Judith Armatta is a lawyer, journalist, and human-rights advocate who monitored the trial of Slobodan Milosevic on behalf of the Coalition for International Justice. Joining efforts to promote the rule of law, Armatta worked for the American Bar Association's Central and East European Law Initiative, opening offices in Serbia and Montenegro. During the Kosova War, she headed a War Crimes Documentation Project among Kosovar Albanian refugees in Macedonia.

The trial of Slobodan Milosevic, who is described variously as the Butcher of the Balkans or the Martyr of a New World Order, before an international war crimes tribunal was touted as "The Trial of the Century." As it stumbled into its fifth year amid heavy criticism over its length and management, Milosevic was found dead in his cell. There would be no judgment in this problematic trial.

As the first indictment of a head of state for 66 counts of war crimes, crimes against humanity and genocide in an international tribunal committed over a decade during three wars, the trial was destined to be epic. A defiant Milosevic heightened the drama as he appeared in court denouncing the International Criminal Tribunal for the Former Yugoslavia as illegitimate and a tool of NATO and the United States, refusing counsel and insisting on using the trial to accuse his accusers. Twilight of Impunity examines whether justice is possible where an accused sets out to destroy the institution that seeks to hold him accountable - by using its legal process against it.

My purpose in writing Twilight of Impunity was three-fold: 1) to increase knowledge of the trial by providing accurate factual information and legal explanation, 2) to inform further discussion by assessing its achievements and failures, and 3) to strengthen the investment of policy and opinion makers and the educated public in war crimes trials as a significant element of peace-building in war-torn countries.

Twilight of Impunity makes the four-year-plus trial accessible to professionals and an educated public by extracting highlights and analyzing their importance for establishing guilt or their failure to do so and by explaining developing international law in plain language. Through specific examples of events that occurred during the trial, it corrects misconceptions about the trial and the growing revisionist history of the Balkan wars.

The book brings the players in this courtroom drama to life: the crotchety, but compassionate presiding judge, Richard May, from Great Britain; the elegant former diplomat, Jamaican Patrick Robinson; the calm, keen-minded O-Gon Kwon from South Korea; Geoffrey Nice, the gentlemanly Brit who led the prosecution team. General Wesley Clark, head of NATO command during the Kosovo war, and William Walker, former U.S. diplomat and European envoy, who Serbia declared persona non grata when he told the news media about the Racak massacre, put in appearances, as did current and former Balkan leaders, including Ante Markovic, the last prime minister of Yugoslavia, in his first public appearance since he left office more than a decade before.

At least as interesting are the little-known figures: paramilitary Chetniks and Tigers, spooks and spies, former army officers and soldiers, KLA commanders and human rights activists, journalists, and, not least, the victims and survivors. Milosevic brings aging former communists and opponents of communism, a number of whom wrote the ideological manifesto for the war, pro-Serb journalists, UN personnel, members of the Committee to Defend Slobodan Milosevic, other alleged members of the joint criminal enterprise of which he stood accused, and his loyal servants in the police and military. Through his amateur defense efforts, he gives the prosecution the opportunity to show a shocking video of Serb paramilitaries executing six Bosnian Muslims from Srebrenica, graphically contradicting his denial of Serbia's involvement in the genocide.

Twilight of Impunity presents illiterate peasants who survived the killing of their families and friends standing up to the derision of their former all-powerful president, as he dismisses their testimonies: "There was no massacre!" he booms at one witness. He blames another for the death of his wife, shot by a Serbian sniper, when he could not get her to hospital through a firefight. Yet other survivors best him. When frail, elderly Ismet Haxhiavdija cries out in a strong, clear voice in the utter silence of a Hague courtroom, "Mr. Milosevic, how could you kill women and children? Don't you have any feelings?" he sounds like the voice of God.

The characters and their testimonies play out against a background of legal procedure and current events. Assassination of the Serbian prime minister leads Milosevic to reshuffle his defense team, causing a break in the trial. The sudden death of the presiding judge, following the close of the prosecution's case, raises the question of whether the trial will continue at all. Serbia and Montenegro's intransigence in turning over documents hinders the prosecution in the timely presentation of evidence. Threats against witnesses close the trial from public view, and even deny the court access to important testimony. Through the submission of fraudulent documents, scripting of witnesses, misrepresentation of evidence, and suborning perjury, Milosevic sought to undermine and discredit the trial. That he was not successful credits the legitimacy of the proceeding and the dedication of the lawyers and judges to replace the rule of power with the rule of law.

Twilight of Impunity examines all this for what it means to the trial's fairness and the development of international justice to reach its final conclusion about the trial's success in aiding the end of impunity.

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By Nsombi Lambright, Executive Director of the American Civil Liberties Union of Mississippi.

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I can't believe that five years have passed since Hurricane Katrina devastated Gulf Coast communities in Louisiana, Mississippi and Alabama. And although groups and advocates who were experienced in disaster recovery told us that it would take at least ten years to rebuild, I never imagined that five years later, we'd still face the same challenges. The fifth anniversary of Hurricane Katrina; are we celebrating growth and recovery, commemorating a tragedy, or both?

As I viewed the film "Trouble the Water" this week, I was mixed up inside. The ACLU of Mississippi partnered with an organization started by Katrina Survivors who relocated from New Orleans to Jackson, called Rise Above Katrina, to show the film at Tougaloo College, a historically black college in Mississippi. I met the New Orleans natives from Rise Above Katrina and hundreds of others from the Mississippi Gulf Coast immediately after Hurricane Katrina as the ACLU began to monitor the Government's overall response to the disaster as well as the disparities between services provided to white communities and people of color communities. In 2006, the ACLU participated in a U.S. delegation to Geneva to discuss the impact of these disparities to the United Nations Human Rights Committee. The ACLU also provided technical and legal assistance to Rise Above Katrina when they were threatened by law enforcement when protesting in front of the American Red Cross offices in Jackson. The group protested the American Red Cross' distribution of disaster relief funds.

As I interacted with Wilma Taylor and LaShawn Traylor and some of the other survivors, I thought about how far they'd come. Wilma is a Gulf Coast Fellow who is starting her own organization to advocate for individuals with disabilities. LaShawn is finishing her education and continuing her ministry. They've moved into new homes, celebrated births.

Life has moved on. They have risen above Katrina. However, there's still a glimpse of sadness remaining in their eyes. It's a sadness that allows you to travel into their bodies and view the pain in their souls. You hear it when they talk about loved ones who didn't make it through the storm. You hear it when they talk about their disappointment in the governments that let them down. The city of New Orleans, which did not provide transportation for people to leave; the state of Louisiana, which brought military and law enforcement in to shoot and arrest survivors; the state of Mississippi, which withheld federal dollars from everyone except homeowners; the city of Jackson, which moved everyone out of the temporary shelter of the coliseum because a Disney show was coming to town; Harrison County, the place that has not rebuilt shelters for the homeless and arrests people for not having a place to rest their heads at night.

The list of disappointments is endless. And still they rise. They rose above the storm to accomplish great things. They rose above the storm with new friends and family who were survivors too. They rose above the storm with a new sense of awareness about the importance of fighting for those who cannot fight for themselves. And even though they are still rising, they don't forget; they won't forget; they can't forget. I'll be there with them, rising too; until there is true freedom and justice for all!

 [Photo courtesy of Infrogmation]

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By Karen Musalo, clinical professor of law and director of the Center for Gender and Refugee Studies at the University of California, Hastings College of Law.

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On August 4, 2010, in a closely watched case, an immigration judge granted asylum to Ms. L.R., a woman from Mexico. The grant in Ms. L.R.'s case came on the heels of a grant of asylum in another high-profile case, that of the Guatemalan asylum seeker, Rody Alvarado. What both cases had in common is that the women asylum seekers had fled brutal violence and abuse at the hands of their male partners in a situation where neither the police nor the courts responded to repeated calls for protection. Taken together the cases send a message loud and clear that domestic violence can be the basis for a successful claim to asylum. They also stand for the broader principle that women who suffer a range of violations of their fundamental human rights - from female genital cutting (FGC), to honor killings, to forced marriage or sexual slavery - are also entitled to protection as refugees.

Although the protection of women whose human rights are violated should not be a controversial proposition, it has been - and continues to be - and women have had to struggle for the recognition that "women's rights are human rights." Their activism over the years has resulted in the promulgation of a number of international human rights instruments, including the Declaration on the Elimination of Violence against Women that specifically address the human rights of women.

In the United States, these advances began to bear fruit in the refugee protection area with the 1996 grant of asylum to Fauziya Kassindja, a woman who fled female genital cutting [FGC]. The decision in Fauziya Kassindja's case (known as Matter of Kasinga) was issued by the Board of Immigration Appeals (BIA), the highest immigration tribunal in the U.S., and was the first precedent decision in U.S. law granting asylum to a woman who fled a gender-based form of persecution. Women's rights and refugee rights advocates celebrated the grant in Ms. Kassindja's case, seeing it as the opening of the door to protection for women fleeing gender-based violations.

However, the celebration was short-lived. Three years later the BIA denied asylum to Rody Alvarado, who sought asylum from more than a decade from what can only be characterized as torture at the hands of her husband, an ex-soldier in the Guatemalan military. Over the ten years of their marriage, her husband pummeled her with his fists, broke windows and mirrors with her head, woke her in the middle of the night with a knife to her throat, and threw machetes across the room at her. The police never answered her desperate calls for help, and a judge told her he wouldn't get involved in a "private" matter.

The denial of asylum in Ms. Alvarado's case was the opening shot in a 14-year-long battle to vindicate the principle that women's rights are human rights, and to hold the courts to the precedent exemplified by the grant of asylum in Matter of Kasinga. Ms. Alvarado was finally granted asylum in December 2009. To understand how this came about, it's necessary to return to where we began - the L.R. case, which the Obama Administration chose to be the vehicle by which it would articulate its position on the issue of asylum in cases such as these. Although one can only speculate, it is a good assumption that the Administration chose the L.R. case because its facts were not only compelling, but also representative of cases involving gender-based violence.

When Ms. L.R. was a 19-year-old student at a teacher training school in Mexico, the school's sports coach - who was 33 years old at the time - raped her at gunpoint. For the next two decades he kept her in virtual captivity, using physical force, beatings and threats of death to her and her family members, to prevent her from leaving him. On occasions she tried to escape him, and his retaliation was swift and brutal - in one instance he locked her in a room and set a fire, trying to burn her alive. Ms. L.R.'s pleas to the police to assist not only went unanswered, but they put her at greater risk because the police told her common-law husband that she had complained, which resulted in even more serious beatings. The response of the judiciary was - for the most part - equally atrocious. When her common law husband prevented L.R. from seeing their three children (all of whom were the result of being raped by him) and she sought assistance from a judge, he told her he would help only if she had sex with him, and when she refused, he told her she was a bad mother, because a good mother would do anything for her children.

Ms. L.R. had been denied asylum at the first two tiers of decision-making (asylum office and immigration court). During the Bush Administration, the Department of Homeland Security (DHS) had filed a brief to the BIA defending the denial of asylum to Ms. L.R. Once the Obama Administration came in, the DHS position changed, and they filed a brief in April 2009 stating that women such as Ms. L.R., who have suffered domestic violence, could qualify for asylum. The brief laid out the elements for a successful claim, stating that a woman would have to show that in her country: 1) the society and legal norms tolerate and accept violence against women; 2) the home government is unable or unwilling to protect; and 3) there is no place within the home country that the woman could move to in order to escape her persecutor.

Both Rody Alvarado and Ms. L.R. submitted briefs and extensive evidence demonstrating that the conditions, respectively, in Guatemala and Mexico met these requirements. The DHS agreed, and the immigration judges handling the cases granted asylum to Rody Alvarado in December 2009, and to Ms. L.R. on August 4.

The victories in these cases are significant - for the two women who now have the protection they so desperately sought - as well as for the message they send. However, neither of these grants of asylum are legally binding on other adjudicators because decisions by immigration judges do not have precedential value. Therefore advocates on the issue continue to argue for clear national guidance - in the form of regulations or legislation, to prevent retrenching or backtracking on this issue.

Although it might seem like an easy next step to translate the progress exemplified by the grants of asylum to Ms. Alvarado and Ms. L.R., into regulations or legislation, continued hostility to the protection of women refugees continues from some quarters. For example, the grant to Rody Alvarado prompted the Center for Immigration Studies, which is generally perceived as being restrictionist in its position on immigration policies, to issue a harsh - and for the most part, distorted - critique of the policy of granting protection in cases such as these.

It would require a longer, and much more technical article than this to respond one by one to the distortions and inaccuracies in the CIS piece. However, in concluding, it is worth noting that the policy of granting asylum in gender-based claims - including claims of domestic violence - is nothing novel or revolutionary. To the contrary, it is well-accepted under international norms, as well as pursuant to the domestic law of many refugee-receiving countries. The United Nations High Commissioner for Refugees (UNHCR) has made recommendations for such acceptance beginning in the 1980s, and the high courts of the United Kingdom, Australia, and New Zealand - to name a few - have landmark decisions recognizing the validity of such claims. Many other countries have addressed the issue of protection in these cases through formal guidelines for their adjudicators, or through legislation or regulations. In that light, the move towards acceptance in U.S. law - although welcome - is a bit late in coming for a country that likes to see itself as a leader in championing the human rights of women.

 

The U.S. government has lost eight out of 15 habeas petition cases in which Guantánamo inmates alleged they or witnesses against them were forcibly interrogated, reports ProPublica, in an analysis jointly published with The National Law Journal.

The report by the investigative journalism nonprofit assesses the effect of mistreatment allegations on detainees' lawsuits by looking at 31 published decisions, which resolve the claims of 52 captives who alleged they were wrongfully detained. Fifteen of those published decisions were found to contain allegations of mistreatment, ranging from verbal threats to physical abuse labeled as torture, but because large portions of some of the decisions were redacted, the report notes that there may be other cases in which inmates alleged forcible interrogation.

The judges in these cases rejected government evidence that had been coercively obtained, using forcible interrogations. "Even in the seven cases the government won, the judges didn't endorse aggressive methods," ProPublica reports, noting that in six of those cases, the judge disbelieved the detainees' allegations of mistreatment.

The report continues:

The 15 decisions offer the most detailed accounting to date of how information obtained from the Guantánamo inmates through controversial tactics is standing up in court. They come in cases initiated by detainees seeking release via a writ of habeas corpus, not cherry-picked by prosecutors. Criminal law experts say the judges' opinions help explain why the government has decided not to pursue criminal convictions against some detainees. Such evidence would pose even greater problems in criminal trials, for which requirements of proof are more demanding.

The Obama administration has already said that at least 48 of the remaining 176 prisoners at Guantánamo will be held indefinitely because they're too dangerous to release but can't be prosecuted successfully in military or civilian court. They've said that coercion-tainted evidence is one obstacle.

The report also notes that the government was successful in only one out of fifteen cases in arguing that the taint of government coercion was eliminated by a subsequent change in location, interrogator or circumstance.

In all, 53 habeas cases have been decided, of which the government has lost 37, "most because it couldn't produce enough reliable evidence that the men were al-Qaida or Taliban militants," according to the report. More than 50 habeas suits are still pending.

The report includes two in-depth charts, one documenting "How Judges are Ruling in Cases Where Mistreatment is an Issue" and one containing updated information on all detainees whose lawsuits have been decided by federal judges.

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By Scott Nova and Ben Hensler. Nova is Executive Director and Hensler is General Counsel for the Worker Rights Consortium, a university-based organization that investigates working conditions and promotes respect for labor rights in manufacturing facilities around the world.  

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Every year, hundreds of thousands of apparel workers around the world are cheated of legally-earned income when their employers fail to pay mandatory severance benefits. This pernicious form of wage theft, which costs workers the equivalent of at least several months' wages, has afflicted workers sewing clothes for just about every major apparel brand. However, since it is the brands' contract factories that directly employ the workers, the brands insist it's not their problem to fix. Factories close, bosses skip town, the brands wash their hands of the matter - and workers are left high and dry.

On July 21, Nike signed an accord under which it agreed, in effect, to accept financial responsibility for severance owed to workers by two contract factories (workers with the accord pictured left). This sharp break with business as usual by the world's leading sports apparel brand - the result of intense pressure from student activists and the company's university business partners - has significant implications for the global apparel industry.

Outsourcing and Accountability in the Apparel Industry

Outsourcing production to contract factories in the developing world, where labor law enforcement ranges from anemic to non-existent, yields a deregulatory double bonus for American clothing brands. Factories are able to violate worker rights with impunity, affording the brands big savings on labor costs. At the same time, outsourcing insulates brands from any legal accountability, since the lawbreaking from which the brands profit is committed by third parties operating outside the United States.

The primary goal of the contemporary anti-sweatshop movement has been to make it harder for the industry to play this game, by replacing the legal accountability that outsourcing has largely eliminated with accountability to civil society, generated through both consumer and political pressure, and, increasingly, private contractual relations. Activism in the 1990s compelled most apparel brands to publicly accept responsibility for working conditions at contract factories and to adopt private codes of conduct and monitoring regimes ostensibly designed to compel contractors to respect workers' rights.

Unfortunately, these corporate codes have been ineffective at protecting workers and, as a result, sweatshop conditions remain the norm throughout the industry. Brands have taken responsibility in theory, but have been highly adept at avoiding responsibility in practice. Achieving genuine improvements in working conditions would require brands to forego the savings extracted when labor standards are ignored and, instead, pay contractors prices consistent with producing in a lawful manner. Brands have refused to do this, continuing instead to push suppliers to accept prices that can only be met by running roughshod over the rights of workers. Yet despite this, brands have done an effective job of persuading many opinion leaders and consumers that their monitoring programs reflect a sincere effort to raise standards.

The Industry's Financial Firewall

A pillar of the brands' efforts to elude accountability is their long-standing insistence that their self-imposed codes of conduct, which require them to ensure that their suppliers obey the law, somehow absolve them of financial responsibility when they instead allow suppliers to rob workers of legally-owed compensation. The prime example of this self-contradictory posture and its consequences is the widespread failure of contract factories to pay statutory severance benefits and the consistent failure of the brands to do anything about it.

The laws in most apparel exporting countries mandate severance payments to workers in the case of factory closures. Because low wages make saving impossible, and because social safety nets are weak, this severance is often the only thing standing between laid off workers and outright destitution. Yet it is a routine occurrence for factories to shut down without paying severance. National governments generally do little or nothing in response. Although precise data is unavailable, anecdotal evidence suggests that the scale of this theft is massive, involving millions of workers over the decade and a half since codes of conduct were first adopted. To cite just one example: a survey of the operations of a single high-profile brand, in one Southeast Asian country, identified more than $40 million illegally withheld from workers in a three year period.

The apparel brands have been united in their refusal to accept any financial liability in such circumstances and, until last month, none had ever broken ranks. That changed when Nike agreed to pay $1.54 million in cash (and nearly a half million dollars in kind) to the employees of two Honduran contract factories.

A Radically Different Outcome

The garment factories closed last year and failed to pay more than $2 million in legally mandated severance. The Honduran government took very limited action, overseeing a process of liquidation of machinery and goods left at the factories which generated barely 20% of the money owed. Following the industry script, Nike lamented the workers' mistreatment, while insisting that it had no obligation to pay a penny to fix the problem.

On its website, Nike insisted that it was "absolutely concerned for the workers in Honduras and...deeply disappointed that the two failed sub-contract factories did not pay the workers their full severance pay. However," the company explained, "it remains [our] position that factories which directly employ workers are responsible for ensuring that their employees receive their correct entitlements and as such Nike will not be paying severance to [these] workers."

The story would normally have ended there, but several dynamics combined to produce a radically different outcome:

• First, the workers demonstrated extraordinary perseverance; they refused to go quietly to their fate and instead organized, protested and kept the issue alive in Honduras for well over a year after the factories closed (see photo, right).
• Second, Nike's own voluntary code is not the only labor code that applied in this case; Nike is also bound by the labor codes of universities across the country that license their logos to Nike and other apparel brands (who then make clothes bearing the universities' names and insignias). Unlike self-imposed corporate codes, the universities' codes are contractually binding on the brands. And, also unlike corporate codes, compliance is monitored by an entity, the Worker Rights Consortium (WRC), which accepts no funding from the industry. The WRC exposed the violations in Honduras and reported them, with extensive documentation, to Nike's university partners.
• Third, student activists, led by United Students Against Sweatshops, dedicated themselves to holding Nike accountable. The students refused to accept Nike's position that it had no financial responsibility. They organized on campus to urge aggressive university action and used a range of creative tactics to pressure Nike directly.
• Finally, universities are increasingly prepared to take strong enforcement measures when warranted - a reality that was illustrated last year when nearly 100 universities terminated the licensing rights of Russell Athletic, a subsidiary of Fruit of the Loom and Berkshire Hathaway, over labor rights violations at one of Russell's overseas factories. Russell responded, to its credit, by adopting sweeping reforms. When two of Nike's university partners - the University of Wisconsin and Cornell University - announced the termination of the brand's licenses this spring, Nike had to consider the prospect of a similar snowball effect.

A Groundbreaking Agreement

At the end of June, Nike entered into negotiations with worker representatives. These discussions produced the groundbreaking agreement signed on July 21. The accord marks the first time a major apparel brand has effectively assumed financial responsibility for labor rights violations committed by its contractors. (NB: Under the accord, Nike is not officially paying severance but contributing to a "Worker Relief Fund.")

Nike has set an example that other apparel brands will feel pressure to follow. As that pressure builds, brands will no longer be able to assume that they can easily evade financial responsibility for their contractors' misdeeds. Brands may thus begin to see the advantages of ensuring that their suppliers fulfill their financial obligations - providing the brands with an incentive both to police suppliers' behavior more aggressively and to ensure that the prices they pay suppliers are adequate to make compliance feasible. Weighed against the prospect of getting socked with millions of dollars in arrears, the short-term savings generated by underpaying for goods may no longer look like such a smart play.

For these reasons, last month's breakthrough may prove to be a watershed moment in the battle to impose the rule of law on the "wild west" environment of global manufacturing supply chains.

 

Twenty years after enactment of the Americans with Disabilities Act, the law faces a new challenge: adapting to changing technology and the Internet, says Kareem Dale, President Barack Obama's top disability advisor in an interview with The Washington Post.

In celebrating the law's 20th anniversary, Dale points out the "sea change" of progress that has been made, with developments as simple as curb cuts on street corners for wheelchairs and Braille in hotel rooms, "but we're not done," he qualifies, citing the lack of clarity as to whether websites have to comply with the ADA.

"Many courts have said no and maybe a couple have said yes, but it's been an open question," Dale said.

Attorney General Eric Holder announced last week that the Department of Justice will soon seek comment on four proposed rules that would create accessibility requirements for websites, movies, equipment and 911 call-taking technology, Main Justice reports.

Thomas Perez, assistant attorney general for civil rights, has said in the past that ADA applies to websites, according to Main Justice.

"Companies that do not consider accessibility in their website or product development will come to regret that decision, because we intend to use every tool at our disposal to ensure that people with disabilities have equal access to technology and the worlds that technology opens up," Perez said in April.

During the event commemorating the 15th anniversary of the American Association of People with Disabilities, Holder announced the creation of a new position, special assistant for disabilities, under the deputy associate attorney general for diversity management.

President Obama also issued a public service announcement in honor of the ADA's anniversary.

View ACSblog commentary on the ADA at 20:

• Sen. Tom Harkin, one of the original sponsors of the ADA, looks back at the progress made from "pre-ADA America," when people with disabilities "had to crawl on their hands and knees to go up the stairs," but calls it shameful that young people with disabilities are housed in institutional settings like nursing homes.
• Emily Benfer, director of the new Health Justice Project at Loyola University Chicago School of Law, authored an issue brief on the necessity of the ADA Amendments Act of 2008. In a new guest post, Benfer highlights the importance of education and coalition-building in furthering the ADA's goals.

Here is some other notable commentary:

• "Is the ADA DOA?" asks workplace and labor columnist Eve Tahminciolglu. She points to "pretty sad numbers" from a recent study, showing that 61% of people say the act has made no difference in their life, while 23% report the act has made their life better. She urges stronger enforcement of the act in a blog on The Huffington Post.
• Bloomberg News Executive Editor for Washington Albert R. Hunt also writes that employment problems persist 20 years after the ADA's passage - the jobless rate for disabled people is double that of "able-bodied workers" - but said "progress, in politics, business and social mindsets is impressive," citing as one recent victory the health care bill's ban on health insurance companies' denial of coverage because of pre-existing medical conditions.
• Fifty percent of people with disabilities are not working, the same as 20 years ago, according to Andy Imparato, president of the American Association for People with Disabilities. In a PBS Newshour interview, Imparato says the official unemployment figure of 14 percent is misleading because it counts only those who are actively looking for work, and many have given up. View a video segment here.  
• The Guardian's Michael Tomasky asks, "Would the ADA pass today?" While "it is agreed nearly across the spectrum - nearly - that this was a good thing," Tomasky points to Senate candidate Rand Paul's (R-KY) comment that requiring businesses to provide access isn't "fair to the business owner." "Paul is more extreme than your average Republican, but it does make one wonder whether today's Republican Party would have supported the ADA," Tomasky writes.

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David Mortlock is the author of a recent article on this topic in the Harvard Law & Policy Review.

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The United States has yet to settle on a definition of enemy combatant. The Supreme Court spent the past decade determining whether and how detainees could challenge their detention but explicitly avoided the question of whether they could be detained in the first place. The debate has divided not only political rivals, but also, as the New York Times recently detailed, seniors official in the current Administration.

A handful of district and circuit courts have begun to examine the scope of the President's authority to subject enemy combatants to military detention without charges, a jury trial, or any of the other trappings of criminal detention. Some parties have taken the position that the President lacks detention authority in the fight against a terrorist group, while others argue that the President may detain even unwitting supporters of al Qaeda. The courts have reached a number of different conclusions.

In my article, Definite Detention: The Scope of the President's Authority to Detain Enemy Combatants, I suggest that Congress has authorized the President to subject members of al Qaeda and the Taliban to military detention, whether or not they engage in combat. However, the President may not use military detention for mere supporters or sympathizers of those groups. This membership model could also be used to determine the appropriate time for release. Namely, detainees could be freed when they sever their membership in al Qaeda or the Taliban.

Nonetheless, the debate is far from over. While a number of district courts have adopted this membership model, the D.C. Circuit recently suggested in dicta that an individual could be subjected to military detention merely for supporting the Taliban. The decision indicates that this debate could continue for many years.

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Susan Herman, president of the American Civil Liberties Union, is the author of a recent article in the online edition of the Harvard Law & Policy Review.

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When Liz Cheney released an ad charging that attorneys who had defended terrorism suspects were not fit to work in the Department of Justice, individual lawyers and the organized bar reacted with across-the-board outrage. Some, like former Attorney General Michael Mukasey, took the occasion to argue that the same protection and understanding is due the government lawyers who wrote the memos condoning torture by American agents, because the attacks on the lawyers are "all of a piece."

In my essay, The Limits of Advocacy: Lawyers for Terrorists/Lawyers for Torturers, I discuss why the role of the defense attorney and the multi-faceted role of the government lawyer are not equivalent. I also discuss the reasons why we have developed clarity about the role of defense attorneys since the dark days following 9/11: the military lawyers who led the way, the organized bar gradually stepping up to the task of defending the Guantánamo detainees, and the Supreme Court deciding a series of cases making a strong statement about the essentiality of the rule of law and lawyers, even at Guantánamo.

By way of contrast, we have little clarity about our shameful brush with torture - partly because the courts have found a dazzling array of procedural excuses for refusing to hear cases about torture and extraordinary rendition, depriving the victims of their day in court. There is a great deal we do not know about what happened and who was responsible, but there are now few voices calling for accountability. President Obama urges us to just turn the page. I argue that it is a mistake to go forward without first looking back, suggesting that the model of a truth commission might be useful to us.

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By Jamil Dakwar, director of the ACLU's Human Rights Program (HRP), and Cristina Finch, managing director of Government Relations for Amnesty International USA

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Cross-posted at The Huffington Post

In a recent speech to the American Society of International Law (ASIL) the legal advisor to the State Department, Harold Koh, stressed the "most important difference" between the Obama and the Bush administrations is their "approach and attitude toward international law." Koh said this difference is illustrated by an emerging "Obama-Clinton Doctrine," based on a commitment to four main principles: "principled engagement; diplomacy as a critical element of smart power; strategic multilateralism; and the notion that living our values makes us stronger and safer, by following rules of domestic and international law; and following universal standards, not double standards."

The commitments to "principled engagement" and "living our values" are especially vital to advancing human rights. For years, U.S. leadership on the world stage has suffered because the U.S. seems to hold a double standard on human rights. Historically, notions of U.S. exceptionalism and selectively ignoring injustices and human rights violations at home and abroad have bred mistrust of U.S. leadership based on our incomplete commitment to universal human rights. The Obama administration, however, has committed to leading by example. According to Secretary of State Hillary Clinton, this means "holding everyone to the same standard, including ourselves."

In many areas, the administration's actions have matched its rhetoric. Joining the United Nations Human Rights Council and signing the Convention on the Rights of Persons with Disabilities have both sent the right message that President Obama is prepared to engage with the international community on new and more principled terms than previous administrations. The appointment of many officials who are self-defined human rights champions with careers both inside and outside the government promoting civil and human rights evinces a commitment to "a vision of common humanity, universal rights and rule of law." Moreover, the willingness of this administration to work with members of civil society to align our human rights rhetoric with our human rights practices demonstrates a commitment to lead by example based on both "principled engagement" and "living our values."

These efforts, however, are not enough. What we have yet to see are new bold steps that prioritize human rights at home. This administration has not adopted domestic policies designed to translate its rhetoric and commitments into reality. And although the administration has made positive statements about the indivisibility of rights and the importance of recognition of economic, social and cultural rights, there has been no concrete action to fully incorporate those principles into domestic policies. "Principled engagement" and "living our values" require nothing short of a complete reversal of the positions, policies and practices from which this administration has assiduously worked to distance itself. This is the type of change an Obama presidency promised. This is the hope on which many relied when casting their votes in the 2008 election.

The Human Rights at Home Campaign was launched shortly after that historic election. A coalition of more than 50 human rights, civil rights and social justice organizations, the campaign is working to strengthen our country's commitment to human rights at home and abroad. Its goal is to create a national political culture that supports and advocates for human rights. Essential to achieving that goal is establishing a human rights infrastructure to fulfill human rights promises and legal commitments made by both Democratic and Republican administrations and congressional leaders. To this end, the campaign has endorsed four specific objectives:

• revitalizing an Interagency Working Group on Human Rights to coordinate the efforts of the executive departments and agencies both to promote and respect human rights and to implement human rights obligations in U.S. domestic policy;
• transforming the U.S. Commission on Civil Rights into a U.S. Commission on Civil and Human Rights, to expand its mandate to include not only civil and human rights issues, but also monitoring human rights implementation and enforcement efforts, and to make structural reforms to improve the commission's ability to function as an independent national human rights institution;
• ensuring meaningful government compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. ratified in 1994; and
• strengthening federal, state, and local government coordination in support of human rights.

As a first step, the campaign has been calling on the administration to issue an executive order reconstituting the Interagency Working Group on Human Rights (IAWGHR). Initially established by President Clinton, this working group coordinated efforts within the executive branch to monitor, implement and enforce ratified human rights treaties. The Bush administration disbanded the working group, replacing it with a weaker interagency policy committee on human rights which mainly coordinated the submission of U.S. periodic reports to human rights treaty bodies. A reconstituted IAWGHR is one of the cornerstones of an effective human rights infrastructure, and a new executive order is absolutely imperative to putting this cornerstone in place.

Issuing a new executive order will increase the effectiveness and coordination of the efforts of the executive branch to meet our domestic human rights obligations by creating, in one standing body, an identifiable focal point for the administration's human rights activities and policy work. An executive order that creates a mechanism that ensures organized interagency coordination will better enable the United States to meet its articulated commitments to "principled engagement" and "living our values." In addition, this type of mechanism would establish a specific structure with a systematic and transparent process for handling human rights and would enhance federal, state and local coordination in support of human rights.

In addition to being a major symbolic achievement, issuance of an executive order sets forth a definitive plan, displays assertive action and lays the groundwork for the demand that other nations follow our lead.

Take action and join the Human Rights at Home Campaign, the ACLU and Amnesty International USA in calling for a new and comprehensive executive order on human rights.

 

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By Sahar Aziz, a civil rights attorney with the Bill of Rights Defense Committee. Ms. Aziz previously served as a senior policy advisor with the Office for Civil Rights and Civil Liberties at the U.S. Department of Homeland Security.

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The U.S. Supreme Court recently heard argument in Humanitarian Law Project v. Holder. The plaintiffs, a human rights organization and a retired federal judge, sought to teach international human rights law and provide training on nonviolent conflict resolution to the Kurdistan Workers' Party and the Liberation Tigers of Tamil Eelam. Both organizations are designated as terrorist by the U.S. government.

Oral argument focused on whether such training and advocacy aimed at promoting peace constitutes pure speech protected by the First Amendment, thereby shielding plaintiffs from prosecution under laws that prohibit material support for terrorism. But rather than delve into the complex constitutional questions presented, the Court should follow the established doctrine of constitutional avoidance by interpreting the challenged provisions to require a showing of intent to further illegal activities. The avoidance doctrine dictates that if a case can be resolved on an alternative basis, the court should refrain from ruling on constitutional issues.

In the 1960s, at the height of the Cold War, the Supreme Court held in Scales v. United States that laws criminalizing membership in the Communist Party must be interpreted to require a specific intent to further the group's illegal aims. Mere knowledge that a group advocated violence was insufficient to justify infringing on cherished First Amendment associational rights. Consistent with that principle, in 2004 Congress amended the law prohibiting material support to terrorism to require that "[n]othing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States."

In addition to complying with legal precedent and congressional intent, requiring prosecutors to establish proof of a defendant's specific intent to further illegal ends would rectify several unfortunate policy effects.

Existing law unduly criminalizes the fundamental American tradition of charity. As a result, many American charities have refrained from providing humanitarian aid in conflict zones where aid is most needed. If a potential aid recipient is designated as a foreign terrorist organization, the charity faces the untenable choice of watching orphans and widows starve-or feeding them at the risk of facing criminal prosecution and up to fifteen years in prison.

Imagine the devastating outcome had this been the case in Haiti after the catastrophic earthquake that killed over 300,000 people, injured another 300,000, and orphaned tens of thousands of children. If a foreign terrorist organization had been in control of a portion of Haitian territory, the people with the misfortune of living there would have been denied the aid of America's remarkable doctors, first responders, and other courageous volunteers. Helpless survivors in orphanages with even the most remote affiliation with a designated organization would have been arbitrarily deprived of needed assistance from generous Americans ready and eager to help. Such an outcome is not only unjust and inhumane, but also contrary to multiple U.S. foreign policy interests.

For example, criminalizing charity undermines the administration's declared commitment to improving America's image abroad through meaningful engagement. President Obama announced the promotion of peace and security as a pillar of his administration's foreign policy. What better way to promote these tenets than by allowing charity towards those less fortunate? America's leadership in the Haitian relief efforts, as demonstrated by the multitude of American charitable organizations on the ground assisting in reconstruction, showed the world by example that Americans are a generous people.

Accordingly, we should build on this goodwill in other areas of the world where America suffers a reputational deficit. Allowing charities to provide humanitarian aid to individuals trapped in conflict zones in the Middle East and Central Asia, for example, would go a long way towards countering negative perceptions of America. While independent charities do not represent the U.S. government, and rightly so, permitting American organizations to provide much needed humanitarian aid improves the perception of our nation within the region.

But without assurances that their well-intentioned aid will not become the basis of prosecutions for material support to terrorism, American charities will continue to decline opportunities to help. In light of the multiple closures, asset freezings, and prosecutions of American charities engaged in humanitarian aid abroad, such fears are well-founded. Indeed, a broad coalition of charities, grantmakers, faith-based and advocacy groups have responded by seeking the elimination of counterproductive barriers to legitimate charitable work caused by counterterrorism laws. In a joint letter to President Obama, twenty American Muslim charities highlighted that "helping the least among us is a shared American value" and urged him to follow through on his commitment to ease hurdles to charitable giving,

Finally, requiring a showing of specific intent to support illegal acts prevents squandering limited prosecutorial resources on pro-peace charities such as the Humanitarian Law Project. Accepting the fact that there are finite resources our government can allocate towards combating terrorism, it must act responsibly in how it exercises its prosecutorial discretion. Prosecuting American charities that intend to support peace wastes precious resources, thereby compromising our ability to prosecute those plotting to promote violence.

By requiring proof of specific intent to support violence, the U.S Supreme Court would preserve our cherished values of free speech and charitable giving, while focusing anti-terrorism efforts on illicit activity.