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Waterboarding and Learning Nothing From the Past – posted 2/24/2016

February 25, 2016 2 comments

One of the surprising and lesser-remarked upon aspects of this campaign season has been the endorsement of waterboarding by the leading Republican presidential candidates. To quote candidate Trump: “I would bring back waterboarding and I’d bring back a helluva lot worse than waterboarding.”

Not wanting to be left behind, contenders Ted Cruz and Marco Rubio have concurred with Trump. Neither wants to take so-called “enhanced interrogation techniques” off the table. Cruz has argued waterboarding is not torture. Rubio thinks we should not be talking about what tactics we might use.

A number of current and former Republican candidates including Ben Carson, Jeb Bush and Carly Fiorina also have embraced the euphemistically described enhanced interrogation techniques.

While I suppose these positions can, in part, be attributed to trying to look tough, they reflect a medieval mentality and a profound ignorance of the law. Torture, which includes waterboarding, is both illegal and immoral. Also, as has been widely recognized in the intelligence community, it does not work.

Life is not an episode of 24 but there seems to be some confusion about that.

Waterboarding is a very well-established, brutal form of torture, dating back to the 16th century. Many tyrants of all stripes have used it. It was used during the trial portion of the Spanish Inquisition. Church interrogators used torture both to obtain confessions and to punish. After beating the body , arms and legs, the Spanish introduced cloth into the mouth of the victim and poured quantities of water over the mouth and nose to create the impression of drowning.

The U.S. Army used waterboarding in the Philippines during the Spanish-American War of 1898. Then it was called the water cure.

During World War II, the Japanese used waterboarding to torture. The United States executed Japanese soldiers for multiple forms of mistreatment including water torture. The Japanese secret police, the Kenpeitai, used two methods of water torture. Waterboarding was one method and the other method involved tying prisoners to a ladder and sliding them down into a tub of water until the prisoner almost drowned. These methods were discussed in the Tokyo War Crimes trial held by the International Military Tribunal for the Far East.

In the 1950’s, during the Algerian War, the French used the practice against the Algerians and against perceived enemies. A French journalist, Henri Alleq, who was tortured by French paratroopers, wrote about the experience of being strapped to a plank, having his head wrapped in cloth and being positioned beneath a running tap:

‘The rag was soaked rapidly. Water flowed everywhere: in my mouth, in my nose, all over my face. But for a while I could still breathe in some small gulps of air. I tried, by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs for as long as I could. But I could’t hold on for more than a few moments. I had the impression of drowning, and a horrible agony, that of death itself, took possession of me.”

On January 21, 1968, the Washington Post published a front page photograph of two American soldiers and one South Vietnamese soldier waterboarding a North Vietnamese POW near Da Nang. The article described the practice as “fairly common”. Torture was an integral part of U.S. policy in Vietnam. The Tiger Cages on Con Son Island come to mind first but American advisors taught the South Vietnamese better methods for how to torture, including waterboarding.

The Khmer Rouge, the British Army in Northern Ireland in the 1970’s, and the apartheid regime in South Africa all waterboarded.

In recent years, documents released by our own government show a sickening degree of sadism in our treatment of terror suspects from the Iraq and Afghanistan wars. In an article that appeared in Salon.com in 2010, Marc Benjamin wrote:

“Interrogators pumped detainees full of so much water that the CIA turned to a special saline solution to minimize the risk of death, the documents show. The agency used a gurney “specially designed’ to tilt backwards at a perfect angle to maximize the water entering the prisoner’s nose and mouth, intensifying the sense of choking – and to be lifted upright in the event that a prisoner stopped breathing.”

Torture and cruel acts like waterboarding have been internationally outlawed since the end of World War II. The 1948 Universal Declaration of Human Rights stated, ” No one shall be subjected to torture or to cruel, inhuman, and degrading treatment or punishment.” There are no exceptions.

The International Covenant on Civil and Political Rights, the American Convention on Human Rights, the Geneva Convention III and the 1984 Convention Against Torture all would clearly prohibit waterboarding. The 1984 Convention Against Torture, promoted by President Reagan, criminalized torture and sought to end immunity for any torturer.

I would be remiss if I did not mention our own federal Constitution’s 8th Amendment prohibition against cruel and unusual punishment. There are also prohibitions in the United States Code which criminalize torture.

So how did we get to a place where candidates can unashamedly and without any seeming awareness endorse practices that are criminal? Also, how is it that the public response has been utterly muted?

I think the historian Alfred McCoy has best explained it. Professor McCoy says there is a pattern of expose of torture, momentary public awareness, no sustained investigation, no prosecution and no penalty. As a society, we do not punish the torturers. Professor McCoy says this pattern has repeated six times over the last 45 years, starting with Vietnam.

Professor McCoy calls it impunity: the failure to punish a wrongful act. Both political parties are implicated. The problem he sees is that without binding and serious prosecution, torture will continually recur. Without a consequence, torture is legitimated.

Contrary to the minimizing assertions of former Vice President Dick Cheney, our Darth Vader, there is no debate in the international community about whether waterboarding is torture. It is widely recognized in the civilized world as reprehensible.

Wanting to do worse than waterboarding reflects moral and legal cluelessness. It is know-nothing anger run amok. Torture leaves an indelible stain. For our country it can only guarantee ugly blowback.

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Leonard Peltier Has Done 40 Years and Deserves Clemency – posted 2/15/2016 and published in the Concord Monitor on 2/18/2016

February 15, 2016 Leave a comment

This piece appeared in the Concord Monitor on 2/18/206 under the title “A Long Wait for Justice.”

February 6 marked Leonard Peltier’s 40th year in prison. Readers, whatever you feel about the verdict against him, he has more than served his time.

Peltier deserves clemency. He should be allowed to go home to his family. Imprisoned in Florida, he is so far from his North Dakota family that it is a physical hardship and almost a financial impossibility for them to visit him.

A leading activist in the American Indian Movement, Peltier was convicted of the June 1975 murder of two FBI agents, Jack Coler and Ronald Williams. More than 40 Native Americans participated in a shoot-out with the FBI at Oglala on South Dakota’s Pine Ridge Reservation. Peltier was one of three Native Americans who were tried for their involvement in the gunfight and the two murders of the FBI agents.

A Native American man, Joseph Stuntz, also died in the shoot-out. A sniper shot Stuntz in the head. No one was ever charged for Stuntz’s death.

Peltier is 71 years old. He resides in a maximum security prison, the U.S Penitentiary at Coleman, Florida. Peltier faces some serious health challenges. He has suffered a stroke which left him partially blind in one eye. He has had a debilitating jaw condition which left him unable to chew properly and which causes consistent pain and headaches. He has had diabetes and a mild heart condition. Now he has an abdominal aortic aneurysm. He recently wrote about it:

“The doctor told me if it bursts, I can bleed to death. It’s also close to my spine and I could end up paralyzed. The good news is that it’s treatable and the operation has a 96-98 % success rate. But I’m in a max security prison. We don’t get sent for treatment until it is terminal.”

I would submit that Peltier has already paid a very heavy price and the only justification for his continued incarceration is vindictiveness. I think he should be released from prison on humanitarian grounds and in the interest of justice.

Peltier did not receive a life without parole sentence. Usually there would be mandatory release after serving 30 years. Even though he is a senior and the Bureau of Prisons regulations says elders should be kept in a less dangerous facility, he has not been moved to medium security. This is true even though he has been classified as a medium security prisoner for over 15 years.

To say that there were a number of irregularities in Peltier’s case is a big understatement. Judge Gerald Heaney, who sat as a member of the 8th Circuit Court of Appeals that reviewed the case and who authored the 8th Circuit opinion, took the extraordinary step of writing to support clemency after he upheld the trial court’s decision. In 1991, Judge Heaney, who is now deceased, wrote:

“The United States government must share in the responsibility for the June 26 firefight…It appeared that the FBI was equally to blame for the shoot-out…The government’s role can properly be considered a mitigating circumstance…At some point, a healing process must begin. Favorable action by the President in the Leonard Peltier case would be an important step in this regard.”

Judge Heaney wrote that letter 25 years ago! He was quoted saying the Peltier case was “the most difficult I had to make in twenty two years on the bench.”

In 2003, the 10th Circuit Court of Appeals had this to say in a later proceeding about the Peltier case:

“Much of the government’s behavior at the Pine Ridge Reservation and in its prosecution of Mr. Peltier is to be condemned. The government withheld evidence. It intimidated witnesses. These facts are not disputed.”

While obviously any presentation of the facts at this late stage can be legitimately criticized as partial, there are some facts I would point to. The prosecution admitted it could not prove who actually shot the FBI agents or what participation Peltier may have had in their deaths. Peltier’s co-defendants, Bob Robideau and Dino Butler, were acquitted by a court in Cedar Rapids, Iowa. After the Pine Ridge events, Peltier fled to Canada. After extradition, he was tried separately in Fargo, North Dakota, before a hostile new judge, Paul Benson, who barred presentation of the same self-defense arguments that had led to Robideau and Butler’s acquittal. Judge Benson sentenced Peltier to two consecutive life terms in federal prison.

Interestingly, since the government could not argue Peltier shot the agents since it lacked that proof, it argued Peltier should be convicted for aiding and abetting. It is not clear how Peltier could aid and abet his acquitted co-defendants.

Someone had to pay though and Peltier ended up as the fall guy.

During his time in prison, Peltier has made the best of it. He has been a model prisoner and a strong advocate for Native Americans. He has mentored young Native prisoners, encouraging them to lead clean and sober lives. He has earned 4 to 5 years good time that has not been recognized. He is the author of a book, Prison Writings: My Life is my Sun Dance, and he has developed into a talented painter.

The history of Peltier’s bid for clemency goes all the way back to President Jimmy Carter. It is a long history of disappointment. Peltier has written that President Ronald Reagan promised President Gorbachev he would release Peltier if the Soviet Union released a prisoner. Peltier writes that Reagan reneged on that promise.

It appeared that President Bill Clinton might grant clemency to Peltier. The Pardon Attorney did an 11 month investigation and Peltier was told she recommended clemency. Clinton did not make that grant. On his last day in office, Clinton pardoned fugitive financier, Marc Rich – not Peltier.

President George W. Bush denied clemency in 2009.

It is now up to President Obama. Until he leaves office, Obama does have clemency power to commute Peltier’s sentence. I would encourage all to sign the online clemency petition. Also you can write, call, fax or email the White House to express your support for an award of Executive Clemency for Leonard Peltier.

Amnesty International, the Dalai Lama, the late Nelson Mandela, Congressman John Lewis, the National Congress of American Indians (representing 566 tribes), the Assembly of First Nations Chiefs of Canada, the Oglala Sioux Tribe of Pine Ridge and many many others have supported clemency for Peltier.

Granting clemency to Peltier should not be viewed as expressing any disrespect for the current agents or leadership of the FBI nor does it represent any condoning of the killing that took place at Pine Ridge. The events at issue happened so long ago.

It is wrong to continue to make Peltier a scapegoat. He deserves clemency on the facts and merits of his petition.

The Idea of a Mexican Border Wall is Off-the-Wall – posted 2/6/2016 and published in the Concord Monitor 2/10/2016

February 6, 2016 1 comment

This piece appeared in the Concord Monitor on February 10, 2016 under the title “Off the Wall”.

Central to the presidential candidacy of Donald Trump is the idea that, if elected, he is going to build an impenetrable wall along the U.S.-Mexico border to keep out illegal Mexican migrants. Not only that, he says he is going to make Mexico pay for it.

Among the Republican presidential candidates, Trump is not alone on the wall idea. Ted Cruz, Marco Rubio, Ben Carson, and John Kasich have all supported building a wall on our Southern border.

It is surprising how little critical scrutiny the Mexican wall idea has received. Not only has the wall been assumed a needed and good idea, the assumptions behind the wall have largely remained unexamined.

I think the wall would be a colossal white elephant. It would also be an extravagant public spending boondoggle. The journalist Jorge Ramos of Univision correctly called it “a waste of time and money”. As Ramos points out, 40% of those deemed illegal immigrants are people who come to the United States by plane and who overstay their visas. The wall does not address that large group.

Our southern border runs 1954 miles. At present there is fencing along 670 miles. That leaves 1284 miles unfenced. The New York Times has estimated the cost of building such a barrier as $16 million per mile, adding up to a project of around $20 billion.

That is a huge cost for a project of dubious efficacy. Every wall can be circumvented, either under or over.

Trump has said that building such a wall is “easy” and it can be done inexpensively. That is not a view that is widely shared by federal officials and other experts.

Richard Stana, now retired, who worked in the Government Accountability Office (GAO) and who wrote reports on border security has said, “It is extremely challenging to put a bricks-and-mortar wall along the Southwest border for any number of reasons.”

The reasons are pretty obvious: the wall has to be built in extremely remote and difficult topographical areas. Desert in Arizona, mountains in New Mexico and rivers for almost two-thirds of the length. We are talking places that lack roads or infrastructure.

Providing food, water, shelter, bathroom facilities, transport and medical supplies to the wall workers in remote locations would be no small challenge. Much of the wall would be located in different forms of wilderness, removed from civilizational niceties.

There are other hurdles as well. Not all land around the border is federal property. Private land owned by ranchers and farmers would need to be purchased. In Texas, in places where fencing went up already, ranchers and farmers were upset that fencing would cut off access to the Rio Grande, the only regional source of fresh water. Local business groups were also opposed to the fencing because it slowed cross-border traffic that helped the local economy.

There are also issues with Native American tribal rights. Acquiring the land and using eminent domain could involve significant additional cost and possible legal challenge.

Trump’s assurances that such a project would be “easy” are about as persuasive as his idea that he is going to make Mexico pay for the wall. When asked, Mexican President Enrique Pena Nieto absolutely denied Mexico would pay. Eduardo Sanchez, the spokesperson for the Mexican president said this about Trump’s assertion:

“It reflects an enormous ignorance for what Mexico represents and also the irresponsibility of the candidate who’s saying it.”

The idea that Mexico would be made to pay for the wall is simply macho bluster. It is campaign braggadocio. There is no credible reason to believe that Mexico could be made to pay for a wall built to benefit the United States. Bullying about the wall is a strange way to treat a country that has been our strong ally. While political allies can certainly have disagreements, the wall is tactless, is diplomatically offensive and it actually would harm local economies that depend on border crossing.

The wall idea rests on racist stereotypes about an ongoing invasion of undocumented Mexicans crossing into the United States. While certainly we live in an era of mass global migration with desperate people dying to escape dire war zones, the stereotype about Mexicans is false.

As of 2014, there are 11.3 million unauthorized immigrants in the United States. That population has essentially remained stable for five years. According to Pew Research, Mexicans make up about half of all unauthorized immigrants (49%) and their numbers have actually declined over the last few years.

That reality is at odds with the fearmongering propaganda we have seen from the more extreme Republican candidates. Truth is the first casualty. In his TV ads Trump was actually using pictures of people in Morocco scaling a fence. The ad was designed to create the impression that it was our Southern border. The appeal of such ads go directly to our emotions. Vague plausibility speaks to our unconscious fears.

The world is a scary place. In an unthought-out way, the wall speaks to our fears about terrorism and drug trafficking. It also addresses economic insecurities. Those problems are real but the wall is a non-solution. By the same logic, why would we not need a wall on our Canadien border? The wall idea is a fundamentally irrational response to a complicated series of problems.

The wall idea also reflects an utter lack of understanding of the history of immigration on our southern border. In her book, Undocumented, Aviva Chomsky explains how for much of U.S. history the border between Mexico and the U.S. was virtually unpoliced and migration flowed freely. U.S. business interests, especially agribusiness, relied on cheap, migrant Mexican labor to pick crops. Agribusiness still relies on these seasonal workers.

Our Mexican immigration policy has been largely dictated by the needs of American business which wanted the economic development of the Southwest. Categorizing Mexican immigrants as “illegal” did not begin until the Immigration and Nationality Act of 1965 when, for the first time, numerical limits were placed on Mexican migration. Even for 20 years after that immigration rules were relatively slack. Ironically, it was not until the middle 1980’s, that the number of undocumented immigrants precipitously rose after the U.S. began to try to seal the border. As Chomsky points out, this was in large part due to the fact that migrants felt compelled to stay after a season of work since they realized returning would now be more difficult.

Before 1965, the earlier waves of deportation directed against Mexicans in the 1930’s and 1950’s had nothing to do with their being undocumented. Entry then was restricted on the grounds of indigence and concerns that Mexicans would become public charges.

Since the 1990’s, the Latino threat narrative has been manipulated and promoted by right wing politicians. They hope to channel national anxieties about economic inequality, job loss, and a worsening economic future away from their real causes.

I see two political purposes behind the current Mexican wall idea. First , it is an effort to rabble rouse the most angry, racist, and xenophobic Americans, especially those with the least informed understanding of immigration matters. Second, it is an effort at blame-shifting. Migrants from Latin America who leave terrible situations to try and make a better life for themselves in another country did not shift good jobs out of the United States. It is the billionaire class in America which sold out American workers by shipping jobs out of the country in an effort to find cheap labor elsewhere.

For those who are looking to blame someone, our American plutocrats are a good place to begin. There is something sinister about billionaires, ensconced in a life of luxury, using their hired and paid for right wing politicians to point the finger of blame at some of the poorest people on the planet.

The Mexican border wall would cost a fortune, would predictably not work, would damage wilderness, and would act to poison relations with one of our closest neighbors and trading partners. The contention that such a wall would contribute to making America great again is laughable.