Impunity Watch: North America

BRIEF: Groups in California Attempting to Block Anti-Discrimination Bill

CALIFORNIA, United States - Conservative groups, including the Alliance Defense Fund and Advocates for Faith and Freedom are attempting to block a California Anti-Bias Bill that Governor Schwarzenegger recently signed in October.  It is set to become law on January 1st, so opponents are racing the clock to gather 500,000 signatures before January 10th so that a referendum on the new law would be placed on the next ballot.

Lawyers for the groups opposing the bill filed suit in federal court in San Diego to oppose the definition of "gender" and the inclusion of "sexual orientation" in the education code.  The anti-discrimination bill would extend protection to public-school students based on their sexual orientation and gender identity.  California defines gender as "actual or perceived."  Groups opposing the bill say that gender under that definition would lead to false accusations of discrimination.

Jennifer Monk, an attorney for Advocates for Faith and Freedom, and Karen England, executive director for the Capital Resource Institute, have raised concerns that allowing students to self-define their gender, rather than basing such a classification on physical anatomy or how they dress or act, it would all be based on what they think they are and this could lead to students being able to enter any bathroom or locker room and this could lead to privacy violations.  USA Today says that conservative groups are distributing petitions at many locations around California, mainly Christian churches and some Republican party headquarters with some flier's saying "references to 'mom and dad' will be considered promoting bias against homosexuals."  Fliers also say "any school activities such as having a prom king and queen or gender-specific bathrooms would also be discriminatory....and children as young as five will be subjected to the promotion of homosexuality."

The Gay-Straight "Alliance network and Equality California have filed a motion to intervene in the suit.  Shannon Minter, legal director of the National Center for Lesbian Rights said that the same concerns could be given to the definitions of race or ethnicity that are defined the same way as gender.  Minter stated to the New York Times that, "the same concocted concerns could theoretically apply to any of the categories....they are simply attacking L.G.B.T. students in California."

For more information please see:

New York Times - Effort to Block California Anti-Bias Bill - 30 December 2007

USA Today - California Anti-Bias Bill Causes Stir Over "Gender" - 30 December 2007

BRIEF: Juror Claims He Was Pressured By Judge And Other Jury Members To Convict

NEW YORK, United States – John White was convicted of second-degree manslaughter on 22 December 2007.  John White, a 54-year-old black man, shot Daniel Cicciaro Jr., a 17-year-old white teenager after Cicciaro and several other white teenagers gathered outside White’s home.  The group said that they wanted to confront White’s son but White claims that he feared a “lynch mob” had come to his home and attack his family. 

A juror who voted to convict White on second-degree manslaughter claims that he felt pressure from other jurors and the judge to change his vote to guilty to end the lengthy jury deliberation.  The jury’s conviction came after a twelve-hour deliberation session on Saturday.  Saturday marked the fourth straight day of deliberation.  The judge had already instructed the jury that their deliberation would continue into Sunday, 23 December 2007.  The juror claims that he weighed the burden on his family and the families of the other jurors and decided that it was not worth it to continue to fight for an acquittal. 

The jury forewoman denies the undue pressure from other jury members or the judge.

For more information, please see:

CNN – Juror: Judge and jury pressured me to convict man – 24 December 2007

Washington Post - Jury Convicts Black Man in Shooting Death of White Teen - 24 December 2007

New York Times - Man Convicted for Shooting Teenager - 23 December 2007

The Genocide Accountability Act Amends U.S. Law and Receives Great Praise All Around

By:  Lindsey Brady
Impunity Watch Reporter, North America

WASHINGTON, United States - On December 21st of this year President Bush signed the Genocide Accountability Act into law after it passed through Congress with unanimous support.  The new legislation is said to overrule the Genocide Convention Implementation Act (GCIA), which previously only allowed for the prosecution of U.S. citizens who participated in genocide in foreign countries.  The Open Society Institute says the new law will fill in the gap in the GCIA by allowing the U.S. government to prosecute anyone in the United States who are believed to have committed genocide abroad even if they are no U.S. citizens.

Human Rights Watch's executive director, Kenneth Roth, stated on December 24th that "the new law will help prevent the United States from becoming a safe haven for perpetrators of genocide...its adoption sends an important signal of U.S. commitment to bring to justice those who are responsible for this most heinous crime."  Diane Orentilcher, Special Council to the Open Society Institute and a professor at American University's Washington College of Law, believes that Congress is making a great charge against the impunity that allows those who commit genocide to find sanctuary in the United States. 

Prior to this law any non-U.S. citizen accused of committing genocide outside of abroad could only be tried in the United States under the lower crime of visa fraud or be deported to their country of origin where prosecution was often unlikely or impossible.  Global Solutions states on its website that The Genocide Accountability Act of 2007 "brings U.S. law closer to the complementarity clause of the Rome Statute with similar provisions for prosecutions of genocide.  Article 6 of the Rome Statute of the International Criminal Court (ICC), coupled with the ICC's Elements of Crimes, provide a strong legal basis for investigating and prosecuting genocide...setting a high evidentiary standard that the Prosecutor must meet to prove commission of this crime."

The Genocide Accountability Act of 2007 was introduced into Senate by Richard Durbin.  It was one of three bills he had introduced that would give greater authority to the United States to prosecute those found seeking greater safety in the U.S. for the human rights abuses they have committed elsewhere.  Orentilcher, in testimony before the U.S. Senate cited an example of why this bill was necessary.  Orentilcher described the example of the notorious Serb military member, Ratko Maslenjak, who's unit was connected to the 1995 massacre in Srebrenica and according to two international courts these killings constituted genocide.  Instead of facing trial for the charge of genocide, Maslenjak was only convicted of lying about his service in the Srebrenica unit when he applied for his green card and came to the United States.

Human Rights Watch says the Justice Department is already investigating several suspects believed to have played a part in the genocide in Rwanda and Bosnia and thereafter entered the United States under fraudulent pretenses.  Under the new law these non-U.S. citizens can be prosecuted for the crime of genocide even though the crime was committed outside the United States.

For more information, please see:

Human Rights Watch - US:  New Law Extends Prosecutions for Genocide - 24 December 2007

PRNewsire-USNewsire - OSI Welcomes New Law on Genocide Prosecution - 22 December 2007

Global Solutions - Genocide Accountability Act of 2007 - 18 July 2007

H.R.2489/S.888 - Genocide Accountability Act of 2007 - Accessed 28 December 2007

BRIEF: Disparity in United States Sentencing Laws for Crack and Powder Cocaine Beginning to Change

Recently, criminologists, doctors and other experts have criticized the disparity between crack-cocaine and powder cocaine in United States law.  These experts say that the difference between the two forms of cocaine has been exaggerated.  Furthermore, the experts feel that laws punishing crack offenses one hundred times harder than powder cocaine offenses are completely unjustified. 

To address this disparity in the law, the United States Sentencing Commission enacted reduced federal sentencing guidelines for crack offenses.  Early in December 2007, the Commission voted to make the reductions retroactive.  This vote will allow more than 19,000 inmates to pursue sentence reductions on crack offenses.  A majority of these 19,000 are African-American. 

Crack is smoked as opposed to powder cocaine that is snorted.  Crack enters the bloodstream faster than powder cocaine and produces an intense, extremely addictive high.  Many defense lawyers and civil rights leaders feel that the disparity in United States sentencing laws is based in racism; four out of five crack defendants are black, while a majority of powder-cocaine defendants are white. 

For more information, please see:

Yahoo! News – Crack-vs.-powder disparity is questioned – 24 December 2007

Hoover's 1950s Mass Jailing Plan Draws Comparisons with President Bush

By:  Lindsey Brady
Impunity Watch Reporter, North America

WASHINGTON - United States - The website for the Federal Bureau of Investigation has profiles on all of its previous directors.  Between 1924 to 1972 John Edgar Hoover was the Director of the FBI during some of its most high profile times.  Among his many accomplishments during his title as director was the change that he brought to the FBI.  His profile describes the changes he instituted during the Cold War as consisting of adding "responsibility of investigating the backgrounds of government employees to ensure that foreign agents did not infiltrate the government."

Recently, however, the New York Times is reporting that newly declassified documents show Hoover had greater plans that would have directly impacted thousands of American citizens.  Hoover sent a letter on July 7, 1950 to President Truman's Special Consultant, Sidney Souers, who had also been the former Director of the Central Intelligence Agency (CIA).  The letter contained a plan drawn by Hoover that would seek to suspend habeas corpus so that those listed on an index of individuals thought to be dangerous to national security could be carried out under a blanket warrant in order to protect against "treason, espionage and sabotage."  Habeas corpus is the right to seek relief from illegal detention and has been a central legal principle in the American legal system.

The U.S. Constitution says that habeas corpus may only be suspended under such sever situations as cases of "rebellion or invasion, [where] the public safety may require it."  Hoover's plan sought to stretch this suspension to include situations of "threatened invasion or attack upon U.S. troops."  Once detained, Hoover's plan would lead to over flowing jails and use of military facilities.  Although the prisoners would have eventually been guaranteed the right to a hearing the plan noted they would "not be bound by the rules of evidence."  Authority to create the index of names was granted by Attorney General, Tom Clark in 1948.  This list appears to have consisted of nearly 12,000 names, nearly 97% of which were American citizens.  In 1950, Congress actually passed and Truman endorsed the law to detain "dangerous radicals" where the president declares a national emergency.  Truman did declare such in 1950 but there isn't evidence that Hoover's plan was ever fully approved by Truman or any president thereafter.

After the recent declassification of Hoover's plan there have been comparisons made between Hoover and Bush in their dealings with those suspected of endangering national security.  The New York Times drew such a comparison and stated that after the terrorist attacks in 2001 on the World Trade Center and the Pentagon, Presiden Bush issued an order that essentially gave the U.S. a blank right to indefinitely detain suspects without access to a lawyer, without a hearing or formal charges.  Then, five years later, Congress passed a law officially suspending habeas corpus for anyone the U.S. government deems "an unlawful combatant."  Issues of habeas corpus have been especially heated recently in connection with those detained at Guantanamo Bay, Cuba.  The Supreme Court has since reaffirmed the right that American citizens have the right of habeas corpus and in the near future the Supreme Court is expected to rule on the rights of foreign citizens being detained at Guantanamo Bay.

For more information, please see:

Federal Bureau of Investigation - Directors, Then and Now:  John Edgar Hoover - Accessed 23 December 2007

New York Times - Hoover Planned Mass Jailing in 1950 - 23 December 2007

New York Times - Hoover's Letter to Truman's Special Consultant - 22 December 2007

BRIEF: Washington State Prisoners Allege Prison Guard Abuse

WASHINGTON, United States - Authorities are investigating alleged sexual misconduct at the Washington Corrections Center for Women in Purdy, Washington.  The seven officers that are being investigated have been relieved of their duties at the correction facility and reassigned to home duty for the duration of the investigation.  Inmates have alleged a range of misconduct from abusive language to rape. 

The investigation that began earlier this year revealed sexual misconduct against four female inmates that dated back to 2005.  The investigation was conducted by independent consultants and no criminal investigation has been conducted. 

For more information, please see:

CNN – Female Inmates Claim Sex Abuse by Prison Guards – 20 December 2007

BRIEF: 9/11 Commission: CIA Concealed Interrogation Tapes

WASHINGTON, United States – The 9/11 Commission has concluded that the Central Intelligence Agency (CIA) withheld tapes of Al Qaeda interrogations during its investigation of the agency following the September 11th terrorist attacks.  The CIA claimed at the time that they had “produced or made available for review” all materials that had been requested.

This 9/11 Commission finding comes in the context of reports of methods of torture and claims that the CIA destroyed taped interrogations of Al Qaeda operatives to avoid scrutiny.

The CIA now claims that the 9/11 commission never specifically asked for the interrogation tapes and that the agency would have disclosed these materials.

For more information, please see:

The New York Times – 9/11 Panel Study Finds that CIA Withheld Tapes – 22 December 2007

CNN – Judge Orders Hearing on Destroyed CIA Videotapes – 18 December 2007

Time – Probing the CIA Tapes – Carefully – 13 December 2007

BRIEF: Interview with Virginia Executioner

VIRGINIA, United States – In the midst of New Jersey’s abolition of the death penalty, an interview with a seasoned executioner from Virginia sheds light on the difficult process of capital punishment.

Jerry Givens was a professional executioner for 17 years—putting 62 people to death.  Givens admits that the decision concerning how many volts to use for the electric chair was “largely guesswork.”  “If he was a small guy, I didn’t give that much.  You try not to cook the body, you know.  I hate to sound gross.”

Gov. Corzine of New Jersey recently signed legislation that ended the use of the death penalty in New Jersey.  The state is the first to end capital punishment since 1976.

For more information, please see:

ABC News – Interview with an Executioner – 17 December 2007

USA Today – Corzine Signs Bill Banning N.J. Death Penalty – 18 December 2007

BRIEF: Bush Seeks More Control Over Military Lawyers

WASHINGTON, United States – The Boston Globe reports that the Bush administration recently put forth a regulation instituting a new standard of “coordination” for the promotion of members of the Judge Advocate General (JAG) corps.  Under this standard, the military’s legal wing would now be required to coordinate with a Bush-appointed Pentagon lawyer before being promoted.

Former JAGs criticize the new program, arguing it amounts to a veto power for the administration over any promotion or appointment, and erodes the traditional check on executive power that military lawyers provide.  Critics further argue that military lawyers have objected to the Bush administration’s treatment of detainees and its evasion of the Geneva Conventions, and the administration is now attempting to assert additional control over this group in response.

For more on this topic, please see:

Boston Globe – Control Sought on Military Lawyers – 15 December 2007

Chief Judge of the Military Commissions at Guantanamo Bay Draws Criticism

By Andrew Benfield
Impunity Watch Reporter, North America

WASHINGTON, United States – In 2002, while attending the Naval War College, Col. Ralph H. Kohlmann authored a paper that condemned the United States’ military tribunal process.  Kohlmann concluded that even a “good” military tribunal is a “bad idea.”  The paper’s two main criticisms were the “‘apparent lack of independence’ of military judges” and the strong presence of “credibility problems.”  These criticisms echo many sentiments of modern-day Guantanamo Bay critics. 

Today, Col. Kohlmann is the chief judge of the military commissions at Guantanamo Bay, Cuba.  While Kohlmann has not outright renounced his paper’s criticism of military tribunals, Kohlmann has attempted to “correct a misstatement in his paper.”  Earlier this year, Kohlmann told several defense lawyers that his assumption that the original military commission order, “essentially states that fundamental fairness would not be a part of commission trials” was incorrect. 

The New York Times article revealing Col. Kohlmann’s past criticism of military commissions was released on the heels of the U.N. human rights investigator’s Guantanamo report on 12 December 2007.  Martin Scheinin, U.N. special investigator on counterterrorism, released a report concluding that Guantanamo Bay terror suspects are “unable to get a fair trial before the military court set up for so-called enemy combatants.”  Scheinin found “difficulties or even impossibility” of defendants ability to provide evidence for their defense.   

For more information, please see:

The New York Times – From a Critic of Tribunals to Top Judge – 13 December 2007

Voice of America – UN Expert Says Guantanamo Suspects Denied Fair Trial – 12 December 2007

Impunity Watch – Supreme Court Refuses to Hear Hamdan Appeal – 2 October 2007