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Abstract:
NATO's 1999 bombing of Yugoslavia, and the United States' 2001 war on Afghanistan, and its war on Iraq beginning in 2003, all violated international and United States law. None was prosecuted in self-defense, or with the approval of the Security Council - the only two instances in which a United Nations member state is permitted to use force. All three conflicts constituted wars of aggression. Aggressive war is prohibited by the Nuremberg Tribunal, and will eventually be prosecuted by the International Criminal Court. The United States used cluster bombs and depleted uranium in all three countries, which violates Protocol I of the Geneva Conventions. Preemptive war and humanitarian intervention both violate the U.N. Charter. Forcible regime change is prohibited by the International Covenant on Civil and Political Rights. The targeting of civilian objects constitutes a grave breach of the Geneva Conventions, which is prosecutable as a war crime.

Ethnic cleansing, aggressive war, cluster bombs, depleted uranium, humanitarian intervention, Yugoslavia v. Belgium, Military and Paramilitary Activities, Case Concerning Legality of Use of Force, preemptive war, Operation Iraqi Freedom, Operation Enduring Freedom, Operation Allied Force

Abstract:
This essay demonstrates that the United States violates provisions of international treaties and thereby United States law in failing to take affirmative action to remedy racial and gender inequality. It begins by analyzing the affirmative action provisions in two treaties ratified by the United States - the Convention on the Elimination of All Forms of Racial Discrimination, and the International Covenant on Civil and Political Rights. The affirmative action requirements in the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Economic, Social and Cultural Rights, which the United States has signed, but not ratified, are also detailed. This essay then explains that well-established principles of international law require the United States to abide by treaties that it ratifies, and to refrain from taking any action inconsistent with treaties it has signed. These principles of international law are effectively incorporated into the Federal Constitution's Supremacy Clause, which describes all treaties as United States law, without reference to whether a particular treating is self-executing. This essay also discusses the current constitutional standards with respect to affirmative action and shows that United States treaty obligations constitute a compelling governmental interest supporting affirmative action programs. It does a comparative analysis of affirmative action in other countries. Finally, this essay provides examples of racial and gender inequality in the United States and contends that the persistence of inequality violates the United States treaty obligations to take affirmative action to achieve racial and gender equality.

Race Convention, Women's Convention, Discrimination, Equal Protection, Gender, Race, Affirmative Action, International Conventions, International Covenants, Self-Executing Treaties, Ratifying Treaties, Human Rights, United Nations Charter, Proposition 209

Abstract:
This article examines the historical development and contours of the attorney-client privilege, and its relationship to the Sixth Amendment right to counsel. It describes the state of the privilege before September 11th, including those provisions of Title III - the federal wiretapping statute - and the Foreign Intelligence Surveillance Act, which impact the privilege. The piece sets forth John Ashcroft's new Bureau of Prisons regulation and discusses the legal challenges to it. It explains the federal indictment against attorney Lynne Stewart, her response to the charges, and the judge's decisions. The indictment is based on information the government secured by monitoring Stewart's conversations with her client in prison. The article concludes by warning of the dangers that undermining the privilege poses to the criminal justice system.

attorney-client privilege, confidential communication, consultation rationale, crime-fraud exception, right to counsel, Sixth Amendment, ineffective assistance of counsel, chilling effect, probable cause, reasonable suspicion, due process, Title III, Foreign Intelligence Surveillance Act, FISA, War on Terrorism, Bureau of Prisons Regulations, Prevention of Acts of Violence and Terrorism, privilege team, Lynne Stewart, Sheik Abdel Rahman, special administrative measures, eavesdropping, USA Patriot Act, International Convenant on Civil and Political Rights

Abstract:
This book, "Cowboy Republic," describes the six most important ways the Bush Administration has weakened the rule of law. They include the war of aggression in Iraq, the torture of prisoners, summary execution and willful killing, the Guantánamo gulag, spying on Americans, and refusing to execute the law.

Marjorie Cohn, Professor at Thomas Jefferson School of Law, and President of the National Lawyers Guild, explains what we can do to remedy the administration's breaches of statutory, constitutional, and international law, including political and legal remedies.

This posting contains the Foreword and Introduction of the book.

Guantánamo, Iraq, torture, war crimes, surveillance, signing statement, United Nations Charter, Nuremberg, Foreign Intelligence Surveillance Act, Vietnam, Ehren Watada, command responsibility

Abstract:
The Supreme Court has steadfastly refused to allow its oral arguments to be televised. Justices jealously guard their anonymity, which would be lost if they allowed television broadcasts. Yet arguments against cameras in the courtroom - intimidation of witnesses and jurors, and prejudice to the accused - are inapplicable to the high court. Beginning with the arguments in Bush v. Gore, the Court began to release audiotapes and transcripts of its proceedings. But in spite of Congressional attempts to open the Supreme Court to cameras, the justices remain opposed to cameras in their courtroom. This essay argues for camera coverage of Supreme Court arguments.

televised trials, cameras in courtroom, Bush v. Gore, public trial, televising Supreme Court, access to trials, Supreme Court access, gavel-to-gavel coverage, oral arguments, broadcast coverage, television cameras, media exposure

Abstract:
The lawyers and legal commentators who contribute to We Dissent unanimously agree that during Chief Justice William Rehnquist's nineteen-year tenure, the Supreme Court failed to adequately protect civil liberties and civil rights. This is evident in majority opinions written for numerous cases heard by Rehnquist Court, and eight of those cases are re-examined here, with contributors offering dissents to the Court's decisions.

The Supreme Court opinions criticized in We Dissent suggest that the Rehnquist Court placed the interests of government above the people, and as the dissents in this book demonstrate, the Court strayed far from our constitutional ideals when it abandoned its commitment to the protection of the individual rights of Americans. Each chapter focuses on a different case, with contributors summarizing the case and the decision, and then offering their own dissent to the majority opinion.

This chapter offers Professor Cohn's dissent from Chavez v. Martinez, 538 U.S. 760 (2003), in which the Court was confronted with the question whether the coercive police interrogation of a critically wounded man, in a hospital emergency room, violated the Constitution. Oliverio Martinez claimed that such questioning by Sergeant Ben Chavez violated his right to remain silent and to avoid self-incrimination under the Fifth Amendment and his right to due process of law under the Fourteenth Amendment. Despite the fact that Martinez was not given his Miranda warnings before or during the questioning, and that he was screaming in pain while lapsing in and out of consciousness during the interrogation, the Court held Martinez's Fifth Amendment rights had not been violated.

Chavez was important, in part, because it gave the Court an opportunity to hold that the Constitution requires that treaties to which the United States is a party must be enforced in our domestic courts. For several years, interest in international law principles, particularly in the area of human rights, has been increasing. Recently, some Supreme Court Justices have referred to international law in their opinions, although that has provoked some controversy in conservative quarters. The Court could have seized the opportunity Chavez presented to make a clear ruling enforcing the treaties applicable to the case. Unfortunately, the Court failed to address this question in its decision. This omission was particularly grievous given the significance of torture issues in connection with the so-called War on Terror.

torture, cruel inhuman and degrading treatment, cruel and unusual punishment, Fifth Amendment, self-incrimination, due process, coercive interrogation, Miranda warnings, Eighth Amendment, Fourteenth Amendment, international human rights

Abstract:
The continuing occupation of Iraq and the growing war in Afghanistan are leaving permanent physical and emotional scars on a whole generation of soldiers. Not since Vietnam have so many GI's objected to a war, and never have military families spoken out so strongly for withdrawal. Marjorie Cohn's and Kathleen Gilberd's new book, "Rules of Disengagement," published by PoliPointPress, comes to the aid of distressed military personnel and their families. It examines the reasons men and women in the military have disobeyed orders and resisted the wars in Iraq and Afghanistan.

The book, which has a practical as well as theoretical focus, discusses what resisters have done, and what readers can do, to help end illegal orders and wars. It also examines race and sex discrimination in the military, including the epidemics of rape, sexual assault, and suicide in the military, as well as inadequate health care for servicemembers. It examines the dehumanization of soldiers and civilians, and the ways in which military training promotes racial and sexual violence.

The book places modern issues regarding the Iraq and Afghan wars in the historical context of earlier military dissent movements, notably during the Vietnam War. The authors analyze numerous issues of constitutional, international, and military law, including conscientious objector status, rules regarding military discharge, the right and duty to disobey illegal orders, the international laws of war and human rights, and the constitutional rights of free speech, association, assembly, dissent, and protest.

This posting contains the Introduction of the book.

military dissent, military law, law of war, unlawful orders, war crimes, Iraq War, Afghan War, Vietnam War, Afghanistan, war on terrorism, race discrimination, sex discrimination, sexual assault, sexual harassment, rape, suicide, soldiers, servicemembers, conscientious objector, free speech

Abstract:
This article argues that framing the discussion about civil liberties and security as a trade-off creates a false distinction. This discourse is not new in the United States. Benjamin Franklin warned: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." Throughout the history of the United States, Americans have grappled with this apparent tension.

This article demonstrates that, all too often, Americans have lost their liberties with no tangible benefit in return. It has been primarily the executive branch that has overreached beyond the lines that separate our three branches of government. Under the guise of his "Global War on Terror", former President George W. Bush arrogated to himself a level of presidential authority that violated the Constitution and also made us less safe.

As U.S. military leaders have said, the two things that have posed the biggest threat to American soldiers in Iraq are Abu Ghraib and Guantánamo, which have served as recruitment tools and have become the symbols of American cruelty and hypocrisy.

civil liberties, national security, Abraham Lincoln, George W. Bush, Alien and Sedition Acts, Foreign Intelligence Surveillance Act, Patriot Act, rendition, extraordinary rendition, torture, habeas corpus, Abu Ghraib, Guantánamo