Friday, April 3, 2009

US Judge, Foreign Detainees "Have US Right"

Foreign detainees 'have US right'

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A US judge has ruled that foreign suspects held by the US in Afghanistan have the right to challenge their detention in US civilian courts.

Judge John Bates denied the motion by the US government to withhold the right to three detainees at Bagram air base.

The US Supreme Court ruled last year that detainees at Guantanamo had such a right. The justice department later said those held at Bagram did not.

Judge Bates said the cases were essentially the same.

The three detainees have been held at the US military prison at Bagram for at least six years after having been captured outside Afghanistan.

Judge Bates' ruling now allows them to challenge their detention in the US justice system.

The three detainees are Fadi al Maqaleh and Amin al Bakri from Yemen and Redha al-Najar from Tunisia.

Today, a US federal judge ruled that our government cannot simply kidnap people and hold them beyond the law
Ramzi Kassem, detainee's lawyer

A fourth detainee, Haji Wazir, who had also brought a lawsuit seeking his release is an Afghan citizen.

Judge Bates reserved judgement on his case, saying the implication that he could be released could create "friction with the host country".

"Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan and who have been held for an unreasonable amount of time - here over six years - without adequate process" have the legal right to challenge their detention in US courts, Judge Bates said in his 53-page opinion.

The justice department said it was reviewing the ruling.

'Great day for justice'

The ruling is a rebuff to the Obama administration, says the BBC's Adam Brookes in Washington.

It is not definitive, says our correspondent. Legal proceedings will continue for some time.

A lawyer representing one of the detainees said it was "a great day for American justice".

"Today, a US federal judge ruled that our government cannot simply kidnap people and hold them beyond the law," lawyer Ramzi Kassem was quoted as saying by the Washington Post.

About 600 so-called enemy combatants are held at the US prison at Bagram air base.

FHA Sees Rise in Defaults on Its Mortgages

Worrisome trend: FHA sees rise in defaults on its mortgages

Les Blumenthal

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As the Federal Housing Administration has stepped in to help stabilize the housing market by underwriting more mortgages, the Depression-era agency is seeing growing default rates that could undermine its health, the Department of Housing and Urban Development inspector general testified Thursday.

Kenneth Donohue also told the Senate Appropriations housing subcommittee that unscrupulous lenders who helped precipitate the housing crisis with subprime loans are moving into the FHA loan system, and the number of fraud cases is a growing concern.

Sen. Patty Murray, D-Wash., who chairs the subcommittee, said that if the FHA can't pay its debts, Congress may have to cover the shortfall.

"And we don't have the dollars to do it," Murray said.

While some see the FHA as the "savior of the market," Murray said, she's concerned the agency suffers from outdated technology, personnel shortages and inadequate underwriting.

"Just because FHA has become a major player in saving the housing market doesn't mean these challenges have disappeared," she said.

In addition to the resurgence of FHA-guaranteed mortgage loans and the stimulus bill, lower interest rates and an $8,000 first-time homebuyer tax credit are helping to stabilize the market, J. Lennox Scott, the chief executive of John L. Scott Real Estate in Washington state, told the committee.

Two years ago, FHA-backed loans made up only a small percentage of the housing market. The agency didn't underwrite subprime or adjustable rate loans. As prices rose, the FHA was barred from writing loans on mortgages above $362,500.

The maximum was raised in the stimulus bill to nearly $730,000. As subprime loans and adjustable rate loans disappeared, the FHA now guarantees nearly 30 percent of mortgages. At the same time, the number of lenders doing business with the FHA has grown more than 500 percent.

"As is the case with other mortgage market participants, currently FHA is experiencing elevated default rates and foreclosures and with it, losses that exceed prior estimates," HUD Secretary Shaun Donovan said.

Donovan said the primary reason for the defaults were growing unemployment and other economic factors. Donovan said FHA-guaranteed loans didn't include "unsafe features" and poor underwriting that made subprime and other loans risky.

About 7 percent of FHA loans are delinquent, greater than 90 days or in foreclosure, compared with more than 23 percent of subprime loans, he said.

However, Donohue said the delinquent rate can be misleading. As of Sept. 30, the FHA's reserve fund for single-family loan guarantees was $12.9 billion, down almost 40 percent from a year earlier.

Pressed about whether the FHA may need a significant bailout, Donohue said, "It's hard to say. Based on the numbers we have seen it is going in the wrong direction."

He said that "for FHA to realize its full potential to respond to the current mortgage crisis, it will require additional resources and development of new and innovative reform initiatives."

The FHA could raise the rate it charges for the mortgage guarantees or ask Congress for more money.

Under questioning from Murray, Donovan said he, too, worried that the FHA may not have all the procedures in place to guard against fraudulent lenders.

"I am absolutely concerned and focused to ensure troubled lenders don't migrate to FHA" Donovan said.

"The surge in FHA loans is likely to overtax the oversight resources of the FHA, making careful and comprehensive lender oversight difficult," he said. "In addition, our experience in prior FHA volume periods shows the program was vulnerable to exploitation by fraud schemes . . . that undercut the integrity of the program."

Commodifying Kids: The Forgotten Crisis

Commodifying Kids: The Forgotten Crisis

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Barney with a child.

"The advertising and marketing industry spends over $17 billion a year on shaping children's identities and desires." (Photo: notsogoodphotography)

As the United States and the rest of the world enter into an economic free fall, the current crisis offers an opportunity not only to question the politics of free-market fundamentalism, the dominance of economics over politics, and the subordination of justice to the laws of finance and the accumulation of capital, but also the ways in which children's culture has been corrupted by rampant commercialization, commodification and consumption. There is more at stake in this crisis than stabilizing the banks, shoring up employment and solving the housing problem. There is also the issue of what kind of public spaces and values we want to make available, outside of those provided by the market, for children to learn the knowledge, skills and experiences they need to confront the myriad problems facing the twenty-first century. The road to recovery cannot be simply about returning to modified free-market capitalism and a re-established, utterly bankrupt consumer society. Given all the pain and suffering that the vast majority of Americans have endured, we should ask ourselves if there is not a teachable moment here. What kind of society and future do we want for our children given how obviously unsustainable and exploitative the now failed market-driven system has proven to be?

In a society that measures its success and failure solely through the economic lens of the Gross National Product (GNP), it becomes difficult to define youth outside of market principles determined largely by criteria such as the rate of market growth and the accumulation of capital. The value and worth of young people in this discourse are largely determined through the bottom-line cost-benefit categories of income, expenses, assets and liabilities. The GNP does not measure justice, integrity, courage, compassion, wisdom and learning, among other values vital to the interests and health of a democratic society. Nor does it address the importance of civic participation, public goods, dissent and the fostering of democratic institutions. In a society driven entirely by market mentalities, moralities, values and ideals, consuming, selling and branding become the primary mode through which to define agency and social relations - intimate and public - and to shape the sensibiliti es and inner lives of adults as well as how society defines and treats its children.

While the "empire of consumption" has been around for a long time,(1) American society in the last thirty years has undergone a sea change in the daily lives of children - one marked by a major transition from a culture of innocence and social protection, however imperfect, to a culture of commodification. This is culture that does more than undermine the ideals of a secure and happy childhood; it also exhibits the bad faith of a society in which, for children, "there can be only one kind of value, market value; one kind of success, profit; one kind of existence, commodities; and one kind of social relationship, markets."(2) Children now inhabit a cultural landscape in which they can only recognize themselves in terms preferred by the market.

Subject to an advertising and marketing industry that spends over $17 billion a year on shaping children's identities and desires,(3)(4) American youth are commercially carpet-bombed through a never-ending proliferation of market strategies that colonize their consciousness and daily lives. Multibillion-dollar corporations, with the commanding role of commodity markets as well as the support of the highest reaches of government, now become the primary educational and cultural force in shaping, if not hijacking, how young people define their interests, values and relations to others. Juliet Schor, one of the most insightful and critical theorists of the commodification of children, argues that, "These corporations not only have enormous economic power, but their political influence has never been greater. They have funneled unprecedented sums of money to political parties and officials.... The power wielded by these corporations is evident in many ways, from their ability to eliminate competitors to their ability to mobilize state power in their interest."

As the sovereignty of the market displaces state sovereignty, children are no longer viewed as an important social investment or as a central marker for the moral life of the nation. Instead, childhood ideals linked to the protection and well-being of youth are transformed - decoupled from the "call to conscience [and] civic engagement"(5) and redefined through what amounts to a culture of cruelty, abandonment and disposability. Childhood ideals increasingly give way to a market-driven politics in which young people are prepared for a life of objectification while simultaneously drained of any viable sense of moral and political agency. Moreover, as the economy implodes, the financial sector is racked by corruption and usury, the housing and mortgage market is in free fall, and millions of people lose their jobs, the targeting of children for profits takes on even more insistent and ominous tones. This is especially true in a consumer society in which children more than ever mediate their identities and relations to others through the consumption of goods and images. No longer imagined within language of responsibility and justice, childhood begins with what might be called the scandalous philosophy of money - that is, a logic in which everything, including the worth of young people, is measured through the potentially barbaric calculations of finance, exchange value and profitability. And this is part of the economic crisis that is barely mentioned in the mainstream media.

What is distinctive about this period in history is that the United States has become the most "consumer-oriented society in the world." Kids and teens, because of their value as consumers and their ability to influence spending, are not only at "the epicenter of American consumer culture," but are also the major targets of those powerful marketing and financial forces that service big corporations and the corporate state.(6)(7) poised to take advantage of the economic power wielded by kids and teens. With spending power increasing to match that of adults, the children's market has greatly expanded in the last few decades, in terms of both direct spending by kids and their influence on parental acquisitions. While figures on direct spending by kids differ, Benjamin Barber claims that "in 2000, there were 31 million American kids between twelve and nineteen already controlling 155 billion consumer dollars. Just four years later, there were 33.5 million kids controlling $169 billion, or roughly $91 per week per kid."(8) Schor argues that "children age four to twelve made ... $30.0 billion" in purchases in 2002, while kids aged twelve to nineteen "accounted for $170 billion of personal spending."(9) Molnar and Boninger cite figures indicating that pre-teens and teenagers command "$200 billion in spending power."(10) Young people are attractive to corporations because they are big spenders, but that is not the only reason. They also exert a powerful influence on parental spending, offering up a market in which, according to Anap Shah, "Children (under 12) and teens influence parental purchases totaling over ... $670 billion a year."(11) In a world in which products far outnumber shoppers, youth have been unearthed not simply as another expansive and profitable market, but as the primary source of redemption for the future of capitalism - even as it implodes. Erased as future citizens of a democracy, kids are now constructed as consuming and saleable objects. Gilded Age corporations, however devalued, and their army of marketers, psychologists and advertising executives now engage in what Susan Linn calls a "hostile takeover of childhood,"

One measure of the corporate assault on kids can be seen in the reach, acceleration and effectiveness of a marketing and advertising juggernaut that attempts to turn kids into consumers and childhood into a saleable commodity. Every child, regardless of how young, is now a potential consumer ripe for being commodified and immersed in a commercial culture defined by brands. According to Lawrence Grossberg, children are introduced to the world of logos, advertising and the "mattering maps" of consumerism long before they can speak: "Capitalism targets kids as soon as they are old enough to watch commercials, even though they may not be old enough to distinguish programming from commercials or to recognize the effects of branding and product placement."(12) In fact, American children from birth to adulthood are exposed to a consumer blitz of advertising, marketing, educating and entertaining that has no historical precedent. There is even a market for videos for toddlers as young as four months old. One such baby video called Baby Gourmet alleges to "provide a multi-sensory experience for children designed to introduce little ones to beautiful fruits and vegetables ... in a gentle and amusing way that stimulates both the left and right hemispheres."(13) This would be humorous if Madison Avenue were not dead serious in its attempts to sell this type of hype - along with other baby videos such as Baby Einstein, Brainy Baby, Sesame Street Baby, and Disney's Winnie the Pooh Baby - to parents eager to provide their children with every conceivable advantage over the rest. Not surprisingly, this is part of a growing $4.8 billion market aimed at the youngest children.(14) Schor captures perfectly the omnipotence of this machinery of consumerism as it envelops the lives of very young children:

At age one, she's watching Teletubbies and eating the food of its "promo partners" Burger King and McDonald's. Kids can recognize logos by eighteen months, and before reaching their second birthday, they're asking for products by brand name. By three or three and a half, experts say, children start to believe that brands communicate their personal qualities, for example, that they're cool, or strong, or smart. Even before starting school, the likelihood of having a television in their bedroom is 25 percent, and their viewing time is just over two hours a day. Upon arrival at the schoolhouse steps, the typical first grader can evoke 200 brands. And he or she has already accumulated an unprecedented number of possessions, beginning with an average of seventy new toys a year.(15)

Complicit, wittingly or unwittingly, with a politics defined by market power, the American public offers little resistance to children's culture being expropriated and colonized by Madison Avenue advertisers. Eager to enthral kids with invented fears and lacks, these advertisers also entice them with equally unimagined new desires, to prod them into spending money or to influence their parents to spend it in order to fill corporate coffers. Every child is vulnerable to the many advertisers who diversify markets through various niches, one of which is based on age. For example, the DVD industry sees toddlers as a lucrative market. Toy manufacturers now target children from birth to ten years of age. Children aged eight to twelve constitute a tween market and teens an additional one. Children visit stores and malls long before they enter elementary school, and children as young as eight years old make visits to malls without adults. Disney, Nickelodeon and other mega companies now provide web sites such as "Pirates of the Caribbean" for children under ten years of age, luring them into a virtual world of potential consumers that reached 8.2 million in 2007, while it is predicted that this electronic mall will include 20 million children by 2011.(16 ) Moreover, as Brook Barnes points out in The New York Times, these electronic malls are hardly being used either as innocent entertainment or for educational purposes. On the contrary, she states, "Media conglomerates in particular think these sites - part online role-playing game and part social scene - can deliver quick growth, help keep movie franchises alive and instill brand loyalty in a generation of new customers." (17) But there is more at stake here than making money and promoting brand loyalty among young children: there is also the construction of particular modes of subjectivity, identification and agency.

Some of these identities are on full display in advertising aimed at young girls. Market strategists are increasingly using sexually charged images to sell commodities, often representing the fantasies of an adult version of sexuality. For instance, Abercrombie & Fitch, a clothing franchise for young people, has earned a reputation for its risque catalogues filled with promotional ads of scantily clad kids and its over-the-top sexual advice columns for teens and preteens; one catalogue featured an ad for thongs for ten-year-olds with the words "eye candy" and "wink wink" written on them.(18) Another clothing store sold underwear geared toward teens with "Who needs Credit Cards ...?" written across the crotch.(19) Children as young as six years old are being sold lacy underwear, push-up bras and "date night accessories" for their various doll collections. In 2006, the Tesco department store chain sold a pole dancing kit designed for young girls to unleash the sex kitten inside . Encouraging five- to ten-year-old children to model themselves after sex workers suggests the degree to which matters of ethics and propriety have been decoupled from the world of marketing and advertising, even when the target audience is young children. The representational politics at work in these marketing and advertising strategies connect children's bodies to a reductive notion of sexuality, pleasure and commodification, while depicting children's sexuality and bodies as nothing more than objects for voyeuristic adult consumption and crude financial profit.

For the last few decades, critics such as Thomas Frank, Kevin Phillips, David Harvey and many others have warned us, and rightly so, that right-wing conservatives and free-market fundamentalists have been dismantling government by selling it off to the highest or "friendliest" bidder. But what they have not recognized adequately is that what has also been sold off are both our children and our collective future, and that the consequences of this catastrophe can only be understood within the larger framework of a politics and market philosophy that view children as commodities and democracy as the enemy. In a democracy, education in any sphere, whether it be the public schools or the larger media, is, or should be, utterly adverse to treating young people as individual units of economic potential and as walking commodities. And it is crucial not to "forget" that democracy should not be confused with a hypercapitalism.

Inevitably, humans must consume to survive. The real enemy is not consumption per se, but a market-driven consumer society fueled by the endless cycle of acquisition, waste and disposability, which is at the heart of an unchecked and deregulated global capitalism. Under such circumstances, there are few remaining spaces in which to imagine a mode of consumption that rejects the logic of commodification and embraces the principles of sustainability while expanding the reach and possibilities of a substantive democracy. Juliet Schor touches on this issue by rightly arguing that the real issue is "what kind of consumers do we want to be?"(20) Or, to put it more broadly, what kind of society and world do we want to live in? As politics embraces all aspects of children’s lives, it is crucial to make clear that the rising tide of free markets has less to do with ensuring democracy and freedom than with spreading a rein of terror around the globe, affecting the most vulnerable populations in the cruellest of ways. The politics of commodification and its underlying logic of waste and disposability do irreparable harm to children, but the resulting material, psychological and spiritual injury they incur must be understood not merely as a political and economic issue but also as a pedagogical concern.

At the same time, simply criticizing the market, the privatization of public goods and the commercialization of children, while helpful, is not enough. Stirring denunciations of what a market society does to kids do not go far enough. What is equally necessary is developing public spaces and social movements that help young people develop healthy notions of self, identities and visions of their future no longer defined - more accurately, defiled - by market values and mentalities. Obama's road to recovery must align itself with a vision of a democracy that is on the side of children, particularly young children in need. It must enable the conditions for youth to learn, to "grow," as John Dewey once insisted, as engaged social actors more alive to their responsibilities to future generations than contemporary adult society has proven capable. Such a project requires constructing a politics that refuses to be animated by populist rage so easily misdirected, or by a disdain for the social state, for mutuality, reciprocity and compassion, among other democratic values. In short, it must reject a society whose essence is currently refracted in the faces of children compelled to confront a future that as yet offers very little hope of happiness, or even survival.

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Endnotes:

(1) Lizabeth Cohen, "A Consumer's Republic: The Politics of Mass Consumption in Postwar America" (New York: Vintage, 2003).

(2) Lawrence Grossberg, "Caught In the Crossfire: Kids, Politics, and America's Future" (Boulder: Paradigm Publishers, 2005), p. 264.

(3) See Josh Golin, "Nation's Strongest School Commercialism Bill Advances Out of Committee," Common Dreams Progressive Newswire (August 1, 2007). Online: http://www.commondreams.org/cgi-bin/newsprint.cgi?file=/news2007/0801-06.htm. Juliet Schor argues that total advertising and marketing expenditures directed at children in 2004 reached $15 billion. See Juliet B. Schor, "Born to Buy" (New York: Scribner, 2005), p. 21.

(4) Juliet Schor, "When Childhood Gets Commercialized Can Childhood Be Protected," in Regulation, Awareness, Empowerment: Young People and Harmful Media Content in the Digital Age, ed. Ulla Carlsson (Sweden: Nordicom, 2006), pp. 114ñ115.

(5) Kiku Adatto, "Selling Out Childhood," Hedgehog Review 5: 2 (Summer 2003), p. 40.

(6) Schor, "Born to Buy," p. 20.

(7) Susan Linn, "Consuming Kids" (New York: Anchor Books, 2004), p. 8.

(8) Benjamin R. Barber, "Consumed: How Markets Corrupt Children, Infantilize Adults, and Swallow Citizens Whole" (New York: W. W. Norton & Company, 2007), pp. 7ñ8.

(9) Schor, "Born to Buy," p. 23.

(10) Alex Molnar and Faith Boninger, "Adrift: Schools in a Total Marketing Environment," Tenth Annual Report on Schoolhouse Commercialism Trends: 2006-2007 (Tempe: Arizona State University, 2007), pp. 6-7.

(11) Anup Shah, "Children as Consumers," Global Issues (January 8, 2008). Online: http://www.globalissues.org/TradeRelated/Consumption/Children.asp.

(12) Grossberg, "Caught in the Crossfire," p. 88.

(13) Linn, "Consuming Kids," p. 54.

(14) Molnar and Boninger, "Adrift," p. 9.

(15) Schor, "Born to Buy," pp. 19-20.

(16) Cited in Brooks Barnes, "Web Playgrounds of the Very Young," New York Times, (December 31, 2007). Online at: http://www.nytimes.com/2007/12/31/business/31virtual.html?_r=1&oref=slogin.

(17) Barnes, "Web Playgrounds of the Very Young."

(18) Editorial, "Clothier Pushes Porn, Group Sex to Youths," WorldNetDaily.com (November 15, 2003). Online: http://www.wnd.com/news/article.asp?ARTICLE_ID=35604. See also Editorial, "Tell Nationwide Children's Hospital: No Naming Rights for Abercrombie & Fitch," Campaign for a Commercial-Free Childhood (June 2006). Online: http://salsa.democracyinaction.org/o/621/t/5401/campaign.jsp?campaign_KEY=23662.

(19) Tana Ganeva, "Sexpot Virgins: The Media's Sexualization of Young Girls," AlterNet (May 24, 2008). Online: http://www.alternet.org/story/85977/.

(20) Juliet Schor, "Tackling Turbo Consumption: An Interview With Juliet Schor," Soundings 34 (November 2006), p. 51.

'Torture Memo' May Finally Go Public

'Torture Memo' May Finally Go Public

By Jason Leopold

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The world may finally get to read the Bush administration’s infamous “torture memo,” the Aug. 1, 2002, document that provided legal cover for the brutal and humiliating treatment of detainees in George W. Bush’s “war on terror.”

Though the general contents of that memo have been described in books, congressional reports and news articles, the document itself was kept as a highly classified secret by the Bush administration.

In its first two months in office, the Obama administration has released several other legal memos relating to Bush’s expansive views of his powers, but has withheld key memos on the “enhanced interrogation techniques.”

On Thursday, the Justice Department said it had negotiated an extension to a court deadline in a Freedom of Information Act lawsuit brought by the ACLU seeking interrogation-related documents, in part, by agreeing to add the “torture memo” to other documents that might be released within two weeks.

Jameel Jaffer, director of the ACLU’s National Security project, said he “reluctantly consented” to the extension because acting U.S. Attorney Lev Dassin said the package of documents under review would include the Aug. 1, 2002, legal opinion.

The Justice Department had been deliberating whether to release three legal memos from May 2005 that, in effect, reaffirmed Bush’s right to authorize the harsh interrogations, after the earlier memos had been withdrawn in 2003 and 2004 by Deputy Attorney General Jack Goldsmith.

But Goldsmith resigned in 2004 under White House pressure and his replacement as head of the powerful Office of Legal Counsel, Steven Bradbury, reasserted Bush’s sweeping powers in May 2005. Bradbury reissued some of the OLC’s opinions from 2002 and 2003 that argued that Bush’s Commander-in-Chief authority permitted him to override laws in the name of national security.

In the first months of the Obama administration, release of the interrogation memos has been the subject of a fierce bureaucratic battle, with former CIA Director Michael Hayden reportedly incensed over their possible disclosure and Attorney General Eric Holder arguing for their declassification.

The Justice Department’s request for the deadline extension – and its willingness to include the so-called “torture memo” in the package – suggest that President Barack Obama has sided with Holder in the dispute and that the extra time is needed for final clearances.

In a two-page letter to the New York federal court that is hearing the ACLU’s lawsuit, acting U.S. Attorney Dassin wrote, “Plaintiffs have informed the Government that they consent to this extension based on Government’s representation that high-level Government officials will consider for possible release the three Office of Legal Counsel memoranda ... and an August 1, 2002 OLC memorandum.”

Dassin's letter added, “The Government has further represented that any release of information from these documents will take place on or before April 16, 2009.”

Yoo’s Memo

The Aug. 1, 2002, memo, written by John Yoo, then a deputy assistant attorney general at the OLC, was “one of the cornerstones of the CIA’s torture program,” the ACLU’s Jaffer said.

“Collectively, these memos supplied the framework for an interrogation program that permitted the most barbaric forms of abuse, violated domestic and international law, alienated America's allies and yielded information that was both unreliable and unusable in court,” Jaffer added.

“While we are disappointed that the Bradbury memos were not released today, we are optimistic that the extension will result in the release of information that would not otherwise have been available to the public.”

Yoo worked closely with Bush's White House in developing the legal arguments to enable Bush to essentially operate beyond the law. Jay Bybee, who was Yoo’s boss at the OLC and is now a 9th Circuit Appeals Court Judge, signed Yoo’s August 2002 memo. The OLC is the agency that advises Presidents on the extent of their constitutional powers.

Another Aug. 1, 2002 memo, written by Yoo and signed by Bybee, described specific interrogation methods — such as the drowning technique known as waterboarding — which CIA interrogators could use to extract information from detainees.

Jack Goldsmith, who succeeded Bybee as OLC chief in October 2003, determined that the Aug. 1, 2002, memo was “sloppily written” and “legally flawed.” His decision to withdraw the memo and other opinions granting Bush expansive powers touched off a nasty fight with Bush’s White House – especially with Vice President Dick Cheney’s legal counsel David Addington – and pushed Goldsmith to resign.

In May 2005, as acting OLC chief, Bradbury reinstated key elements of the memos granting Bush virtually unlimited powers over the detainees, according to a list summarizing the still-secret documents.

The Yoo-Bybee and Bradbury memos also became the subject of a four-year-long internal investigation conducted by the Justice Department’s Office of Professional Responsibility. The probe centered on whether the three lawyers provided the White House with poor legal advice and violated "professional standards" in interpreting the Constitution.

The OPR investigation was completed last December and reportedly was sharply critical of the trio’s legal opinions. However, then-Attorney General Michael Mukasey, his deputy and the OLC – which was still under Bradbury’s command – succeeded in getting the report revised, according to a Justice Department letter sent to two U.S. senators last week.

The OPR’s report may undergo further changes based on responses from the subjects of the inquiry, the letter indicated.

Two weeks ago, the ACLU called on Holder to appoint a special prosecutor to launch a probe into the Bush administration's torture practices.

Detroit schools plan new round of closings, layoffs

Detroit schools plan new round of closings, layoffs

By Joe Kishore

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The Detroit Public School District's "emergency financial manager" has announced that up to a third of the city's schools will be shut down over the next two years, with thousands of layoffs of teachers and staff.

Robert Bobb was appointed by Michigan's Democratic Governor Jennifer Granholm in January to impose massive cuts in order to balance the school district's budget deficit. In a report released on Wednesday, Bobb said that the district will face a $300 million deficit by the end of the fiscal year.

Bobb said that about 20 schools will be closed before the beginning of the next school year in the fall, with up to 30 more the following year. He cited cost overruns due to "excessive overtime" and unbudgeted personnel costs, in addition to corruption and spending on unapproved services.

The emergency financial manager, who is paid $260,000 a year for his services, told Detroit's WWJ news radio station that previous school superintendents should have implemented cuts more quickly. "A number of employees should have been laid off as part of the 2009 budget," he said.

Bobb ruled out solving the city's budget problems by increasing revenues. "We will definitely have to reduce spending," he said. He did not give figures on the number of teachers and personnel who will be laid off.

The announcement of a new round of school closings comes only a few years after 51 schools were closed beginning in January 2007. These closures have exacerbated an education crisis in Detroit, a city that has been devastated by the destruction of hundreds of thousands of jobs in the auto industry.

Official unemployment in Detroit stands at 22 percent, and the "Motor City" is now the poorest large city in the United States. Massive corporate tax cuts, combined with the collapse of the auto industry, have drained the city of funds and starved essential social services, such as education.

The crisis of public education is not unique to Detroit, however. In nearby Pontiac, Michigan, the school board took the step last month of laying off all of its teachers and personnel in public schools, and is expected to rehire less than half of them next year. In Flint, Michigan, the school district will lay off 257 teachers at the end of the year, about a fifth of the total number of teachers in the district.

The state of California is carrying out major cuts in public education spending in order to balance its budget. In Florida, the Orange County school system recently announced a major budget deficit that would require the sacking of up to 700 teachers. States across the country face a similar situation.

The claim that there is not enough money to fund decent public education is a lie. Last month, the Obama administration unveiled a new program to bail out banks and large investors that places $1 trillion of government financing on the line. This is more than 3,000 times the Detroit school budget deficit.

The Obama administration is touting $44 billion in education money released this week as part of the government's "stimulus" package, but this financing is coming with many strings attached.

Education Secretary Arne Duncan said last week that the administration will "come down like a ton of bricks" on any school districts that do not use the funds to implement right-wing reforms. The demands of the administration include the implementation of merit pay for teachers, the expansion of charter schools, and the enforcement of strict testing standards under the No Child Left Behind Act.

Bobb has indicated his support for many of these proposals. He has said that he will not use the funds received by Detroit to cover the budget deficit, as this would prevent the types of reforms needed to achieve longer term viability. The school district will attempt to press for many concessions from teachers after their contract expires in June.

Obama’s “Path to Viability for GM & Chrysler”: The ruthless language of Wall Street

Obama’s “Path to Viability for GM & Chrysler”: The ruthless language of Wall Street

By Barry Grey

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On Monday, President Barack Obama issued a set of ultimatums to General Motors and Chrysler that represent the direct intervention of the US government to effect a brutal restructuring of the American auto industry in the interests of Wall Street.

The measures demanded by Obama include the elimination of Chrysler as an independent company, either through a merger or outright liquidation, and the downsizing of GM well beyond the already massive scale proposed by GM management, with the agreement of the United Auto Workers union.

At the heart of the "New Path to Viability" outlined by Obama's Auto Task Force is a far more "aggressive" shutting of plants, elimination of models and nameplates, closing of dealerships and destruction of jobs, combined with deeper cuts in wages, benefits and work rules and the ditching of the auto companies' pension and retiree health care obligations.

Obama announced that his Auto Industry Task Force had rejected the restructuring plans submitted by GM and Chrysler, required under the terms of the $17.4 billion in emergency loans granted by the Treasury last December under the Bush administration's Troubled Asset Relief Program (TARP). He also announced that his administration had forced the resignation of General Motors Chairman and CEO Rick Wagoner and would oversee the departure of the majority of GM's board of directors.

He gave Chrysler 30 days to finalize a merger with Fiat or another company and allotted GM 60 days to comply with his Task Force demands, and indicated that the best means for carrying them out was a "supervised bankruptcy" process under which a bankruptcy court could terminate union contracts.

Under TARP, hundreds of billions of dollars in taxpayer money have been handed over to banks and the insurance giant American International Group (AIG), with no strings attached. No Wall Street bankers have been removed from their posts, even though Citigroup and Bank of America have each received $45 billion in TARP funds plus some $300 billion in government guarantees for their bad debts.

The double standard between the administration's treatment of Wall Street and the auto industry is blatant. It was already prefigured in the personnel appointed by Obama to his Auto Task Force. The group is headed by Treasury Secretary Timothy Geithner, who was the president of the New York Federal Reserve Bank prior to joining the Obama administration. In that position, he played a key role in fashioning the Bush administration's bank bailout policies.

Just one week prior to Obama's auto announcement, Geithner revealed a scheme to allow the banks to offload their bad debts by using hundreds of billions of taxpayer money to subsidize and insure lucrative profits for hedge funds and private equity firms that agree to buy the banks' "toxic assets" at inflated prices.

Geithner's chief advisors on the Task Force are investment bankers. There are no people connected to the auto industry on the panel.

Auto workers do not need to read the statements issued Monday by the Task Force to know that their jobs and livelihoods are being destroyed in the name of restoring the auto companies to "viability." However, it is worth reviewing these declarations to get a better sense of the naked class interests that determine the policies of the Obama administration.

It is extraordinary that a government should, in its name, publish documents that unabashedly articulate the interests and aims of a financial elite that constitutes a miniscule portion of the population.

The overview of the Task Force's findings carries the euphemistically cynical title "Obama Administration New Path to Viability for GM & Chrysler." After summarily rejecting as inadequate the downsizing and wage- and benefit-cutting proposals of the companies, the statement declares that "...both have unsustainable liabilities and both need a fresh start. Their best chance of success may well require utilizing the bankruptcy code in a quick and surgical way... a structured bankruptcy process—if needed here—would be a tool to make it easier for General Motors and Chrysler to clear away old liabilities so they can get on a path to success..." [Emphasis added].

What are these "unsustainable liabilities" that must be "cleared away?" They are the pensions and health benefits of 800,000 GM and 125,000 Chrysler UAW retirees and their dependents. There is, of course, no mention of the unsustainable costs of food, shelter, health care, housing and education that more than a million workers will face—having been robbed of benefits they earned through years of onerous labor and which were guaranteed under legal contracts between the companies and the union.

A section of this overview entitled "General Motors Viability Determination" gives an indication of the administration Task Force's definition of "viability," declaring that "GM's current plan will not result in a healthy company that is meaningfully cash flow positive..."

It refers to "restructuring experts retained by the Administration" who "will work closely with the company." [Emphasis added]. Who are these "restructuring experts?"

They are more commonly known as asset strippers. They advise Wall Street investors on the best means of making a profit by hiving off unprofitable sections of companies, slashing jobs and gutting wages and benefits.

Geithner's two top advisors on the Task Force are such individuals—the investment bankers Steven Rattner and Ron Bloom. The latter worked for a period as an adviser to the United Steelworkers union, helping to organize the downsizing, closure and merger of steel companies which involved the destruction of tens of thousands of jobs. In the process, the steel bosses offloaded billions of dollars in pension obligations to the government's Pension Benefit Guarantee Corporation, resulting in sharp reductions in pension benefits for retired workers and the elimination of health care benefits for more than 200,000 workers.

The document goes on to lay down as a requirement for the "new" GM what it calls "sustainable profitability," stating: "A viable GM should be able to generate meaningful positive free cash flow in a normalized business environment, generate net free cash flow over the course of a business cycle and enhance its competitive position while also earning an adequate return on its capital."

In other words, a company that can guarantee lucrative profits for its shareholders and Wall Street creditors in any and all economic conditions.

How is this to be achieved? "More aggressive operational restructuring: The restructuring plan must rapidly achieve full competitiveness with foreign transplants and more aggressively implement significant manufacturing, headcount, brand, nameplate and retail network restructurings...

"The best plan to achieve this may well be an expedited, court-supervised process to extinguish unsustainable liabilities..."

There is only one way GM can achieve "full competitiveness" with foreign transplants, which have a fraction of the US company's retirees, and that is by liquidating existing retiree benefit and pension plans—on top of slashing the wages, benefits and work rules of the active workers who survive the restructuring.

In the section entitled "Chrysler Viability Determination," the Task Force hails Fiat's "senior leadership" which "successfully led a turnaround in Fiat over the past five years." That "success story" involved the destruction of many thousands of Italian auto workers' jobs.

In a section entitled "Support for Consumers and the Auto Industry," the Task Force issues the following reassurance to Wall Street: "Our actions are not intended to slow the necessary consolidation and rationalization of key elements of the auto industry, but will help stabilize the industry during this period of transition."

That is to say: "Don't worry, investment bankers and speculators. We are not in the business of retarding the decimation of the auto industry, but of facilitating it."

A separate and more detailed statement on GM issued by the Task Force includes the following remarkable passage: "As GM moves through its forecast period, its cash needs associated with legacy liabilities grow, reaching approximately $6 billion per year in 2013 and 2014. To meet this cash outflow, GM needs to sell 900,000 additional cars per year, creating a difficult burden that leaves it fighting to maximize volume rather than return on investment."

Here, in the cold language of Wall Street, is laid down the fundamental principle that informs the policies of the Task Force and the Obama administration. The aim is not to expand the production of affordable and safe vehicles, provide decent-paying jobs for workers and develop the productive forces of society, but rather to obtain the desired "return on investment" for the financial elite. Where the expansion of production and jobs conflicts with the accumulation of private profit, it is the former that must be sacrificed.

This document concludes with the following curious formulation: "[W]e believe that there could be a viable business within GM if the Company and its stakeholders engage in a substantially more aggressive restructuring plan." [Emphasis added].

Why the phrase "within"? The answer, as revealed by the Wall Street Journal in a recent article, is a scheme being considered by the administration to use the bankruptcy courts to divide GM into two companies—a profitable company producing popular models that would be divested of retiree obligations, and a "bad" GM onto which pension and retiree health obligations would be offloaded. The latter would remain in bankruptcy until its assets were sold off or otherwise liquidated.

These documents spell out the unambiguously the class interests—those of the financial oligarchy—represented by the Obama administration.

Wall Street celebrates accounting rule changes designed to hide losses

Wall Street celebrates accounting rule changes designed to hide losses

By Andre Damon

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The Financial Accounting Standards Board (FASB) voted Thursday to let US banks set their own prices for assets in earnings reports, regardless of current prices.

The move, which was heavily lobbied for by Wall Street, is expected to increase bank earnings by 20 percent in the next quarter. Richard Dietrich, an accounting professor at Ohio State University, told Bloomberg News that the decision would allow Citigroup to reduce its reported losses by 50 to 70 percent.

The announcement sparked a rally on the stock market, led by financial companies. Citigroup stock rose 8.6 percent, Bank of America soared 9.6 percent and Wells Fargo rose 10.5 percent. The rally subsided later in the day, but financial stocks retained significant gains and the Dow Jones Industrial Average closed with a gain of more than 216 points.

Banks are currently required to calculate their earnings, under so-called "mark to market" accounting rules, according to the current market value of the securities they hold, but the new measure would allow them to value assets using their own internal models where the assets would otherwise be sold into a "distressed" market. Banks have argued that markets are not pricing financial assets fairly, causing credit to dry up and exacerbating the crisis.

This is, in fact, an argument for allowing them to conceal their losses and cook their financial books. It stands in flagrant contradiction to the financial elite's supposed commitment to "free market" principles. Such principles are, in practice, raised when expedient—to justify corporate downsizing and wage-cutting, for example—and discarded when they undermine profits.

Most companies will be allowed to make the accounting changes in the second quarter, but some will be allowed to apply them this quarter. A number of companies had pushed for the new rules to be applied retroactively, but FASB did not go that far.

The move drew criticism from accountants and some industry groups, which said that it would only impede the functioning of the financial system by allowing banks to distort their balance sheets. Others criticized FASB for overtly bowing to pressure from the banks and Congress, which has been pressing for the change as the banking crisis has deepened.

The CFA Institute, a professional organization of financial analysts, denounced the proposal as a capitulation to the financial industry. It warned, "Continuing on the path of politicized accounting standard-setting that caters to special interests" will make it more difficult for FASB "to maintain its credibility."

The Investors Working Group, which is led by two former chairmen of the Securities Exchange Commission, also condemned the decision as too favorable to the banks. Its carefully worded statement read: "In order to create high-quality accounting standards, it is critical that the process be independent..." so as to "ensure that such standards are neutral and faithfully represent economic reality. To the extent that these new FASB proposals reduce the free flow of transparent and reliable financial information, they undermine investor interests and weaken their ability to make sound investment decisions."

The move followed a congressional hearing at which Robert H. Herz, chairman of FASB, was told that if he did not change the accounting rules, Congress would push through legislation to force the FASB to do so.

Only the day before the hearing, Herz gave an interview in which he spoke against changes similar to those just approved, deriding them as "mark to management" accounting.

After the congressional hearing, FASB published a set of proposed changes and invited comments from accounting experts. While the procedure for making proposals and reviewing comments is usually extensive, this time it took only 15 days, with FASB taking only one day to review the responses, the New York Times reported.

According to the proponents of the measure, the crisis is to be resolved by "fairly" valuing the securities held by banks, allowing the financial system to return to normality. By allowing the banks to claim their assets as fundamentally sound, they argue, the panic will subside, banks will start lending, and the economy will gradually recover.

But, as Nobel Prize-winning economist Paul Krugman and others have pointed out, the financial crisis is not one of illiquidity, but insolvency, in which banks hold trillions in worthless assets and can't cover their debts.

Under these conditions, FASB's move amounts to another shameless windfall for the banks.

The present crisis was precipitated by the collapse of a speculative bubble, fueled by massive bank leveraging and based on vastly inflated housing values, built up through the medium of securitized loans and other complex financial instruments. As Krugman points out, "Banks and other highly leveraged institutions collectively made a huge bet that the normal rules for house prices and sustainable levels of consumer debt no longer applied; they were wrong."

Now, the banks are to be allowed to use the same obscure and discredited financial models to inflate their balance sheets, based on the claim that markets have ceased to "fairly" reflect the real value of their illiquid assets. This is little more than an excuse to line the pockets of CEOs, hedge fund managers and big investors.

This is a continuation of all the measures taken by the Obama administration in response to the financial crisis. All have as their central aim protecting the wealth of the financial elite.

Even before Obama took office, he lobbied publicly for the Bush administration's bank bailout, including pressing Congress while he was president-elect to authorize payment of the second half of the $700 billion Troubled Asset Relief Program. Earlier this month, the Federal Reserve announced that it would create hundreds of billions of dollars to unfreeze credit markets, in part through its purchase of $300 billion in long-term Treasury notes.

Last week Treasury Secretary Geithner announced a scheme to enable the banks to offload their "toxic" assets by subsidizing hedge funds and private equity firms to purchase them at inflated prices, using hundreds of billions of taxpayer money to cover any losses and insure double-digit profits for the speculators.

He then testified before Congress and stated that the government would not seek to close down the so-called "shadow banking system," which is based on highly speculative instruments, such as credit default swaps, which have played a central role in the collapse of major firms, including the insurance giant AIG.

Now, with the blessing of the administration and the Democratic-controlled Congress, the government is effectively sanctioning accounting fraud. This underscores that the financial elite, working through its political instrument, the Obama administration, is creating the conditions for a vast expansion of the socially destructive forms of financial parasitism that led the US and world economy into the deepest crisis since the 1930s.

Cheney has moles in Obama Administration, reporter says

Cheney has moles in Obama Administration, reporter says

John Byrne and David Edwards

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Former Vice President Dick Cheney has moles in the Obama government which report back to him from the Pentagon, investigative reporter Seymour Hersh told NPR and MSNBC on Tuesday.

Speaking with NPR's Terri Gross, Hersh revealed that the former Vice President -- who he characterized as "really smart" -- has individuals that report back to him from key positions in government. He called these individuals "stay-behinds," an intelligence term generally applied to insiders left behind in foreign governments after the occupying power is driven out.

"He’s put people back," Hersh said. "They call it a stay-behind. It’s sort of an intelligence term of art. When you leave a country and, you know, you’ve driven out, you know, you’ve lost the war. You leave people behind. It’s a stay-behind that you can continue to contacts with, to do sabotage, whatever you want to do.

"Cheney’s left a stay behind," Hersh continued. "He’s got people in a lot of agencies that still tell him what’s going on. Particularly in defense, obviously. Also in the NSA, there’s still people that talk to him. He still knows what’s going on. Can he still control policy up to a point? Probably up to a point, a minor point. But he’s still there. He’s still a presence."

The audio, captured by ThinkProgress, is available here.



Hersh expanded on his comments in an interview with MSNBC's Keith Olbermann Tuesday night. The former New York Times reporter said that the types of individuals that would be well suited to play the role of a Cheney mole would be military officers that were promoted at Cheney or Rumsfeld's behest.

"There are always a group [of officers] who are political and play kiss-up," Hersh said. "And so inevitably you're going to have a group of officers that got promoted ahead of the curve because they were closer and more friendly to Rumsfeld, to Cheney and their policies. And so you have a group of people that were very loyal to the Rumsfeld/Bush/Cheney policies, who had been promoted in big jobs across the spectrum... They have a loyalty."

"Cheney has enormous influence with a lot of the senior officers in the Pentagon," he added. "So I have been told to put the word -- it was the word that I was told about, what they call "stay-behinds." He has people he can count on to keep him informed of what's going on. That doesn't necessarily mean he has much influence on policy. But he, certainly in the Pentagon. And I think because certainly at the National Security Council for weeks and weeks after the Obama Administration took over, there was a long delay in getting staff turned over. So there were a lot of people around in the first few weeks, in the first months of this administration that had served very closely with the Cheney/Bush operation."

In his NPR interview, Hersh even said that some of his sources who'd told him to call them after Bush left office are still nervous about talking.

"I had a lot of people that had told me in the last year of Bush told me, call me next February," he said. "So far, even people that are out are still chary, because not so much Bush," but because of Cheney.

He said Cheney's intelligence is significantly greater than most people believe.

"Cheney is really underestimated," Hersh said. "It's easy to make a caricature of him, but he's very, very bright. He's also, in person, much more open-sided in a sense -- not politically -- the most disparate people in the world go and have social meetings with him and his wife -- as long as you don't get into politics, and uh, movies and stuff like that. He's easy to make a caricature but he's much more formidable than people think. He's got a rat-trap memory."

The following video is from MSNBC's Countdown, broadcast Mar. 31, 2009.

Israel's war crimes

Israel’s war crimes

by Richard Falk

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Israel blamed its earlier wars on the threat to its security, even that against Lebanon in 1982. However, its assault on Gaza was not justified and there are international calls for an investigation. But is there the political will to make Israel account for its war crimes?

For the first time since the establishment of Israel in 1948 the government is facing serious allegations of war crimes from respected public figures throughout the world. Even the secretary general of the United Nations, Ban Ki-moon, normally so cautious about offending sovereign states – especially those aligned with its most influential member, the United States – has joined the call for an investigation and potential accountability. To grasp the significance of these developments it is necessary to explain what made the 22 days of attacks in Gaza stand shockingly apart from the many prior recourses to force by Israel to uphold its security and strategic interests.

In my view, what made the Gaza attacks launched on 27 December different from the main wars fought by Israel over the years was that the weapons and tactics used devastated an essentially defenceless civilian population. The one-sidedness of the encounter was so stark, as signalled by the relative casualties on both sides (more than 100 to 1; 1300-plus Palestinians killed compared with 13 Israelis, and several of these by friendly fire), that most commentators refrained from attaching the label “war”.

The Israelis and their friends talk of “retaliation” and “the right of Israel to defend itself”. Critics described the attacks as a “massacre” or relied on the language of war crimes and crimes against humanity. In the past Israeli uses of force were often widely condemned, especially by Arab governments, including charges that the UN Charter was being violated, but there was an implicit acknowledgement that Israel was using force in a war mode. War crimes charges (to the extent they were made) came only from radical governments and the extreme left.

The early Israeli wars were fought against Arab neighbours which were quite literally challenging Israel’s right to exist as a sovereign state. The outbreaks of force were of an inter-governmental nature; and even when Israel exhibited its military superiority in the June 1967 six day war, it was treated within the framework of normal world politics, and though it may have been unlawful, it was not criminal.

But from the 1982 Lebanon war this started to change. The main target then was the presence of the Palestine Liberation Organisation (PLO) in southern Lebanon. But the war is now mainly remembered for its ending, with the slaughter of hundreds of unarmed Palestinian civilians in the refugee camps of Sabra and Shatila. Although this atrocity was the work of a Lebanese Christian militia, Israeli acquiescence, control and complicity were clearly part of the picture. Still, this was an incident which, though alarming, was not the whole of the military operation, which Israel justified as necessary due to the Lebanese government’s inability to prevent its territory from being used to threaten Israeli security.

The legacy of the 1982 war was Israeli occupation of southern Lebanon and the formation of Hizbullah in reaction, mounting an armed resistance that finally led to a shamefaced Israeli withdrawal in 1998. This set the stage for the 2006 Lebanon war in which the announced adversary was Hizbullah, and the combat zone inevitably merged portions of the Lebanese civilian population with the military campaign undertaken to destroy Hizbullah. Such a use of hi-tech Israeli force against Hizbullah raised the issue of fighting against a hostile society with no equivalent means of defending itself rather than against an enemy state. It also raised questions about whether reliance on a military option was even relevant to Israel’s political goals, as Hizbullah emerged from the war stronger, and the only real result was to damage the reputation of the IDF as a fighting force and to leave southern Lebanon devastated.

The Gaza operation brought these concerns to the fore as it dramatised this shift away from fighting states to struggles against armed resistance movements, and with a related shift from the language of “war” to “criminality”. In one important respect, Israel managed to skew perceptions and discourse by getting the media and diplomats to focus the basic international criminal law question on whether or not Israeli use of force was “disproportionate”.

This way of describing Israeli recourse to force ignores the foundational issue: were the attacks in any legal sense “defensive” in character in the first place? An inquiry into the surrounding circumstances shows an absence of any kind of defensive necessity: a temporary ceasefire between Israel and Hamas that had been in effect since 19 July 2008 had succeeded in reducing cross-border violence virtually to zero; Hamas consistently offered to extend the ceasefire, even to a longer period of ten years; the breakdown of the ceasefire is not primarily the result of Hamas rocket fire, but came about mainly as a result of an Israeli air attack on 4 November that killed six Hamas fighters in Gaza.
Disproportionate force?

In other words, there were no grounds for claiming the right of self-defence as Israel was not the object of a Hamas attack, and diplomatic alternatives to force existed and seemed credible, and their good-faith reliance was legally obligatory. On this basis the focus of legal debate should not be upon whether Israeli force was disproportionate. Of course it was. The focus should be on whether the Israeli attacks were a prohibited, non-defensive use of force under the UN charter, amounting to an act of aggression, and as such constituting a crime against peace. At Nuremberg after the second world war, surviving Nazi leaders were charged with this crime, which was described in the judgment as “the supreme crime” encompassing the others.

The Gaza form of encounter almost by necessity blurs the line between war and crime, and when it occurs in a confined, densely populated area such as Gaza, necessarily intermingles the resistance fighters with the civilian population. It also induces the resistance effort to rely on criminal targeting of civilians as it has no military capacity directly to oppose state violence. In this respect, the Israeli attacks on Gaza and the Hamas resistance crossed the line between lawful combat and war crimes.

These two sides should not be viewed as equally responsible for the recent events. Israel initiated the Gaza campaign without adequate legal foundation or just cause, and was responsible for causing the overwhelming proportion of devastation and the entirety of civilian suffering. Israeli reliance on a military approach to defeat or punish Gaza was intrinsically “criminal”, and as such demonstrative of both violations of the law of war and the commission of crimes against humanity.

There is another element that strengthens the allegation of aggression. The population of Gaza had been subjected to a punitive blockade for 18 months when Israel launched its attacks. This blockade was widely, and correctly, viewed as collective punishment in a form that violated Articles 33 and 55 of the Fourth Geneva Convention governing the conduct of an occupying power in relation to the civilian population living under occupation. This policy was itself condemned as a crime against humanity, as well as a grave breach of international humanitarian law.

It also had resulted in serious nutritional deficiencies and widespread mental disorders on the part of the entire Gaza population, leaving it particularly vulnerable to the sort of “shock and awe” attack mounted by Israel from land, air and sea. This vulnerability was reinforced by Israel’s unwillingness to allow Gaza civilians to seek safety while the tiny Strip was under such intense combat pressure. Two hundred non-Palestinian wives were allowed to leave, which underscored the criminality of locking children, women, the sick, elderly and disabled into the war zone, and showed its ethnically discriminatory character. This appears to be the first time in wartime conditions that a civilian population was denied the possibility of becoming refugees.

In addition to these big picture issues, there are a variety of alleged war crimes associated with Israeli battlefield practices. These charges, based on evidence collected by human rights groups, include IDF firing at a variety of civilian targets, instances where Israeli military personnel denied medical aid to wounded Palestinians, and others where ambulances were prevented from reaching their destinations. There are also documented claims of 20 occasions on which Israeli soldiers were seen firing at women and children carrying white flags. And there are various allegations associated with the use of phosphorus bombs in residential areas of Gaza, as well as legal complaints about the use of a new cruel weapon, known as DIME, that explodes with such force that it rips body parts to pieces.

These war crimes concerns can only be resolved by factual clarifications as to whether a basis exists for possible prosecution of the perpetrators, and commanders and political leaders to the extent that criminal tactics and weaponry were authorised as matters of Israeli policy. In this vein too are the Israeli claims relating to rockets fired at civilian targets and to Hamas militants using “human shields” and deliberately attacking from non-military targets.

Even without further investigation, it is not too soon to raise questions about individual accountability for war crimes. The most serious allegations relate to the pre-existing blockade, the intrinsic criminality and non-defensiveness of the attack itself; and the official policies (eg confinement of civilian population in the war zone) have been acknowledged. The charges against Hamas require further investigation and legal assessment before it is appropriate to discuss possible arrangements for imposing accountability.

A question immediately arises as to whether talk of Israeli war crimes is nothing more than talk. Are there any prospects that the allegations will be followed up with effective procedures to establish accountability? There are a variety of potentially usable mechanisms to impose accountability, but will any of these be available in practice? This issue has been already raised by the Israeli government at the highest levels in the form of official commitments to shield Israeli soldiers from facing war crimes charges.

The most obvious path to address the broader questions of criminal accountability would be to invoke the jurisdiction of the International Criminal Court established in 2002. Although the prosecutor has been asked to investigate the possibility of such a proceeding, it is highly unlikely to lead anywhere since Israel is not a member and, by most assessments, Palestine is not yet a state or party to the statute of the ICC. Belatedly, and somewhat surprisingly, the Palestinian Authority sought, after the 19 January ceasefire, to adhere to the Rome Treaty establishing the ICC. But even if its membership is accepted, which is unlikely, the date of adherence would probably rule out legal action based on prior events such as the Gaza military operation. And it is certain that Israel would not cooperate with the ICC with respect to evidence, witnesses or defendants, and this would make it very difficult to proceed even if the other hurdles could be overcome.

The next most obvious possibility would be to follow the path chosen in the 1990s by the UN Security Council, establishing ad hoc international criminal tribunals, as was done to address the crimes associated with the break-up of former Yugoslavia and with the Rwanda massacres of 1994. This path seems blocked in relation to Israel as the US, and likely other European permanent members, would veto any such proposal. In theory, the General Assembly could exercise parallel authority, as human rights are within its purview and it is authorised by Article 22 of the UN charter to “establish such subsidiary organs as it deems necessary for the performance of its function”. In 1950 it acted on this basis to establish the UN Administrative Tribunal, mandated to resolve employment disputes with UN staff members.

The geopolitical realities that exist within the UN make this an unlikely course of action (although it is under investigation). At present there does not seem to be sufficient inter-governmental political will to embark on such a controversial path, but civil society pressure may yet make this a plausible option, especially if Israel persists in maintaining its criminally unlawful blockade of Gaza, resisting widespread calls, including by President Obama, to open the crossings from Israel. Even in the unlikely event that it is established, such a tribunal could not function effectively without a high degree of cooperation with the government of the country whose leaders and soldiers are being accused. Unlike former Yugoslavia and Rwanda, Israel’s political leadership would certainly do its best to obstruct the activities of any international body charged with prosecuting Israeli war crimes.
Claims of universal jurisdiction

Perhaps the most plausible governmental path would be reliance on claims of universal jurisdiction (1) associated with the authority of national courts to prosecute certain categories of war crimes, depending on national legislation. Such legislation exists in varying forms in more than 12 countries, including Spain, Belgium, France, Germany, Britain and the US. Spain has already indicted several leading Israeli military officers, although there is political pressure on the Spanish government to alter its criminal law to disallow such an undertaking in the absence of those accused.

This path to criminal accountability was taken in 1998 when a Spanish high court indicted the former Chilean dictator, Augusto Pinochet, and he was later detained in Britain where the legal duty to extradite was finally upheld on rather narrow grounds by a majority of the Law Lords, the highest court in the country. Pinochet was not extradited however, but returned to Chile on grounds of unfitness to stand trial, and died in Chile while criminal proceedings against him were under way.

Whether universal jurisdiction provides a practical means of responding to the war crimes charges arising out of the Gaza experience is doubtful. National procedures are likely to be swayed by political pressures, as were German courts, which a year ago declined to proceed against Donald Rumsfeld on torture charges despite a strong evidentiary basis and the near certainty that he would not be prosecuted in the US, which as his home state had the legally acknowledged prior jurisdictional claim. Also, universal jurisdictional proceedings are quite random, depending on either the cooperation of other governments by way of extradition or the happenchance of finding a potential defendant within the territory of the prosecuting state.

It is possible that a high profile proceeding could occur, and this would give great attention to the war crimes issue, and so universal jurisdiction is probably the most promising approach to Israeli accountability despite formidable obstacles. Even if no conviction results (and none exists for comparable allegations), the mere threat of detention and possible prosecution is likely to inhibit the travel plans of individuals likely to be detained on war crime charges; and has some political relevance with respect to the international reputation of a government.

There is, of course, the theoretical possibility that prosecutions, at least for battlefield practices such as shooting surrendering civilians, would be undertaken in Israeli criminal courts. Respected Israeli human rights organisations, including B’Tselem, are gathering evidence for such legal actions and advance the argument that an Israeli initiative has the national benefit of undermining the international calls for legal action.

This Israeli initiative, even if nothing follows in the way of legal action, as seems almost certain due to political constraints, has significance. It will lend credence to the controversial international contentions that criminal indictment and prosecution of Israeli political and military leaders and war crimes perpetrators should take place in some legal venue. If politics blocks legal action in Israel, then the implementation of international criminal law depends on taking whatever action is possible in either an international tribunal or foreign national courts, and if this proves impossible, then by convening a non-governmental civil society tribunal with symbolic legal authority.

What seems reasonably clear is that despite the clamour for war crimes investigations and accountability, the political will is lacking to proceed against Israel at the inter-governmental level, whether within the UN or outside. The realities of geopolitics are built around double standards when it comes to war crimes. It is one thing to proceed against Saddam Hussein or Slobodan Milosevic, but quite another to go against George W Bush or Ehud Olmert. Ever since the Nuremberg trials after the second world war, there exists impunity for those who act on behalf of powerful, undefeated states and nothing is likely to challenge this fact of international life in the near future, thus tarnishing the status of international law as a vehicle for global justice that is consistent in its enforcement efforts. When it comes to international criminal law, there continues to exist impunity for the strong and victorious, and potential accountability for the weak or defeated.

It does seem likely that civil society initiatives will lead to the establishment of one or more tribunals operating without the benefit of governmental authorisation. Such tribunals became prominent in the Vietnam war when Bertrand Russell took the lead in establishing the Russell Tribunal. Since then the Permanent Peoples Tribunal based in Rome has organised more than 20 sessions on a variety of international topics that neither the UN nor governments will touch.

In 2005 the World Tribunal on Iraq, held in Istanbul, heard evidence from 54 witnesses, and its jury, presided over by the Indian novelist Arundhati Roy, issued a Declaration of Conscience that condemned the US and Britain for the invasion and occupation of Iraq, and named names of leaders in both countries who should be held criminally accountable.

The tribunal compiled an impressive documentary record as to criminal charges, and received considerable media attention, at least in the Middle East. Such an undertaking is attacked or ignored by the media because it is one-sided, and lacking in legal weight, but in the absence of formal action on accountability, such informal initiatives fill a legal vacuum, at least symbolically, and give legitimacy to non-violent anti-war undertakings.
The legitimacy war

In the end, the haunting question is whether the war crimes concerns raised by Israel’s behaviour in Gaza matters, and if so, how. I believe it matters greatly in what might be called “the second war” – the legitimacy war that often ends up shaping the political outcome more than battlefield results. The US won every battle in the Vietnam war and lost the war; the same with France in Indochina and Algeria, and the Soviet Union in Afghanistan. The Shah of Iran collapsed, as did the apartheid regime in South Africa, because of defeats in the legitimacy war.

It is my view that this surfacing of criminal charges against Israel during and after its attacks on Gaza resulted in major gains on the legitimacy front for the Palestinians. The widespread popular perceptions of Israeli criminality, especially the sense of waging war against a defenceless population with modern weaponry, has prompted people around the world to propose boycotts, divestments and sanctions. This mobilisation exerts pressure on governments and corporations to desist from relations with Israel, and is reminiscent of the worldwide anti-apartheid campaign that did so much to alter the political landscape in South Africa. Winning the legitimacy war is no guarantee that Palestinian self-determination will be achieved in the coming years. But it does change the political equation in ways that are not fully discernable at this time.

The global setup provides a legal framework capable of imposing international criminal law, but it will not be implemented unless the political will is present. Israel is likely to be insulated from formal judicial initiatives addressing war crimes charges, but will face the fallout arising from the credibility that these charges possess for world public opinion. This fallout is reshaping the underlying Israel/Palestine struggle, and giving far greater salience to the legitimacy war (fought on a global political battlefield) than was previously the case.