Permanent Gitmo & Permanent War:New Nat’l “Defense”Bill

June 23rd, 2011

 www.lawandisorder.org

On the latest Law and Disorder Radio (began airing Monday on WBAI and around the country on various radio stations throughout the week), co-host Michael Ratner (Center for Constitutional Rights) noted a bill which made it through the House and now faces the Senate.

Michael Ratner: On Law and Disorder, we’ve often brought you up to date news on Guantanamo, the so-called war on terror, military commissions — all that goes with Guantanamo, torture, indefinite detention — what I would like to call “The Guantanamo Syndrome” or “The American Operation Condor.” If you remember, Operation Condor was when Chilean dictator Pinochet went around the world picking up people, torturing them, murdering them and jailing them. We have our own. Let’s call it The Guantanamo Syndrome.

 

Right now as we speak, there’s a new national authorization defense act going through our wonderful Congress. It’s passed the House, it’s now in the Senate. This is the yearly bill that basically funds the empire’s wars all over the world. And it’s always like a Christmas tree and people put in some of the worst provisions you can imagine. And they’re continuing to put in more and more ways of expanding The Guantanamo Syndrome. And the main one is one that we’ve talked about before in a different context or a different statute but it’s now about to be amended. People may not recall but the statute that began the War in Afghanistan was called the Authorization to Use Military Force — the AUMF. It’s a very broad statue. It allowed the president on his own to attack any nation-state, person, individual, whatever anywhere in the world who was in any way involved with 9-11 — peripherally, in any way at all. But it was linked to 9-11. And it’s a terrible statute because that’s what the president — whether it was Bush or Obama — is now using to go after not just Afghanistan, but to go after Pakistan, to go after Yemen. The AUMF is an awful statute as currently written because the president is using that not just for the War in Afghanistan, which it was originally written for, but the war in Pakistan, the war in Yemen, probably war in North Africa, detention of people he can pick up anywhere in the world, etc. So it’s an awful statute.

 

As broad as it is, and as bad as it is and as much authority as it gives the president to make war anywhere in the world without going back to Congress, without going to the American people, it’s about to get worse. The House of Representatives just made it worse and the question is whether the Senate will continue with leaving it in the statute as it is. As I said, the old AMUF allowed attacks on any nation-state, etc., involved in 9-11, anywhere in the world. This one takes out any link with 9-11. It essentially says that anyone who’s a threat to the United States, involved in an act of terrorism, whether in the US or abroad, can be subject to an attack by the president — military attack and detention. So it takes out any link with 9-11 essentially broadening the so-called War on Terror even more than President Bush had done.

 

Now it’s interesting. The Obama administration says this is unnecessary and I wouldn’t say that they’re dead against it, but they’d rather not have it in there. And it’s not that they’re being so wonderful about this. It’s just that they’re already going way beyond the current AMUF in attacking anybody in the world. So they’re essentially saying, “Don’t put it in writing and make a red flag out of it, let’s keep it away.” So they’re expanding war powers.

 

So if you look at the American empire as one that is now sustained by war, some 771 military bases plus the power in one person — the president — to attack anywhere in the world, you’re talking about an empire that’s built on tanks, aircraft carriers and the Pentagon and war. And it’s not going to be any good going forward. If there’s any characteristic of this empire that seems out there and up front right now, it’s that this is an empire of war.

 

The National Defense Authorization Act also has some special provisions about Guantanamo. I won’t go through all the details but basically we’ve already said on this show, Guantanamo is becoming a permanent aspect of the detention system in this world or in this country. It’s open now forever, it seems. there’s laws that say you can’t bring people to the US for trial. There’s preventative detentions and military commissions. This National Authorization Detention Act — hard to believe — but makes those provisions even worse. It now says that any non-citizen held by the US military — any non U.S. citizen held by the US military in a foreign country cannot be brought to the United States. Not just people in Guantanamo can’t be brought here but people in any foreign country. So if someone’s picked up — as they have been in the past — for like bombing the USS Cole or something — they can no longer be brought to the United States for trial even though the Cole people were brought to the US for trial — or at least some of them. That means they have to be tried in the so-called military commissions or rum trials, trials that are completely no good for anything. A pretty amazing bill basically saying “No more Constitutional courts, let’s just try these people in some court we set up somewhere in the world.” Very, very bad provision.  It also says that any non-US citizen in the United States who’s involved in a terrorist attack cannot be tried in a regular US federal court but must be tried in a military commission.

 

So there you go. If you thought we were moving towards fascism in this country — at least certain aspects of it — there we see it — open and notorious. Perhaps we’ll be lucky and these three provisions that I’ve talked about — the broadening of the war, the prohibition on bringing anybody from any foreign country to the United States for trial, and the prohibition on trying any alleged US terrorists non-citizen in the United States in a regular court — we’re hopeful that those three provisions won’t pass. But they’ve passed the House already and it’s not clear to me that they won’t go through the Senate. So it’s not getting better, it’s getting worse and worse and worse. (In fact, much of this is now in the Senate legislation—more on this later)

 

Michael Ratner hosts Law and Disorder Radio with Heidi Boghosian (National Lawyers Guild) and Michael S. Smith (both organizations) — three attorneys. Michael S. Smith has a website and I’ll try to put it on the links when the heavens open up and gift me with time. Until then, click here.

The Murder of Arna’s Child: Juliano Mer-Khamis of the Jenin Theatre Company Assassinated

April 6th, 2011

Juliano Mer-Khamis made the movie Arna’s Children about his mother’s Jenin theatre company, the children he taught there when young, and what became of them.

When I told my 21-year-old daughter Ana about Juliano’s death she could just not figure out why. She said more eloquently than I can precisely quote: “Why would they murder someone who was trying to heal people, trying to use a peaceful means to resolve issues or using acting and art as a way for people to explore their lives.” She could simply not understand why the director of this beautiful and moving theatre in Jenin, where she had spent a full day about a year ago, had been murdered. We had driven to Jenin from East Jerusalem. Jenin was different than other West Bank cities we had visited. Pictures of Palestinian “martyrs” were on the lampposts and there were Palestinian military on the corners with large weapons. While I always felt safe, this was clearly a militant Palestinian city. And of course, it was the home of the Jenin refugee camp that had been brutally attacked by Israel in April 2002.

But the theatre was like an oasis. We parked our car in the front of a building built of Jerusalem limestone and spent a remarkable day. Part of it was with, a young man, who taught photography. Many of his students were women and their large color photos were mounted in an exhibition hall. Each one told a story. Sometimes it was of oppression within their own family—there was a particularly strong photo of a very ripe tomato split in half, its red juice flowing on to the pavement and symbolizing the blood shed in an honor killing; sometimes it was the oppression of the Israelis and the inability of the refugees to return to their villages symbolized by a fish looking bug eyed out of a fish bowl. Each was the story of a young photographer grappling with a difficult reality. We asked the teacher how it was for the teenagers when they returned to their homes in the camp. He said it was difficult, especially for the girls. They were doubly or triply oppressed: oppressed within their families, by the Israelis and sometimes by the Palestinian government as well. Ana was so moved by the photographs that she asked the teacher to send them. She reproduced them digitally and had a small photo show at her college.

The teacher himself had his own story of oppression. He showed us one of his student movies, for while he was a photo teacher he was also a movie student. The movie was about his teen age sister who had dared to speak to a boy at school. When he heard about it from friends, he came home and hit his sister. It was a shocking scene because there we were sitting next to this wonderful, gentle man. But he had learned and the movie was part of his long apology to his sister.

We also saw part of the Animal Farm play. It was based on the Orwell book, but in this version the human oppressors were the Israelis and the animals the Palestinians. As the animals revolt and take over, they eventually oppress their own people. But this was not politics grafted on to a play. This was Juliano and others working with the young people to bring out their own experiences of oppression and anger and act them out in the play. However, the political message could not be missed. The PA (Palestine Authority) was the oppressor. I asked Juliano how the PA let him get away with it. He said, they would come to performances, sit in the front row, sometimes laugh, but let him and the theatre be.

We then had a long lunch with Juliano and his partner. They recently had a baby. Juliano was a bear of man and affectionate. He talked and talked about his life, his acting career and his theatre. And politics. Let there be no doubt, he was highly political. While he opposed Zionism, he was not enamored of the PA. He understood the power of theatre and art to transform people’s lives. When I think of his murder, of course, I think of this wonderful man and his young child who will not get to know and love him. I also think of the scores if not hundreds of young people, like those we met at Jenin, who may no longer be able to move from repression and anger to the place where Juliano hoped his theatre could take them.

To Hell with the Constitution: Obama Goes To War

March 30th, 2011

How is it that Congress isn’t screaming at President Obama for usurping its power to take this nation to war against Libya? (Even Bushes #41 and #43 had their wars in Afghanistan and Iraq authorized.) And if Congress isn’t screaming, then why aren’t we? We should be. The power to make war impacts us all: it kills, it costs our dwindling treasury, and it has serious consequences.

Those are just some of the reasons why the Constitution doesn’t allow the president to make the decision to go to war unilaterally — a fact that Obama, himself a former constitutional law professor, knows full well. If fact, when candidate Obama was asked if the president could bomb Iran without authority from Congress, he categorically responded: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

Candidate Obama’s letter perfect response reveals precisely how well he understands the framers’ fear of giving the power to initiate war to the president. As James Madison, principal author of the Constitution wrote, “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature.” Consequently, Article 1, section 8, cl. 11 states that Congress and only Congress can authorize the use of military force against another country. It makes no difference whether it’s called war or a “military action” — Obama’s term for the attack on Libya.

Some have argued that it would have made little difference for Obama to have asked for authority — that Congress would have approved the war anyway. Whether or not that’s true, it’s not the point. Had Obama gone to Congress there would have been the kind of public debate that’s necessary in any country that calls itself a democracy.

A debate would have served several vital functions. It would have involved the American people in a momentous decision. It would have given Congress the option of rejecting Obama’s war or putting conditions on it. Most importantly, it might have aired some difficult, vital questions: Why Libya and not the Ivory Coast, where thousands are being murdered? Why Libya and not Israel when it was killing 1,400 Palestinians in Gaza? Was this really a war about saving lives or was it about oil? Why is the African Union not supporting the war? Is this war really about regime change? Are not three wars in the Middle East and Central Asia, three too many?

Obama’s decision is another shocking example of his grab for the kind of executive power he eschewed in his predecessor’s administration — so long as he was still a candidate. Many of us had hoped that the ghost of Vietnam, our infamous Executive-made war, would be exorcised by this Nobel Peace Prize-winning President. Instead, Obama has brought this specter back from the dead.

Why there should be a case against George W. Bush under torture law

February 21st, 2011

Editor’s note: Michael Ratner is president of the Center for Constitutional Rights, a nonprofit legal and educational organization based in New York.

New York (CNN) — There was widespread support among scores of human rights groups and many others for recent efforts to have Switzerland open a preliminary investigation for torture against former President George W. Bush during his planned (and now canceled) visit to Geneva.

Our belief is that Bush violated U.S. and international law when he authorized torture, including the water boarding of detainees. Torture is a crime under a federal statute, Torture Statute, as well as under the War Crimes Act, and the Convention Against Torture, of which the U.S. was a major proponent.

The support for the investigation stems from Bush’s open admission that the authorized water boarding, the necessity people feel to hold torturers accountable if we are to end torture, and the utter failure of the United States to investigate Bush and others. The U.S., as the most powerful country in the world, is an example to the world: If the U.S. can openly torture, so can every other country.

There have been some naysayers to the attempts to internationally prosecute Bush and other officials. They have it wrong. They want a world in which if a country does not investigate its own torturers, then no other country should. They argue, as David Frum did in a recent column on this site, that efforts by the Center for Constitutional Rights and its partner legal organizations to seek criminal accountability of former President Bush in Switzerland amount to “law as a weapon of politics” and “assault upon the basic norms of American constitutional democracy.”

Let’s correct one major misconception some have about the basis for this action and how it relates to the U.S. legal system at the outset. The Convention Against Torture, which mandates that Switzerland and 146 other countries including the United States investigate and prosecute torturers, is part of U.S. law. Its ratification and its enforcement is part of our constitutional democracy.

The anti-American and anti-Constitutional acts were Bush’s decision to authorize torture and the U.S. failure to hold him accountable. Politics are being used as a weapon against the law by claims that these are policy choices. They are not. As the State Department Legal Advisor Harold Koh stated, torture can never be a “policy choice.” Likewise, the investigation and prosecution of our homegrown torturers is a legal obligation and should not be driven by politics.

Frum accuses CCR and others of demanding that “Switzerland override an American decision about which Americans should be prosecuted for violating American law.” Yes, it is true that the demand is for Swiss courts to investigate torture where the U.S. has not. But the U.S. decision was one that was not just about American law.

U.S. law includes an obligation for the U.S. to investigate and prosecute torturers, and through its ratification of the Convention Against Torture and its support of a provision for universal jurisdiction in the Convention, it recognizes the obligation for Switzerland to do so as well when a torturer is on their soil. Switzerland was being asked to do no more and no less than what the United States has committed to do itself.

There are to be no safe havens for torturers. None.

Torture is a crime that no circumstance — even national security — can ever justify. It cannot be redefined to make acts that have long been illegal suddenly permissible. The memos Bush relies on as a defense are no defense at all: as was found by the American prosecutor in Nuremberg, providing legal advice that justifies and leads to war crimes or torture is criminal. And it cannot protect from prosecution.

Torture is also one of the few crimes, like piracy, slavery and genocide, where there is a global commitment to prevent and punish its commission.

In 1980, a U.S. Court of Appeals declared that “the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.” The federal court judges found that because torture is a wrong that is so egregious and so widely condemned that it is of “mutual concern” amongst the nations of the world, a torturer could be brought to justice wherever found. The “mutual concern” to eradicate torture was expressed in the United Nations Convention Against Torture. President Reagan signed the treaty, and the U.S. became a party to the Convention in 1994.

It is only the failure of the U.S. to act — to abide by its own legal obligations — that would have resulted in Switzerland prosecuting Bush for torture. Or Spain, for that matter, where there are three on-going proceedings for torture involving U.S. officials, including one open investigation related to torture at Guantánamo where evidence is being taken.

The case against Bush in Switzerland is, in some ways, a commentary on law and politics in the United States. But not in the way Frum presents it. Sadly, it is a commentary on the failure of the U.S. legal system to demonstrate its strength and independence from politics.

Bush has openly admitted authorizing acts that constitute torture. The case against him will be investigated and tried — if not in the United States then in a country that has the courage to give meaning to its legal obligation to investigate and prosecute torturers.

The opinions expressed in this commentary are solely those of Michael Ratner.

 

Bringing the ‘Bush Six’ to justice: Spain Cases Moving Along

January 7th, 2011

If those responsible for the Bush administration’s torture policy will not face charges in the US, then in Spain it must be.

Today, the Centre for Constitutional Rights filed papers encouraging Judge Eloy Velasco and the Spanish national court to do what the United States will not: prosecute the “Bush Six”. These are the former senior administration legal advisors, headed by then US Attorney General Alberto Gonzales, who violated international law by creating a legal framework that materially contributed to the torture of suspected terrorists at US-run facilities at Guantánamo and other overseas locations.

Friday’s filing provides Judge Velasco with the legal framework for the prosecution of government lawyers – a prosecution that last took place during the Nuremberg trials, when Nazi lawyers who provided cover for the Third Reich’s war crimes and crimes against humanity were held accountable for their complicity.

CCR would prefer to see American cases tried in American courts. But we have joined the effort to pursue the Bush Six overseas because two successive American presidents have made it clear that there will be no justice for the architects of the US torture programme, or any of their accomplices, on American soil.

Thanks to the US diplomatic cables recently released by WikiLeaks, we now know why seeking justice abroad has also been fraught with difficulty – why there have been so many delays and even dismissals. The same US government that will not pursue justice at home, not even when the CIA destroys 92 videotapes that show detainees being tortured, has put a heavy thumb on the scales of justice in other countries as well.

During the Bush presidency, the US intervened to derail the case of German citizen Khaled el-Masri, who was abducted by the CIA in 2003 and flown to Afghanistan for interrogation as part of the U.S. “extraordinary rendition” program—until they realized they had kidnapped the wrong man and dumped el-Masri on the side of an Albanian road. A leaked 2007 cable reveals the extent both of U.S. pressure and German collusion. In public, Munich prosecutors issued arrest warrants for 13 suspected CIA operatives while Angela Merkel’s office called for an investigation. In private, the German justice ministry and foreign ministry both made it clear to the US that they were not interested in pursuing the case. Later that year, then Justice Minster Brigitte Zypries went public with her decision against attempting extradition, citing US refusal to arrest or hand over the agents.

Will this toxic combination of American pressure and a European ally’s acquiescence derail justice in Spain, as well?

This 1 April 2009 cable, released 1 December 2010, shows Obama administration officials trying their best to stop the prosecution of the Bush Six. They fret that “the fact that this complaint targets former administration legal officials may reflect a ‘stepping-stone’ strategy designed to pave the way for complaints against even more senior officials” and bemoan Spain’s “reputation for liberally invoking universal jurisdiction”. Chief Prosecutor Javier Zaragoza reassures the US that while “in all likelihood he would have no option but to open a case”, he does not “envision indictments or arrest warrants in the near future”, and will “argue against the case being assigned to Garzon” (a notoriously tough judge, who has since been removed from the case).

Judge Velasco, who has since been assigned to the case, has been scrupulous in his oversight. The Spanish court has thrice asked the US, in accordance with international law, “whether the acts referred to in this complaint are or are not being investigated or prosecuted”, and if so, “to identify the prosecuting authority and to inform this court of the specific procedure by which to refer the complaints for joinder”. Of course, no response to any of these requests has been received, because the Obama administration has no intention whatsoever of pursuing justice on this matter. 

Democracy demands a fully functioning legal system – one that does not bend to hidden pressures and political agendas. We have faith that Judge Velasco will justify the US officials’ concerns about Spain’s independent judiciary, and its respect for international law, and move forward with the Bush Six case.

A new stage in the war on dissent: By Michael Ratner http://socialistworker.org/2010/10/19/new-stage-in-the-war-on-dissent

October 19th, 2010

Michael Ratner is the president of the Center for Constitutional Rights [1], a leading organization in opposing the dismantling of civil liberties under the Bush, and now Obama, administrations.

He spoke with Nicole Colson about the recent raids on the homes and offices of antiwar and socialist activists in Chicago, Minneapolis and North Carolina–and why the Obama administration, despite claims to the contrary, has been disastrous when it comes to promises to protect our civil liberties.

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RECENTLY, ANTIWAR and socialist activists in Chicago, Minneapolis and North Carolina have had their homes and offices raided, and were given grand jury subpoenas. What is your take on these raids? What’s your sense of what the government is after?

THE RAIDS have all the earmarks of a fishing expedition–both the search warrants as well as grand jury subpoenas. They all claimed to be investigating “material support to terrorism,” in particular around both the Middle East and the country of Colombia. It appears to be a fishing expedition because the materials that were authorized to be seized and the subjects about which questions were to be asked were quite broad.

The search warrants were like wholesale seizure warrants. The FBI goes into five or six houses in Minneapolis, two houses in Chicago, some houses in North Carolina and Michigan as well, and seize everything. They take people’s cell phones, they take all the computers out, they take every document out. This broad language in the search warrants purports to allow the FBI to take everything in those offices.

And then the subpoenas, which require people to testify in front of the grand jury, they also are very open ended. Asking for everything people know about certain organizations, phone numbers, associates, friends, etc. So you would think if it was a narrowly tailored prosecution in which they thought there might be real criminal conduct, the focus would be much narrower.

So while it appears from the warrants they might have some suspicion about something (but who even knows if that suspicion is valid), they certainly don’t have very much, because they are going very, very broadly.

It’s something like looking for a needle in a haystack, in which they destroy many lives and chill people’s rights–and there may not even be a needle. And because of that, they are clearly encroaching on the First Amendment rights of people who are doing antiwar organizing and working to change U.S. foreign policy, particularly in the Middle East and in South America.

There are many problems, but one of the problems here is that the search warrants and subpoenas are so that broad, they cut directly into all kinds of First Amendment activities. So the people in Minneapolis, who were among the main organizers of some of the Republican National Convention demonstrations in 2008, then become the targets of the FBI or the Joint Terrorism Task Force–and their First Amendment activities, and their right to organize and oppose the government are therefore chilled or even prevented all together.

A broad, wholesale attack like this on the antiwar movement and on activists is bad for the people who were directly attacked, and it also tells all of us that the activities we undertake are subject to government surveillance and much more in this case–the actual seizure of the documents and grand jury subpoenas.

So it’s quite serious. It makes you very suspicious because it’s so broad. It was so coordinated, it was across the country, and they don’t really have that much, if anything.

A second problem is the ostensible reason for the search. The various warrants and subpoenas cite the law concerning material support for terrorism. And of course, that’s the material support statute.

A case arguing the unconstitutionality of that statute was recently argued by the Center for Constitutional Rights in the Supreme Court [Holder v. Humanitarian Law Project]. We lost. The Supreme Court, for the first time since 9/11, said advocacy or speech on behalf of an organization on the attorney general’s terrorist list is covered by the criminal statute–the material support of terrorism statute–if that speech is coordinated with, or you work with or have contact with, people in the alleged terrorist organization.

So once an organization is put on the terrorist list, if I only write an op-ed, and if I gather the information from the designated organization or have any contact with anybody there, even if it’s just asking for information, that might be interpreted as “coordination” with them, or some kind of material support for that organization. And there is no due process given before an organization is put on the list. It’s almost impossible to challenge. Oftentimes, placement on the terrorist list is a political decision.

So first you have the Supreme Court decision in June 2010, and then you have these raids a couple of months afterward. It makes you very suspicious that the current government is pushing the boundaries of the material support statute and reading it very broadly.

Organizations are going to be put in fear of any kind of opposition to U.S. foreign policy if there is a claim by the government that there is contact with organizations that are designated terrorists. Domestic American organizations that oppose U.S. foreign policy may well be chilled in their work.

COULD YOU say a little bit more about the way that the material support provision has been used since 9/11? There have been a number of really high-profile cases–particularly of Islamic charities, for example–where no violence was ever alleged to have occurred as a result of the so-called “material support,” so a lot of us on the left have seen this as a broader attempt to whip up support for the “war on terror.”

ONE OF the main uses of the material support statute, I think is to demonize organizations that the U.S. government doesn’t like. Had they had such a statue during the period of the African National Congress (ANC) opposition to the apartheid government in South Africa, they would have labeled that–and that’s how they thought of it in the U.S., under Reagan and before–as a terrorist organization. Any contacts with the ANC of any Americans opposed to apartheid would have been considered criminal.

There are two aspects to this. One is that the government can label, without any kind of hearing or way to challenge it, a foreign organization as a terrorist organization. The other is that any American contact with that organization or support for that organization is prohibited.

This is true even if that support is, as I said, by writings that are at all coordinated; by giving blankets to their hospital; by, according to the case we lost in Supreme Court, wanting to teach the [Kurdistan Workers Party] or the Tamil Tigers about the Geneva Conventions. Wanting to teach people peaceful means of resolving disputes, or wanting to get them to the negotiating table–when Jimmy Carter negotiates questions in the Middle East and he has contacts with Hamas or Hezbollah–those all are now prohibited.

So this statute is the favorite of prosecutors to go after people, because the smallest kind of contact with a designated terrorist organization can be considered material support. It’s an easy way to intimidate, wipe out and jail opponents of U.S. foreign policy, and an easy way to demonize organizations that many would call liberation organizations in other countries.

The provision has been used often. It is a favorite among prosecutors because you have to prove so little. So the Holy Land Foundation, which was the biggest Muslim charity in the United States, was accused of giving money to Hamas, but so indirectly that it’s hard to believe any of the facts in the case–it was giving it to groups that I think even the UN was giving to in Gaza. But somehow, they were supposed to believe or know that those groups were connected to Hamas, which has been put on the U.S. terrorist list.

The statute is used very broadly to say, “Muslims in this country and all their charities, what they’re doing is supporting terrorism.” When in fact, the vast majority of those charities–I obviously don’t know every one, but from what I know–gave aid to organizations they didn’t think were terrorist for starters, or on the list, and, secondly, they were giving humanitarian aid or doing things like teaching the Geneva Conventions.

I WANTED to go back to this recent Supreme Court case, Holder v. Humanitarian Law Project, that was argued for the Obama administration by former Solicitor General Elena Kagan–who is now, of course, sitting on the Supreme Court. What do you think that case signals about the court’s view of free speech issues and its efforts to broaden this statute?

THEY WERE pushing to broaden out this statute, of course. I was at the argument, and the solicitor general did make very broad arguments–broader than the case required for saying that certain kinds of what she called “material aid” should be criminally punished under the statute, or could be.

So, for example, let’s say an organization was designated as a terrorist organization, and it comes to you and says, “We were improperly designated, we want to try to challenge it.” I couldn’t do that, as a lawyer representing them. Elena Kagan said in the Supreme Court that such representation would be “materially aiding” a terrorist organizations.

So she took a very broad position in the court. The solicitor general does have some ability to say, “I’m not taking a position that’s broader than the case,” but she didn’t do that. The Supreme Court didn’t decide every question on this, but you’d be taking a real chance if you went and represented a designated terrorist organization that was on the list. So it doesn’t bode particularly well that Elena Kagan argued in that case that she was willing to go for a very broad reading of the statute.

The other issue had to do with the plaintiff we represented, the Humanitarian Law Project, which wanted to teach the Geneva Conventions or explain to a designated terrorist group how to use the UN as a peaceful means of achieving their goals. Kagan argued that that such teaching was “conduct,” and not “speech”–and therefore wasn’t protected by the First Amendment.

We argued that it was speech, and the court did agree that it was speech. So even on that issue, the government was willing to say that teaching the Geneva Conventions was speech.

But then they said this was one of the rare cases where we’re going to outlaw speech, which is what they did.

I THINK a lot of people felt some real hope that with Barack Obama’s election, civil liberties would be safer, given his promise to close Guantánamo, and to try detainees in civilian courts. But he’s really fallen far short of almost all of these promises, hasn’t he?

I WOULD say it’s a disaster. It’s a continuation of the Bush policies, and in some cases, the deepening of those policies. So Guantánamo is still open. We still have arbitrary detention, or detention without trial, and we have a number of people at Guantánamo who will never go to trial.

In a recent case that came up in federal court, the court barred testimony that might have been the result of torture. The Obama administration tried to use it. But the government still uses military commissions to try people, and those commissions can still use evidence derived from torture torture.

The Obama administration still uses the “state secrets” defense to get cases dismissed. They just did it again in a case of ours, in which we’re suing Obama to stop the assassination by drone or otherwise of Imam (Anwar) al-Awlaki in Yemen. The government asserted the “state secrets” defense to that case. We don’t know what the court will decide.

But they have been pretty deferential to the Obama administration on the question of state secrets. We have not won a case. So on every issue–Guantánamo, preventive detention, state secrets, use of torture evidence, military commissions–there’s been an identical practice to that of the Bush administration. Some people would argue they’re surrounded with a few more procedural protections, or laws, but it’s the same policy.

And when it’s coming from a Democrat, it should be a particular lesson to people–that on these national security issues, there’s very, very little difference between the two administrations, Democratic or Republican. It’s also particularly bad, because if one had hopes that the Democrats were going to shift on these issues, it just demonstrates how deeply imbedded the erosion of civil liberties has become in the U.S. and the willingness to sacrifice civil liberties in the name of “national security” or “stopping terrorism.”

You would have trouble distinguishing the policies of Bush from Obama. Even on the issue of rendition, when you take a person from one country to another illegally, Obama has continued this. He claimed that he wouldn’t render people to countries where they would be tortured, but we haven’t seen that yet–the first person who was picked up to be rendered had the heck beaten out of them on the plane over here.

So even on rendition, they’re similar. One difference, you could say, is that there isn’t the open and notorious torture of people that there was under Bush–at least not that we know of.

I say that cautiously, because there are still some secret prisons out there–a section of Bagram that no one’s allowed into–so we don’t know everything that’s going on around the issue of torture. And there’s certainly been no accountability for the torture regime of the Bush administration. Many of those same people are still in the current administration.

I WAS reading a recent Rolling Stone interview with Obama, and he said that people need to vote for the Democrats in November if we want the kind of country that respects civil rights and civil liberties. It just seemed totally disconnected from the reality of what’s happened in the last two years under his administration.

IN EVERY case we’ve gone to court on regarding accountability, the Obama administration has stopped us.

We represent two people who allegedly committed suicide in Guantánamo. We have evidence now that they were murdered, and the Obama administration opposed our suit, and we lost. In another case, we went to court claiming that our Guantánamo lawyers at the Center were wiretapped without warrants. We just lost that case in the Supreme Court. They denied review. Again, the Obama administration opposed us.

The ACLU went to court to try and get at the rendition issue against a subsidiary of Boeing, which was involved in some of the flights. Again, the Obama administration opposed it.

I can name 20 cases where they’ve come into court, and they’ve made sure that there will not be exposure, much less liability, of the torture regime, and violations of fundamental Constitutional rights that occurred under Bush. And many of these violations are still occurring today. You don’t have an outcry about Guantánamo now, yet we have 40 some people there facing indefinite permanent detention without trial.

GIVEN WHAT you’re saying about these recent raids being about demonizing organizations the government doesn’t like, what kind of advice would you give to activists in this kind of climate?

I CERTAINLY think it’s not a time to cut back on actions, that’s for sure. If there is a need for action, it is now–whether it’s on the wars or civil liberties or immigration or otherwise. Otherwise, you’ll be basically conceding this territory to the government. So I don’t think one should pull back on major activity.

I do think one has to assume, in whatever you do, that most of what you do is wiretapped or surveilled, and there’s no doubt that the FBI guidelines are very broad on that. You have to assume that there’s an informant of some sort in a group, and that therefore what you say is going to be heard–whether by the government through surveillance or by someone in the group. And because of the breadth of the statute, you have to be extremely careful about your dealing with organizations on the [foreign terrorist] list.

When I say that, I mean your activities independent of those “terrorist” organizations are okay. So you shouldn’t pull back from that. So, for example, I can write an op-ed article tomorrow supporting the FARC in Colombia, but what I can’t do is have contact with the FARC in terms of saying that I need some help or something like that. Now, where it gets into real journalism is a harder issue.

I think organizations have to be extremely careful dealing with groups on the various terrorist lists that our government keeps. But you can do independent activities. Tomorrow, I can write an article saying “Hezbollah should be the legitimate rulers of Lebanon.” But I can’t contact Hezbollah and say, “Well I’m going to write this article, what do you think about this?” As soon as I do that, I cross a line.

I think organizations have to be extremely careful about contacts, if any, with designated terrorist organizations, and I wouldn’t recommend it. Not the way this government is acting right now and not with these decisions.

IN TERMS of the response to the FBI raids, I know there were several demonstrations in cities in the days following the raids, and when the first grand jury appearance was scheduled, even though all the activists refused to testify, people came out for that as well. Do you think that kind of public pressure is important?

I THINK those have been very helpful. I was really excited to see that there were 27 cities that had demonstrations around the raids and the grand jury appearances. And the fact that everybody decided to take the Fifth Amendment and not testify I think surprised the government. The government didn’t come back immediately and give certain people immunity, or maybe it realized they overreached a bit, and that it was a fishing expedition.

I think the demonstrations made a difference in that. That’s not saying that something more won’t happen, because you know they don’t do these things and then just walk away. But I think demonstrations did help, and protests really limit the scope that the government can act on in these kinds of raids. I think they are absolutely a crucial part of opposition.

I think that if there weren’t those protests, for all I know the government would have enforced those subpoenas right away and dragged those people right in to the grand jury. But now, maybe they’re rethinking it. They may still do it selectively–I don’t have any idea–but I certainly believe that making this into the civil liberties fight that it really is, is crucial.

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On What Should Have Been John Lennon’s 70th

October 10th, 2010

I spent time with John Lennon only once.   It was at his and Yoko’s apartment on Bank Street in the West Village of NYC sometime in the early 70’s.  I went to see him and Yoko with my law partner Margie Ratner.  We had been asked to discuss with them the case of Michael X, a Black Power leader from the U.K.  Michael X had left the UK and returned to Trinidad. While in Trinidad, where he was living on a commune, a police raid discovered two bodies and Michael X was accused, and many believed wrongfully, of murder.  Prior to his arrest he fled to Guyana, but was eventually extradited, stood trial and was sentenced to death in Trinidad.

 

John and Yoko had known Michael X in the U.K. and had given him some support including the posting of bail for an alleged crime in the U.K.  A friend of John and Yoko’s had contacted us and wanted us, along with the well-known radical lawyer Bill Kunstler, to get involved in helping save his life.  I think they were firmly convinced of his innocence, but in any case, they stood firmly against the death penalty.   What I recall on the issue of Michael X’s innocence was that at the time Michael X was in Trinidad Eric Williams was the Prime Minister. Williams was more like a dictator then an elected Prime Minister. (He ruled the country from 1956 -1981.) He saw Michael X as a troublemaker and a rival and probably had him framed him for the murders. Williams, who at one time had been progressive, was an absolute ruler and supposedly had even banned some of his own more radical books. So Margie and I were visiting John and Yoko to discuss what could be done to save Michael X’s life.

 

The apartment was a modest one. I think it was a downstairs/basement floor in an old narrow village brownstone.  It was dark.  We spent most of the time with Yoko. John was in the back bedroom. We had an animated conversation with her about Michael X and her knowledge of him from London. Yoko wanted to do whatever she could to save his life. We hit on a couple of strategies. One was to begin a defense committee, which would be made up of prominent people. The other was to send Margie, Bill Kunstler and me to Trinidad where we could visit Michael X, get some publicity and help in a clemency campaign. After about a half an hour, John joined us.  He was somewhat quiet but, he, like Yoko, talked about Michael X and his disbelief in his guilt.  He and Yoko said they would pay all our expenses and I think a fee on top.  Margie and I readily agreed.

 

As it turns out I could not go to Trinidad, but Margie and Bill did. Margie came back shocked by her visit. Michael X was jailed in a stinking, filthy cage in which he could not stand up.  Despite their visit, the attendant publicity and a powerful defense committee, clemency was denied and Michael X was hanged in May 1975. 

 

I never met John again, but I did travel to Iceland for John’s birthday memorial in 2006 where on behalf of the Center for Constitutional Rights I received the LennonOno Grant for Peace from Yoko Ono. I gave a short acceptance speech focusing on the excesses of the so-called war on terror:

 

These are dark and difficult times. War, torture, detention without trial and gross human rights violations sadly characterize much of our present circumstances . . .. We have seen a return to the spying tactics of a generation ago, when John Lennon was hounded by the U.S. government for advocating peace.

 

(I wish I could say that things have changed: they have not.)

 

We concluded our visit by taking a small boat to an island where the Imagine Peace Tower was to be built. Yoko walked in circle where the tower was to stand and then our group and fifty or so Icelandic school children sang “Imagine.”  There was not a dry eye.

 

 

Lawrence Wright boldly challenges NY audience with Israelcentric view of Gaza

March 22nd, 2010


( First published at Mondoweiss.net)

If you want to know anything about what is really going on between Israel and the Palestinians in Gaza or elsewhere, do not go to Lawrence Wright’s new play, “The Human Scale.” Like Wright’s New Yorker pieces, it is bookended by the plight of Gilad Shalit, the Israeli soldier held by Hamas—as if somehow that explains the violence of Israel’s December 2008 assault on Gaza, Operation Cast Lead. Wright also uses Shalit’s detention to more less blame Hamas for the blockade. But, as the Goldstone report states, “maintaining the blockade of the Gaza strip until the release of Gilad Shalit…would constitute collective punishment of the civilian population of the Gaza strip.” I don’t see how collective punishment can be blamed on its victims. Wright also says or leaves the firm impression that the blockade was in response to the capture of Shalit. But, in fact, severe economic and political measures began in February 2006 with the Hamas victory in the legislative elections—almost four months before Shalit’s capture.

Wright, speaking from the stage, opens with some BS about Jewish Nobel prize winners vs. Muslim winners. I have been receiving that email for years from those who are anti-Muslim. What point he was trying to make was lost on me—something about the possible trade of 1400 Palestinians for one Israeli. Does the number of Nobel prize winners make it a good trade or a bad trade? The play is Israel-centric and paints Israelis as somehow caring more about life then Palestinians. It equates the occupied with the occupier when they are utterly unequal. It practically blames Operation Cast Lead on the claimed intransigence of the Palestinians. Wright reads from the Hamas charter, but does not give us all of the similar if not worse statements by the Israelis. In videos Wright shows us some of the destruction in Gaza. After we see some of that devastating footage, he talks about the response of a Palestinian woman who now says words to the effect that perhaps “we Palestinians have learned from this.” In other words, the assault worked to teach the Gazans a lesson. He briefly reads some of the conclusions of the Goldstone report giving roughly equal time to the condemnation of the Israel and Hamas, essentially equating the actions of the two parties. And as I recall he does not read the strongest conclusions of Goldstone regarding Israel’s assault.

I would love to see a play like this done from the Palestinian perspective. This play may work in NY with a brainwashed audience, but take it outside the US and it will be booed off the stage.

 

From Hebron to Yad Vashem: Jewish Sorrow Justifying the Sorrow of Others

January 14th, 2010


We were at Yad Vashem, Israel’s memorial to the Holocaust in Jerusalem. The “we” were my wife, Karen, and my two children, ages 19 and 21. We had decided to make the pilgrimage on our last day in Israel, and like so many visitors, we walked through the memorial in a kind of stupor of horror.  Display by display, we saw the documented history of the murder of six million Jewish people.  Ghetto by ghetto, we witnessed the vile efficiency of the Nazi project.  It was one of the most relentless indictments of human cruelty we had seen — and, in the end, as we stepped out into the light and onto a plateau overlooking in the distance the massacre site of the former Palestinian village of Deir Yassin — it also felt like an enormous betrayal.

We had not expected to be in Jerusalem, or at Yad Vashem. Our trip began in late December 2009 in Cairo. We had decided to go on the Gaza Freedom March (GFM) with 1400 others and try to get into besieged Gaza.  Our goal was to break the siege that Israel had imposed and demonstrate to the million and a half Palestinians imprisoned in that small strip of land that they were not alone. Our hope was to help bring worldwide attention to Gaza and the unlawful, punishing blockade of its people.  We did not make it into Gaza; nor did almost anyone else from the GFM. Sadly, the Egyptian government (presumably in cahoots with Israel and probably the United States) refused to let us through the Rafah border entrance in Sinai. So instead, after some three days of joining in the militant efforts of the GFM to change Egypt’s recalcitrance—we joined demonstrations everywhere—we decided to go to Jerusalem and the West Bank to witness the occupation in those parts.

 I had been to Israel twice as a child, once in the mid-50’s and once in the early 60’s. In those early days I had no political consciousness whatsoever. I had no thought that the land I was walking on—which I assumed was where my distant ancestors had walked —had just a few years earlier been populated by another people.  I did not know about Palestinians and was never told about them. For me, my trips to Israel were all milk and honey and I have wonderful memories of my childhood spent in Herzliya, Tel Aviv, Jerusalem and Eilat.

On this trip, 50 years later, I knew a lot more.  Or I thought I did. Nothing really prepared me for the apartheid state that was laid out in front of me and that should be apparent to anyone who opens their eyes. Checkpoints, a pass system, segregated roads, Jewish-only cities and the expropriation for Jews of large swaths of Palestinian land. My entire family was shocked and shaken. It was all so intentional, so cruel.

Hebron was an armed camp with watch towers overlooking the areas where a few Jewish settlers had ousted Palestinian families that had resided there for generations. The Palestinians that remained in those areas faced constant harassment from the settlers; even small Jewish children could throw rocks with impunity at Palestinians. Those Palestinians still living in districts where settlers had moved were, unlike the settlers, no longer allowed to drive cars to their homes. They often had to walk over a mile to get to their homes and take food and other necessities in by mule. Our host had a head full of scars from the times he had been attacked by settlers hurling rocks. The open markets were covered with protective wire mesh that was filled with bottles and garbage that had been thrown by the settlers who overlooked the markets.

We went to Jenin, some two hours from Jerusalem, passing check point after checkpoint. We visited the refugee camp that had been so devastated by Israeli soldiers a few years before. We spent a few days in East Jerusalem, joined a demonstration against evictions going on in Sheikh Jurrah, and saw the open and notorious gobbling up of East Jerusalem and its environs by Israel.  We saw Palestinian houses demolished in neighborhoods that Israel had designated as Area C—areas that were to be purged of Palestinians and placed under complete Israeli control.  This was despite the clear illegality of expropriating lands taken by conquest. It was devastating and it was appalling.

We had one last day to spend in Jerusalem before our late night flight to New York City. For a few days I had said we should visit Yad Vashem. But I did not insist on seeing it. I was ambivalent about the visit for myself and my family.  This was not because I did not care about the Holocaust. I cared deeply. I was born in 1943 during the height of the murders. My family lost many, many relatives in Tykocin, Bialystok and Vilna. My father had been responsible for resettling hundreds of survivors, and growing up with people who had numbers tattooed on their arms was part of my childhood in Cleveland.  Trips to the killing camps in Europe were a rite of passage. My work as a human rights lawyer stems directly from heeding the admonition “never again,” whether that never is for Jews or any other people. In later years I made pilgrimages to Holocaust memorials in New York, Washington D.C. and Berlin.  I had been to a very different Yad Vashem in West Jerusalem in 1956. As I recall it was in a dark cave-like place where one could almost reach out and touch lamp shades made from human skin and soap from human fat. The Holocaust and its horrors remain part of my being.

 So why was I ambivalent? We had just spent three days trying to get into Gaza and five days exploring the treatment of Palestinians by Israel. Would visiting Yad Vashem somehow justify, if not for me, but for my children some of what we had just seen?  Would it make the case for a Jewish state in Israel? The need for protection from another Holocaust was a key founding narrative of Israel. My generation was raised on that narrative: Israel was necessary to save the Jewish people — then and in the future.  Wasn’t that the very reason for having the major Jewish memorial to the Holocaust in Israel, at the foot of Mt. Herzl, a mountain named after the founder of Zionism?

At the same time I trusted my family. They had just seen an apartheid state up close, had met refuges from ’48 and ’67, saw the taking of others’ lands and seen the oppression of Palestinians in Hebron and Jerusalem. So we took ourselves on a beautiful, sunny late morning in January to Yad Vashem.

For my children it was one of the first times they had immersed themselves in the history, documents and words of the Holocaust. They spent hours listening to the testimony, viewing the videos and asking questions. Occasionally, there were references to Zionism as it was part of the history of Jews in Eastern Europe, but it was not until the end of the formal exhibits that the “logic” of connecting the Holocaust to Israel was made explicit. Hatikvah (The Hope), Israel’s national anthem, was the musical theme at end of our journey through Holocaust history, making explicit the founding narrative.

 We then went into the Hall of Remembrance, a large rounded space with a deep pit carved out of its center with its walls lined with volume after volume of the names of the murdered. Off to one side is the computer room with a data base of the names that are known. My children immediately went to the computers and looked up our murdered relatives. Many had died at Auschwitz and; others were killed in the 1941 massacre in the Lopuchowa forest in Tykocin, Poland, where 3000 men women and children from that village dug their own graves and were murdered by the einsatzgruppen; others still died of typhus within days of liberation from the camps.   As we left the museum, with its triangular, elongated windowless, and cold concrete structure, we walked toward the picture window at the end and out onto a terrace overlooking the hills of Israel—again the narrative, from the Holocaust to Israel. 

As saddened and horrified as we were by what we had just experienced, we were all struck by the contradiction of having the museum in Israel, a country forged out of the theft of other people’s land and homes, a nation whose treatment of Palestinians had echoes of what we had just seen: walled-in ghettos, stolen houses and land, a segregated population.  It was an irony not lost on my family.  Yad Vashem should be history lesson for us all, but it’s a lesson that seems to be lost on many of the very people who were its victims.

Despite the power of Yad Vashem I felt robbed by my experience there. I felt manipulated. It is not that the history it told and pain it conveyed were false or that I felt distanced from the horror of the Holocaust. But the powerful narrative of the Holocaust that the museum was trying to make me accept, or at least justify, what was unacceptable:  the apartheid state that is today’s Israel. In this narrative, the Holocaust is used to ask us to wash away the sins of the occupier. By so doing the Holocaust is diminshed.

On our trip to Hebron our Palestinian guide had asked me whether I really thought six million Jews had been killed in the Holocaust. He was skeptical. I was angered by his doubts. I answered him directly and unequivocally: six million Jews had been murdered. The visit to Yad Vashem gave me some perspective on his doubts. He implicitly understood that it was the narrative of the Holocaust that was used to justify his victimization and the refusal of much of the world to do anything about it. His way of dealing with it was to reject the claimed justification for his oppression.

These words have been hard words to write. It does not come easily to me to raise questions about a memorial to the most horrific event in Jewish history.  But I do not accept that Jewish sorrow should be used to hide or justify the sorrow of others.  To truly remember and honor the lessons of the Holocaust would be to end the apartheid system that is the Israel of today. That would be a day of Hope.

 

 

From Hebron to Yad Vashem: Jewish Sorrow Justifying the Sorrow of Others

January 13th, 2010


We were at Yad Vashem, Israel’s memorial to the Holocaust in Jerusalem. The “we” were my wife, Karen, and my two children, ages 19 and 21. We had decided to make the pilgrimage on our last day in Israel, and like so many visitors, we walked through the memorial in a kind of stupor of horror.  Display by display, we saw the documented history of the murder of six million Jewish people.  Ghetto by ghetto, we witnessed the vile efficiency of the Nazi project.  It was one of the most relentless indictments of human cruelty we had seen — and, in the end, as we stepped out into the light and onto a plateau overlooking in the distance the massacre site of the former Palestinian village of Deir Yassin — it also felt like an enormous betrayal.

We had not expected to be in Jerusalem, or at Yad Vashem. Our trip began in late December 2009 in Cairo. We had decided to go on the Gaza Freedom March (GFM) with 1400 others and try to get into besieged Gaza.  Our goal was to break the siege that Israel had imposed and demonstrate to the million and a half Palestinians imprisoned in that small strip of land that they were not alone. Our hope was to help bring worldwide attention to Gaza and the unlawful, punishing blockade of its people.  We did not make it into Gaza; nor did almost anyone else from the GFM. Sadly, the Egyptian government (presumably in cahoots with Israel and probably the United States) refused to let us through the Rafah border entrance in Sinai. So instead, after some three days of joining in the militant efforts of the GFM to change Egypt’s recalcitrance—we joined demonstrations everywhere—we decided to go to Jerusalem and the West Bank to witness the occupation in those parts.

 I had been to Israel twice as a child, once in the mid-50’s and once in the early 60’s. In those early days I had no political consciousness whatsoever. I had no thought that the land I was walking on—which I assumed was where my distant ancestors had walked —had just a few years earlier been populated by another people.  I did not know about Palestinians and was never told about them. For me, my trips to Israel were all milk and honey and I have wonderful memories of my childhood spent in Herzliya, Tel Aviv, Jerusalem and Eilat.

On this trip, 50 years later, I knew a lot more.  Or I thought I did. Nothing really prepared me for the apartheid state that was laid out in front of me and that should be apparent to anyone who opens their eyes. Checkpoints, a pass system, segregated roads, Jewish-only cities and the expropriation for Jews of large swaths of Palestinian land. My entire family was shocked and shaken. It was all so intentional, so cruel.

Hebron was an armed camp with watch towers overlooking the areas where a few Jewish settlers had ousted Palestinian families that had resided there for generations. The Palestinians that remained in those areas faced constant harassment from the settlers; even small Jewish children could throw rocks with impunity at Palestinians. Those Palestinians still living in districts where settlers had moved were, unlike the settlers, no longer allowed to drive cars to their homes. They often had to walk over a mile to get to their homes and take food and other necessities in by mule. Our host had a head full of scars from the times he had been attacked by settlers hurling rocks. The open markets were covered with protective wire mesh that was filled with bottles and garbage that had been thrown by the settlers who overlooked the markets.

We went to Jenin, some two hours from Jerusalem, passing check point after checkpoint. We visited the refugee camp that had been so devastated by Israeli soldiers a few years before. We spent a few days in East Jerusalem, joined a demonstration against evictions going on in Sheikh Jurrah, and saw the open and notorious gobbling up of East Jerusalem and its environs by Israel.  We saw Palestinian houses demolished in neighborhoods that Israel had designated as Area C—areas that were to be purged of Palestinians and placed under complete Israeli control.  This was despite the clear illegality of expropriating lands taken by conquest. It was devastating and it was appalling.

We had one last day to spend in Jerusalem before our late night flight to New York City. For a few days I had said we should visit Yad Vashem. But I did not insist on seeing it. I was ambivalent about the visit for myself and my family.  This was not because I did not care about the Holocaust. I cared deeply. I was born in 1943 during the height of the murders. My family lost many, many relatives in Tykocin, Bialystok and Vilna. My father had been responsible for resettling hundreds of survivors, and growing up with people who had numbers tattooed on their arms was part of my childhood in Cleveland.  Trips to the killing camps in Europe were a rite of passage. My work as a human rights lawyer stems directly from heeding the admonition “never again,” whether that never is for Jews or any other people. In later years I made pilgrimages to Holocaust memorials in New York, Washington D.C. and Berlin.  I had been to a very different Yad Vashem in West Jerusalem in 1956. As I recall it was in a dark cave-like place where one could almost reach out and touch lamp shades made from human skin and soap from human fat. The Holocaust and its horrors remain part of my being.

 So why was I ambivalent? We had just spent three days trying to get into Gaza and five days exploring the treatment of Palestinians by Israel. Would visiting Yad Vashem somehow justify, if not for me, but for my children some of what we had just seen?  Would it make the case for a Jewish state in Israel? The need for protection from another Holocaust was a key founding narrative of Israel. My generation was raised on that narrative: Israel was necessary to save the Jewish people — then and in the future.  Wasn’t that the very reason for having the major Jewish memorial to the Holocaust in Israel, at the foot of Mt. Herzl, a mountain named after the founder of Zionism?

At the same time I trusted my family. They had just seen an apartheid state up close, had met refuges from ’48 and ’67, saw the taking of others’ lands and seen the oppression of Palestinians in Hebron and Jerusalem. So we took ourselves on a beautiful, sunny late morning in January to Yad Vashem.

For my children it was one of the first times they had immersed themselves in the history, documents and words of the Holocaust. They spent hours listening to the testimony, viewing the videos and asking questions. Occasionally, there were references to Zionism as it was part of the history of Jews in Eastern Europe, but it was not until the end of the formal exhibits that the “logic” of connecting the Holocaust to Israel was made explicit. Hatikvah (The Hope), Israel’s national anthem, was the musical theme at end of our journey through Holocaust history, making explicit the founding narrative.

 We then went into the Hall of Remembrance, a large rounded space with a deep pit carved out of its center with its walls lined with volume after volume of the names of the murdered. Off to one side is the computer room with a data base of the names that are known. My children immediately went to the computers and looked up our murdered relatives. Many had died at Auschwitz and; others were killed in the 1941 massacre in the Lopuchowa forest in Tykocin, Poland, where 3000 men women and children from that village dug their own graves and were murdered by the einsatzgruppen; others still died of typhus within days of liberation from the camps.   As we left the museum, with its triangular, elongated windowless, and cold concrete structure, we walked toward the picture window at the end and out onto a terrace overlooking the hills of Israel—again the narrative, from the Holocaust to Israel. 

As saddened and horrified as we were by what we had just experienced, we were all struck by the contradiction of having the museum in Israel, a country forged out of the theft of other people’s land and homes, a nation whose treatment of Palestinians had echoes of what we had just seen: walled-in ghettos, stolen houses and land, a segregated population.  It was an irony not lost on my family.  Yad Vashem should be history lesson for us all, but it’s a lesson that seems to be lost on many of the very people who were its victims.

Despite the power of Yad Vashem I felt robbed by my experience there. I felt manipulated. It is not that the history it told and pain it conveyed were false or that I felt distanced from the horror of the Holocaust. But the powerful narrative of the Holocaust that the museum was trying to make me accept, or at least justify, what was unacceptable:  the apartheid state that is today’s Israel. In this narrative, the Holocaust is used to ask us to wash away the sins of the occupier. By so doing the Holocaust is diminshed.

On our trip to Hebron our Palestinian guide had asked me whether I really thought six million Jews had been killed in the Holocaust. He was skeptical. I was angered by his doubts. I answered him directly and unequivocally: six million Jews had been murdered. The visit to Yad Vashem gave me some perspective on his doubts. He implicitly understood that it was the narrative of the Holocaust that was used to justify his victimization and the refusal of much of the world to do anything about it. His way of dealing with it was to reject the claimed justification for his oppression.

These words have been hard words to write. It does not come easily to me to raise questions about a memorial to the most horrific event in Jewish history.  But I do not accept that Jewish sorrow should be used to hide or justify the sorrow of others.  To truly remember and honor the lessons of the Holocaust would be to end the apartheid system that is the Israel of today. That would be a day of Hope.