Criminal Justice

Guantanamo: Who Really 'Returned to the Battlefield'?

American Strategy — Mon, 20 Jul 2009 13:03:00 -0400

As President Obama receives formal recommendations in the coming months on issues surrounding the U.S. military prison at Guantanamo Bay, Cuba, it is crucial that policymakers and the public have an accurate picture of the threat to the United States posed by those detainees already released. Contrary to recent assertions that one in seven, or 14 percent, of the former prisoners had "returned to the battlefield," our analysis of Pentagon reports, news stories, and other public records indicates that the number who were confirmed or suspected to be involved in anti-U.S.

Debate Over Government-Funded Police Protection Heats Up

Cecille Isidro — Tue, 30 Jun 2009 08:07:00 -0400

Now that the president and the Democrats in Congress have set a fall deadline for legislative action on universal police protection for all Americans, battle lines are being drawn on Capitol Hill. On the right are conservative defenders of America's system of for-profit, private mercenaries. The Democrats are divided among progressives who favor universal, publicly funded police who would protect all citizens against crime, and moderate and conservative Democrats who argue that any citizen security reform should leave America's existing system of soldiers for hire in place.

Prisoner of the Heart

adminn — Sat, 27 Sep 2008 07:53:00 -0400

Twenty-one years ago, Daisy Benson brought a gun to an argument. She says she didn’t mean to shoot, and that may be true, but you bring a gun to an argument, a lot can go wrong. Daisy was convicted of murder, given 15 to life, and sent away to prison, hundreds of miles from home, a small, poor town in Northern California. Seven years later, her family saved up enough to visit. That’s when her daughter Robbin -- at the time, she was in her 20s -- hatched a plan that sounded so crazy, when Daisy first told me about it, I thought, this can't be true. But then I tracked Robbin down. And they both remember it starting exactly the same way...

Listen to the radio segment using the player above, or download it as an MP3 file at the bottom of this page.

T.A. Frank on KCRW Radio | 'Which Way L.A.? - Can California Integrate Its Prisons Without Violence?'

Communications — Tue, 29 Jul 2008 08:08:00 -0400

States like Texas and Oklahoma long ago ended racial segregation in their prisons. Now it’s California’s turn, after the Supreme Court ordered change. State prison officials have to bring white, black and Latino inmates together and still prevent rampant violence.

T.A. Frank, Editor of the Washington Monthly and a Fellow of New America Foundation, discusses how California begins to desegregate its prisons. LINK to audio

Inmates and Integration

Cecille Isidro — Sun, 27 Jul 2008 06:16:00 -0400

To be honest, it didn't look like racial segregation. I was standing among long rows of metal bunk beds in a room where 36 men of different races -- black, white, Latino -- live together more or less peaceably. But the setting was a dormitory for minimum-security inmates at the Sierra Conservation Center, a prison in Tuolumne County near Yosemite, and in such places, unwritten rules apply.

One of the rules is that each bunk must be shared by two men of the same race. The bunks are close together. A white inmate could probably shake hands with a black inmate in a neighboring bunk without either man having to get out of bed. But that's a horizontal matter. Vertically, prison politics require that each bunk be occupied by two men of one race. Beside someone of another race, yes. Above or beneath, no. I didn't ask about diagonal.

Well-meaning Americans have long debated how best to encourage racial integration. Should government be aggressive in bringing it about quickly? Or should we rely on social evolution to achieve it more slowly and organically? In the case of California's prisons, however, the informed answer to these questions has generally been ... neither. Segregation, prison officials have suggested, is just fine with us if it prevents violence.

That's because California is cursed with race-based prison gangs, entities that originated in the state's corrections system during the 1960s and 1970s. (They include the Aryan Brotherhood, the Black Guerrilla Family and La Nuestra Familia, to name a few.) Because racial violence is central to prison-gang mores, the California Department of Corrections and Rehabilitation, or CDCR, has long followed unwritten rules of segregation in the interest of keeping the peace. In Level I and Level II units, which are minimum-to-medium security (Level IV is the highest level of security), inmates and staff alike honor the one-race-to-a-bunk-bed rule. When a bed in a "black" bunk opens up, for instance, only a black person is assigned to it, even if a white inmate is available to fill the spot.

In Level III and Level IV units, where prisoners generally live two to a cell, whites room with whites, Latinos with Latinos, blacks with blacks, and so forth. Corrections officers avoid assigning men of different races to a two-person cell, and inmates avoid requesting roommates of a different race.

But that's all about to change. In 1995, a black inmate named Garrison Johnson filed suit against the state, protesting that race-based cell assignments were unconstitutional. The case eventually went to the U.S. Supreme Court, and in 2005, Johnson effectively won. Although attorneys for California argued that cell-level segregation helped to reduce violence among prisoners, a five-justice majority held that allowing race to be the deciding factor in cell assignments -- even when an inmate wasn't affiliated with a gang -- would be likely to "breed further hostility among prisoners and reinforce racial and ethnic divisions."

As a result, the CDCR came up with a plan to desegregate its cells. Phase one of the plan (training staff, consulting outside experts and interviewing and assessing California's inmates) is complete, say prison officials, and now it's time for phase two -- actual integration -- to be rolled out in prisons statewide. One of the first in line is the Sierra Conservation Center, which has already made the switch in Level III and will start breaking the existing racial codes in Level I and Level II dormitories sometime in the next few weeks. I visited hoping to determine whether the state was embarking on something laudable or merely something dumb.

Let's start with "laudable." In July 2007, the Sierra Conservation Center quietly made its Level III unit into a "Sensitive Needs Yard," or SNY, a facility specifically for inmates who (either because of the type of crime they've committed or the type of enemies they've made) seek out special housing away from the general population. The former inmates were reassigned to new prisons, and all the newcomers were assigned to racially integrated two-person cells. (No one was physically forced to integrate, but inmates are punished and lose a raft of privileges, such as family visits, if they resist.)

According to the CDCR's Lt. Rodney L. Kirkland, who oversaw the transition, the results have been surprisingly positive. Within the cells, inmates have adapted to their roommates. Even outside the cells, inmates of different races can be seen sitting together at mealtime.

"Before we integrated, I had three riots involving four to five hundred inmates each -- in February, April and June," Kirkland recalled. "Since the conversion, we get a lot of little fistfights, disagreements and that type of stuff, but no riots whatsoever." In part, this is because SNY prisoners tend to be more compliant than regular Level III inmates, because unruliness can cause SNY inmates to be expelled from their protective housing back into the general prison population. But even by SNY standards, Sierra was apparently quite tranquil, an outcome that none of the staff I spoke to had anticipated.

When I talked to them, the inmates in Level III offered a variety of views on their integrated quarters, but no one, to my surprise, condemned the new policy outright. One complaint I heard came from Greg Oliver, a 41-year-old white inmate, who lamented that he was no longer free to choose whom to room with. But the issue wasn't race, he said, as much as culture, age and religion -- factors he felt reduced the likelihood of finding a good cross-racial match.

I was especially struck to hear some inmates more or less praise the new policy. Pacing down the cellblock and picking one integrated cell at random, I encountered a pair of cellmates -- white and Latino -- who were openly enthusiastic about the change. "I was a skinhead for years," said Bryon Fields, 42, giving a friendly nod to Jorge Luis Gonzalez, 39. "I never could've lived with somebody like this before, and at first I had issues with it. But after three weeks of living with this guy, right here, he's taught me a lot, and I've taught him a lot. ... This guy is probably one of the best guys I've ever lived with." Both men have at various times been offered a chance to switching cells and roommates, but have preferred to stay where they are.

It seems, based on the peaceful rollout so far, that the Supreme Court has been vindicated, at least at Sierra's SNY unit. Under the old policy of deferring to racial fault lines, California's correctional system had most likely been doing just what the court feared: reinforcing existing divisions and possibly making things worse. Now, under the new policy, far from feeling resentful at being "forced" to get along, many inmates apparently are relieved. I felt that the CDCR was on balance doing the right thing for the Level III inmates I met.

But let's move on to "dumb," which was the consensus among the prisoners I spoke to in Level I, which will have integrated bunks in a matter of weeks. (That means that when a bed opens up, the first prisoner checked in takes it, regardless of the ethnicity of the man sleeping above or below him.) We already live together in one big integrated room, went the argument, so why does the CDCR need to take things further and make trouble?

"It's going to mess up my program," said Matthew Simmons, a 21-year-old white inmate. Like most inmates in Level I, Simmons wants to join the prison's firefighting program. (Over 2,000 prisoners with records of good behavior are assisting in California's fight against this summer's fires.) Now he fears a nonwhite guy might be assigned to a bunk above him, a scenario in which prison politics dictate that Simmons must raise a fuss. "I'd have to say, 'Dude, can you get off [the bunk],' " Simmons explained.

Why? Because if Simmons doesn't try to prevent a nonwhite man from sharing his bunk, then white inmates will assault Simmons for violating the existing code of racial separation. This seems to be the worry of most of Sierra's Level I inmates, regardless of their race. They feel stuck: Either they can refuse to cooperate, hurting their chances of getting into firefighting camp or even getting out of prison early, or they can go along with the new rules and get attacked by fellow inmates. The inmates I met didn't seem angry about the coming change, just sad.

I had very mixed feelings about what I saw in Level I. From the perspectives of both law and simple decency, letting racial taboos dictate bunk-bed assignments is unacceptable. On the other hand, I doubt that the new policy in Levels I and II will be especially helpful to prisoners -- either in terms of rehabilitation or quality of life. Integrating two-person cells in Levels III and IV has the potential to change how prisoners think and feel (I've got to live with this non-white guy, and -- what do you know -- he's not as bad as I thought he'd be). But that's not really the case in Levels I and II, where men of all races already share large rooms. Integrated bunk beds don't really put men in closer touch. (That guy used to sleep four feet to my left. Now he sleeps four feet above me.) After all, when 36 men of various races can tolerate 100-degree heat and get along in a room originally built for 16, that's surely a sufficient lesson in tolerance already.

It's also worrisome that the burden of the new policy in Levels I and II is likely to fall most heavily on an unlucky few. Level III at Sierra was integrated almost entirely at once, so that everyone in the unit was in the same position and no single inmate was placed on the racial front lines. Levels I and II, however, will be phased in gradually, meaning that a handful of prisoners will be the first to face a situation in which someone of a different race is assigned to their bunk.

Unlike in Level III, they won't be alone with just one other man -- a situation in which either man is on more or less equal footing and insulated from close scrutiny by fellow inmates. They'll have more than 30 pairs of eyes on them. Given the pressure they will face from fellow inmates to resist such integration, this simply seems unfair -- and even dangerous.

Of course, regardless of fairness, the state will ultimately have its way, and California's prisoners, after some initial resistance, will no doubt learn to live with it. "We always make it work," prison spokesman Lt. Jimmy Hurtado told me, referring to other unpopular changes, such as banning tobacco and cramming even more bunks into each cell. However unruly these men may have been outside, once incarcerated, they are fully at society's mercy.

But Simmons' dilemma -- fight or be jumped -- sticks with me, and the burden we Californians may be placing on him and others like him strikes me as a heavy one, especially given the modest aim of musical bunks in question. I can only hope the long-term benefits to Simmons and his fellow low-level inmates outweigh the costs they'll soon be expected to pay.

Beyond the Torture Debate

Communications — Tue, 06 May 2008 08:30:00 -0400

A New America Event
05/06/2008 - 3:30pm

On May 6th the American Strategy Program hosted an event with Philippe Sands, Professor of International Law at University College London and Colonel Lawrence Wilkerson, former Chief of Staff for Colon Powell. Mr. Sands was in DC to testify to the House Judiciary Committee about the findings in his new book, Torture Team, which examines the legal implications of the Bush administration’s policy of torture. Col. Wilkerson was on hand for commentary on the subject. The event was moderated by… more

T.A. Frank

Operations — Tue, 08 Apr 2008 05:10:00 -0400

Irvine FellowAs a California-based Fellow at the New America Foundation, T.A. Frank writes about law, criminal justice, and labor. With a robust technology sector, busy ports, and a changing economy, California is faced with new sorts of crime, such as terrorism, cybercrime, and financial fraud. Mr. Frank will explore issues such… more

The Fog of War Crimes

adminn — Mon, 07 Jan 2008 15:00:00 -0500

A Marine squad was on a dusty road in Iraq, far from home. Suddenly, a deadly roadside bomb explodes the early morning calm and kills a lance corporal and wounds two other Marines. The mission: tend to the wounded and find those who were responsible … Or make someone pay? Three sleeping families awaken to the sound of grenades and guns.

By the end of the "operation," 24 people were dead, including three women and six children. Bullets, fired at close range, tore through bodies and lodged deep in walls. A one-legged elderly man was shot nine times in the chest and abdomen. A man who watched the violence from his roof across the road told The Washington Post that he heard his neighbor speak to the Marines in English, begging for the lives of his wife and children, saying, "I am friend. I am good." All the family was killed except one: 13–year-old Safa. Covered in her mother's blood, she reportedly fainted and appeared dead.

In a road nearby lay the bodies of five men -- four college students and their driver.

On Nov. 20, 2005, a Marine spokesman reported: "A U.S. Marine and 15 civilians were killed yesterday from the blast of a roadside bomb in Haditha. Immediately following the bombing, gunmen attacked the convoy with small-arms fire. Iraqi army soldiers and Marines returned fire, killing eight insurgents and wounding another."

The only truth in that statement was that there was a roadside bomb and that a Marine -- Lance Cpl. Miguel Terrazas, known as T.J. to the other men in his squad -- was killed instantly. The rest was a lie. It took months for the truth to come out, and the search for justice is taking even longer. The 24 Iraqi bodies have since been buried in a cemetery in Haditha, a farming town beside the Euphrates River. But no one -- from the commander on down -- has been sentenced to prison, and the effort to hold Marines responsible for this crime has focused on a few men who are low on the chain of command.

Geoffrey Corn, a retired lieutenant colonel and a professor at Southern Texas College of Law, says the laws of war work because "for every case of atrocities that we read about, there are thousands of Marines and soldiers who act with restraint."

The Laws of Armed Conflict and the Geneva Conventions were designed as the basis for military conduct in times of war. Three central principles govern armed conflict: military necessity, distinction (soldiers must engage only valid military targets) and proportionality (the loss of civilian lives and property damage must not outweigh the military advantage sought). Among other things, the Geneva Conventions identify grave breaches of international law as the "willful killing; torture or inhuman treatment; willful causing of great suffering; and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully or wantonly." An examination of the military's actions in the aftermath of Haditha reveals a clear unwillingness to apply these principles.

Whose Neck is on the Line?

"You stop war crimes by coming down on the ranking officer," says Ian Cuth-bertson, a military historian and senior fellow at the World Policy Institute.

"All armies in all wars at all times have committed war crimes," he continues. "The question is: Does command authority condone or stop them? You can't just give an 18-year-old an automatic weapon and tell him, 'Don't shoot prisoners in the head.' You need an officer to rein him in. The officer needs to feel as though his own neck is on the line."

In the case of Haditha, Marines have not put officers' necks on the line. Maj. Gen. Richard Huck, who was in charge of Marines in Haditha in 2005, along with his chief of staff Col. Richard Sokoloski and Col. Stephen Davis, who headed the regimental combat team, all received letters of censure from the secretary of the U.S. Navy. The censure did not strip the men of their rank or salary, but they will be barred from future promotions, which could force them out of the Marines. According to Gary Solis, a military law expert and former Marine, censure is the Marine Corps' most serious administrative sanction.

But, as Cuthbertson points out, the generals are not being censured for letting Haditha happen. They are being punished for not investigating. This is a big difference.

Cuthbertson cites the Allied response to the Malmedy massacre in Belgium as one example of taking war crimes seriously up the chain of command. In 1944, German soldiers killed more than 70 unarmed U.S. prisoners of war. In war crimes trials after Germany was defeated, justice was swift and extended far beyond those who actually pulled triggers. "The commander of the regiment wasn't there. He was found guilty and sentenced to death," says Cuthbertson. "The general of the Army wasn't there. He was found guilty and sentenced to life in prison."

Unraveling the Massacre

In January 2006 -- a month after the Haditha massacre -- an Iraqi journalism student gave Time magazine a video of the bloody aftermath. Taher Thabet shot footage in the homes and at the morgue, recording the carnage in shaky frames. Time passed the footage on to the chief military spokesman in Baghdad, forcing the Marines to launch an investigation. Until the evidence was in their hands (and widely available on the Internet), they appeared ready to accept as truth the flimsy, contradictory account of events cobbled together by the squad leader and his men.

Two months later, the investigation determined that Marines -- not insurgents -- killed the civilians, and Naval Criminal Investigative Services further concluded that the civilians were deliberately targeted. CNN reported on the investigations on March 16, and Time published a long article on March 27. President Bush, however, did not address the Haditha issue until June 1, when he called the allegations "very troubling for me and equally troubling for our military."

But it took until December 2006 for eight Marines to be charged: four enlisted men with unpremeditated murder, and four officers with dereliction for covering up or failing to report the killings. These indictments helped the Marines create the impression that those responsible for Haditha were rigorously prosecuted. Yet the four charged with murder were not the only four who pulled triggers that day. And the four officers charged in the cover up were not the only four who lied.

In handing down the eight indictments, the Marines also granted immunity to at least seven others who either participated in the killings or tried to hide what the squad had done. The military ultimately offered immunity deals to two of those charged with murder in exchange for their damning testimony. Charges against two of the officers were also dismissed after their "Article 32 hearings," a sort of a half trial, half grand-jury proceeding unique to military criminal proceedings.

At this point, criminal responsibility for 24 murders in at least four separate locations is being placed on two Marines: Staff Sgt. Frank Wuterich and Lance Cpl. Stephen Tatum. Of their squad of 13, they are the only two who face general court martial for the killings.

Tatum, from Edmund, Okla., is charged with involuntary manslaughter, aggravated assault and reckless endangerment. His trial date has not been set, but if found guilty of all three, Tatum could face a maximum 19 years in confinement, a dishonorable discharge and forfeiture of pay. During his July 24, 2007 military investigation hearing, the 25-year-old Marine choked back tears, saying, "I am not comfortable with the fact that I might have shot a child. I don't know if my rounds impacted anyone. … That is a burden I will have to bear."

For his part, Wuterich, the Marine squad leader, was originally indicted with more than a dozen counts of unpremeditated murder, as well as soliciting another to commit an offense and making false official statements, which carry a maximum penalty of imprisonment for life. After his Article 32 hearing in August 2007, Investigating Officer Lt. Paul Ware recommended dismissing 10 murder charges and reducing seven others to negligent homicide. There has not been a determination on that recommendation, and a court martial date has not yet been set. Wuterich told CBS's "60 Minutes": "Everyone visualizes me as a monster -- a baby killer, cold-blooded, that sort of thing." On the TV screen, he was handsome, polished and impossibly young looking.

Of the other four charged with the lesser offense of failing to report the incident, or obstructing the investigation -- only two remain under indictment. One of them, Lt. Col. Jeffrey Chessani, is the most senior U.S. servicemen to face a court martial for action in combat since Vietnam. He is not being charged for allowing the crimes to happen, but for violating a lawful order and willful dereliction of duty for failing to report and investigate the deaths.

In Cold Blood?

The cases will hinge not on what happened or why, but how: Was it a rage-induced rampage or a by-the-book operation? The answer to that question depends on which side of the gun you're on.

Rep. John Murtha (D-Pa.), a former Marine who chairs the Subcommittee on Defense in the House Appropriations Committee, told reporters in May 2006 that the investigations would reveal that "our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood."

But soldiers are not supposed to kill in cold blood. "War is not a license," wrote Telford Taylor, a lead-prosecutor at Nuremberg, in Vietnam, an American Tragedy. "It does not countenance the infliction of suffering for its own sake or for revenge."

Thabet, the Iraqi journalism student who filmed the aftermath at Haditha, saw rage, telling Time: "They not only killed people, they smashed furniture, tore down wall hangings and when they took prisoners, they treated them very roughly. This was not a precise military operation."

Not so, says Wuterich. "We reacted to how we were supposed to react to our training and I did that to the best of my ability," he told "60 Minutes." "The rest of the Marines that were there, they did their job properly as well. We cleared these houses the way they were supposed to be cleared." Lt. William Kallop ordered Staff Sgt. Frank Wuterich to "clear" one of the homes. He was granted immunity from future prosecution in exchange for his testimony.

Another Marine, Lance Cpl. Humberto Manuel Mendoza, who was not indicted, told investigators that he shot at least two people: "I was following my training that all individuals in a hostile house are to be shot." Sgt. Sanick Dela Cruz, whose murder charges were dropped in exchange for his testimony against Wuterich, testified that after riddling dead bodies with automatic fire, he urinated on the head of one corpse. "I know it was a bad thing what I done, but I done it because I was angry T.J. was dead."

'I Was Just Following Orders'

Justifying crimes with assertions that "we reacted to how we were supposed to react to our training" is not new. It echoes Befehl ist Befehl -- I was just following orders -- words Nazi leaders accused of war crimes used to justify their actions. The Nuremberg Tribunals following World War II found many of them guilty, sentencing them to death or life in prison.

The tribunals placed the conscience of the individual above the will of military superiors. "In the military, there is a culture of compliance, fear, blind obedience, silence," says Camilo Mejía, 32, who joined the Army when he was 19 and went to prison rather than return to Iraq. Mejía served in the Florida National Guard and went to Iraq as staff sergeant in 2003. "Behavior is suggested and implied. The expectation is that if everyone else is doing it, you should do it."

At a detention facility in Al Assad, Mejía's unit was responsible for keeping prisoners awake for long periods of time in preparation for interrogation. In an interview, he described their job as "sleep deprivation with loud sounds, mock executions, treating them as sub-humans." His unit performed this long enough to "see that this was a systematic problem from the very top," says Mejía. "They had set the tone and the work. We just followed suit. No one sat us down and said, 'We want you to commit war crimes.' But they communicated what we were supposed to do, and that was war crimes."

In June 2004, Mejía told CBS's "60 Minutes II" about the 12 or 13 Iraqis he and his men killed in Ramadi, mostly civilians caught in the crossfire. "Whether you want to admit it or not to yourself, this is a human being," Mejía. "And I saw this man go down and I saw him being dragged through a pool of his own blood and that shocked me."

In war, Mejía says, "committing war crimes is what you are expected to do."

Hamdaniya

The month after the Haditha massacre became news, the Marines found themselves shamed by another atrocity. On April 26, 2006, Marines based in Hamdaniya dragged Hashim Ibrahim Awad, a 52-year-old man and father of 11 children, from his home in the middle of the night, bound his hands and feet and shot him to death. The Marines' plan was to snatch a suspected insurgent said to be behind a rash of roadside bombings and who had been repeatedly captured but released. When the Marines could not find him, they kidnapped and killed the man's neighbor instead. Later, they stole an AK-47 and staged the scene so that it appeared that Awad was caught while deploying a roadside bomb.

Seven Marines and a Navy corpsman -- who became known as the Camp Pendleton Eight -- were charged in the case. During the Article 32 hearings, defense attorneys said the Marines' superiors told them they were too soft. They had witnessed their superiors beating Iraqi suspects and felt pressured to be more aggressive in an environment where roadside bombs and attacks were constant and assailants melted in and out of the civilian population. Lance Cpl. Robert Pennington testified that the men were "sick of" their rules of engagement and decided "to write our own rules to keep ourselves alive."

Trent Thomas, a corporal from East St. Louis charged in the case, appeared on "Anderson Cooper 360 Degrees." When asked if he was ordered to kill Awad: "I really can't say," Thomas responded, but later allowed, "I think your leadership plays a huge factor in what you do. That's all I can say."

Thomas was demoted to private and received a bad conduct discharge.

Only two of the Camp Pendleton Eight remain in prison. Pennington is expected to serve eight years on a 14-year sentence after a plea agreement, and Sgt. Lawrence Hutchins was sentenced to 15 years. But Gen. James Mattis -- the same convening authority who made determinations in the Haditha killings -- is reportedly considering reducing both sentences.

Abu Ghraib

The world learned about Abu Ghraib from the photos. Piles of naked bodies. A man leashed like a dog. A hooded figure standing on a box with wires hanging from him. A menacing dog inches from a cringing man's face.

Assertions that the torture was the result of sadistic, bored or under-supervised soldiers have been widely discredited. "There is no way that a handful of low-ranking soldiers could have invented techniques all by themselves that, curiously enough, were used at Guantánamo and at other places in Iraq and Afghanistan," says Stjepan Mestrovic, a sociologist at Texas A&M University.

After months of cover-up, the blame was laid at the feet of several low-ranked soldiers, pictured grinning and giving the thumbs-up. Pvt. Lynndie England and Spc. Charles Graner were tried, convicted and sentenced to three and 10 years, respectively. Seven others have been sentenced for abuse at Abu Ghraib.

Only 54 military personnel -- a fraction of the more than 600 U.S. personnel implicated in detainee abuse cases throughout Iraq and elsewhere in the war on terror -- have been convicted by court martial. And only 40 have been sentenced to prison time, many for less than a year, according to a 2006 analysis by the Detainee Abuse and Accountability Project. No U.S. military officer has been held accountable for criminal acts committed by subordinates under the doctrine of command responsibility.

International Law Limps Into the Breach

Military prosecutors have won convictions against soldiers and Marines in more than 200 cases of violent crimes, including murder, rape and assault against Iraqi civilians, according to a July 27, 2007 New York Times analysis. In some cases, these convictions may come with severe sentences. Federal prosecutors are said to be seeking the death penalty for former Pvt. Stephen Green, who is accused of raping and murdering a 14-year-old Iraqi girl, as well as slaying her parents and younger sister. He will be tried as a civilian because he was discharged before the crimes came to light. This horrific crime is the subject of Brian de Palma's new movie Redacted.

But seeking the death penalty for Green, sentencing Hutchins to 15 years or court-martialing Wuterich for multiple unpremeditated murders is not the same as seeking justice for war crimes. These three should be held responsible, but the scales of justice are tipped toward scapegoating the convenient foils. They have committed awful and criminal acts, but their guilt cannot be easily separated from those who are the architects of the war.

In November 2006, the Center for Constitutional Rights (CCR), a nonprofit legal and educational organization, filed a criminal complaint, asking a German federal prosecutor to open "a criminal prosecution that will look into the responsibility of high-ranking U.S. officials for authorizing war crimes in the context of the so-called war on terror," according to a CCR statement. On behalf of 12 Iraqi citizens whom the U.S. military detained and tortured at Abu Ghraib, the complaint names former Secretary of Defense Donald Rumsfeld and other high-ranking U.S. officials. The German court dismissed the case in April 2007, ruling that a U.S. court should hear the charges. But CCR -- along with other groups -- have filed similar charges in Sweden, Argentina and France.

"This is a case of universal jurisdiction," says Belinda Cooper, editor of War Crimes: The Legacy of Nuremberg and a professor of human rights and international law at New York University's Center for Global Affairs, "It's brought under the theory that any country can take jurisdiction of particularly heinous crimes, especially if the country that would normally prosecute them is unlikely to do so." She continues: "But can you imagine Bush being tried in the U.S. or Putin in Russia for, say, torture of detainees during their administrations? The new international criminal court is not going to touch a Putin or a Bush."

While these projects inch forward, soldiers are taking matters into their own hands. In March 2008, Iraq Veterans Against the War will convene new Winter Soldier hearings, modeled on the February 1971 meetings in a Detroit Howard Johnson's. In the shadow of the My Lai massacre revelations, the hearings provided a platform to more than 125 Vietnam veterans to describe the atrocities they participated in and witnessed. This effort could once again give the United States a chance to listen to soldiers and Marines as they break the silence, hold themselves and each other accountable and demand the same from the architects of the war.

Nowhere -- and No Way -- to Hide

Cecille Isidro — Tue, 13 Nov 2007 16:06:00 -0500

Privacy doesn't mean anonymity. Think about that for a bit -- and get used to it.

Or if you don't like it, get a plan. But it had better be a good one.

On Oct. 23, Donald Kerr, deputy director of the Office of National Intelligence, outlined the new order of things: "Too often, privacy has been equated with anonymity; and it's an idea that is deeply rooted in American culture." Well, yes, the Bill of Rights, for instance, includes protections against "search," as well as "seizure." But that was then. As Kerr put it, "In our interconnected and wireless world, anonymity -- or the appearance of anonymity -- is quickly becoming a thing of the past."

Kerr's speech got little notice until The Drudge Report highlighted an Associated Press write-up. No doubt, of course, the Office of National Intelligence will soon issue a soothing statement assuring us that the government indeed respects your privacy and your anonymity. And we've all heard that line before: "Nothing to see here folks, just move along." Then Uncle Sam will resume perfecting his warrantless surveillance.

In fact, the old equation -- privacy equals anonymity -- is being buzz-sawed six ways.

First and most obviously, terrorism concerns. If you're walking through Times Square carrying a backpack and acting strangely, inquiring minds will want to know why. And Godspeed to cops brave enough to tap that shoulder.

Second, and closely related, the proliferation of cameras and Webcams. Nobody likes to be spied on, but many people -- including parents keeping tabs on baby-sitters -- like to spy. In the coming face-off, the spies have it.

Third, health insurance. We have decided, collectively, to be generous with each other in terms of "human services." But though most Americans are happy to operate a welfare state for Americans, they draw the line at subsidizing the world. So as a matter of administrative necessity, the Nurse State will have to know exactly who you are -- and your legal status.

Fourth, the reality that medical treatment now depends on medical information. If doctors are to help you, they need to know your medical history -- not just blood type and allergies, but everything about you, including your genetic background. Such monitoring is fraught with controversy -- recent headline in The New York Times: "In DNA Era, New Worries About Prejudice" -- but this is the era of the instant Q-Tip identity test.

Fifth, Google and the basic nature of the Information Age. Once upon a time, people cared about bushels of wheat. Then it was tons of pig iron. Now it's bits and bytes. If you ever wondered why the Googlers can give you search engines -- and Gmail, and everything else -- for free, it's not because they are necessarily nice guys. In fact, they've built a $200-billion company by studying you closely.

And the database beat goes on: Just yesterday Network World reported that IBM is buying Cognos for $5 billion. Never heard of Cognos? Well, that's OK; the worldwide "business intelligence software vendor" based in Canada has most likely heard of you.

Sixth, the realization that the planet is getting smaller. If we can agree that pollution is a serious concern, it follows that ore-smelting in China or deforestation in Brazil, is a threat to everyone everywhere. Down the road of those concerns lies a massive global government, which will want to know if you're smoking too many cigarettes.

So what to do? Go off the grid? Become a hermit? That's one way, although, the eye in the sky, of course, will always be looking down from its orbit. But surely there are other ways to escape -- virtual reality, digging deep underground, traveling to space. People are going to try them all, and a huge privacy protection industry is destined to emerge.

But then, of course, everyone else will be curious as to what's being hidden, and why.

Disparities

Cecille Isidro — Mon, 08 Oct 2007 11:16:00 -0400

Just over a year ago, during a high-school assembly in Jena, Louisiana, a black student asked the school’s white principal if it would be all right to sit under an oak tree outside, an oasis of shade known as the “white tree,” because only Caucasian students congregated there. The principal said that the young man could sit where he liked. Later, the student and some African-American friends walked over to the oak and chatted with some white schoolmates. The next day, somebody fixed two nooses to the tree’s branches.

The ropes inaugurated a narrative of conflict and small-town justice in the Deep South known today as the case of the Jena Six, a story populated by a disconcerting number of stock characters from the late Jim Crow era. Its origins signalled a theatrical quality that a swelling cast, including the Reverend Al Sharpton, has managed to sustain; an Off Broadway production (backlit oak tree, gentle wind machines, soliloquies about past and present) seems inevitable.

Although some of the evidence in the Jena case is murky, a cumulative verdict of racial double standards lies beyond reasonable doubt. Between Reconstruction and the end of the Second World War, more than two hundred and fifty people in Louisiana, the great majority of them African-Americans, were lynched. Jena’s recent noosemakers, identified as a trio of white students, were recommended for expulsion by the principal, who was evidently conscious of this history, but a white school superintendent imposed suspensions only, on the ground that the tree display was a prank. In the days leading up to that decision, fights had erupted between black and white students, and the local district attorney, Reed Walters, reportedly gave a speech in which he warned students, “With a stroke of my pen, I can make your lives disappear.”

Last December, at the school, a black student coldcocked a white student, Justin Barker, knocking him briefly unconscious; other black students allegedly kicked the victim while he lay on the ground. Barker was treated for cuts and bruises at a hospital and released a few hours later. The police arrested six black students, aged fourteen to eighteen, and Walters charged them with attempted second-degree murder and a conspiracy count; if convicted, they faced up to seventy-five years in prison.

Jena prosecutors started reducing the charges to aggravated second-degree battery and conspiracy. Still, last June an all-white jury convicted one of the defendants, Mychal Bell, who was sixteen years old at the time of the assault, of crimes that threatened him with up to twenty-two years in an adult state prison. Michael Baisden, a black syndicated radio talk-show host who normally specializes in romance and its perils, undertook an on-air protest, along with others, which spread across black radio and then to the Internet. In late September, thousands of demonstrators descended on Jena. Last Thursday, Bell, whose convictions had been thrown out, was released on bail, after ten months in jail; Reed Walters has agreed to retry him as a juvenile.

Last week, in the Times, Walters defended his work; he described himself as just “a lawyer obligated to enforce the laws of my state.” A devotion to the sanctity of statutes is, of course, essential in a nation governed by laws, but equally important is the exercise of prosecutorial discretion, derived from an intuitive commitment to fairness and common sense. If Walters had possessed a modest measure of such judgment, he might have rescued himself and the town of Jena from notoriety many months ago.

His bullheadedness, however, does not explain why Jena’s narrative has resonated so broadly. Many African-Americans understand the case not only as the civil-rights era redux but as a stark illustration of a here-and-now problem, one about which whites are mainly silent: the mass incarceration of black youths -- America’s “school-to-prison pipeline,” as some scholars have christened it.

The number of blacks in prison has quadrupled since 1980. There are many overlapping causes, among them severe automated federal sentencing rules; a passionate but badly managed “war on drugs” prosecuted most heavily in African-American neighborhoods; and deepening inequalities in personal income and access to education, whose effects fall hardest on urban teen-agers. One study estimates that, if recent trends continue, a third of the black males born in 2001 can expect to do time.

The state of Louisiana, true to its reputation for rococo extremism in all matters political, locks up in prison a higher percentage of its population -- black, white, and all other races combined -- than any other state in the nation. It might be of some comfort to politicians, then, if the Jena case, like the disgraceful treatment of displaced African-American victims of Hurricane Katrina, could be rationalized as an isolated, swamp-inspired exception to a more temperate American norm.

The opposite is true, however. In July, the Sentencing Project, a research and advocacy group, released a state-by-state study of prison populations that identified where blacks endured the highest rates of incarceration. The top four states were South Dakota, Wisconsin, Iowa, and Vermont; the top ten included Utah, Montana, and Colorado -- not places renowned for their African-American subcultures. In the United States today, driving while black -- or shoplifting while black, or taking illegal drugs, or hitting schoolmates -- often carries the greatest risk of incarceration, in comparison to the risk faced by whites, in states where people of color are rare, including a few states that are liberal, prosperous, and not a little self-satisfied. Ex-slave states that are relatively poor and have large African-American populations, such as Louisiana, display less racial disparity.

Discrimination in the American justice system is not only a Deep South thing; it is a national embarrassment. Tocqueville, who initially came to America to study its penal system, might wonder how a democracy can so earnestly debate the justice of detaining foreign nationals at Guantánamo while displaying not a whiff of discomfort about the record number of its own citizens -- now more than two million -- stuffed into jails and prisons, or about the causes of racial disparity in this forgotten population. America’s predominant response to racism, of course, has long been denial. In Jena, the town fathers effected a vivid evasion. Their problem, they concluded, was not themselves but their tree: they cut down the offending oak and hauled it away.