Uighurs at Guantanamo
FindLaw columnist and human rights attorney Joanne Mariner discusses a recent federal appellate ruling clearing a Guantanamo detainee, Huzaifa Parhat, of claims he was an "enemy combatant." (The ruling itself has not yet been released, but a brief order has been released stating its result.) Mariner explains Parhat's circumstances: He is an Uighur, a member of western China's Muslim minority and now part of a group of 17 Uighurs at Guantanamo. Reportedly, it was determined
more than four years ago that the Uighurs were no threat to the U.S. -- yet they are still detained because neither their home country, China, nor the U.S., nor any other country will accept them. Mariner argues that, since the Uighurs would face severe ethnic and religious persecution if returned to China, they should be paroled into the U.S.
Monday, Jun. 30, 2008
What BoumedieneI Means
FindLaw columnist and human rights attorney Joanne Mariner discusses the importance of the Supreme Court's recent, controversial split decision regarding Guantanamo detainees. As Mariner explains, the Court held that the detainees have the right to challenge their detention via a fair process in federal court, and that the Military Commissions Act of 2006, which had stripped the detainees of that right, constituted an unconstitutional suspension of the writ of habeas corpus. Though the Court has now settled one set of questions, Mariner points out that its decision raises others, such as whether Guantanamo will be closed, what the federal court proceedings will look like (and whether secret evidence can be used), whether the ruling will affect ongoing military commission proceedings, and whether prisoners in Iraq, Afghanistan and secret CIA prisons abroad will have the same rights Guantanamo detainees have now been held to possess. Mariner outlines some possible answers to these questions.
Monday, Jun. 16, 2008
An Inglorious Start
FindLaw columnist and human rights attorney Joanne Mariner contends that, with military commission trials of Guantanamo detainees now beginning, it is crystal clear that the trials will not offer even basic procedural guarantees -- and thus will betray President Bush's promises that they would be just and fair. Mariner contends that this situation is deeply disturbing not only because unfair trials are wrong in themselves, but also because the trials -- which include those of detainees alleged to have been responsible for the September 11 attacks -- are an historic event, and the world will be watching. Yet unlike at the much-admired Nuremberg Trials, Mariner notes, the record -- including comments by former Chief Military Commissions Prosecutor Morris Davis, who resigned -- indicates that the possibility of acquittals has been categorically ruled out by those overseeing the trials, regardless of what the evidence may show.
Monday, Jun. 2, 2008
What Happens When the Gloves Come Off
FindLaw columnist and human rights attorney Joanne Mariner discusses the CIA's rendition program, under which detainees are transferred from U.S. custody to the custody of countries whose interrogators employ brutal forms of torture. In her account, Mariner draws upon a recent Human Rights Watch report that she authored, detailing more than a dozen cases of CIA renditions to Jordan alone -- nearly all of which resulted in interrogations that included torture. The report includes Jordanian detainees' accounts of methods of torture including falaqa, the painful beating of the feet in a manner that can break bones and cause permanent damage; other kinds of beatings; and threats of rape. Mariner notes that the detainees' accounts of how they were tortured are very credible in light of the fact that they were mutually consistent, and corroborated by secondary sources.
Wednesday, Apr. 09, 2008
Patriots, Refugees, and Terrorists
FindLaw columnist and human rights attorney Joanne Mariner argues that the way U.S. immigration law currently defines terrorist activity is misguided, wrongly excluding would-be immigrants who are not remotely like terrorists, and who are legitimately fleeing persecution. Mariner explains that the definition -- as expanded by the USA PATRIOT Act and the REAL ID Act -- has been interpreted to extend even to people who acted under duress from dangerous persons, or who supported groups in their home countries that the U.S. also supported. Despite some recent Congressional action to allow waivers to be granted on a case-by-case basis, she contends, the situation remains deeply unjust.
Wednesday, Mar. 26, 2008
The Trials of Abu Omar
FindLaw columnist and human rights attorney Joanne Mariner discusses the ongoing trial, in Milan, of twenty-six Americans who are alleged to have kidnapped an Egyptian imam known as Abu Omar. The Americans are being tried in absentia, and are virtually all claimed to be CIA operatives. Mariner, who interviewed Abu Omar in his home in Egypt last December, recounts his remarks regarding his case. She also discusses the highly controversial practice of rendition -- which occurs when the U.S. turns suspects over to foreign governments for interrogations that would be illegal if directly conducted by the U.S. In Abu Omar's case, it is alleged that the CIA kidnapped him in Italy, then turned him over to Egypt for brutal interrogation that included torture.
Wednesday, Mar. 12, 2008
After Guantanamo
FindLaw columnist and human rights attorney Joanne Mariner discusses the situation of the detainees who have recently left, or are soon to leave, the detention facility at Guantanamo Bay. For many Afghan detainees, Mariner explains, the departure is only a transfer -- for they are being moved to a prison in Afghanistan called the Afghan National Detention Facility (ANDF). Mariner raises important questions about the status of the ANDF. While the ANDF is putatively under the control of the Afghan government, the U.S. says it retains a "mentoring" relationship with those who are in charge. Mariner discusses what, exactly, this may mean.
Wednesday, Feb. 27, 2008
Terrorism and Speech
FindLaw columnist and human rights attorney Joanne Mariner discusses the post-9/11 global trend of punishing speech that, while not directly inciting terrorism, is seen as justifying, defending, glorifying, or enabling it. Drawing upon examples from the U.N. Security Council, the Council of Europe, and individual countries around the world, Mariner comments on particular resolutions and laws. She contends that the laws' broad language may sometimes reach legitimate political speech, and gives prosecutors disturbingly great discretion in deciding whom and whether to prosecute. Mariner questions whether such laws are being enforced against those who are a true danger, and whether prosecutorial resources would be better focused on action, as opposed to speech.
Monday, Jan. 28, 2008
Terrorism and Preventive Detention
FindLaw columnist and human rights attorney Joanne Mariner offers a comprehensive look at all the options open to America for ways to legally treat detainees suspected of terrorism. She specifically focuses on how, according to each option, the process by which detention decisions are made should be. She also considers the "preventive detention" option, currently forbidden by U.S. law.
Wednesday, Jan. 16, 2008
2007: The Year Presidential Candidates Debated Torture
FindLaw columnist and human rights attorney Joanne Mariner offers a 2007-retrospective legal quiz, inviting readers to test their knowledge of the presidential candidates' respective positions on Guantanamo, torture, and habeas corpus. What does Rudy Giuliani think about waterboarding? What does Mitt Romney believe about the future of Guantanamo? Which Republican candidates have spoken out against waterboarding and who favors interrogators' power to choose any method of interrogation they like? Who would close Guantanamo if elected, and who would keep it open? Readers are invited to pick their answers, then check the answer key, which may contain some interesting surprises.
Wednesday, Jan. 02, 2008
Do They Even Know It's Christmas (on Guantanamo)?
FindLaw columnist and human rights attorney Joanne Mariner recommends, and offers brief descriptions and evaluations of, key war-on-terror books, ranging from accounts by Bush Administration insiders, to personal stories by detainees. Several of the books directly take on the issue of the Administration's use of torture. While this won't be easy or pleasant holiday reading, it will prove rewarding and informative, and essential to understand war-on-terror policies and facts.
Thursday, Dec. 20, 2007
The Supreme Court Faces the Kangaroo Courts
FindLaw columnist and human rights attorney Joanne Mariner discusses in detail one key issue that will be covered at Wednesday's historic U.S. Supreme Court oral argument regarding "war on terror" judicial review: whether Combatant Status Review Tribunal (CSRT) proceedings, the Bush Administration's proposed alternative to the federal courts, are in fact an "adequate substitute." Mariner raises issues such as CSRTs' reliance on secret evidence that is presumed, not proven, to be valid; and official language suggesting that CSRTs effectively put the burden of proof on the detainee, not the government. She also notes other serious procedural defects that suggest that CSRTs are, in fact, no substitute for the courts. Drawing on transcripts of CSRT proceedings, Mariner points to concrete illustrations of the Catch-22s detainees have faced.
Monday, Dec. 03, 2007
War Crimes Redux
FindLaw columnist and human rights attorney Joanne Mariner discussses a new book entitled Crimes of War: What the Public Should Know. As Mariner explains, the book covers questions such as these: What is the responsibility of military commanders for crimes committed by their subordinates? When is the killing of civilians a war crime? What do the Geneva Conventions say about terrorism? It also covers the accomplishments and limits of international tribunals addressing violations of international human rights law and the law of war.
Monday, Nov. 26, 2007
A Guantanamo Index
FindLaw columnist and human rights attorney Joanne Mariner offers an index, much like the famous Harper's Magazine "Harper's Index," that provides a quantitative perspective on the Guantanamo Bay detention facility and the fates of the detainees there. The figures she compiles range from the shocking (the total days of the longest detentions without charge; the age of the youngest prisoner), to the deeply upsetting (number of apparent and attempted suicides; estimated number of detentions of farmers, aid workers, missionaries, and refugees totally unconnected to terrorism), to the appalling (hours for which, according to an FBI agent, two detainees were left chained in a fetal position).
Wednesday, Nov. 07, 2007
The UN Security Council's (Slowly) Improving Message on Counterterrorism and Human Rights
FindLaw columnist and human rights attorney Joanne Mariner discusses the U.N. Security Council's evolving position on counterterrorism and the risk it poses of infringing human rights. Mariner notes that in the wake of the 9/11 attacks, the Security Council established a Counter-Terrorism Committee, but notes also that the relevant resolution failed to even mention human rights, except in the narrow context of refugees. She contends that since then, the Security Council has emphasized security at the cost of human rights, closing its eyes to the rights violations counterterrorism policies cause. Mariner adds that while signs such as a subsequent resolution mentioning human rights, and a recently-created post for a human rights officer are hopeful, much more progress needs to be made.
Wednesday, Oct. 24, 2007
Torture's Paper Trail
FindLaw columnist and human rights attorney Joanne Mariner discusses the New York Times's revelation last week that two more Bush Administration "torture memos" exist. Mariner contends that the memos' main purpose was to provide legal "cover" for illegal conduct, thereby immunizing U.S. officials from prosecution. Mariner assesses these and prior Bush Administration "torture memos," a classified executive directive, and last year's Military Commission Act and concludes that, taken together, they are a paper trial revealing the Administration's plan to violate applicable law on torture and get away with it. She also explains why the Administration might have thought such a strategy could succeed: In this area, unlike in others, a mistake of law may actually excuse illegal conduct.
Wednesday, Oct. 10, 2007
Terrorizing Social Protest
FindLaw columnist and human rights attorney Joanne Mariner discusses recent instances of two countries -- El Salvador and Britain -- invoking broad counterterrorism laws as an excuse to crack down on legitimate social protest. Though the targets of the protests were a water decentralization plan and global warming, respectively, the laws invoked against the protesters were specifically intended to address acts of terrorism. Mariner argues that police had ample authority and power to control any lawbreakers among the protesters without resorting opportunistically to using the counterterrorism laws to impose harsher penalties and bypass important procedural requirements. She also notes that most other countries' counterterrorism are similarly broad and similarly open to abuse.
Wednesday, Aug. 15, 2007
Our Un-American Government
FindLaw columnist and human rights attorney Joanne Mariner discusses different definitions of what it means for a practice or belief to be "un-American," as defined by American figures ranging from Joseph McCarthy to Bill O'Reilly to Donald Rumsfeld. Mariner notes that even after Rumsfeld described the torture perpetrated at Abu Ghraib as "un-American," the U.S. has continued to condone torture. She argues that in the end, the term "un-American" should be defined in opposition to that which is best in American life -- including our regard for human rights. She encourages readers to sign a pledge to this effect, opposing what, she argues, are truly un-American practices such as indefinite detention and other rights violations.
Wednesday, Aug. 01, 2007
The Misinterpreter-in-Chief
FindLaw columnist and human rights attorney Joanne Mariner discusses an executive order recently issued by President Bush. The order purports to determine that the CIA's system of secret prisons "fully complies" with the U.S.'s Geneva Conventions obligations -- as long as the CIA itself complies with a series of requirements regarding interrogation practices and conditions of confinement. Mariner contends that the order wrongly ignores a key Supreme Court ruling, and is in clear error with respect to international law. She contends that the secret prisons program will continue to plainly violate the U.S.'s Geneva Conventions obligation, despite the executive order's claims. She also criticizes the executive order for purporting to impose a definition of "enemy combatant" even broader than those the Administration used in the past.
Monday, Jul. 23, 2007
Human Bargaining Chips
FindLaw columnist and human rights attorney Joanne Mariner discusses the U.S.'s use of the tactic of taking hostage the family members -- including children -- of terrorist suspects. She notes that the tactic was used, for example, in connection with the investigation into Daniel Pearl's kidnapping. In another case, she notes, two young children were detained for months. Mariner condemns the tactic of using human beings as bargaining chips, whether practiced by terrorists or governments. She also notes the refusal by Bush Administration torture memo author Yoo to concede even that, hypothetically, it would be illegal to commit such an atrocity as to crush innocent children's testicles as their parents look on.
Tuesday, Jun. 26, 2007
Guantanamo to Abu Salim: Frying Pan to Fire
FindLaw columnist and human rights attorney Joanne Mariner discusses the situation of those among Guantanamo's 380 prisoners who are likely to face torture if released to return to home countries such as Libya, China, Uzbekistan, and Algeria. In particular, Mariner focuses on Abdul Ra'ouf al-Qassim, who it seems very likely will be transferred this week to Libya's brutal Abu Salim prison -- where the U.S. State Department has noted that prisoners are "routinely tortured." Mariner points out that international law that binds the U.S. forbids a country from transferring a detainee to a country where there are substantial grounds to believe he will be tortured. In addition, Mariner points out that a U.K. immigration court recently saw through Libya's no-torture promises and stopped a detainee's return there, and contends the U.S. should do the same.
Monday, Jun. 18, 2007
Afghanistan's Civilian Victims
FindLaw columnist and human rights attorney Joanne Mariner, who recently traveled to Afghanistan, discusses the six-fold increase there in civilian deaths -- resulting, often intentionally, from Taliban-instigated suicide bombings. In addition, "perfidious" attacks -- in which the attacker impersonates a civilian -- are common, and are causing casualties among bona fide civilians mistaken for perfidious attackers. Will Afghanistan soon become a second Iraq? Mariner contends that the warning signs are clear, though many Afghans have been turned strongly against the Taliban by its attacks.
Monday, May. 21, 2007
Of Tribunals and Torture
FindLaw columnist and human rights attorney Joanne Mariner discusses the administrative procedures --performed by Combatant Status Review Tribunals (CSRTs) -- that were recently applied to fourteen "high value" Guantanamo detainees, and argues that they failed to accord detainees anything remotely like due process of law. She contends, too, that the detainees' upcoming military commission trials may be even worse in this regard -- producing sentences based on supposed "confessions" procured by means of abuse and even torture. She also notes that the Pentagon's censorship of CSRT proceedings, on the grounds that they could reveal interrogation methods, speaks volumes about the dubiousness of the methods that must have been employed. She also asks: Why were these proceedings, once open to journalists, closed?
Tuesday, May. 15, 2007
Welcome to the Least Worst Place: Guantanamo's New Detainee
FindLaw columnist and human rights attorney Joanne Mariner discusses a potentially important new development with respect to the U.S.'s Guantanamo Bay detention center: the arrival of a new detainee, a Kenyan named Abdul Malik. Mariner considers why -- after two-and-a-half years of watching Guantanamo's population steadily shrink, amid international criticism of the facility -- the Bush Administration has transferred a new detainee there. She also asks why Malik -- arrested in Kenya, far from any war zone -- isn't being held in preparation for a federal court trial, rather than being indefinitely detained as an "enemy combatant" at Guantanamo.
Wednesday, Mar. 28, 2007
Missing CIA Prisoners: Part Two of a Two-Part Series
In Part Two of a two-part series of columns on CIA "disappearances," FindLaw columnist and human rights attorney Joanne Mariner considers a pressing question: Given President Bush's representation, as of last September, that there were no prisoners held in CIA custody, what, precisely, happened to the prisoners whom evidence shows were held by the CIA before then? Mariner offers estimates of the numbers and nature of such prisoners, and points, as well, to specific lists of names of those believed to be former prisoners, whose whereabouts are unaccounted for. She raises the very strong possibility that they were sent by the CIA to foreign prisons in countries where torture is practiced.
Monday, Mar. 12, 2007
"Disappearing" into CIA Custody: Part One of a Two-Part Series
In Part One of a two-part series of columns, FindLaw columnist and human rights attorney Joanne Mariner discusses the case of Marwan Jabour as an example of the CIA's practice of kidnapping people and holding them in secret prisons abroad. Jabour, a Palestinian who was studying in Pakistan, says that after he was arrested in Pakistani, he ended up being flown to a secret CIA prison, where he says he was tortured and kept in solitary confinement for over two years. Relatedly, Mariner notes the U.S.'s troubling refusal to sign the Convention against Enforced Disappearances, to which sixty other countries became signatories last month.
Monday, Mar. 05, 2007
Europe's Investigations of the CIA's Crimes
FindLaw columnist and human rights attorney Joanne Mariner discusses the current situation with respect to investigation and possible prosecution of alleged crimes by the CIA: While such investigations have occurred in Europe and Canada, in America they are nonexistent. Mariner explains the details of the European and Canadian investigations, and argues that the potential for embarrassment cannot be the entire explanation for America's decision not to investigate -- for other countries have gone forward despite their own complicity with the CIA, and thus the potential that they too could be shamed and embarrassed.
Tuesday, Feb. 20, 2007
CIA Detainees: First the Crime, then the Cover-up
FindLaw columnist and human rights attorney Joanne Mariner discusses the CIA program of secret detention and interrogation of detainees. Mariner takes the Bush Administration to task for rendering "Classified" information that very likely would reveal a wide gap between the President's descriptions of the program, and the reality of the facts as they occurred. As she explains, waterboarding and other severe and illegal techniques strongly appear to have been covered up by the use of the "Classified" categorization in a variety of contexts. Yet the Administration is working to silence detainees from discussing even the abuses they suffered at its hands.
Wednesday, Jan. 31, 2007
Saddam's Justice
FindLaw columnist and human rights attorney Joanne Mariner comments on the execution of Saddam Hussein. Covering the trial, the recent appeal, and the worldwide impact of the verdict, Mariner argues that the execution will ultimately be viewed as a setback for human rights, and the rule of law.
Wednesday, Jan. 03, 2007
The Israeli Supreme Court Rules on "Targeted Killings": Part One of a Two-Part Series
In the first in a two-part series of columns, FindLaw columnist and human rights attorney Joanne Mariner discusses the Israeli Supreme Court's recent decision on Israel's policy as to "targeted killings." As Mariner notes, the case asked, Are killings of suspected terrorists in the Occupied Territories illegal assassination attempts, or legal killings of enemy combatants in wartime? Such killings have cost many lives of innocent civilians, as well as those of terrorist suspects. Mariner explains the Court's answer -- which, she argues, while it did not ban targeted killings outright, hardly endorsed them -- imposing significant constraints on the use of targeted killings. She also notes several respects in which the opinion is relevant to the U.S.
Friday, Dec. 22, 2006
Air America Revisited
FindLaw columnist and human rights attorney Joanne Mariner discusses Stephen Grey's new book, Ghost Plane: The True Story of the CIA Torture Program. Among the practices Grey's book reports, Mariner notes, is the practice of rendition (the U.S.'s sending a detainee to another country to be brutally tortured there outside of the law and without any shard of due process protection). Mariner explains how Grey was able to connect the patterns of CIA planes' flights to Egypt, Uzbekistan, Libya and Guantanamo to the practice of rendition. While applauding the book as excellent and well-researched, Mariner also looks to the future for another work (or an updated version of this one) that would cover secret CIA prisons, as well.
Wednesday, Dec. 06, 2006
Four Good Reasons Why Guantanamo Should Be Closed
FindLaw columnist and human rights attorney Joanne Mariner outlines a strong case for closing the U.S. detention center at Guantanamo Bay. She contends that not only is indefinite detention without trial deeply unfair to the detainees, and contrary to the American system of justice, but it is also against our national interest to keep Guantanamo open. In particular, she urges, Guantanamo and the reports of abuse that have emerged from it, are hurting the U.S. in its attempts to combat terrorism. She contrasts the treatment of enemy POWs during World War II with the treatment of Guantanamo detainees today.
Wednesday, Nov. 22, 2006
The CIA, the MCA, and Detainee Abuse
FindLaw columnist and human rights attorney Joanne Mariner discusses the relationship between the system of secret CIA prisons that the Bush Administration has now admitted exists, and the recent passage of the Military Commissions Act (MCA) of 2006. She argues that the MCA was motivated not by the need to prosecute terrorists, as the Administration claims, but rather by the Supreme Court's decision in Hamdan v. Rumsfeld. That decision, she contends, convinced the Administration that it needed to attempt to protect CIA torturers, and those in the CIA responsible for suspect "disappearances," from the potential consequences of their Geneva Conventions violations, including possible criminal prosecution. And, she says, the MCA represents just such an attempt to insulate CIA torturers and kidnappers from liability.
Wednesday, Nov. 08, 2006
The Military Commissions Act of 2006: A Short Primer
Part Two of a Two-Part Series
In the second of two columns on the Military Commissions Act (MCA) of 2006, FindLaw columnist and human rights attorney Joanne Mariner contends that the MCA blesses policies that are dangerous, short-sighted, and provide fodder for those who seek to recruit new terrorists. She focuses, in particular, on the MCA's attempt to opens the door to what would, in effect, be redefinitions of basic Geneva Conventions protections, and its purported nullification of the Geneva Conventions in domestic court proceedings. The upshot, she explains, is that CIA abuses -- such as waterboarding or extensive sleep deprivation -- may remain as unprosecuted violations of the Conventions. She also criticizes the MCA's provisions stripping all non-citizen detainees of the traditional right to file habeas corpus petitions. She argues that the post-election Congress ought to repeal the MCA.
Wednesday, Oct. 25, 2006
The Military Commissions Act of 2006: A Short Primer
Part One of a Two-Part Series
In Part One of a two-part series of columns, FindLaw columnist and human rights attorney Joanne Mariner discusses some of the most important provisions of the Military Commissions Act of 2006. She focuses, in particular, on how the bill defines "unlawful enemy combatant," and what the military commissions the MCA would create would really look like, in terms of their rules of procedure and evidence (including those relating to classified evidence), as well as the list of alleged crimes on which they could pass judgment.
Monday, Oct. 09, 2006
Gagging the Detainees
FindLaw columnist and human rights attorney Joanne Mariner discusses the proposed Detainee Treatment Act (DTA) of 2005 -- and in particular, the provisions of the bill that would prevent CIA detainees from ever discussing past abuses. Mariner explains that we are still somewhat in the dark about the details of the CIA's use of several practices -- such as water-boarding, threats to detainees' innocent young children, and mock burials, which are known to have been authorized, but may or may not have been used. With Guantanamo detainees' attorneys' remarks already potentially censored in declassification review, and the DTA itself attempting to strip courts of jurisdiction over detainees' cases, Mariner argues that the detainee "gag" provisions are part of a larger plan to silence accounts of torture.
Tuesday, Sep. 26, 2006
An Alternative Set of Interrogation Procedures
FindLaw columnist and human rights attorney Joanne Mariner, on the anniversary of the September 11 terrorist attacks, discusses the President's recent defense of an "alternative set of [interrogation] procedures" that he deemed "tough" and "necessary." Mariner argues that the President -- exploiting the upcoming 9/11 anniversary -- was attempting to defend American practices of torture, based on an argument that the ends justify the means. She contends that the President can only claim America does not practice torture, by defining "torture" far too narrowly, and that it's clear that brutal practices like water-boarding and other methods that inflict severe pain, still continue to be used. She also argues that the military commissions the President is proposing are no more than kangaroo courts.
Monday, Sep. 11, 2006
The Forgotten Detainee
FindLaw columnist and human rights attorney Joanne Mariner discusses the situation of detainee Ali Saleh Kahlah al-Marri, who has been indefinitely detained since mid-2003 because he is deemed an "enemy combatant," and whose habeas corpus petition is now proceeding through the courts, with a district court decision recently handed down. Al-Marri -- a Qatari citizen who was lawfully in the U.S. as a student -- was initially charged only with charged with credit card fraud, making false statements, and the like, until the charges were dropped and he was moved into military detention and deemed an Al Qaeda "sleeper" agent. Mariner argues that Supreme Court's ruling in Hamdi v. Rumsfeld -- which dealt with an apparent Taliban fighter picked up in Afghanistan -- doesn't cover al-Marri. She also cites a possible ulterior motive for the U.S.'s opting to move al-Marri into military detention.
Wednesday, Aug. 30, 2006
In Search of a "Solid Defense" to War Crimes Charges
FindLaw columnist and human rights attorney Joanne Mariner discusses the Bush Administration's proposed amendments to the War Crimes Act, a statute that makes violations of the laws of war federal crimes. Mariner argues that the proposed amendments are merely an attempt to provide impunity for government abuses toward "war on terror" detainees -- and that the Administration would be far better served by complying with the law, than by trying to change it.
Wednesday, Aug. 16, 2006
Military Commissions Redux
FindLaw columnist and human rights attorney Joanne Mariner discusses the hearsay evidence provisions of the White House's draft legislation relating to detainees at Guantanamo and elsewhere. As Mariner explains, the proposed legislation, if enacted, would reinstate military commissions -- recently invalidated by the Supreme Court. (The legislation would also allow for the indefinite detention of those the Administration deems "enemy combatants.") Mariner argues that the proposal's hearsay provisions for the proposed commissions' proceedings are utterly unacceptable -- a travesty of justice.
Wednesday, Aug. 02, 2006
It All Depends on What You Mean by Battlefield . . .
FindLaw columnist and human rights attorney Joanne Mariner argues that, in Congressional hearings relating to the Guantanamo detainees, it was inappropriate and inapposite to raise "battlefield capture" arguments -- that is, contentions that soldiers can't act like police, and that those captured in battle can't expect to be treated like civilian criminal defendants. Mariner points out that a significant proportion -- roughly one-third -- of the Guantanamo detainees were picked up far from any battlefield; instead, they were arrested by police at private homes, airports, or police stations. She supports her point with specific details about particular arrests and detainees.
Tuesday, Jul. 18, 2006
Guantanamo's Waning Days
FindLaw columnist and human rights attorney Joanne Mariner discusses when, and how, the U.S. detention facility at Guantanamo Bay -- which still holds about 460 people --will close. Mariner considers the question of what to do with those detainees who reasonably fear torture or other abuse in the country to which they would be returned, and therefore prefer not to be sent there. For instance, should European countries take on some of the burden of accepting these detainees? Mariner also considers the symbolic importance of closing Guantanamo, heavily criticized here and overseas as a failed experiment.
Monday, Jun. 19, 2006
Guantanamo's Orange Jumpsuit Justice
FindLaw columnist and human rights attorney Joanne Mariner discusses calls for the shutdown of the U.S.'s Guantanamo Bay "war on terror" detainee facility. In particular, she focuses on the significance of President Bush's remark that he, too, would like to close down the facility -- but only after a Supreme Court decision as to whether the detainees should be tried by civilian courts or military commissions. Mariner points out that signs strongly indicate only a minority of detainees will be prosecuted, meaning that the fate of the others has yet to be determined. Meanwhile, it appears those who are not prosecuted will remain detained indefinitely, on the basis of secret evidence they cannot challenge.
Wednesday, May. 24, 2006
Uighurs in Albania
FindLaw columnist and human rights attorney Joanne Mariner discusses the case of five Uighurs -- Turkish Muslims from China -- who were detained at Guantanamo, then sent, somewhat bizarrely, to Albania when China refused to let them return. Mariner also explains the proceedings in the federal court case brought by two of the Uighurs, and points out that this story illustrates the problem of those Guanatamo detainees who cannot be returned home for various reasons -- even though they have been determined not to be "enemy combatants," or to be low-risk enough to be released.
Friday, May. 12, 2006
Sanctioning Inaction on Darfur
FindLaw columnist and human rights attorney Joanne Mariner discusses the U.S. decision to seek, this week, a U.N. Security Council vote on a resolution to impose sanctions on those who are worsening the conflict in western Sudan. Mariner contends that the vote may be most meaningful as a bellwether: It may indicate whether the U.N. will ever be able to confront far tougher upcoming choices regarding Darfur. Mariner assesses what the Security Council has done thus far (through inquiry and sanctions committes), and failed to do, with respect to Darfur. She argues that the human rights crisis there demands strategy and action -- and the sooner, the better.
Monday, Apr. 24, 2006
A September 11 Stand-in
FindLaw columnist and human rights attorney Joanne Mariner focuses on the controversial sentencing proceedings of Zacarias Moussaoui. Mariner asks why this bit player's trial is, to date, the only criminal court proceeding relating to the attacks -- even though Khalid Sheikh Mohammed, who was, according to the 9/11 Commission, "the principal architect of the 9/11 attacks," and Ramzi bin al-Shibh, accused of being the operation's paymaster, are reportedly in U.S. custody, and thus could also be charged and tried. (Instead, both reportedly are being held in secret CIA detention abroad indefinitely, where leaked information suggests they've faced brutal torture and abuse.) Mariner points out the two men are being held in "a legal black hole," as the result of having been "disappeared" in a manner reminiscent of the worst abuses of dictatorships.
Monday, Mar. 27, 2006
Sex, Violence, and Military Justice
FindLaw columnist and human rights attorney Joanne Mariner focuses on ironic recent events relating to U.S. military justice. In particular, she points out that while officials culpable in the deaths and torture of detainees in U.S. custody remain unpunished, the military is cracking down on soldiers who engaged in consensual gay sex that was shown on the Internet. Drawing on a recent Human Rights First report, she details horrific abuses of those in U.S. custody in Iraq and Afghanistan -- abuses that remain unpunished or underpunished, with the longest sentence for a torture-related death, a mere five months in jail. In contrast, the soldiers in the gay sex video face five years in jail.
Wednesday, Mar. 01, 2006
Handpicked Judges
FindLaw columnist and human rights attorney Joanne Mariner examines a recently-issued ruling by the U.S. Court of Appeals for the Second Circuit, in a terrorism-related perjury case. As she explains, the decision represented a loss for prosecutors who had sought to oust a federal district judge from hearing the case. Mariner criticizes the government's approach as an improper encroachment on judicial independence, and argues that the court's decision was the correct one -- affirming the fundamental principle that when the government loses, it cannot simply go to a new judge to try to get an opposite ruling.
Wednesday, Feb. 01, 2006
Terrorism, the New Global Security Agenda, and the Human Rights Movement
FindLaw columnist and human rights attorney Joanne Mariner discusses the recent, sustained global focus on security -- in particular, security against terrorism -- and the threat it poses that human rights gains will be reversed. Not only are Western democracies adopting rights-infringing practices that they once decried, Mariner notes, but their movement towards restricted rights and liberties may have a global impact -- with other countries labeling dissidents "terrorists" and using the label as justification to refuse to recognize rights. While the dangers of terrorism are surely real and grave in some cases, Mariner argues, a fair balance between security concerns and human rights must be struck
Wednesday, Jan. 18, 2006
Bringing Torture into Court
FindLaw columnist and human rights attorney Joanne Mariner evaluates the Detainee Treatment Act of 2005, which is likely to become law this week. As Mariner explains, although the law includes the McCain Amendment -- which is aimed at protecting detainees from torture and other forms of abuse -- it also includes a number of provisions that, she argues, undercut McCain's protections. In particular, she takes strong issue with a provision that, she argues, implies that coerced confessions (that is, confessions procured through torture and other coercive means) can be used against detainees in quasi-judicial proceedings relating to "enemy combatant" classification if they are found to be probative.
Wednesday, Dec. 21, 2005
Stonewalling on CIA Abuses in Europe
FindLaw columnist and human rights attorney Joanne Mariner discusses Secretary of State Condoleezza Rice's refusal to provide a substantive, factual response to the European Union's request for details regarding possible Europe-related activities of the reported CIA secret prison network. The EU's request comes in the context of its inquiry to figure out whether international law was violated, within its jurisdiction, in connection with the network. Rice did promise that the U.S. would not use torture -- but Mariner argues that this promise offers only cold comfort, in light of the U.S.'s current, narrow definition of what counts as torture, and of the scope of the relevant treaties.
Wednesday, Dec. 07, 2005
Facilitating Abuse
FindLaw columnist and human rights attorney Joanne Mariner evaluates two controversial proposed amendments to a current defense spending bill: the McCain amendment, which would ban the "cruel, inhuman or degrading" treatment of those in U.S. custody, and the Graham-Levin amendment, which would strip federal courts of the ability to review claims of violent physical abuse by Guantanamo detainees. Mariner argues that the McCain amendment won't do much good if passed in tandem with the Graham-Levin amendment, for the latter deny courts the right to enforce the McCain's amendment's standard, and thus make that standard toothless. She contends that McCain alone ought to become law.
Friday, Nov. 25, 2005
Now Playing at an Undisclosed Location Near You
FindLaw columnist and human rights attorney Joanne Mariner argues that the President should neither veto, nor push for modifications to, a Senate bill -- sponsored by Senator McCain -- that would ban the "cruel, inhuman or degrading treatment or punishment" of anyone in U.S. custody. The bill would establish the Army Field Manual as the uniform standard for interrogation of detainees. Mariner points out that with the military itself acknowledging that eighty-six detainees have died while in U.S. custody, with the deaths including at least twenty-six homicides, the need for clear ground rules for interrogation is especially crucial. And she notes that the bill, as currently written, enjoys the support of, among others, Gen. Colin Powell and Gen. John Shalikashvili, two former chairmen of the Joint Chiefs of Staff.
Tuesday, Oct. 11, 2005
Of Bad Apples, Scapegoats, and the Camera's Eye
FindLaw columnist and human rights attorney Joanne Mariner discusses the larger context of the Lynndie England prisoner abuse case -- in which a military jury recently issued a guilty verdict. Mariner argues that it's important to examine how the abuse could have happened, and why it did. She contends that the testimony of Captain Ian Fishback, a U.S. Army officer who witnessed systematic abuses in Iraq, shows that the acts for which England was convicted were no isolated aberration.
Wednesday, Sep. 28, 2005
The Unjust Detention of Jose Padilla
FindLaw columnist and human rights attorney Joanne Mariner takes strong issue with the result and reasoning of a recent federal appellate decision affirming the legality of the detention of Jose Padilla. Padilla, an American citizen, is alleged to have plotted with others to set off a "dirty bomb" in the United States. But, as Mariner points out, neither these allegations, nor Padilla's alleged "enemy combatant" status, have ever been tested in court. Mariner argues that the appeals court's decision misinterprets the meaning of the Supreme Court's precedent of Hamdi v. Rumsfeld.
Wednesday, Sep. 14, 2005
Paramilitary Demobilizations in Colombia
FindLaw columnist and human rights attorney Joanne Mariner discusses why paramilitary demobilizations occurring recently in Colombia have been less than successful. Mariner contends that the country's demobilization laws, crucially, fail to include mechanisms for dismantling the groups' underlying criminal structures, reducing their political power, and seizing their wealth. As a result, she notes, the country cannot claim to have truly reformed the killers and drug-traffickers who are now being deemed "peace coordinators," and even running for office.
Tuesday, Aug. 02, 2005
Bringing Justice to Darfur
FindLaw columnist and human rights attorney Joanne Mariner examines the progress of the International Criminal Court (ICC) in investigating and prosecuting the atrocities in Darfur. She notes that, as part of a likely plan to challenge the ICC's jurisdiction, the Sudanese government has established a special court that it claims will try Darfur's war criminals. In her view, however, such a court would be neither willing nor able to prosecute the senior Sudanese officials implicated in the region's crimes.
Monday, Jun. 20, 2005
Investing in Atrocity: The Cost of Doing Business with Khartoum
FindLaw columnist and human rights attorney Joanne Mariner discusses the growing movement -- in state legislatures and at colleges -- to divest stock from companies that do business in the Sudan, as a way to protest the atrocities and continuing devastation there. Mariner focuses, in particular, on Illinois' lawmakers' efforts, which she commends. She also parallels this modern divestment movement with the earlier movement to divest from companies doing business in apartheid-era South Africa -- and notes the success of the latter movement.
Wednesday, May. 25, 2005
Rumsfeld and Abu Ghraib
A year after the release of photos showing U.S. soldiers beating and sexually humiliating detainees at Abu Ghraib prison in Iraq, FindLaw columnist and human rights attorney Joanne Mariner examines whether justice is being done for those crimes. She notes that while low-ranking soldiers have faced criminal prosecution, top civilian and military leaders have not. Reviewing evidence of their responsibility for abuses, she recommends that Secretary of Defense Donald Rumsfeld and others like him -- those who made policies, gave orders, and condoned or ignored abuses -- be investigated too.
Monday, Apr. 25, 2005
Dim Prospects for Justice in Iraq
FindLaw columnist and human rights attorney Joanne Mariner discusses the Iraqi Special Tribunal -- the court that will try the former leadership of Saddam Hussein's government, including Saddam himself. Mariner argues that the Iraqi Special Tribunal's contemplated procedures fall short of guaranteeing each accused due process -- by, for example, failing to fully and timely honor the right to counsel and the right to remain silent, and by allowing trial in absentia. Mariner explains the differences between the courts as they are currently planned, and as they might have been had human rights groups' advice been heeded.
Wednesday, Apr. 13, 2005
Countdown on Darfur
FindLaw columnist and human rights attorney Joanne Mariner discusses a draft resolution, scheduled to be voted on at the U.N. Security Council today, that would send the perpetrators of atrocities in Darfur to the International Criminal Court (ICC). She notes that the measure has wide support on the Security Council, but the possibility of a U.S. veto makes its passage uncertain. In her view, the need for rapid and effective action on Darfur mandates the referral of the case to the ICC.
Wednesday, Mar. 30, 2005
Playing Politics with Visas
FindLaw columnist and human rights attorney Joanne Mariner analyzes the case of Dora Maria Tellez, a Nicaraguan historian and former Sandinista official who was recently denied a U.S. visa. Tellez was barred from entering the U.S. for her purported involvement in terrorist acts, but Mariner argues that the decision to bar Tellez had little to do with national security and everything to do with politics.
Monday, Mar. 14, 2005
Power and Law: A New Ruling in the Padilla Case
FindLaw columnist and human rights attorney Joanne Mariner reviews Monday's ruling in the case of U.S. citizen Jose Padilla, held in indefinite detention in South Carolina. In an important victory for civil liberties, the district court found that Padilla's detention was not authorized by law, or by the president's inherent constitutional authority. As Mariner explains, the ruling touched on separation of powers principles, the difference between battlefields and civilian settings, and - in a couple of brief but compelling references -- underlying civil liberties concerns.
Wednesday, Mar. 02, 2005
Giving Colombia's Paramilitaries What They Want
FindLaw columnist and human rights attorney Joanne Mariner examines the ongoing debate in Colombia over the demobilization of violent paramilitary groups. Noting that the country's paramilitary leaders include notorious drug kingpins and vicious murderers, she warns that the government's approach to demobilization appears likely to lead to amnesty and "forgiveness."
Wednesday, Feb. 16, 2005
Deadly Delay on Darfur
FindLaw columnist and human rights attorney Joanne Mariner argues that the United States is wrong to oppose the recommendation of the U.N.'s special commission on the crisis in Darfur. (The special commission has advised that the situation immediately be referred to the International Criminal Court, which could initiate prosecutions of the perpetrators.) Mariner contends that even if the U.S. will not drop its general opposition to the ICC, it should make an exception in light of what it has admitted is ongoing genocide.
Wednesday, Feb. 02, 2005
Outsourcing Detention
FindLaw columnist and human rights attorney Joanne Mariner describes the case of Ahmed Abu Ali, a twenty-three-year-old American citizen who has been detained for 18 months without charges in Saudi Arabia. Last week, a U.S. district court issued a ruling citing evidence suggesting that U.S. officials orchestrated Abu Ali's arrest, that the U.S. government is behind his continued detention, and that the reason the U.S. is keeping Abu Ali in Saudi Arabia is to avoid the scrutiny of the federal courts.
Monday, Dec. 20, 2004
How the Abusive Protect the Repressive at the U.N.
FindLaw columnist and human rights attorney Joanne Mariner notes that a number of countries with records of human rights abuses -- including Sudan, Zimbabwe and Saudi Arabia -- are also members of the U.N. body whose job it is to monitor and prevent human rights violations. Rather than taking action against these violations, she charges, these countries' main focus is on protecting themselves from condemnation. She critiques a just-released official U.N. report that purports to address this problem, concluding that its proposed solution won't work.
Monday, Dec. 06, 2004
Grand Words, Idle Threats, and Missed Deadlines on Darfur
FindLaw columnist and human rights attorney Joanne Mariner takes a critical look at the U.N.'s latest effort to stop the violence in Darfur. She concludes that the new Security Council resolution, passed on Friday, will do little to improve the situation there. Although it expresses rhetorical concern at the "growing insecurity and violence" in Darfur, she contends that it is, in substance, even more toothless than its two predecessors.
Monday, Nov. 22, 2004
The Scalia Court
FindLaw columnist and human rights attorney Joanne Mariner discusses what the Supreme Court may look like if, as many expect, President Bush has one or more opportunities over the next four years to nominate a new Justice and/or a new Chief Justice. Mariner suggests Antonin Scalia might well be President Bush's top pick for Chief Justice -- and notes that while Democrats would likely filibuster in response to the nomination, Republicans might be able to change Senate rules in a way that would enable them to push Scalia through. She also considers what the Court might be like if Scalia were indeed to become Chief Justice.
Monday, Nov. 08, 2004
Rape in Darfur
FindLaw columnist and human rights attorney Joanne Mariner discusses an important aspect of the genocide and other atrocities occurring in Sudan: the use of rape of women and girls as a weapon of war. Mariner, who recently visited Sudan, discusses the Sudanese government's failure to prosecute the perpetrators and its denial that widespread rape occurred. Mariner also notes that while rape -- when used (as it is in Darfur) to terrorize families and communities -- is considered a war crime by international law, enforcement is still rare.
Wednesday, Oct. 27, 2004
Talking about Darfur: Is Genocide Just a Word?
FindLaw columnist and human rights attorney Joanne Mariner discusses the recent statement by Colin Powell deeming atrocities committed in the Darfur region of Western Sudan to be an instance of "genocide." Mariner contends that what is of overwhelming importance here, however, is not semantics but practical reality: Why isn't more being done to put an end to the ongoing "ethnic cleansing" and crimes against humanity by the Sudanese government? Mariner contends that the world should have taken note of the situation in Darfur much earlier, and that while Powell claims his deeming the atrocities "genocide" does not require action, international law is directly to the contrary.
Monday, Sep. 13, 2004
While Darfur Burns
FindLaw columnist and human rights lawyer Joanne Mariner describes the human rights crisis in Darfur, western Sudan, where government forces and allied Janjaweed militias are responsible for war crimes, crimes against humanity, and "ethnic cleansing." Noting that the U.N. Security Council is meeting today to consider whether it should take punitive measures against Sudan, she recommends that it lend the U.N.'s imprimatur to an international peacekeeping force to protect Darfur's civilian population.
Monday, Aug. 30, 2004
The Supreme Court, the Detainees, and the "War on Terrorism"
FindLaw columnist and human rights lawyer Joanne Mariner discusses the Supreme Court's rulings in the three detainee cases decided last week. Examining the impact of these decisions on the Bush Administration's broad claims of power to fight a "war on terrorism," she explains how Justice O'Connor's opinion in the Hamdi case suggests a reluctance to embrace such a radical position. She also explains that even though the Court's various opinions fail to set out a complete framework of its views on counter-terrorism, they offer tantalizing hints of the justices' leanings.
Monday, Jul. 05, 2004
Court-Packing in Venezuela
FindLaw columnist and human rights attorney Joanne Mariner notes an interesting parallel between American history and Venezuelan current events. Students of American history are familiar with FDR's threat to pack -- that is, add extra judges to -- the U.S. Supreme Court, which had been striking down New Deal legislation. As Mariner explains, Venezuela now has its own court-packing controversy -- thanks to a new law dramatically expanding the country's Supreme Court from twenty to thirty-two members, and making the removal of current judges far easier than it had been.
Monday, Jun. 21, 2004
Remembering Tiananmen Square
Just after the fifteenth anniversary of the Tiananmen Square massacre, FindLaw columnist and human rights attorney Joanne Mariner discusses the Chinese government's hostility to any remembrance of the event; recounts the views of Tiananmen activists whom Human Rights Watch has now been able to interview; and describes what a satisfactory response by the Chinese government to this event might look like.
Monday, Jun. 07, 2004
Private Contractors Who Torture
FindLaw columnist and human rights attorney Joanne Mariner discusses the options for prosecuting civilian contractors accused of abusing Iraqi detainees. While there is a slim possibility of local prosecutions in Iraq, she concludes that most likely option is trial in the U.S. federal courts under the War Crimes Act of 1996 or the Military Extraterritorial Jurisdiction Act of 2000. But, she notes, the odds of successful prosecutions are not very promising.
Monday, May. 10, 2004
Policy Wars:
A Review of John Shattuck's Freedom on Fire
FindLaw book reviewer and human rights attorney Joanne Mariner reviews Clinton Administration human rights official and self-described "human rights hawk" John Shattuck's recent book, Freedom on Fire. The book details Shattuck's experiences with trying to make human rights progress despite bureaucratic infighting and other obstacles, and offers specific analyses of how the Administration grappled with Haiti, Rwanda, Bosnia, and China. Mariner comments on his efforts, and notes whether the Iraq War would fulfill his criteria for humanitarian intervention.
Friday, May. 07, 2004
What the Asterisks Can't Hide:
Problems with the Fourth Circuit's Opinion in the Moussaoui Case
FindLaw columnist and human rights attorney Joanne Mariner assesses the much-anticipated ruling last week by the U.S. Court of Appeals for the Fourth Circuit in the case of Zacarias Moussaoui. She explains the Solomonic quality of the ruling, which defers to both the government's and the defendant's interests. But she also notes that what is left out of the court's opinion is as important as what is contained in it.
Monday, Apr. 26, 2004
Partial Justice in Haiti
FindLaw columnist and human rights advocate Joanne Mariner, who recently returned from a Human Rights Watch mission to Haiti, reports on conditions there. She notes a troubling disparity in the way the new government is approaching past human rights crimes: Aristide-era abuses will be prosecuted, but abuses from the military era have so far been ignored.
Monday, Apr. 12, 2004
Witness Unavailable:
How the U.S. Hinders Terrorism Prosecutions Abroad
FindLaw columnist and human rights attorney Joanne Mariner describes how the United States has hindered other countries' efforts to bring terrorists to justice. By holding key terrorism suspects like Ramzi bin al-Shibh in incommunicado detention, and denying court requests for their testimony, the U.S. has already derailed prosecutions in Germany. Similar problems have arisen recently in Indonesia, and potentially in Spain, as well. Assessing these setbacks, Mariner calls on the U.S. to uphold judicial processes, not thwart them.
Wednesday, Mar. 17, 2004
Haiti: The Past Is Prologue
FindLaw columnist and human rights attorney Joanne Mariner discusses the U.S. role in Haiti a decade ago, and now -- with particular attention to the prosecution of human rights crimes. In 1994, says Mariner, the U.S. not only failed to promote, but in some ways impeded the prosecution of such crimes. And now, she explains, the perpetrators of those past abuses are back, as part of the insurgent forces -- giving the U.S. a chance to either try to right past wrongs, or to exacerbate them.
Monday, Mar. 01, 2004
Gay Rights Without Borders
FindLaw columnist and human rights attorney Joanne Mariner summarizes landmark gay rights precedents from regional, international and foreign courts. Noting that the U.S. Supreme Court made explicit reference to such rulings in Lawrence v. Texas, the 2003 decision striking down Texas's gay sodomy law, she urges U.S. judges to consider the logic and reasoning of these rulings when facing other gay rights issues.
Monday, Feb. 16, 2004
Anita Bryant Lives:
Florida's Continuing Assault on Gay Adoption
FindLaw columnist and human rights attorney Joanne Mariner discusses last week's ruling by the U.S. Court of Appeals for the Eleventh Circuit, which upheld Florida's anti-gay-adoption law. Mariner contends that the ruling's logic is not only mistaken, but is a throwback to Anita Bryant's homophobic view that gays were recruiting children. She also argues that its reasoning is in tension with that of the Supreme Court in Lawrence v. Texas, the ruling that struck down Texas's anti-gay-sodomy law.
Monday, Feb. 02, 2004
Remember Roe:
The 31st Anniversary of a Landmark Ruling
Joanne Mariner Remembering Roe FindLaw columnist and human rights attorney Joanne Mariner discusses abortion in America thirty-one years after Roe v. Wade. Mariner explains why, even though the right to abortion is formally protected, some poor women remain unable to obtain abortions, and obstacles to abortion are mounting. Mariner also takes strong issue with the notion that abortion inevitably causes emotional trauma.
Wednesday, Jan. 21, 2004
Interrogation, Torture, the Constitution, and the Courts
FindLaw columnist and human rights attorney Joanne Mariner discusses the Bush Administration's claim that the federal court have no jurisdiction to examine physical abuses committed against detainees held on Guantanamo or in other locations abroad. During oral argument before the U.S. Court of Appeals for the Ninth Circuit in a case involving Guantanamo, government counsel asserted that jurisdiction should be foreclosed even if the plaintiffs were to claim that their captors were committing "acts of torture" or were "summarily executing the detainees."
Monday, Jan. 05, 2004
Battlefield Chicago?
In the Jose Padilla Case, The U.S. Court of Appeals for the Second Circuit Says No
FindLaw columnist and human rights attorney Joanne Mariner discusses an extremely important recent ruling in the case of Jose Padilla. Padilla is the American citizen who is accused of being a dirty-bomb co-conspirator; after being arrested in Chicago, he has been held incommunicado for the past eighteen months in a military brig. The Bush Administration has argued that Padilla is an "enemy combatant," but a federal appeals court rejected that contention.
Monday, Dec. 22, 2003
A Guantanamo-Size Hole in the Constitution
FindLaw columnist and human rights attorney Joanne Mariner looks at the situation of detainees on Guantanamo. Labeling Cuban sovereignty over Guantanamo a theoretical abstraction, she focuses on the practical reality of U.S. control over the territory. Mariner concludes by urging that the Supreme Court should affirm the federal courts' power over Guantanamo, on the ground that the courts should have jurisdiction whenever and wherever the U.S. government imprisons someone.
Monday, Dec. 01, 2003
Profit Margins, Death Rates, Drug Patents and HIV/AIDS
FindLaw columnist and human rights attorney Joanne Mariner criticizes the U.S.'s lone "No" vote on a U.N. resolution passed last week. The resolution seeks to ensure the availability of drugs needed for treating diseases such as HIV/AIDS, tuberculosis and malaria. Focusing on HIV/AIDS treatment, Mariner describes how the U.S. is helping drug companies in their fight to limit the availability of life-saving generic forms of drugs.
Monday, Nov. 24, 2003
Moussaoui and the Hidden Detainees
FindLaw columnist and human rights attorney Joanne Mariner discusses how at least a dozen (and potentially many more) terrorist suspects -- including Khalid Sheikh Mohammed and Abu Zubaydah -- are being detained by the U.S. military in "undisclosed locations." Pointing to the dangers of indefinite, long-term detention of suspects outside of judicial supervision, Mariner contends that it is high time for the courts to step in to address their situation. She explains how the Moussaoui case offers the first opportunity for the courts to do this.
Monday, Nov. 10, 2003
Prisons as Mental Institutions
The Mass Incarceration of the Mentally Ill
FindLaw columnist and human rights attorney Joanne Mariner explains why, over the past several decades, many mentally ill persons who might earlier have been institutionalized have instead been incarcerated. She contends that the trend of imprisoning the mentally ill, rather than providing them with appropriate mental health care, harms the prisoners and shames our society. Drawing on a recent Human Rights Watch report, Mariner argues that the need for reform -- such as the pending Mentally Ill Offender Treatment and Crime Reduction Act -- is urgent.
Monday, Oct. 27, 2003
Saving Endangered Wildlife by Killing It?
FindLaw columnist and human rights attorney Joanne Mariner takes aim at a new Bush Administration environmental policy. The policy, as Mariner explains, will -- if implemented -- allow American hunters, zoos, circuses and others to kill, capture, and import wildlife that is facing extinction in other countries. Mariner argues the policy will only open the door to corruption and mistreatment of endangered or threatened species.
Tuesday, Oct. 14, 2003
Children Killing Children in Colombia
FindLaw columnist and human rights attorney Joanne Mariner discusses the problem of child soldiers in Colombia -- where both guerrilla and paramilitary groups employ boys and girls as young as twelve or thirteen as combatants. Mariner explains how these groups exploit children's desperation, using them as cannon fodder and violating the Geneva Conventions and the Convention on the Rights of the Child.
Monday, Sep. 29, 2003
Married with Children?
The Impact of Lawrence v. Texas on Child Custody, Visitation, and Adoption
FindLaw columnist and human rights attorney Joanne Mariner explores the implications of the Supreme Court's ruling in Lawrence v. Texas for questions of child custody, visitation, and adoption. By removing a crucial legal basis for the courts’ hostility toward gay parents, she argues, Lawrence makes discrimination against gay parents much harder to justify.
Monday, Sep. 15, 2003
Argentina, Peru, & Chile:
Truth, Justice & Reconciliation In Latin America
FindLaw columnist and human rights advocate Joanne Mariner discusses "truth and reconciliation" in Latin America. Her examples are drawn from Peru's recently-released truth and reconciliation report, and Chile's investigation of the atrocities of the Pinochet regime. Mariner takes issue with the idea of "truth not justice," under which truth-telling alone can guarantee amnesty.
Wednesday, Sep. 03, 2003
Israel's New Citizenship Law:
A Separation Wall Through the Heart
FindLaw columnist and human rights attorney Joanne Mariner critiques Israel's new law on marriage and citizenship, the "Nationality and Entry into Israel Law." Mariner contends that the law will unfairly compel thousands of Israeli Arabs to choose, in effect, between their country and their spouse. She also argues that its purported justification -- terrorism prevention -- is insufficient to justify the law.
Monday, Aug. 11, 2003
Stopping Prison Rape
FindLaw colummist and human rights attorney Joanne Mariner discusses the Prison Rape Elimination Act of 2003, which passed the House and Senate and now goes to President Bush for his signature. Mariner believes that the Act will require corrections authorities to begin to take the problem of rape seriously, which, in her view, will be an important step forward.
Monday, Jul. 28, 2003
Monsieur Moussaoui
(And How a Defendant's Nationality May Determine the Quality of his Trial)
FindLaw columnist and human rights attorney Joanne Mariner discusses the role that Zacarias Moussaoui's French citizenship may play in his fate. Mariner examines the international controversy over the propect that Britons and Australians detained on Guantanamo may be tried before military commissions -- a controversy that is complicated by the fact that they are citizens of close U.S. allies. She parallels these complaints with an examination of the Moussaoui prosecution, and the possibility that he, too, will be tried by a military commission.
Monday, Jul. 21, 2003
Defendants, Not Combatants:
Federal Courts, Not Military Commissions
FindLaw columnist and human rights attorney Joanne Mariner discusses the prospect of prosecuting terrorist crimes before military commissions. Examining the successful prosecution of “shoe bomber” Richard Reid, she criticizes the Bush Administration’s reliance on military commissions to try crimes that belong in the federal courts. Particularly worrisome, in her view, is the administration’s recent decision to transfer criminal defendant Ali Saleh Kahlah al-Marri into military custody.
Monday, Jul. 07, 2003
Rehnquist Family Values:
The Supreme Court's Misguided Decision in Overton v. Bazzetta
FindLaw columnist and human rights attorney Joanne Mariner critiques last week’s Supreme Court ruling in Overton v. Bazzetta. She concludes that the decision, in which the Court unanimously upheld highly restrictive prison visiting policies, reflects a callous disregard for prisoners’ right to associate with their families, including their minor children.
Tuesday, Jun. 24, 2003
Rebellious Judges
FindLaw columnist and human rights attorney Joanne Mariner discusses the phenomenon of judges who rebel against the rulings of the U.S. Supreme Court. Mariner discusses different judicial styles of disagreeing with the Court, from subtle to outright -- such as the Alabama judge who declared that the Court had "erred in its reading of history," and the foreign judge who, appalled at U.S practices, complained, "[m]y independence as a judge would be completely undermined if I had to follow the decisions of the court of appeals."
Tuesday, Jun. 10, 2003
Ashcroft's Justice, Burma's Crimes, and Bork's Revenge
FindLaw columnist and human rights advocate Joanne Mariner discusses the Bush Administration's position on the Alien Tort Claims Act (ATCA). As Mariner explains, the ATCA, as previously interpreted, allows victims of serious abuses of human rights abroad to sue perpetrators in U.S. federal courts. But the Bush Administration has interpreted the ATCA far more restrictively, relying on a position previously espoused by then-Judge Robert Bork.
Monday, May. 26, 2003
Trivializing Terrorism
FindLaw columnist and human rights attorney Joanne Mariner discusses the U.S.'s decision last week to add three Basque nationalist groups to an official list of terrorist groups. Mariner argues that the U.S. move was meant to reward Spain for its support of the Iraq war, and is part of a pattern of using terrorist designations in a political manner.
Tuesday, May. 13, 2003
Ticking Time Bombs in Iraq:
Cluster Bombs and Their Continuing Dangers
FindLaw columnist and human rights attorney Joanne Mariner discusses the use of cluster bombs by the U.S. military. Drawing upon Human Rights Watch reports, Mariner argues that the bombs --which disperse many smaller "bomblets" -- pose special dangers to civilians (and children in particular), and thus should not be used. She evaluates the U.S.'s use of such bombs in the recent Iraq war.
Tuesday, Apr. 29, 2003
Liberation and Looting in Iraq
FindLaw columnist and human rights attorney Joanne Mariner examines the ransacking of Iraq's National Museum, in which countless artifacts were stolen or destroyed. Reviewing the actions of U.S. troops in light of the laws of war, she concludes that the evidence of negligence is compelling, and responsibility under international law is thus clear.
Monday, Apr. 14, 2003
War Means (Almost) Never Having to Say You're Sorry:
Civilian Deaths and Official Apologies
FindLaw columnist and human rights advocate Joanne Mariner discusses the U.S.. government's approach to civilian deaths during armed conflict. What can the families of Iraqi civilians killed in Iraq expect, if anything, from the U.S.. government? In other contexts, what types of civilians deaths has the U.S. apologized -- and not apologized for? Mariner explains.
Monday, Mar. 24, 2003
Ducking the First Amendment:
Richard Perle's Planned Lawsuit against Seymour Hersh
FindLaw columnist and human rights advocate Joanne Mariner discusses senior Pentagon advisor Richard Perle's plan to sue journalist Seymour Hersh for libel. The suit would be based on Hersh's recent New Yorker article regarding Perle and his business dealings. Perle has said he would sue in Britain -- which lacks strong free speech protections -- despite the fact that Perle and Hersh are Americans and The New Yorker is published in the U.S.
Monday, Mar. 17, 2003
Patriot II's Attack on Citizenship
FindLaw columnist and human rights advocate Joanne Mariner discusses the historical and legal context surrounding one particularly controversional provision of the Domestic Security Enhancement Act, the proposed followup to the USA Patriot Act. The provision would allow U.S. citizens more easily, and on more grounds, to be stripped of citizenship. Mariner argues that it literally hearkens back to the days of McCarthyism.
Monday, Mar. 03, 2003
The Lessons of My Lai:
A Review of Michal Belknap's The Vietnam War on Trial
FindLaw book reviewer and human rights attorney Joanne Mariner assesses a recent book on the My Lai massacre and the subsequent prosecution of Lieutenant William Calley. Mariner notes that, with war on Iraq apparently impending, the book's lessons on the difficulty of distinguishing civilians from soldiers in the context of battle, and some officers' indifference to doing so, may be relevant today as well.
Friday, Feb. 28, 2003
Pets As Property?
Findlaw columnist and human rights lawyer Joanne Mariner examines a series of recent laws that aim to redefine the legal status of pets. Categorizing pets as "companion animals" and pet owners as "guardians," such laws reject the traditional notion of pets as property. Mariner argues they are right to do so.
Monday, Feb. 17, 2003
A Fair Trial for Moussaoui
FindLaw columnist and human rights attorney Joanne Mariner assesses arecent ruling in the criminal prosecution of alleged September 11co-conspirator Zacarias Moussaoui. The ruling allows Moussaoui accessto a person he claims will be an exculpatory witness: alleged terroristRamzi bin al-Shibh. Mariner notes that the ruling is likely toreinforce the Bush Administration's reported interest in transferringthe case to military tribunal.
Monday, Feb. 03, 2003
RHETORIC, RUBBER-STAMPING, AND "MEANINGFUL REVIEW":
THE RECENT APPELLATE COURT RULING IN HAMDI V. RUMSFELD
FindLaw columnist and human rights attorney Joanne Mariner analyzes the recent appellate court ruling upholding the indefinite, incommunicado detention of alleged "enemy combatant" and U.S. citizen Yasir Hamdi. Among other critiques of the opinion Mariner notes that based on its broad reasoning, any journalist, aid worker, or human rights investigator found in Afghanistan could be detained indefinitely as an enemy combatant.
Monday, Jan. 20, 2003
THE SUPREME COURT, THE CONSTITUTION, AND PRECEDENT:
SOME COMMENTS ON THE AMARS' ANALYSIS
FindLaw columnist and human rights attorney Joanne Mariner, responding to two recent columns by Professors Akhil Reed Amar and Vikram David Amar, analyzes the proper role of past precedent in constitutional adjudication. Taking issue with the Amars' approach, Mariner argues that stare decisis establishes a dialogue between past and present Supreme Courts as to the nature of the Constitution's dictates.
Monday, Jan. 06, 2003
REFUSING TO FIGHT IN ISRAEL
FindLaw columnist and human rights attorney Joanne Mariner discusses Israel's policy against exempting conscientious objectors from mandatory Army service.. The policy has landed even Benjamin Netanyahu's nephew, Jonathan Ben-Artzi, in jail indefinitely. Mariner also discusses the situation of refuseniks: those who will serve in the Army, but not in the Occupied Territories; and how U.S. courts have treated analogous cases.
Monday, Dec. 23, 2002
YOU HAVE NO RIGHT TO REMAIN SILENT
FindLaw columnist and human rights attorney Joanne Mariner discusses a possible connection between the Bush Administration's position in a case argued before the Supreme Court last week, and the fate of Yaser Hamdi and Jose Padilla, two American citizens currently held indefinitely and incommunicado in military prisons as "enemy combatants." The Administration's position, Mariner explains, holds that there is not really a "right to remain silent" as the Miranda decision suggested.
Monday, Dec. 09, 2002
IN DEFENSE OF THE FILIBUSTER
FindLaw columnist and human rights attorney Joanne Mariner reviews the
history of the Senate filibuster, particularly as it has been relied upon to
block judicial nominees, and assesses current prospects for its use.
Concluding that it is a legitimate tactic in certain circumstances, she urges
the Senate to consider using the filibuster to prevent the confirmation of
President Bush's most right-wing judicial nominees.
Monday, Nov. 25, 2002
ASHCROFT'S NARCO-TERROR WAR
FindLaw columnist and human rights attorney Joanne Mariner critically assesses Attorney General Ashcroft's recent announcement that the drug war and the war on terrorism have been joined. She examines the ramifications of the proclaimed merger and, in particular, the shift toward military tactics that it implies.
Monday, Nov. 11, 2002
GERIATRIC TERRORISTS ON GUANTANAMO
FindLaw columnist and human rights attorney Joanne Mariner assesses the
importance of the Pentagon's recent release of four detainees from
Guantanamo, three of whom are elderly men, including one who appears to be
senile. Questioning the decision-making process that guides detention
decisions, Mariner calls for the establishment of a competent tribunal to
make an individualized review of detainee cases.
Monday, Nov. 04, 2002
JUST SAY "NOT UNTIL WE'RE MARRIED":
LEGISLATING MORALITY AND UNDERMINING HIV/AIDS
PREVENTION
FindLaw columnist and human rights attorney Joanne Mariner assesses the
effects of "abstinence-only" sex education programs, which the Bush
Administration is currently trying to expand. Such programs are the subject
of Rebecca Schleifer's recent, critical report for Human Rights Watch.
Mariner raises questions such as: What is the effect of these programs'
censorship of basic information on HIV/AIDS prevention? To what extent is
the abstinence-only agenda being urged internationally, too?
Monday, Oct. 14, 2002
ME, MYSELF, AND THE COURT
FindLaw columnist and human rights attorney Joanne Mariner writes about an
extremely unusual judicial opinion -- which was issued by federal district
judge William G. Young in the case of alleged shoebomber Richard Reid. In
the opinion, the judge not only confesses error but also admits "I botched
it" -- and goes on to make other surprisingly candid remarks.
Monday, Sep. 30, 2002
NAMING GENOCIDE:
A REVIEW OF SAMANTHA POWER'S A PROBLEM FROM HELL
FindLaw columnist and human rights attorney Joanne Mariner reviews Samantha
Power's book "A Problem from Hell": America and the Age of Genocide.Ý Power
argues that U.S. authorities repeatedly failed to take needed action to stop
mass slaughter, and shows how their reluctance to use the term "genocide" for
situations like Rwanda's was connected to their inaction. Power also
contends that officials ignored warning signs of genocide, exaggerated the
dangers of confronting the situation, and minimized proof of the crime.
Tuesday, Sep. 24, 2002
INDEFINITE DETENTION:
USING OUTDATED PRECEDENTS TO DEFEND UNJUST POLICIES
FindLaw columnist and human rights advocate Joanne Mariner discusses the
Supreme Court's 1909 decision, authored by Justice Oliver Wendell Holmes, in
Moyer v. Peabody. As Mariner explains, Moyer is the main precedent that the
Bush Administation has used to justify its detention, without access to
counsel or other due process rights, of American citizen Jose Padilla.
(Padilla was arrested in Chicago, yet is deemed an "enemy combatant" by the
Administration.) Mariner points to the reasons why she believes Moyer does
not apply; and explains why it may no longer be good precedent, in any case.
Tuesday, Sep. 17, 2002
MAKE A LIST BUT CHECK IT TWICE:
PROSECUTING SUSPECTED SUPPORTERS OF TERRORIST GROUPS
FindLaw columnist and human rights advocate Joanne Mariner discusses current
law governing those who are alleged to have provided "material support" to
terrorist groups. Mariner critiques the law's failure to allow suspects to
prove in court that the group to which they have given money or other support
is not, in fact, terrorist. She also surveys recent cases, including the
Ujaama, Rahmani, and Hammoud prosecutions, that have involved the "material
support" statute.
Monday, Sep. 02, 2002
FEAR OF LAWYERS:
THE CAUTIONARY TALE OF A POST-SEPTEMBER 11 DETAINEE
FindLaw columnist and human rights advocate Joanne Mariner discusses the case of Abdallah Higazy and its potential ramifications. Higazy is a thirty-year-old Egyptian graduate student with a valid visa. He was detained after a security guard at the Millenium Hilton Hotel, located just across the street from the site of the World Trade Center, claimed to have found an aviation radio in the room where Higazy had stayed on September 11. Later, an American pilot claimed the radio as his own, but not before Higazy -- who was not allowed to be accompanied by his lawyer -- was allegedly intimidated into falsely confessing the radio was his, in order to protect his family. Mariner explains the case's broader significance for government policies of denying those in detention for September 11-related investigations access to counsel.
Monday, Aug. 19, 2002
JOHN WALKER LINDH AND THE FIRST AMENDMENT
FindLaw columnist, attorney, and human rights advocate Joanne Mariner discusses an important but little-noted provision of John Walker Lindh's plea agreement: He promises in the agreement not to profit from any book he might write about his experiences in Afghanistan. ÝMariner contends that the provision is both unwise -- for we might learn a great deal from Lindh's narrative -- and unconstitutional -- for the government, she argues, has no legitimate interest to support this infringement on Lindh's First Amendment rights.
Tuesday, Jul. 30, 2002
HAMDI, LINDH, TERRORISM AND THE COURTS
FindLaw columnist and human rights attorney Joanne Mariner contrasts the case of "American Taliban" John Walker Lindh -- with whom the U.S. government recently entered into a plea agreement -- with that of Yaser Esam Hamdi. Like Lindh, Hamdi is an American citizen; was captured by the U.S. last year in Afghanistan while apparently acting as a member of the Taliban or al Qaeda military forces; and is being held by the U.S. Mariner explains the way in which Hamdi's case is being treated differently from Lindh's, and why it may end up being more important than either Lindh's or Zacarias Moussaoui's.
Monday, Jul. 22, 2002
THE CASE FOR THE INTERNATIONAL CRIMINAL COURT
In Part One of a two-part series on the International Criminal Court, FindLaw
columnist and human rights advocate Joanne Mariner examines two key policy
questions: Should the International Criminal Court exist? And, should the
U.S. join it? Mariner contends that the answer to both questions is "Yes."
She argues that those who think the ICC may be a rogue court should wonder
instead whether the U.S. is acting like a rogue state in its efforts to
sabotage the court.
Monday, Jul. 08, 2002
PREVENTING PRISON RAPE
FindLaw columnist and human rights advocate Joanne Mariner discusses draft
federal legislation meant to address the national epidemic of prison rape.
Mariner surveys evidence, including individual inmates' horrifying stories,
that shows the shockingly high incidence of prison rape, and the terrible
psychic scars it leaves. She also contends that the proposed legislation,
while it should be applauded, is only a step towards solving a problem that
amounts to a national shame.
Monday, Jun. 24, 2002
INDEFINITE DETENTION OF TERRORIST SUSPECTS
In Part Two of a two part series on the Guantanamo detainees, FindLaw
columnist and human rights attorney Joanne Mariner reviews other countries'
experiences with administrative detention, and assesses the legality of the
practice under international standards. Mariner addresses the following key
question: Can the Administration, under the law, hold detainees indefinitely
without trial, for purposes of prevention rather than punishment?
Monday, Jun. 10, 2002
INDEFINITE DETENTION ON GUANTANAMO
FindLaw columnist and human rights attorney Joanne Mariner discusses the
status of the 384 detainees brought from Afghanistan to the Guantanamo Bay
Naval Base in Cuba. Mariner considers the following crucial questions:
Given that none of the detainees has yet been criminally charged, and there
are reports that the government may lack individualized evidence to support
charges against many of them, can they be indefinitely detained until the end
of the war on terrorism? And if so, what event will mark the conclusion of
this broad and far-ranging war?
Tuesday, May. 28, 2002
THE EU, THE FARC, THE PKK, AND THE PFLP:
DISTINGUISHING POLITICS FROM TERROR
FindLaw columnist and human rights attorney Joanne Mariner discusses the
controversial question of what groups should be labeled terrorist. Mariner
contrasts the list of terrorist groups compiled by the U.S. with that
compiled by the European Union. She also explains how two lists' different
treatment of the Revolutionary Armed Forces of Colombia (known as the FARC)
has underlined the political factors affecting the determination of which
groups should be listed.
Monday, May. 13, 2002
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