice the enemy combatant designation means solitary confinement in a brig without access to counsel or the outside world, and increased likelihood of being deported or even facing the death penalty. Often, Cassel notes, DOJ will use "enemy combatant" status as a threat against even those defendants for whom it never ultimately seeks such status.

Analyzing these cases, Cassel finds that the Ashcroft Justice Department has followed a predictable pattern: It makes dramatic, highly public allegations that distort the facts. It then accepts pleas to lesser charge, in exchange for prison sentences that are unusually harsh for those lesser charges. Then it claims credit for "winning the war against terrorism."

(With Yaser Hamdi, it seems, the pattern is a new one: Imprison a citizen for years, claiming he is an intense security risk. Then agree to his deportation to the country where he grew up, Saudi Arabia - without admitting you were wrong about the risk he posed.)

The War Against Muslims and Arabs - and Their Charities

Recently, it was reported that the U.S. Census Bureau at least twice gave demographic data about Arabs living in the United States, including their ZIP codes and nations of origin, to the Department of Homeland Security. Plainly, this is an Administration that believes in racial profiling - to say the least.

While Cassel's book went to press long before this development, this recent news fits well with her contentions regarding the administration's treatment of Muslims and Arabs.

As Cassel noted, more than 13,000 Arabs and Muslims have been detained and deported since 9-11. Often, they were not charged with any offense, their families were not informed, and they were denied access to counsel. And not a single one has been charged with an act of terror.

Even the DOJ's own Inspector General's report was highly critical of this racially tainted, dragnet justice (as Anita Ramasastry explained in a column for this site.) Yet as Cassel notes, rather than apologizing, Ashcroft proudly told Congress two days after the report was released that he would do it all again.

Cassel reviews a series of cases where the Bush government has closed Islamic charities. Again, however, this has been a very problematic exercise.

For example, as the staff of the independent 9-11 panel recently determined, the Bush administration's shutdown of two Chicago-area Islamic charities has not produced a single terrorism-related criminal conviction - despite a harsh civil liberties cost.

Unfortunately, Cassel's book, while rightly sensitive to the plights of Muslims and Arabs, seems at times to buy into the kind of damaging sweeping conspiracy claims that greatly harm Jews. She complains, for instance - without any citation – that those with Palestinian heritage are being targeted "at a time when support of Israel is second only to the war on terrorism in the administration's foreign policy agenda."

In addition, Cassel approvingly quotes individuals who share this perspective – and this lack of citation. For instance, she quotes an attorney who in a 2003 speech "noted that for ten years, Muslims have been under fire because of the Zionist lobby." (Emphasis added). In generally, Cassel seems to uncritically accept comments linking Muslim misfortune to groups that are possibly allied with Israel.

To do so is wrong - and beneath a writer who in her book is so rightly focused on the importance of assessing individuals' personal responsibility - or in many cases, lack thereof – for harmful activity. Jews are a section of the population that has historically known what it means to be targeted for persecution during times of great social stress. When Muslims suffer parallel persecution - as they are in America today – Jews should never be assumed to be somehow at fault.

A War Without End?

The War Against Civil Liberties concludes by arguing that the war against terror - far from being "winnable," will be a war without end. Noting that terrorism is a concept, a tactic, and not an enemy - and thus can never be fully vanquished - Cassel also aptly notes how terrorism is being radically redefined and expanded. She argues, too, that such redefinition means there will be no end to the narrowing of our civil liberties.

In particular, Cassel argues that the term "terrorist" is coming to mean "someone with whom the U.S. government disagrees." She provides an alarming list of individuals who have been charged with crimes of "terrorism" that were anything but. They range from a producer of methamphetamine in North Carolina, to the Beltway snipers in suburban Virginia, to a woman on a Hawaii-bound cruise ship who left threatening notes for her boyfriend.

Cassel also describes how the USA PATRIOT Act has been used for obviously non-terrorist crimes. It has supported a subpoena of records in a Las Vegas bribery and racketeering case. It has been used to prosecute a scientist at Texas Tech University who lied about missing vials of bacteria.

Cassel predicts that not only law enforcement, but surveillance as well, will expand as the definition of terrorism bloats to encompass more and more. She cites a number of current examples: Banks are now required to collect more information about people opening deposits; the FBI is increasing monitoring of the Internet; Congress has authorized more control of academic institutions receiving federal funding concerning international topics; and a variety of data mining programs have been created to look for patterns of behavior that the programs' creators believe may point to terrorist threats in our society. (In columns for this site, Anita Ramasastry has commented on a number of these programs.)

Civil Liberties Should Be A Crucial Election Issue

President Bush told Republican convention-goers last week that we can win the war on terror by making preventive, preemptive strikes – including preventive strikes on Americans and people living in America whom the government claims have ties to terrorists.

But Cassel's book adeptly shows how doing so may lead to a loss of the very values that have made the U.S. a model of freedom around the world. Her book should be required reading for every American in this coming election season.

Last week, Bush signed an Executive Order creating the "President's Board on Safeguarding American's Civil Liberties." Yet, within hours, critics strongly urged Congress to reject this suggestion, comparing it to a fox guarding a henhouse. The ACLU argued that the board – as proposed – would be comprised only of the government officials it is meant to oversee, would have no investigative authority, and would be utterly beholden to the White House. Ultimately, it would likely act as an expansion of - not a constraint on - Executive power.

Our society is torn in two by a deep schism over how much our rights can be infringed, and how much power the Executive branch can expand to assume control. Cassel's book offers a valuable guide to these issues - and a passionate argument for favoring the civil liberties that are now under fire.

Redefining Torture

Recently, a U.S. government lawyer argued before a panel of the U.S. Court of Appeals for the Seventh Circuit – including the eminent jurists Richard Posner and Frank Easterbrook – about what the definition of "torture" should be.

The context was an immigration appeal, Comollari v. Ashcroft. But as I will explain, the resonance of the argument was far broader.

According to the government attorney, it would constitute "torture" if a sniper shoots a person in an artery, causing him to slowly bleed to death. But it would not count as "torture" if the sniper were to hit his target in the head, causing him to die instantly. So a painless assassination – by the CIA, perhaps? – would not be "torture" under the government's definition.

Readers will recall that a few months ago, several internal Bush Administration "torture" memos were leaked to the public. The memos showed that the government has been actively working to narrow the definition of "torture," so as to almost shrink it into nothingness, defying international law principles directly to the contrary. The oral argument in Comollari illustrates that the government – despite denials – is still engaged in the same enterprise of defining torture as narrowly as possible, regardless of what the law says.

In this column, I will argue that it is time for Congress to step in to reaffirm, by statute, what America considers "torture" – and ensure that this definition is used in a consistent, principled way. U.S. law already contains a clear definition of "torture," as I will explain. But the U.S. government doesn't seem to be listening to that definition. Congress should make sure it does – through investigation, resolution, and if necessary, statute. This issue is too important to ignore. America's honor and morality are at stake.

Currently, the Administration defines torture one way (and far too narrowly), wanting to protect its soldiers from being accused of it. Yet it defines torture another way when it wants to deport someone who seeks asylum on the ground that he reasonably fears being tortured if he is returned to his home country. This is unacceptable and wrong.

Background: The Torture Memos

Shortly after the Abu Ghraib prison abuse scandal broke, several shocking U.S. government internal memos surfaced. The memos, in effect, offered complex but specious legal arguments to justify the U.S.'s avoiding having to abide by the major international and national laws prohibiting torture.

An August 2002 Department of Justice (DOJ) memo stated that the DOJ advised the White House that torturing suspected terrorists held abroad "may be justified," and that international rules against torture which the U.S. has signed "may be unconstitutional if applied to interrogations" in the terror war. This memo was reportedly prepared to provide legal defenses for the CIA's harsh methods, in case its agents were prosecuted for violating federal statutes prohibiting torture.

Even more significant was the very narrow definition of "torture" the memo proposed that the President could legally adopt. Under this definition, the only treatment that would count as torture would have to be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

In addition, a March 6, 2003 draft report prepared by Pentagon lawyers also defined torture narrowly – and also offered arguments as to why U.S. government agents who torture prisoners could not be prosecuted.

The draft report made the nearly-ridiculous suggestion that if the purpose of the torture was to extract information, not to cause pain, it wasn't really torture: "Even if the defendant [U.S. government agent] knows that severe pain will result from his actions," it suggests, "if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."

The draft report also went on to claim that, "in light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas."

And apparently, when U.S. citizens are deemed "enemy combatants" and imprisoned incommunicado in the U.S., they may be able to be tortured here. According to the report, permissible torture recognizes no boundaries – it can be carried out overseas or in the U.S. without regard to any legal prohibitions.

International Law Offers a Clear Definition of Torture

After the torture memos appeared, more than 120 prominent lawyers, former government attorneys and legal academics sent a letter to President Bush. They expressed the view that the memos misinterpret the U.S. Constitution and laws, international treaties and rules of international law. They also expressed the view that, for this reason, the lawyers who had approved and signed the memos have not met their obligation to defend the Constitution and should be reprimanded.

As the letter reflects, the international legal definition of torture is universally recognized and accepted – and is very different from what Administration lawyers claim. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which I will call "the Torture Convention") forbids torture under any circumstances and does not allow the prohibition to be derogated even in conditions of national emergency.

It's important to note here that the U.S. – as well as all other liberal democracies – are signatories to the Torture Convention, and that under the Constitution, treaties ratified by the Senate are U.S. law, just like statutes and Supreme Court decisions. So claiming the U.S. has the right to differ from this definition is simply untenable.

Here is the Torture Convention's definition of "torture": "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

This sensible definition reflects our instincts about what torture is, and why it is wrong. It makes clear that torture to extract information is still torture. And it makes clear, too, that torture need not put its victim on the brink of death to be torture.

One would have thought these points were intuitively clear – until the Administration memos became public. But even if the point wasn't intuitively clear, it was legally clear – as a matter of a treaty that had become U.S. law.

Even After the Memos, the Government Is Still Trying to Define "Torture" Narrowly

After Abu Ghraib, many Americans called for Congress to investigate allegations of torture at U.S. bases in the Middle East. They raised concerns that important issues related to the treatment of detainees in the "war on terror" and in Iraq remain unanswered, including why detainees were "rendered" to countries such as Egypt, Syria and Saudi Arabia where torture is commonplace, and what interrogation techniques were approved for detainees in Iraq and Afghanistan.

During the scandal, the Bush administration issued a few terse statements claiming that the memos were only advisory; that the U.S. government was not making policy based on these analyses; and that its practices were not torture.

But recent events suggest that's not so. To the contrary, narrowing the definition of "torture" in domestic litigation now appears to be an active part of the U.S. Department of Justice's strategy.

Let's return now to the case with which this column began. The immigrant, Comollari, claimed that if he was returned to Albania, he was at risk of being killed by the political party in power there, due to his own past political activities.

And he pointed out that the Torture Convention forbids expelling a person to a country in which there are "substantial grounds for believing the person would be in danger of being subjected to torture." When are there "substantial grounds"? According to the regulations, it is if the person is "more likely than not" to be tortured.

During oral argument, the government brought up a side issue that, while it may not relate directly to Comollari, could become extremely relevant in other cases. The government's lawyer argued that the definition of torture does not necessarily cover assassination – if the assassination is a "painless death."

Judge Easterbrook then summarized the government's position: The Torture Convention does not bar assassinations provided they are done cleanly and lead to instant death.

The government attorney did not deny the summary's accuracy – and when challenged, repeated that she had "been instructed not to concede this point." Her comment indicates that internal DOJ discussions may be continuing to take place about how to most narrowly define torture.

The fact that the issue was a side issue, but the government dwelt upon it, also suggests it is a subject of ongoing interest to DOJ. As the court noted, the Comollari case itself did not directly raise this question.

Since there was no reason to think Albanian assassins are committed to a "clean kill" philosophy – the court (in an opinion by Judge Posner) wryly noted – Comollari's belief he might be assassinated was tantamount, for legal purposes, to a belief he might be tortured. So the issue boiled down to whether he had "substantial grounds" to believe he might be assassinated – with whatever degree of pain might ensue.

Interestingly, at the same time the court dismissed the government's issue as irrelevant to the case at hand, it also issued a warning of sorts to the government. Judge Posner made clear that even if death itself is physically painless, the anticipation of death by assassination may be a source of mental anguish that rises to a level that satisfies the Torture Convention's definition of torture.

In other words, the court was saying: DOJ, don't assume assassination isn't torture, especially if there is a climate of fear of assassination. You may be proved very, very wrong.

Comollari is indicative of the government's systematic undermining of the Torture Convention. The Torture Convention was the breakthrough international human rights treaty that the United States not only signed and ratified, but also passed implementing legislation, all within a matter of a decade, lightening speed for international law.

But in the immigration context, the government has continued to narrow the definition. According to Chicago immigration lawyer Mirna Adjami, U.S. immigration courts are increasingly reluctant to grant Torture Convention relief.

For instance, in 2000 these administrative courts granted relief in 4.3 percent of 12,432 Torture Convention applications filed; in 2001 relief was granted in only 4.4 percent of cases, even though the number of Torture Convention applications increased 42 percent to 17,660.

It's Time For Congress To Step In

The Bush Administration promised it would not play fast and loose with the well-established Torture Convention definition of torture. But its specious position on torture and assassination shows it is still splitting hairs – and doing so to serve its political agenda.

The question is still very much alive today. The legality of the interrogation techniques used by U.S. personnel on detainees at Guantanamo Bay remains unclear. Human Rights Watch has noted that while U.S. policy is that the detainees be treated "humanely," the Department of Defense has never revealed publicly how the detainees actually have been interrogated.

It's time for Congress to step in. As part of its oversight powers, Congress should expand its investigation of the Justice Department – monitoring how it is defining torture in various cases, and checking to make sure that it is not doing so lawlessly. Congress may also want to consider passing a statute or resolution reaffirming the Torture Convention's definition – though since the definition is already U.S. law, that should not be necessary.

The issue is one of morality and decency – and of honor, and compliance with the law. But it also has a pragmatic side. When U.S. soldiers are prisoners of war, will we want a narrow definition of torture to be used? When it is our people who are in the sights of a gun, will we want that definition to exclude assassination?

Human Rights Abuses Begin at Home

Lately, U.S. conduct abroad has triggered a number of inquiries into alleged -- and in some cases, undeniable -- violations of international human rights.

Photos testify that American troops have abused Iraqi prisoners in terrible ways. Some have argued that the U.S.'s practice of sending accused terrorists to be interrogated in countries where torture is permitted violates America's obligations under the U.N. Convention Against Torture. And allegations of U.S. guards' mistreatment of detainees at Guantanamo seem all the more relevant as the Supreme Court decides whether U.S. federal courts can review detainees' claims.

Meanwhile, as the news gives Americans an education in international human rights issues, American citizens seem more willing to consider the possibility of violations right here at home.

In this column, I will consider one example of this trend: Chicago public housing project residents' contention that the conditions in which they are living amount to human right violations. They assert that, just as the world is paying attention to the human rights abuses taking place thousands of miles beyond our borders, it ought to pay equal attention to the human rights abuses taking place in Chicago.

Chicago Public Housing Residents Call in The United Nations

Last month, Miloon Kothari -- the United Nations Special Rapporteur on Adequate Housing, who reports directly to the UN High Commissioner for Human Rights in Geneva -- flew to Chicago to meet a group of public housing residents.

They were residents of the Cabrini-Green development -- which is one of America's most notoriously dangerous public housing projects, as a result of a long history of neglect and gang activity. They had invited Kothari to visit partly out of desperation -- never expecting he would take their invitation seriously. (Kothari has never done an in-depth study on housing conditions in the United States.)

Currently, Chicago's plan to deal with public housing seems to be to demolish it: More than 20,000 units are slated to be razed as part of the city's 10-year plan to transform public housing. But public housing residents, organized through the Coalition to Protect Public Housing, point out that the result has hardly been an improvement: Some have been forced to move into homeless shelters and temporary dwellings because they are not given assistance in finding new residences.

The Cabrini-Green residents also told Kothari that they are not alone. President Bush has proposed drastic funding cuts for federal programs that provide subsidized housing for America's lowest income families. Just last week, the U.S. Department of Housing and Urban Development announced it is changing the way it funds the 2004 housing choice voucher program. As a result, many local housing authorities will be short of the funds needed to cover all vouchers currently in use. Now, housing authorities across the country are planning for the possibility of having to terminate residents from the program, or otherwise cover funding shortfalls. It seems likely that across the nation, other public housing residents will be in the situation of many Cabrini-Green residents: going from inadequate housing, to no housing at all.

In his discussions with Cabrini-Green residents, Kothari acknowledged that there indeed seems to be a human rights crisis in the forced evictions of public housing tenants from their units.

International Law on the Right to Housing

Readers may wonder: Isn't housing a domestic issue? The answer is that international law clearly says otherwise. And here, I am not referring to unwritten international law principles -- but rather to treaties the U.S. has signed and ratified.

The U.S. has signed and ratified the International Covenant on Civil and Political Rights, which includes a right to protection from arbitrary or unlawful interference with one's home, and the International Convention on the Elimination of All Forms of Racial Discrimination, which prohibits actions with respect to housing that have the effect of discriminating against persons of color. (Most of Cabrini-Green's residents are African-American). It has also signed the American Convention on Human Rights, which requires progressive measures on the part of governments to fully realize adequate housing for all sectors of the population.

In addition, the U.S. was a primary drafter of, and has adopted, the Universal Declaration of Human Rights, which provides that everyone has the right to a standard of living adequate of the health and well being of himself and his family, including housing.

Finally, as a U.N. member, the U.S. is subject to the U.N. Commission on Human Rights Resolution 19993/77 -- which urges governments to undertake immediate measures to prevent forced evictions.

Meanwhile, the residents have several very good reasons to invoke international human rights. First, they have not been offered any domestic redress or remedy -- and they are in a desperate situation.

Second, the international law sources I've mentioned above go further than the U.S. Constitution and federal statutes -- which do not mention a right to housing. (Many state constitutions provide for giving support for the state residents' public health or welfare, but also do not enumerate specific rights to housing.) Thus, they provide especially strong support for the residents' claims. And ratified treaties are legally part of U.S. law, just as the Constitution and federal statutes are.

Third, it is wrong -- and from the government's perspective, embarrassing -- for the U.S. government to trumpet human rights abroad and violate them at home. The members of the Coalition to Protect Public Housing are right to bring attention to this dissonance and hypocrisy.

The Broader Trend Of Which the Cabrini-Green Example Is a Part

The Cabrini-Green residents' experience is part of a larger trend that is taking place on several fronts. Not only are treaties taking a more prominent role in the U.S., but so are decisions by international tribunals and foreign courts.

There is an increasing use of international law and foreign precedents in U.S. courts. Last October, in a speech in Atlanta, Justice Sandra Day O'Connor added fuel to the controversy over this development, predicting that, "over time we will rely increasingly, or take notice at least increasingly, of international and foreign courts in examining domestic issues."

In my prior column, I predicted that there would be growing resistance to views such as Justice O'Connor's. And, indeed, this is exactly what has happened. Recently, Republican House members Tom Feeney of Florida and Bob Goodlatte of Virginia, joined by more than 50 co-sponsors, proposed a non-binding resolution to express the opinion of Congress that judicial decisions should not be based in foreign laws or court decisions. Feeney even went so far as to say that "To the extent they deliberately ignore Congress' admonishment, the judges are no longer engaging in 'good behavior' in the meaning of the Constitution and they may subject themselves to the ultimate remedy, which would be impeachment."

The use of treaties -- which after all, are U.S. and not foreign law -- has been less controversial, and is growing rapidly. The Ford Foundation recently issued an extensive report describing more than a dozen legal and political campaigns in the United States that currently utilize an international human rights strategy.

Groups concerned with women, poor people, Native Americans, and immigrants are all drawing upon, and interposing themselves, in the international legal arena to fight for their rights in the United States. Each of them, like the public housing residents in Chicago, faces frustrating obstacles in U.S. courts. Many are responding by trying foreign and international tribunals.

Why is this happening? Is it because American courts are unfriendly to plaintiffs seeking remedies for alleged discrimination? Is it because there is a long history of racial minorities and disadvantaged groups going to the United Nations seeking relief? Is it because the international community is increasingly concerned about what is taking place within the United States, as a way of understanding how the U.S. operates beyond its borders?

All these possible reasons seem plausible. But it also seems that Americans' growing familiarity with human rights law is closely linked to the media's growing discussion of possible human rights abuses committed by the U.S. in Iraq. Thus, the war, and the surrounding discussion of the conflict, is raising the profile of human rights in a unique and possibly lasting way here in the United States.

Noah Leavitt, a lawyer and author, is the Advocacy Director for the Jewish Council on Urban Affairs. The opinions here do not reflect the official position of his organization. Leavitt can be reached at nsleavitt@hotmail.com.

The Supreme Court Goes Global

The end of the Supreme Court's term last week hinted at a quiet revolution taking place in American law. In particular, two of the Court's most significant civil rights decisions favorably cited international and foreign law. This development surprised many Court watchers who generally regard the justices as close allies of President Bush.

At home and abroad, the Bush Administration has been vigorously undermining efforts to link U.S. and international law. Two of many recent examples include the White House's efforts to coerce Belgium to soften its universal jurisdiction laws and the Administration's challenge to cases brought under the Alien Tort Claims Act, an obscure U.S. law that allows foreigners to sue American companies linked to human rights abuses in other nations.

Yet, at the same time, some American lawyers are fighting back. First, they are starting to use international law claims in their domestic legal arguments. For example, the Court recently considered an amicus brief filed by several immigrant advocacy organizations describing relevant international and foreign law surrounding arbitrary detention.

Second, these lawyers are starting to take their domestic cases to international and regional tribunals. For example, they are bringing death penalty claims to the International Court of Justice and labor rights cases to the Inter-American Court of Human Rights. Although decisions by these bodies are not binding on U.S. courts, they can be one component in advocacy campaigns in legislatures and public opinion. This two-pronged strategy is beginning to show victories, including in the Supreme Court last week.

Most people describe the Supreme Court as conservative. However, the Court ended its term by issuing several rulings challenging that characterization. The Court's decisions upholding affirmative action and striking down a Texas law banning sodomy (and overturning an earlier decision prohibiting these practices) gave Democrats something to cheer.

Yet, the Court did something more significant than simply supporting these traditionally liberal positions. In each of these decisions, the Court favorably utilized international law in ways that show a growing awareness of relevant sources of legal authority beyond America's borders. This recognition demonstrates that the Court is beginning to pay attention when advocates claim that the United States is out of line with generally accepted international legal norms.

First, in their important concurrence in the Michigan Law School affirmative action decision, Justices Ginsburg and Breyer indicated that the Court is more likely to uphold U.S. laws agreeing with their international equivalents than those that disagree. The two Justices noted that the Court's observation that race-conscious programs must have a logical end point accords with the international understanding of the purpose of affirmative action. They also found that the International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, endorses special and concrete measures to ensure the development and protection of certain racial groups.

In addition, in their dissent in the college affirmative action case, Justices Ginsburg and Souter drew on contemporary human rights documents to distinguish policies of oppression from measures designed to accelerate de facto equality. Taken together, this language is the Court's strongest statement to date supporting the important and growing links between domestic and international law.

Second, and even more notable, in his decision striking down the Texas anti-sodomy law, Justice Kennedy drew lessons from a similar case decided by the European Court of Human Rights. He noted that the European Court's ruling was authoritative in all countries of the Council of Europe and suggested that the U.S.'s lack of agreement on this fundamental issue indicated that the Court should rethink its analysis of the issue. Justice Kennedy also favorably cited an amicus brief submitted by former UN High Commissioner for Human Rights Mary Robinson demonstrating that many countries have taken action consistent with affirming the protected right of homosexual adults to engage in intimate consensual contact.

Not surprisingly, in his dissent, Justice Scalia criticized references to other nations and tribunals' approaches to these issues. Quoting his fellow justice Clarence Thomas, Scalia asserted that the Supreme Court "should not impose foreign moods, fads or fashions on Americans."

Scalia and Thomas completely miss the point, however. The Court is not imposing fads. Rather, it is simply noting what most of the rest of the industrialized world has decided are fundamental human values and asking whether there is any significance to the fact that the U.S. is going the opposite way on many of these issues.

Some Americans are concerned that the U.S. judiciary is being taken over by the Executive branch. Yet, although no one would argue that the Supreme Court has made President Bush's job more difficult, the justices' new respect for the relevance of international law seems to indicate that the Court may not view America's role in the world as an island unto itself.

And, if, as many say, the Court follows rather than leads public opinion, these civil rights decisions may indicate that President Bush's unilateralism is being questioned far beyond the Court's marble halls.


Noah Leavitt is a lawyer and a guest columnist on FindLaw.com.

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