Right, Dammit….

Well, well—the Alien Tort Statute rears its lovely head again!

Yesterday’s post was on the struggle of Sexual Minorities Uganda (SMUG) to bring an American evangelical minister, Scott Lively, to justice for the crime of going to Uganda and creating a climate of sufficient hate that a law was very nearly passed with the death penalty for some types of homosexual behavior. A federal judge ruled last week that the case could proceed.

And today?

According to Yes!, an online magazine, an attorney, D. Inder Comar, representing a single Iraqi mother has filed a class action suit against George W. Bush, Donald Rumsfeld, Dick Cheney, Condoleeza Rice, Colin Powell, and Paul Wolfowitz; she alleges that they committed a “crime of aggression” under international law. Why? Because the war was not in self defense, nor was it approved by the United Nations.

Sundus Shaker Saleh, the single mother behind the suit, was living peacefully in Iraq before the invasion, and the picture she paints, if not idyllic, is certainly much better than now. People, she said, slept with their doors unlocked, there were no militias or patrols, the infrastructure was intact. After the invasion?

Well, we’ve seen what happened. Saleh no longer felt safe in her home, so she fled to Jordan. Nor was she alone in leaving the country, according to the United Nations High Commissioner, two million other people did as well, and 2.7 million people were internally displaced. That’s over 15% of the population, which was estimated at 31 million in 2009.

The case is based on several claims. First, six decades ago, we walked into the Nuremburg Trials and made some bold assertions; here, from the lawsuit Saleh vs Bush filed in the district of Northern California, is what was said at that trial:

16. In his opening statement to the Tribunal, Chief Counsel for the United States Robert H. Jackson stated “This Tribunal . . . represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilize international law to meet the greatest menace of our times – aggressive war.”           

17. Chief Prosecutor Jackson argued, “The Charter of this Tribunal evidences a faith that the law is not only to govern the conduct of little men, but that even rulers are, as Lord Chief Justice Coke put it to King James, ‘under God  and the law.’” (Id.) (emphasis added).

18. Chief Prosecutor Jackson argued, “Any resort to war – to any kind of a war – is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property.” (Emphasis added).

19. He continued, “The very minimum legal consequence of the  treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.” (emphasis added).

20. Chief Prosecutor Jackson recognized that the crime of aggression applied to the United States. He argued, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” (Id.)

In the suit, Comar also alleged that the planning for the Iraq war was planned by what would be Bush administration officials as far back as 1998, or five years before the actual invasion.

Here’s another copy and paste from the suit:

26. On January 26, 1998, Defendants RUMSFELD and      WOLFOWITZ signed a letter4 to then President William J. Clinton, requesting that the United States implement a “strategy for removing Saddam’s regime from power,” which included a “willingness to undertake military action as diplomacy is clearly failing.” Removing Saddam from power had to “become the aim of American foreign policy.” (Emphasis added).

27. From 1997 to 2000, PNAC produced several documents advocating the military overthrow of Saddam Hussein.5

28. On May 29, 1998, Defendants RUMSFELD and WOLFOWITZ signed a letter to then Speaker of the House Newt Gingrich and Senate Majority Leader Trent Lott in which they advocated that “U.S. policy should have as its explicit goal removing Saddam Hussein’s regime from power and establishing a peaceful and democratic Iraq in its place,” which included the use of “U.S. and allied military power . . . to help remove Saddam from power.”

So, the question becomes—can this work? Comar argues yes; my gut tells me no, despite wishing deeply that it could. And there is some legal ground—the Westfall Act of 1988—that protects government officials when they are acting within their “scope of employment.”

That’s the first argument that Paul Stephan, a professor at the University of Virginia, brings forth. The second? The crime didn’t take place on U.S. ground. And lastly, the courts are reluctant to get into political issues.

Comar travelled to Jordan, where Saleh had fled with her four children, to meet her; he is now representing her pro bono. But he needs help to meet expenses, to apply pressure on the court, and to raise awareness. Here’s what he writes in the Peope to People blog:

Please join me to make this trial a reality. You can help by supporting our fundraising campaign at indiegogo, by spreading the word about the lawsuits, and by reaching out to me if you want to get involved.

Look, screw the legal aspect of all of this. The damage done by George W. Bush and his government has been incalculable. More, there was no good reason to believe that there were weapons of mass destruction—Hans Blix, the UN inspector, had told both Rice and Tony Blair that in the weeks before. And the Bush administration deliberately lied to the American people—and the congress—in the weeks before the invasion.

In the weeks leading up to the invasion, I kept reading, reading—trying to find something that I had missed in the debate. The argument for the invasion of Iraq appeared the crassest, most errant display of greed, stupidity, and arrogance; surely there must be something I couldn’t see? Could any man be so depraved? Could any country allow a leader to commit such atrocity? I had to be wrong.

I was right.

Trust Us

Well, Greta Van Susteren says she knows the guy, so it must be all right.

Granted, I didn’t know Greta Van Susteren, so I had to do a little checking around to see if I could trust Greta enough for her to tell me that Reggie B. Walton is OK.

Don’t know Reggie B. Walton?

Join the club, but I can now tell you that he is the presiding judge of the Foreign Intelligence Surveillance Court. And he came out in a rare statement bristling at the idea that the court—which had 1856 petitions last year and approved all 1856 of them—is a rubber stamp. Here, with the impartiality for which this family of wordsmiths is famous, is what the guy said:

“The perception that the court is a rubberstamp is absolutely false. There is a rigorous review process of applications submitted by the Executive Branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges to ensure that the court’s authorizations comport with what the applicable statutes authorize.”

Here’s the deal with the FISA courts—they only hear one side of the story. In every other court in the United States, the opposition gets a chance to come forward, state his defense, and have a judge or jury weigh in. But FISA listens to the government’s case, and then decides.

So that means, that you and I never had a say in the question of whether Verizon turned over your call history to the government. Oh, and not just your call history but your Internet history and also your snail mail, which is photographed—every single last piece of it. All of which can be accessed by the government by petitioning the “rigorous” FISA court, so famously not a rubber stamp.

OK—here’s the dope on Walton: he grew up in Donora, Pennsylvania, a steel town, and was dabbling in gangs when he saw a friend nearly get killed. So that sobered him up, and he went to West Virginia State College on a football scholarship and then to The American University, Washington College of Law for his law degree. Here’s Wikipedia on Walton:

Walton served as an Associate Judge of the Superior Court of the District of Columbia from 1981 to 1989 and from 1991 to 2001. He also served as associate director of the Office of National Drug Control Policy. In 2001, he was nominated to the federal bench by President George W. Bush, and subsequently confirmed by the U.S. Senate. In 2004, Bush appointed him to chair the National Prison Rape Elimination Commission, investigating ways to curb prison rape. In May 2007, Chief Justice of the United States John G. Roberts Jr. appointed him to a seat on the Foreign Intelligence Surveillance Court.[3]

The Washington Post reported, "fellow judges and lawyers who appear before him say Walton's decisions do not appear to be guided by politics but by a tough-on-crime mentality." Walton is known by local defense attorneys as a "long ball hitter" - a judge willing to impose long sentences in order to deter future crimes.[3] In fall 2005, the judge was driving his wife and daughter to the airport for a vacation when he came across an assailant attacking a cab driver on the side of the road. Walton tackled the assailant and subdued him until police arrived. The D.C. police spokesperson noted in response, "God bless Judge Walton. I surely wouldn't want to mess with him."[3]

OK—that’s a good story. Sounds like the kind of guy you could trust to make the right decision, right? And I like it that Walton was the guy who sent Cheney’s chief of staff, Scooter Libby, to jail.

Now then, what about Roger Vinson.

Having another “who he” moment?

He’s the Florida judge who authorized the government to demand that Verizon turn over your telephone history (assuming you’re a Verizon customer—but don’t worry, because all of the wireless providers have done so).

OK—Walton may be OK, this guy is questionable. Good news—he’s moderate on drug sentencing. Bad news, he’s a Tea Party conservative who even he acknowledges gives out draconian sentences. He also is the author of the famous broccoli quote:  “If they decided that everybody needs to eat broccoli because broccoli is healthy they could mandate that everybody has to buy a certain amount of broccoli each week.”

One piece of good news, via Huffington Post: “Vinson is known for his love of the flowering camellia tree. He is a longtime member of the Pensacola Camellia Club and is a former president of the American Camellia Society.”

Well, it’s a thing to know….

Here’s something else to know—Vinson’s order to Verizon expires on 19 July—in twelve days. Presumably, someone will walk into the E. Barrett Prettyman United States Courthouse and ask Vinson or another judge to approve the petition for another three months.

Will we know? Will anyone be around to argue the case for NOT collecting the data?

Don’t think so.

Earlier this week, I was watching Rachel Maddow explain—as only she could—how the FBI has killed 70 people and shot another 80. Here’s the New York Times quoting the FBI:

“The F.B.I. takes very seriously any shooting incidents involving our agents, and as such we have an effective, time-tested process for addressing them internally,” a bureau spokesman said.

It may be that the FBI takes shooting incidents seriously, but guess how many of 150 shootings have been found to be justified? That’s right—all 150 of them. And, like the FISA courts, this is wholly internal—no district attorney can declare that the death of, for example, a young Chechen was a homicide committed by agents of the Federal government. A young Chechen whose family retrieved the body, and discovered it with six bullet holes, including one fired point blank to the temple.

More than ever, I am mistrusting my government. We have got to find a way of putting advocates for civil liberties to argue the case for privacy in every FISA petition.

And we gotta do it quick.