- On May 26, the UN Human Rights Council issued a report
titled "Promotion and Protection of All Human Rights, Civil, Political,
Economic, Social and Cultural Rights, Including the Right to Development
- Report of the Special Rapporteur (Philip Alston) on extrajudicial, summary
or arbitrary executions."
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- Alston was damning in his criticism regarding "three
areas in which significant improvement is necessary if the US Government
is to match its actions to its stated commitment to human rights and the
rule of law:"
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- (1) Its imposition of the death penalty under which innocent
people are executed. Alston was shocked about "glaring criminal justice
system flaws," citing Texas and Alabama as examples, but many other
states are as derelict. He criticized politicized judges and recommended
that Congress "should enact legislation permitting federal court habeas
review of state and federal death penalty cases on their merits."
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- He condemned the 2006 Military Commissions Act and its
provisions that violate international human rights and humanitarian law
with regard to due process and fairness.
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- (2) America needs "greater transparency into law
enforcement, military, and intelligence operations that result in unlawful
deaths." Domestically, it provides inadequate information about deaths
of immigrants and other detainees, but the worst failures are in international
military and intelligence operations.
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- (3) The government fails to "provide greater accountability
for potentially unlawful deaths in its international operations."
It ignores civilian casualties, both their number and conditions under
which they occur, and fails to provide ordinary people, including US citizens,
with basic information regarding investigations and prosecutions when laws
were violated. It fails to assure safeguards are in place to prevent so-called
collateral damage - that is, civilians wrongfully (and at times willfully)
targeted and killed.
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- Overall, "there have been chronic and deplorable
accountability failures with respect to policies, practices and conduct
that (cause) alleged unlawful killings - including possible war crimes
- in the United States' international operations." Effective investigations
have been lacking and guilty parties, throughout the chain of command,
haven't been punished. Even worse, private contractors and civilian intelligence
personnel have been granted "a zone of impunity" because of failures
to hold them accountable. Alston recommends a national "commission
of inquiry" and a special prosecutor to conduct thorough investigations
"independent of the pressure on the political branches of Government."
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- More on this below.
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- In June 2008, Alston spent two week in America meeting
with federal and state officials, judges and civil society groups, as well
as victims and witnesses in five US cities. As a signatory to international
human rights laws, including the four Geneva Conventions, the International
Covenant on Civil and Political Rights, and Convention against Torture,
the US is bound by their provisions and required to hold its civilians
and military personnel accountable when they violate them.
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- Domestic Issues
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- The federal government, 35 states, and US military impose
death penalties, often executing innocent people for failing to assure
proper due process and fairness. Alston addressed the federal death penalty
and its application in Texas and Alabama, the former for its largest number
of US executions, the latter for having the nation's highest per capita
rate of them.
-
- Yet since 1973, 130 death row inmates nationwide were
exonerated, and their numbers keep growing. Since 1977, 13 in Illinois
were also declared innocent and freed, a state where governor George Ryan
took unprecedented steps:
-
- -- on January 31, 2000, he declared a moratorium on further
executions after acknowledging a deeply flawed system under which innocent
men and women are executed;
-
- -- then in January 2003, he commuted the sentences of
all 156 death row prisoners - an action only matched by the Supreme Court
in Furman v. Georgia (June 29, 1972) when it struck down capital punishment
at the state and federal levels, calling existing statutes unconstitutional,
"arbitrary and capricious," and commuted the sentences of all
629 inmates on death row - until it reinstated it in Gregg v. Georgia on
July 2, 1976.
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- Ever since, well over 1100 executions took place and
three times that number await them on death row. Far too often they're
innocent victims of injustice, people of color, poor, and unable to effectively
deal with a hostile prosecutorial system, at least because:
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- -- inadequate laws and/or practices don't protect them
"governing the preservation of evidence (including DNA) or because
of the passage of time;"
-
- -- after convictions, some state laws disallow use of
DNA evidence; to countermand this, a federal law should mandate it as standard
procedure;
-
- -- in some cases, biological evidence isn't relevant;
and
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- -- in others, "evidentiary or procedural issues
preclude a just or reliable basis for imposing the death penalty."
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- The result is a deeply flawed criminal justice system
affecting victims, their families, and communities when real criminals
remain at large. Yet government officials are often indifferent to the
problem, at both state and federal levels. Alston recommends changes:
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- -- action to address the lack of judicial independence
and inadequate right to counsel;
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- -- a top-to-bottom criminal justice system analysis and
overhaul followed by reforms, especially for racial disparities in capital
cases; and
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- -- federal court reviews of all injustice claims when
capital punishment is at issue.
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- Unfortunately, Alston doesn't challenge the death penalty
but believes federal and state laws should only impose it for the "most
serious crimes." However, who's to decide and on what basis.
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- He also says foreign nationals denied the right to consular
notification were unfairly treated and should be provided review and reconsideration.
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- Judicial Independence
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- Texas, Alabama, and other states "have partisan
elections for judges." However, "as research and practice show,"
this system "jeopardizes the right of capital defendants to a fair
trial and appeal." Also, there's a direct correlation between public
support for the death penalty and decisions made to impose it. "There
is no such correlation in non-elective states." State officials told
Alston that getting re-elected depends on supporting the death penalty
and imposing it from the bench - even at times by overriding jury decisions
for life in prison.
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- Right to Counsel
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- The right is fundamental but not applied if counsel quality
is poor, as so often is the case when court-appointed or low-income defendants
can't afford better representation. State funding to provide it is inadequate,
and one Texas official told Alston that defense counsel competency in the
state is "abysmal." Major reforms are needed to repair a broken
system, in Texas and nationwide.
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- Racial Disparities
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- Persons of color in America are most vulnerable to receive
death sentences in capital cases - especially if victims are white. Yet
federal and state officials are indifferent to the problem or deny one
exists. When confronted with evidence from various studies, they claim
they were conducted by anti-death penalty advocates and dismiss the results.
It's never been a good time to be poor, black, or Latino in America, especially
when confronted by a hostile criminal justice system claiming to be impartial.
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- Systematic Evaluation of the Criminal Justice System
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- Far too little is done at the state or federal levels
to ensure wrongful death penalties aren't imposed. Their frequency demands
serious redress - firm measures to halt injustices this grave.
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- Federal Habeas Corpus Review
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- Habeas suits can be filed in federal courts to challenge
death penalty convictions, but not easily. The 1996 Antiterrorism and Effective
Death Penalty Act (AEDPA) denies them on many grounds, imposes a six-month
statute of limitation for filing, and restricts access to federal evidentiary
hearings. Other problems also exist that limit defendants' rights even
when wrongfully convicted - such as emphasizing "finality" over
the right of due process and fairness. Serious reform measures are needed
to redress this.
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- Most Serious Crimes
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- The definition is vague and applies to an intention to
kill resulting in the loss of life as determined by a judge and jury. However,
capital punishment may be imposed for crimes like running large illegal
drug operations according to the 1994 Federal Death Penalty Act. Other
crimes as well, including treason, terrorism, rape, kidnapping, and in
the military for desertion or mutiny.
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- Consular Notification
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- America is party to the Vienna Convention on Consular
Relations (VCCR). It grants foreign nationals the right to contact their
consulates for help, but too often they're prevented from doing it - in
Texas, for example, where the state legislature failed to authorize its
courts to provide this review. At the federal level as well by Congress
not doing it. Alston says VCCR is "a bedrock principle of international
law" affecting not just foreign nationals on death row in US states,
but "equally to any American who travels to another country."
It's up to Congress to fix this.
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- Deaths in Immigration Detention
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- In June 2008, the federal government acknowledged at
least 74 immigrant detention deaths since 2003. Newspaper reports suggest
far higher numbers. They result from various causes, including denying
medical care, poor quality or delayed care, and "inappropriate medication."
Overall, the treatment of immigrants in detention is deplorable with little
attention paid to basic needs along with abusive treatment by authorities.
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- Killings by Law Enforcement Officials
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- The Department of Justice (DOJ) Bureau of Justice Statistics
(BJS) compiles data covering homicides (usually by other inmates but also
by guards), suicides, "arrest-related killings," and other judicially
related deaths.
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- Statistics on resulting prosecutions and convictions
aren't available, but it's "clear that (their) number....is small...."
It means serious offenses are committed against numerous people trapped
in the criminal justice system that too often affords little of it to the
most vulnerable.
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- International Operations - The Death Penalty Under the
Military Commissions Act
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- From the time of their arrest and internment, Guantanamo
detainees were denied any measure of due process and fairness. Five are
charged with capital offenses under the Military Commissions Act (MCA),
and others also may face the death penalty under this travesty of a law.
Although Obama ordered a stay of Commission proceedings to decide on procedures
to follow, he left open the likelihood that prosecutions will proceed under
MCA provisions, and if done, they'll violate US obligations under international
humanitarian law.
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- MCA "utterly fail(s) to meet basic due process standards."
Several of its most egregious flaws include:
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- -- Guantanamo detainees were tortured and subjected to
cruel and abusive treatment;
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- -- statements coerced through torture will be used as
evidence at trials;
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- -- whatever America says is classified will be unavailable
to defense attorneys;
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- -- detainees may be convicted by evidence he has never
seen or knows anything about; and
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- -- second and third-hand hearsay evidence will be allowed
at trial.
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- "The MCA's provisions constitute a gross infringement
on the right to a fair trial and it would violate international law to
execute someone under this statute."
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- Detainee Deaths at Guantanamo
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- Full knowledge of detainee deaths isn't known, including
their number and causes. Alston cites five reported, four called suicides,
the other attributed to cancer. Custodial powers are required "to
ensure and respect the right to life." As such, they bear responsibility
for detainee deaths and are obligated to investigate and publicly report
their findings and whatever evidence supports them. So far, DOD has stonewalled
all efforts to comply, except to release redacted autopsy and other internal
investigation reports.
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- Lack of Transparency Regarding Civilian Casualties
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- DOD officials told Alston that it doesn't compile data
on Afghan or Iraqi civilian casualties because body counts don't relate
to the effectiveness or legality of military operations. Yet doing it is
important to judge if America is serious about avoiding them altogether
and keeping them to a minimum when they happen. No evidence suggests that's
so.
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- Private Contractors
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- Credible reports indicate that private security and other
contractors engage in indiscriminate and otherwise questionable force against
civilians, causing numerous casualties that may number in the thousands.
Little of this gets reported and transparency overall is lacking. "The
most comprehensive study to date found that few firms ever report shooting
incidents, that such incidents are often misreported, and that SIRs (serious
incident reports) that are filed are almost uniformly cursory and uninformative."
As a result, private contractors get away with murder because no authority
holds them accountable.
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- Civilian Intelligence Agencies
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- What's true for contractors, applies to the CIA as well
with credible reports of at least five custodial deaths from torture or
other means. Claimed investigations were conducted. CIA involvement was
never confirmed or denied. Its Inspector General told Alston that cases
involving possible unlawful killings are classified, and no one so far
has been prosecuted nor will they as Obama ruled out the possibility.
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- Transparency and Accountability for Unlawful Killings
and Custodial Deaths
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- Failure to assure transparency and "effective investigations
into, and meaningful prosecution of, wrongful deaths means the (US) Government
cannot fulfill its obligation to ensure accountability for violations of
the right to life."
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- Military Justice System Failures
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- In Afghanistan, Alston witnessed a lack of transparency
first hand and the Government's unwillingness to be held accountable for
illegal conduct. Most often investigations are quashed or inadequately
done. Moreover, they're never against senior officers, and light sentences
are administered to the few convicted. America fails in its "legal
obligation to effectively punish violations (or observe) the rule of law,"
as vital in war as in peace.
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- One study "of almost 100 detainee deaths in US custody
between August 2002 and February 2006 found that investigations were fundamentally
flawed." They also violated the military's own regulations for investigations,
and resulted in "impunity and a lack of transparency into the policies
and practices that may have contributed to the deaths."
-
- Chief Warrant Officer Lewis E. Welshofer Jr.'s sentencing
is typical of others. After being convicted of negligent homicide and dereliction
of duty for the death of Iraqi Major General Abedd Hamed Mowhoush, he was
confined to base for two months, fined $6000, and reprimanded by letter.
Welshofer's "sentence is not an anomaly."
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- Notable in all cases is that "command responsibility,"
the recognized basis for criminal liability since WW II, is absent from
the Uniform Code of Military Justice (UCMJ) and US War Crimes Act. It means
commanders go unprosecuted and accountability is undermined.
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- Civilian Justice System Failures
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- "For far too long, there has been a zone of de facto
impunity for killings by private contractors (PCs) and civilian intelligence
agents operating in Iraq, Afghanistan, and elsewhere." It's not for
lack of an applicable legal framework. It's because "US prosecutors
have failed to use the laws on the books to investigate and prosecute PCs
and civilian agents for wrongful deaths," some of which occur from
torture, abuse as well as willful homicides.
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- The DOJ has prosecutorial authority over PCs, civilian
government employees, and former military personnel suspected of war crimes
under two of its operations:
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- -- the US Attorney's Office for the Eastern District
of Virginia for detainee abuse cases; and
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- -- the Domestic Security Section (DSS) of DOJ's Criminal
Division for unlawful shootings committed while protecting convoys.
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- Both fall way short, and DSS representatives acknowledged
the lack of convictions but withheld information on allegations received,
investigations undertaken, or their status. "The lamentable bottom
line is that DOJ has brought a scant few cases against PCs for civilian
casualties, achieved a conviction only in one case involving a CIA contractor,
and brought no cases against CIA employees....this vacuum is neither legally
nor ethically defensible."
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- Ensuring Transparency and Accountability
-
- It's only possible through the "will to enforce
the rule of law," yet Alston's conclusion is that outcome is highly
unlikely. "In short, war crimes prosecutions in particular are 'politically
radioactive' " and won't happen. However, there are other steps the
government can take to increase transparency and accountability:
-
- -- create a national "commission of inquiry"
to conduct independent investigations of policies and practices causing
deaths and other abuses; and
-
- -- appoint an independent special prosecutor, free from
institutional or political pressures to the greatest degree possible.
-
- In both cases, fundamental requirements require independence,
impartiality, competence, and the power to obtain all sought information.
Adequate funding is also essential and the right to publicly report findings
and recommendations.
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- "The most credible response to the military justice
system's investigative failure and sentencing distortions would be the
creation of a Director of Military Prosecutions (DMP) position" -
much like in Australia, Canada, Ireland, New Zealand, and the UK "to
ensure greater separation between the chain of command and the prosecution
function."
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- The DOJ should also establish a special office solely
to investigate and prosecute cases involving PCs, civilian government employees,
and former military personnel.
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- Reparations for Civilian Casualties
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- International law mandates that compensation for human
rights violations be paid, and in some instances to families it has been.
But it's much too little for the families of too few victims.
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- The Foreign Claims Act requires payment of legal claims
arising from negligent or wrongful deaths caused by military personnel
outside of combat. Other programs also exist, including the Commander's
Emergency Response Program (CERP) for "condolence payments" and
in Afghanistan authorization of "solatia payments."
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- However, these are ad hoc efforts, and the "lack
of systematic compensation for civilian casualties caused by private contractors
is acute." As their employer, the government bears ultimate responsibility
but shuns it.
-
- Targeted Killings: Lack of Transparency Regarding the
Legal Framework and Targeting Choices
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- Credible evidence shows America engages in targeted killings
on the territory of other states, and senior officials admit using drones
for this purpose. Yet when queried, answers are evasive, not forthcoming,
and disturbing justifications are given that violate the letter and spirit
of international law.
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- Recommendations - For Domestic Issues
-
- -- enforce due process and fairness in death penalty
cases;
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- -- reform the system of partisan elected judges;
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- -- public defenders should be competent, well funded,
and oversight of this function should be independent of the executive and
judicial branches;
-
- -- commissions should be established to review cases
of wrongful convictions - discovered through subsequent exonerations;
-
- -- ways the death penalty is administered and implemented
should be evaluated and changed;
-
- -- racial disparities in death penalty impositions need
to be addressed and corrected;
-
- -- congressional legislation should let federal courts
review death penalty cases on their merits;
-
- -- capital punishment should be used sparingly and only
for the most serious crimes of willful killings; (ideally, it should be
banned entirely as no civil society worthy of the name has the right to
claim an eye for an eye);
-
- -- foreign nationals should have their executions stayed
until proper consular reviews and reconsiderations are conducted;
-
- -- immigration detention deaths should be promptly reported
and investigated; and
-
- -- Homeland Security should assure proper medical and
other essential care is provided, consistent with international standards.
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- Guantanamo Detainees
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- The Military Commissions Act violates international laws
and shouldn't be used for capital case prosecutions. Ones conducted should
assure due process according to international human rights and humanitarian
law requirements.
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- International Operations
-
- -- civilian casualties should be tracked and publicly
disclosed;
-
- -- the DOD should ensure military justice transparency
by establishing a central office of "registry" to track cases
from investigation through final disposition and should include upcoming
hearings, investigative findings, rulings, pleadings, testimony transcripts,
and other pertinent materials;
-
- -- comprehensive criminal jurisdiction over armed conflict
offenses should be ensured and "command responsibility" should
be codified in the Uniform Code of Military Justice (UCMJ) and War Crimes
Act;
-
- -- federal legislation should be enacted to provide criminal
jurisdiction over private contractors and civilian employees, including
the CIA and other intelligence branches;
-
- -- an independent commission of inquiry and special prosecutor
should be established to investigate practices causing deaths and other
abuses; also a Director of Military Prosecutions to hold everyone throughout
the chain of command responsible for their alleged crimes;
-
- -- an office to investigate and prosecute private contractors,
civilian government employees, and former military personnel should be
created within the DOJ;
-
- -- enhanced reparations programs should be established
to provide adequate compensation to families of those wrongfully killed;
-
- -- targeted killings must stop; reasons for them in lieu
of capture should be explained and whether states in which they occur gave
consent; specifically, international laws must be scrupulously enforced;
and
-
- -- collaterally killed civilian numbers should be disclosed,
by drones or other attacks, and measures should be in place to avoid them
or hold them to a minimum.
-
- In summary, Alston called America's human rights record
"deplorable," and in need of major changes. In response, the
Obama administration charged him with violating his mandate by accusing
the US of failing to properly investigate allegations of unlawful US military
killings in Iraq and Afghanistan.
-
- Acting deputy at the US mission in Geneva, Larry Richter,
said: "We do not believe that military and intelligence operations
during armed conflict fall within the special rapporteur's mandate."
Much more important is his lack of power to act on the crimes he discovered.
Still he deserves credit for revealing what US authorities try hard to
suppress and ignore.
-
- Stephen Lendman is a Research Associate of the Centre
for Research on Globalization. He lives in Chicago and can be reached at
<mailto:lendmanstephen@sbcglobal.net>lendmanstephen@sbcglobal.net.
-
- Also visit his blog site at sjlendman.blogspot.com and
listen to The Global Research News Hour on RepublicBroadcasting.org Monday
- Friday at 10AM US Central time for cutting-edge discussions with distinguished
guests on world and national issues. All programs are archived for easy
listening.
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