Can’t Begrudge Him

Ta-Nehisi Coates on the President’s more tempered remarks on Friday afteroon:

I really can’t begrudge him–his priority is health-care. Me, on the other hand, I’m pretty exhausted. What follows is the raw. Not much logic. Just some thoughts on how it feels.

I feel pretty stupid for going hard on this, and stupider for defending what Obama won’t really defend himself. I should have left it at one post. Evidently Obama, Crowley and Gates are talking about getting a beer together. I hope they have a grand old time.

The rest of us are left with a country where, by all appearances, officers are well within their rights to arrest you for sassing them. Which is where we started. I can’t explain why, but this is the sort of thing that makes you reflect on your own precarious citizenship. I mean, the end of all of this scares the hell out of me.

I agree.

“Doing that Crack Cocaine Thing”

In a moment of unexpected yet welcome levity during the Judge Sonia Sotomayor’s confirmation hearings for to replace retiring Supreme Court Justice David Souter, Senator Jeff Sessions made an unprompted comment about correcting one of Congress biggest blunders: enacting a law creating a 100 to 1 disparity in cocaine and crack sentencing.

In an exchange with a noted civil rights advocate he said, ” Senator Leahy and I are talking during these hearings. We’re going to do that crack cocaine thing that you and I have talked about before.” The comment immediately drew laughs and prompted Sessions to explain, “We’re going to reduce the burden of penalties in some of the crack cocaine cases and make them fair.”

All jokes aside this is undoubtedly a good sign. Sen. Sessions was addressing Wade Henderson a noted civil rights advocate, who has been urging Congress to reform the crack cocaine sentencing including mandatory minimums for years. Under federal law, a dealer with 5 grams of crack cocaine on him, which is the size of two sugar packets can get a five year mandatory minimum sentence. By contrast, a cocaine dealer would have to have 500 grams of cocaine, which is more a little more than a pound, to trigger a five year mandatory minimum.  That creates a 100 to 1 disparity in the sentencing for crack and cocaine.

“Equalization of the sentencing ratio for crack and powder cocaine offenses from 100 to 1 to a ratio of 1 to 1 at the current powder cocaine level is the only fair solution,” Henderson told the Senate subcommittee on Crime and Drugs in April of this year. “The time has come to rationalize drug sentencing laws and practices.  The civil rights impact of these criminal justice reforms can no longer be ignored.”

Those sentiments were later echoed by U.S. Attorney General Eric Holder last month. “ This Administration firmly believes that the disparity in crack and powder cocaine sentences is unwarranted, creates a perception of unfairness, and must be eliminated. This change should be addressed in Congress,” Holder said.

According to the Sentencing Project, a criminal justice reform group, the median drug quantity for a crack cocaine street level seller charged in federal court (comprising two-thirds of federal crack defendants) in 2000 was 52 grams, enough to trigger a 10-year mandatory sentence. For powder cocaine, the median quantity for a street level dealer was 340 grams, not enough even to trigger the 5-year sentence, and often a mere slap on the wrist for first time offenders.

But crack and powder cocaine are pharmacological identical substances. In fact, crack is just a hardened form of  powder cocaine often mixed with baking power. But with cocaine users being disproportionately white compared to crack users who are disproportionately black the law with its penalty structures has a huge unfair impact on who goes to prison and who doesn’t and for how long.

Why did Congress do this? And continue to tolerate it? Interestingly enough, it was the reaction to the story of Len Bias‘ death that led to the passage of the Anti-Drug Abuse Act of 1986, which is the law that contains all the stiff penalties. Bias’ death from a cocaine overdose after experimenting it for the first time the night he was drafted by the Boston Celtics shocked Congress into action and really prompted the war on drugs as we know it.

In fact, the law’s mandatory penalties for crack cocaine offenses were the harshest ever adopted for low level drug offenses and established the drastically different penalty structures for crack and powder cocaine. Lawmakers, however, had a poor understanding of the differences between the drug substances and figured that the disparity would lead to jailing actual drug king pins.

Of course, thanks to the Wire and countless other studies, we now know that it the law affects more low level drug dealers, who are easily replaceable as they come in and out of jail, than it does so called king pins, who often rarely see extensive jail time. This has led to an explosion of incarceration rates with notable racial disparities. Between 1994 and 2003, the average time served by African Americans for drug offenses increased by 62 percent, compared to an increase of 17 percent for white drug offenders, says the Sentencing Project.

An independent federal body called the Sentencing Commission, has called for reforming the sentencing structure for more than a decade now, and the Obama administration supports doing so, but its hard to underestimate the fear of being branded as soft on crime for Republican and Democratic elected officials alike, especially for redstate Dems.

That said, the tide does seem to be turning because with increasing support for a 1 to 1 bill in both the House and Senate. And even Sen. Jeff Sessions, a former federal prosecutor in Alabama with less than enlightened views on racial equality, supported a 20 to 1 bill back in 2007.

To be sure, that’s not exactly where the ratio should be, but its certainly an improvement. This is significant because whatever reform bill comes out the Senate will have to go through the Senate committee where Sessions is currently the top Republican. So, when the Alabama Senator said he wants to work with Senate Judiciary Chairman Sen Patrick Leahy about a “doing that crack cocaine thing” its definitely a good sign.

Shepard Smith Condemns Torture

Just fascinating. Sometimes Shepard Smith just surprises me.

And this:

On Prosecuting Bush’s Team of Torture Lawyers

From the New York Times Editorial page:

At least Mr. Obama is not following Mr. Bush’s example of showy trials for the small fry — like Lynndie England of Abu Ghraib notoriety. But he has an obligation to pursue what is clear evidence of a government policy sanctioning the torture and abuse of prisoners — in violation of international law and the Constitution.

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

Few, except the Obama administration itself, would quibble with what the New York Times is advocating. An official investigation followed by prosecution of those who authorized the use of torture should take place. But the question is when and by whom.

After all, President Obama has an ambitious wish list of legislative priorities inspired by the weight of several crises competing for his attention. That means that pursuing a high profile and public investigation into the abuses of person would almost certainly create a Congressional atmosphere so partisan that it would jeopardize his chances of passing a climate change bill, a health care reform bill, overhauling education No Child Left Behind, immigration reform, in addition to dealing with a likely Supreme Court vacancy even as he and his team struggle to nurse an ailing economy.

Of course, this does not preclude Congress itself from conducting its own low profile investigation while encouraging more open source reporting on the matter. Nor does it prevent certain state bar associations from disbarring the very lawyers who used legal fictions to circumvent the law.

In other words, Obama could allow others to make the case for him based on the record provided thus far over the course during the next few years. Over time pressure by certain Bush officials will mount and cause some of them to flip either because of the level of scrutiny involved, their pariah status within their respective fields, or maybe their conscience will eat at them.

That way provided there’s sufficient pressure from Congress and if the public develops an appetite for prosecuting senior Bush officials, which does not quite exist yet, the Obama administration could go in for the easy kill by appointing an independent prosecutor.

At minimum, it could set the stage for the creation of a Commission of Inquiry, as proposed by Chariman of the Senate Judicary Patrick Leahy. Certain individuals intimately involved in the torture regime could cooperate with the commission’s inquiry in exchange for some immunity.

Perhaps it would not satisfy many human rights advocates who want everyone responsible prosecuted now, but it would afford us an opportunity to learn from our mistakes.

Homeland Security Sees Uptick in Hate Group Recuritment

A Department of Homeland Security report on the rise of right wing hate groups and extremism was leaked this week. The DHS report is called “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.”

Unsurprisingly, the report found that the spike in undocumented immigration, the current economic downtown, and the election of the first African American president have spurred their efforts in winning new recruits.

Not exactly news to many of us, but its different when you see this documented by the government.

Of course, much of the controversy surrounding the report has focused on how these groups recruit disgruntled military veterans that find it difficult to readjust to civilian life, but that’s far from the report’s central focus. And anyone who takes time to read it would soon discover that himself.

But even if some civil libertarians and conservatives raising concerns about whether or not the government should be monitoring political beliefs, I think this presents many civil and human rights advocates with an opportunity to to promote greater awareness about the rise of hate crimes and their clear, though often overlooked, relationship to hate speech. That’s not to say we should go out of our way to criminalize intolerant speech, but being vigilante about countering intolerant speech can be critical to reducing hate crimes.

The Local Law Enforcement Hate Crime Prevention Act, which seems like it will be introduced this session of Congress, would provide local authorities with more resources to combat hate crimes and give federal government jurisdiction over processing hate crimes in states where the current law is inadequate.

In my opinion, I think the key findings in the report include:

• Over the past five years, various rightwing extremists, including militias and white supremacists, have adopted the immigration issue as a call to action, and recruiting tool. Debates over appropriate immigration levels and enforcement policy generally fall within the realm of protected political speech under the First Amendment, but in some cases, anti-immigration or strident pro-enforcement fervor has been directed against specific groups and has the potential to turn violent.

• In contrast to the early 90s, the advent of the Internet and other information age technologies s has given domestic extremists greater access to information related to bomb-making, weapons training, and tactics, as well as targeting of individuals, organizations, and facilities, potentially making extremist individuals and groups more dangerous and the consequences of their violence more severe.

• Lone wolves and small terrorist cells embracing violent rightwing extremist ideology are the most dangerous domestic terrorism threat in the United States. Information from law enforcement and nongovernmental organizations indicates lone wolves and small terrorist cells have shown intent—and, in some cases, the capability—to commit violent acts.

• Most statements by rightwing extremists have been rhetorical, expressing concerns about the election of the first African American president, but stopping short of calls for violent action.

• Historically, domestic rightwing extremists have feared, predicted, and anticipated a cataclysmic economic collapse in the United States. Conspiracy theories involving declarations of martial law, impending civil strife or racial conflict, suspension of the U.S. Constitution, and the creation of citizen detention camps often incorporate aspects of a failed economy.

Also, see Department of Homeland Secretary Janet Napolitano’s statement on the report here.

Justice Ginsberg on Foreign Law

From Jefferey Toobin at the New Yorker:

It looks like Harold Koh, President Obama’s nominee for legal adviser at the State Department, may turn out to be the first real confirmation fight in the new Administration. The controversy has been mentioned in a handful of newspapers, but there’s plenty of Internet fire on the anti-Koh, and pro-Koh, side.

The heart of the attack on Koh, who is now the dean of Yale Law School, is that he believes in “transnationalism,” which purportedly is the notion that American courts should honor and apply the laws of other nations in our courts.

I wonder if the so-called controversy over Koh’s transnationalism can be explained away by simply saying that if citing international law is good enough for the Justices on the U.S. Supreme Court, then it should be good enough for a legal adviser to the U.S. State Department. The Court has cited international law, which is not the same as being bound by it, in cases involving gay rights and the death penalty and the sky did not fall, though it did anger the right.

Adam Liptak reported in the NYT on Saturday that Justice Ruth Ginsberg thinks the debate concerning international is sorta ridiculous.

In her remarks, Justice Ginsburg discussed a decision by the Israeli Supreme Court concerning the use of torture to obtain information from people suspected of terrorism.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” she said, describing the question presented in the case. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’ ”

The message of the decision, Justice Ginsburg said, was “that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity.” Then she asked, “Now why should I not read that opinion and be affected by its tremendous persuasive value?”

My sentiments exactly.

Side note: Toobin, apparently has not been following the battles over President Obama’s other executive nominees fight that closely, since he seems to think that Koh would be the first real confirmation fight.
Dawn Johnsen, Obama’s nominee to head the Office of Legal Counsel in the Justice Department, has come under attack from the far right for being a lawyer for NARAL at one point and her unsparing criticism of Bush’s warrantless wiretapping program and use of torture to extract intelligence information from detainees. Republicans are threatening to filibuster her nomination.

Another nominee, Thomas Saenz, was in the pipeline, though never formally announced, to be Obama’s top civil rights enforcer at the Justice Department until the anti-immigrant right sunk his nomination for his work on successfully challenging local ordinances banning day laborers from city streets and of California’s Proposition 187, a 1994 ballot measure that prevented undocumented immigrants from taking advantage of certain social services.

U.S. Runs for Human Rts Council Seat But Durban II Still a No Go

Last week, the  Obama administration announced it would run for a seat on the U.N. Human Rights Council in the next round of elections, a body that President Bush avoided and ignored.

In a press statement, U.S. Ambassador to the United Nations Susan Rice referred to a need “for the Council to be balanced and credible” an explained that the U.S. is running for a the open seat because “we believe that working from within, we can make the council a more effective forum to promote and protect human rights. We hope to work in partnership with many countries to achieve a more effective Council.”

Throughout the Bush years, U.N.-U.S. relations were always frosty to put it mildly.  Bush hardly felt comfortable around liberal internationalists of the American variety much less those from other countries steeped in global affairs. But his hostility toward the U.N. only hardened in the run up to the Iraq war where he failed to amass support for the March 2003 invasion. As early as the August 2003, President Bush alienated potential U.N. involvement in the creation of an Iraqi central government.

Of course, Dubya and company soon changed their minds once the Iraqi insurgency got going and the U.S. military found itself lacking the knowledge and skills for diffusing a post-conflict situation already cultivated by the U.N. peacekeeping and diplomatic corp.

But such a change of heart even if it was for out of desperation never extended to the Council, given how it was populated by some of the worse human rights abusers such as Sudan, Libya, and Cuba, who were eager to pass resolutions condemning Israel while also blocking scrutiny of treatment of their own citizens. To be fair, this is a problem that has vexed some of the most clear-eyed supporters of the U.N.

The legacy of that sort of politicization of the Council’s mission remains a huge problem even after the round of reforms in 2006, which dissolved the Human Rights Commission that was established in 1946.  The 06 reforms also nearly assured representation from some of the most repressive governments by allotting seats seats to countries based on regional blocs as opposed to a record of improvement.

That’s enough for critics of the Council, particularly Rice’s neoconservative predecessor John Bolton, believe the rights body is too fatally flawed and ineffective to warrant participation from the U.S. Never one to mince words former Ambassador Bolton reportedly told the New York Times, “You don’t show up at every ragtag little organization that comes into existence”.

Sigh.

Though its easy to dismiss Bolton’s criticism as shortsighted and irascible, it does evince a certain view of American power that still persists today in some quarters. The prestige of American power should not be diminished by engaging flawed institutions that provide cover to our adversaries. The world is against the U.S. and we must assert our influence whenever possible to ensure its power is preserved at worst and extended at best.

But hasn’t Bolton been paying attention? Our standing in the world has diminished as a result of human rights abuses during the Bush era. Torturing prisoners at Abu Ghraib and at Gitmo has done more to aid America’s detractors looking to deflect attention from their own human rights record as their criticize the U.S. and do so effectively.  One of the ways to counter these charges is to join the Human Rights Council and make sure that a proper comparison is made between the U.S and other countries on the Council, including the Sudans, Cubas, and Libyas of the world.

That said, the Obama administration is not going to participate in any U.N. forum even if it is human rights related. Consider U.N.’s upcoming conference on racism otherwise known as Durban II. The administration still won’t participate in it even though the latest agenda, or the outcome document, has been purged of nearly all of the things that it said it could not accept namely, references to reparations, strong criticisms of Israel, and severe limitations on freedom of expression.

Perhaps some may think that the U.S. sought to run for the Council seat as a way to placate critics for not participating in Durban II, but that’s a cynical misreading of the situation. As early as late January the administration was pondering joining the Human Rights Council.

The administration really fears that the whole affair will deteriorate into an anti-Israeli and anti-Western hate fest led by certain countries within the Organization of Islamic Conference. Its not an altogether irrational fear, but a very compelling one nonetheless.

Joining the Human Rights Council is a step in the right direction in overcoming that fear.

Obama Reaffirms Support for Comprehensive Immigration Reform

At a town hall meeting in Mesa County, California this week, Obama reaffirmed many of the same principles of comprehensive immigration reform that he campaigned on in the 2008 presidential election. Those guiding ideas include a path to legalization, securing the border, and employer verification. But at the same time he said he did not want to create a system that would discriminate against someone “just because you’ve got a Hispanic last name or your last name is Obama.” He also reiterated his support for a comprehensive approach to immigration rather than tackling the problem in a piecemeal fashion.

Until now, Obama choose to only discuss immigration issues when engaging Spanish only media. This time, however, he is voicing the same message while on CNN, which is somewhat of a big step and could be an indication that it might be on the agenda this coming fall or late summer.

Money quote:

Now, it only works though if you do all the pieces. I think the American people, they appreciate and believe in immigration. But they can’t have a situation where you just have half a million people pouring over the border without any kind of mechanism to control it.

So we’ve got to deal with that at the same time as we deal in a humane fashion with folks who are putting down roots here, have become our neighbors, have become our friends, they may have children who are U.S. citizens. (Applause.) That’s the kind of comprehensive approach that we have to take. All right. Okay. (Applause.)

(H/T: America’s Voice)

U.S. Ditches Durban Review Conference

Citing language referring to reparations for slavery and “repeated and unbalanced criticisms of Israel,” the United States announced it would not participate in the Durban Review Conference this Friday, also known as Durban II, after spending about a week trying to cleanse the document of what it found objectionable. The goal of the conference is to review the progress made since the last gathering in 2001 and take stock of “contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance.”

The reasons for pulling out are consistent with what the U.S. State Department claimed said were its redlines prior to engaging in the preparatory talks.  In a February 20th press release the U.S. said it held strong “reservations about the direction of the conference” because the “draft document singles out Israel for criticism, places unacceptable restrictions on freedom of expression under the guise of defaming religion, and calls for payment of reparations for slavery.”

We are left to believe that since the U.S. could not achieve sufficient progress on all fronts that the document was unsalvageable and therefore the prospect of participation impossible.

Even to engage in the preparatory talks seemed like a big step at the time, but abandoning the process so soon after doing so gives the human rights and international community the impression that admininstration always intended to offer a token presence only to make a quick exit.

Fierce critics of the Durban II such are using this opportunity to say I told you so. ” …the Obama administration has recognized that indeed, the racism conference is an exercise in Israel-bashing, and not worth attending,” so saith the National Review.

Others are weary of what Obama has in store since he the administration did not announce an outright boycott and has stated it will participate in the next Human Rights Council session where many of the resolutions condemning Israel are usually hatched. “Whether Obama actually stays away from Durban II is most likely to depend on his cost-benefit analysis of sacrificing Israel vs. heeding the siren’s call to engage,” declared Anne Bayesfsky in Fortue Magazine.

This is typical of those who believe that the UN itself is an unsalvageable institution, but offer no solutions as to how to prevent the usual suspects from targeting Israel or undermining the mission of the UN. Its as if they think that if the United States is not leading the effort to promote human rights or controlling the direction of UN, America should abandon any hope of working within it. Its ultimately defeatist and limits the ability of the U.S. to reach out to other countries in an imperfect world.

By the same token, however, the Obama admininstration set themselves up for this kind of criticism by invoking the criteria it did given the tight time frame it had to work with. It set a number of ambitious goals it knew it could not accomplish to rationalize its eventual departure and had little to show for engaging in the excercise. Its unclear, for instance, whether or not this has helped the U.S. in its attempt to win a seat on the Human Rights Council or achieve any other strategic objective.

Observers are also left wondering what the Obama administration will do to advance racial justice in its attempt to promote human rights.  Given the unique standing of the U.S., especially with its new president and because of its national experience, it can effectively promote racial justice as part of its larger human rights agenda in the same way it has promoted open societies and free expression as a way of spreading democracy around the world during the cold war. If the U.S. showed leadership in this regard other countries will follow, provided we invest the time and resources. Durban II even with all its pitfalls could have served as a stepping stone to a more livable world by making racial equality part of the criteria in which the community of nations should be judged.

I suppose we will have to wait and see how the Obama admininstration will pivot from this episode and reposition themselves to usher in a new era of U.S.-U.N relations.

Arizona Sheriff Puts Immigrants in Tent City

On February 4th, Arizona Sheriff Joe Arpaio of reality TV fame began removing 200 undocumented immigrants from inside Maricopa County’s Durango Jail to a segregated area outside of it the widely known as “Tent City,” where they will be surrounded by an electrified fence. The star of Fox network’s “Smile … You’re Under Arrest!” invited members of the media to witness undocumented immigrants marched off chained together to what’s been described as a military camp in the desert where temperatures can reach as high as 100 degrees.

Sheriff Arpaio claims the move was necessary to accommodate burgeoning inmate population and save taxpayer money, despite providing no explanation of how that will happen. “We have expanded the tents to be able to house as many as 2500 inmates out of the 10,000 currently incarcerated in the jails,” he explained in a press release. Undocumented immigrants detained in tent city will remain there until they complete their sentences or deported to their home countries.

But critics charge Sheriff Arpaio treatment of prisoners warrant legal scrutiny. ACORN called the move a “blatant disregard for civil rights.” According to the Phoenix New Times, Arpaio has been the target of 50 times as many prisoner related lawsuits than the jail systems of New York, Los Angeles, Chicago, and Houston combined from about 2004-2007.

Last year, Phoenix Mayor Phil Gordon has also urged the Federal Bureau of Investigation and the Civil Rights Division of the Justice Department to investigate Sheriff Arpaio for a “pattern and practice of conduct that includes discriminatory harassment improper stops, searches, and arrests.”

Now it seems some calls for investigating the sheriff is starting to get some traction. Chairman of the Judiciary Committee in the U.S. House of Representatives Congressman John Conyers recently sent a letter to Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano asking for both of them to investigate Sheriff Arpaio for violating the rights of immigrants. Neither official has responded just yet.

But in the mean time check out this video from Democracy Now! on Sheriff Arpario and his immigration enforcement efforts.

Amb Susan Rice Wants to Engage

At her first presser yesterday as the newly minted United States Ambassador to the United Nations, Susan Rice raised eyebrows when she said she looked forward to “engaging in vigorous diplomacy, that includes direct diplomacy with Iran.” To many, this sounded as if President Obama was willing to sit down and have tea with Iranian President Mahmoud Ahmadinejad without preconditions. But this is very unlikely to be the case.

Ambassador Rice was probably referring to the need to engage Iran on a number of fronts including their support for Hamas in the Palestinian Territories, Hezbollah in Lebanon, and Shiite factions in Iraq. Who knows maybe how they might be helpful in eliminating a resurgent Taliban, in Afghanistan, a persistent irritant to the government in Tehran well before the American invasion.

For his part, President Obama himself in an interview with Arab television network Al Arabiya noted that while Iran has not always behave in ways “conducive to peace and prosperity in the region” it is still important “for us to be willing to talk to Iran, to express very clearly where our differences are.” He also went on to say, “And as I said during my inauguration speech, if countries like Iran are willing to unclench their fist, they will find an extended hand from us. So, it seems for now the president is content with simply keeping the lines of communication open in laying the ground work for more robust diplomacy.

Ambassador Rice also took time to remark on the on the war in the Gaza strip. Ambassador Rice prefaced her remarks regarding the ceasefire with expressing concern for the humanitarian situation in Gaza. “…with respect to Gaza, let me say that you have heard the President speak very forthrightly about his grave concern about the current humanitarian crisis,” she told the UN press corp.

Perhaps this seems small but its important to note that her comment did not begin with reiterating the already broadly accepted and frequently invoked claim that Israel has a right to self-defense. Instead she began discussing the humanitarian situation and calling for a “durable cease fire” that would ultimately lead to “border crossings to open and be available for humanitarian as well as day-to-day economic development imperatives.”

This is a striking different tune that what Bush administration has and have said. Amb. Rice’s predecessor, Bush appointee John Bolton, recently argued out-going Secretary of State Condi Rice at the UN Security Council should have vetoed instead of abstaining from voting on the cease fire measure, which would have killed its passage. Anything short of a veto would have been an abdication of our “international leadership role.”

Interestingly enough, Ambassador Rice was not asked whether or not the U.S. will participate in the World Conference on Racism, also known as Durban II or about the U.S. joining the U.N.  Human Rights Council. She was, however, asked about it at her Congressional confirmation hearing earlier this month.

According to the transcript, Senator Bill Nelson expressed his disappointment with how the Durban Conference “got sidetracked on attacking Israel rather than dealing with human rights” only to further complicate Mid-East politics in general. He also commented on how the U.S. should be prepared to reassess its participation in the Human Rights Council if certain countries are going to use that body, along with Durban itself, as “a tool to beat up on one of our allies or if it becomes an objective to undermine U.S. policy.”

In her reply, Dr. Rice astutely sidestepped making any specific remarks about Durban and simply sought to reassure Nelson that she and everyone else in the incoming administration took Israel’s security seriously. She then quickly pivoted to strongly criticizing a resolution on a Gaza cease fire that originated in the Human Rights Council, which enjoyed the support of many African and Arab countries, but not much from Western nations.

News reports say that the Human Rights Council resolution mainly focused on human rights violations in Gaza by Israel and encouraged the UN to do fact finding regarding those abuses. Rice said the resolution was “a classic example of the utterly imbalanced and reprehensible kinds of resolutions that have, too often, emerged from the Human Rights Council.”

(Note: the Human Rights resolution that passed on Jan 12th is different from the UN Security Council resolution that passed on Jan 8th almost unanimously save the lone abstention by the U.S.)

By the same token, it was clear that Rice errs on the side of engaging in the UN process even if the problems seem intractable. Referring to the outcome of the resolution, Rice said at the hearing it “just begs the question of what might have been different with U.S. participation and leadership. It seems to me hard to imagine that we would not have sought to work with, and indeed prevail upon, many of our allies to stand with Canada and with us in opposition to such a resolution.”

Obviously, engagement does not mean going along with anything member states favor at the U.N., but being apart of the process and taking it seriously.

Clearly, Ambassador Rice is optimistic about the future of U.S.-U.N. relations.  Perhaps this is the dawning of a new era of American liberal internationalist foreign policy.

Republican Pushback on Gitmo

Apparently, President Obama’s series of executive orders to shut down Gitmo and the network of secret prisons run by the Central Intelligence Agency within a year has not gone over well with many Republican lawmakers on Capitol Hill. Representative Steven King has made the case that Obama’s plan amounts to granting terrorists a path to U.S. citizenship and a free pass to strike again. South Carolina Senator Lindsey Graham still wants to preserve the option of detaining of at least some war on terror suspects or enemy combatants indefinitely.

House Republican Leader John Boehner has even gone so far as to suggest that the well documented abuses at Gitmo are somehow exaggerated. Earlier this week, the Ohio Congressman told the Politico, “I don’t know that there is a terrorist treated better anywhere in the world than what has happened at Guantanamo.”

He also went on to say, “We have spent hundreds of millions of dollars to build a facility that has more comforts than a lot of Americans get. … I believe they have been treated fairly.”

That of course does not square with a recent bipartisan Senate Armed Services report which concluded:

Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there. Secretary Rumsfeld’s December 2, 2002 approval of Mr. Haynes’s recommendation that most of the techniques contained in GTMO’s October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq.

But its important to understand the human dimension of all of this and why this chapter of the Bush administration’s legacy needs to be closed. In the January 15th issue of the New York Review of Books, Georgetown law professor David Cole quotes the U.S. Army log describing the tortuous interrogation of Mohammed al-Qahtani, the alleged 20th 9/11 highjacker, at Gitmo. The descriptions of the brutality are nothing short of harrowing.

Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee butted SGT R in the eye. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Turned his head from left to right. Began crying hard spontaneously. Crying and praying. Began to cry. Claimed to have been pressured into making a confession. Falling asleep. Very uncomfortable. On the verge of breaking. Angry. Detainee struggled. Detainee asked for prayer. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Pushed guard. Dizzy. Headache. Near tears. Forgetting things. Angry. Upset. Complained of dizziness. Tired. Agitated. Yelled for Allah. Started making faces. Near crying. Irritated. Annoyed. Detainee attempted to injure two guards. Became very violent and irate. Attempted to liberate himself. Struggled. Made several attempts to stand up. Screamed….

Thankfully, 53 percent of the American public support using a different system for handling detainees than the military commissions process at Guantanamo Bay, Cuba. Another 58 percent support an complete ban on using torture as a interrogation technique, according to a recent ABC News poll.

Sure, Obama himself admitted that shutting down Gitmo “is more difficult than I think a lot of people realize” and that many of the so-called enemy combatants are still dangerous enough to pose a threat, but we can still try them in our own civil system or in the military courts-martial system for war crimes.

As Obama noted earlier this week, the U.S. will win this fight and “We are going to win it on our own terms.”

Undoing Gitmo

In just days after the nation welcomed him as its newly inaugurated president, Barack Obama swiftly moved to undo some his predecessor’s legacy in shutting down the prison at Guantanamo Bay and the network of secret prisons run by the Central Intelligence Agency.

President Barack Obama began by signing an executive order instructing military prosecutors to seek a 4 month delay of the military commissions process in Guantanamo Bay, Cuba, the site of a U.S. naval base and prison camp.  The Obama administration will use the 120-day period to “undertake a thorough review of both the pending cases and the military commissions process” to further the “interests of justice.”

A military judge granted the request for the delay on Wednesday.

In choosing to halt the trials of Gitmo detainees, experts believe President Obama wants to either try detainees in federal courts as criminal defendants or in a courts martial or even create a specialized system where the accused are accorded a a greater measure of due process rights and end the use of abusive interrogation practices.

During Bush’s tenure, many prisoners at Gitmo were held indefinitely without charge, tortured by CIA officials, had secret evidence used against them to justify their detention, and in the vast majority of cases could not challenge the legality of the very incarceration.

A key Bush administration official, Judge Susan J. Crawford, recently told the Washington Post she did not refer certain cases at Gitmo for prosecution because she believes the U.S. tortured certain detainees while interrogating them, rendering their confessions inadmissible. Also, a recent bipartisan Congressional report, found that former Secretary of Defense “Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there.”

Even Defense Secretary Robert Gates, a Bush appointee who currently serves in the same post, urged the outgoing president to shut down the prison this summer because it also diminished U.S. standing in world. “I think that despite the fact that in many respects Guantanamo has become a state-of-the-art prison now, early reports of abuses and so on unquestionably were a black eye for the United States,” Gates said this summer.

On November 13, 2001, President Bush signed a military order to create the military commissions. The commissions were designed to try, treat and detain non-U.S. citizens in an effort to prosecute and interrogate so-called war on terror suspects and enemy-combatants, a class of fighters that are not quite conventional soldiers, but were captured on the battlefield by American troops.

In 2006, a Republican controlled Congress passed the Military Commissions Act. The law gave Bush with the authority that the Supreme Court said he could not usurp with an executive order alone to set up his own court system that escaped scrutiny from other branches of government and suspended a prisoner’s right to contest his own imprisonment.

But Barack Obama is now moving with all deliberate haste to change course.

As the 44th president noted in his inaugural address on Tuesday, the framers of our constitution “understood that our power alone cannot protect us, nor does it entitle us to do as we please.  Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.”

So, in many ways these initial steps signify a break with the old regime and yet an embrace of America’s oldest traditions that happens to “reject as false the choice between our safety and our ideals.”

The Durban Review Conference and its Critics

This week Secretary of State designate Hillary Clinton and US Ambassador to the UN designate Dr. Susan Rice will have their confirmation hearings this week before the Senate Foreign Relations Committee, on Tuesday and Thursday.

To be sure, their respective views on humanitarian intervention to nuclear non-proliferation, from devising an exit strategy for Iraq and how to appropriately engage Iran or addressing energy security problems and climate change, among other issues will be thoroughly probed and debated.

Another serious issue that has not received national attention thus far, but merits serious consideration,  is whether or not the United States should participate in the next World Conference Against Racism, Xenophobia, and Related Intolerance (WCAR), otherwise known as Durban II, scheduled to take place April 20-24, 2009.

The chief aim of the last WCAR conference in 2001 was to provide a global framework that national governments could build upon to enact or improve racial anti-discrimination laws and initiatives.

Yet unlike many other United Nations member states, the U.S. has not been involved in the Durban process since 2001 when then-Secretary of State Colin Powell withdrew the U.S. delegation from the conference in Durban, South Africa. Powell said the U.S. could not support the the conference’s collective statement by governments, the Durban Declaration of Programme of Action (DDPA), because it contained language that singled out Israel for criticism.  A handful of countries within the 57 member Organization of Islamic Conference – Iran, Syria, Egypt, Libya, and Pakistan – led the effort to insert language about foreign occupation and other statements designed to inject the visceral politics of the Palestinian-Israeli peace process. Ethnic and racial strife in Darfur, Kashmir, Tibet or elsewhere in the world were conspicuously ignored.

Things were worse in the non-governmental forum where a small yet vocal minority of organizations high-jacked the gathering by not only disseminated anti-Semitic and anti-Israel literature and cartoons, but also drafted a document that neither reflected the true the spirit of the conference nor the views of the majority of the forum’s participants.

In the end, the Israel obsession only served to diminish the legitimacy of the conference and subvert its central mission of combating racism and overshadowed some of its more enduring achievements. Instead many choose to focus on it’s failures.

“I know that you do not combat racism by conferences that produce declarations containing hateful language, some of which is a throwback to the days of ‘Zionism equals racism,” Powell said in frustration on September 4th as he stormed out of the conference before a final draft was of the document produced.

Five days later, the 9/11 attacks occurred and in the remaining years of the Bush presidency U.N.- U.S. relations soured along with American standing in Muslim majority countries.

Wrestling with the Legacy of Durban I

Fearing a repeat of the 2001 conference, Israel and Canada have already said they will boycott Durban II. The respective U.S. out-going and in-coming presidential administrations have remained silent on whether or not the America will participate in April. Most UN member states, however, are not so quick to abandon the process.

Despite the efforts of certain OIC governments seeking to undermine the process in the 2001, the document, which was endorsed by a majority of a 134 countries in the UN General Assembly, managed to have a positive impact on other UN member nations striving to achieve some measure of racial justice. For  example, the DDPA recognized the Dalits, or the 160 million “untouchables” in India as victims of caste based discrimination elsewhere and that they should be treated as  a protected class in international human rights law.

In 2003, the Brazilian government created the Secretariat for the Promotion of Racial Equality to implement affirmative action programs for people of African and indigenous descent in entering universities and in finding government jobs. This was done in response to the DDPA’s recommendation governments used equal opportunity programs be used to deter racial discrimination and promote integration.

The 2001 document also recognized slavery, including the transatlantic slave trade, as a crime against humanity. Nearly seven years later, the U.S. House of Representatives overwhelming passed a resolution apologizing for slavery and Jim Crow segregation. Thus, while its difficult to draw a cause and effect relationship here, its clear that some of the recommendations coming out of the Durban process helped set standards or even nudge governments in the right direction on racial justice issues.

But many UN observers also see a revival of the same campaign OIC countries to not only derail the process by making Israel a central focus, but also introducing anti-blasphemy measures to limit free expression. This has as much to do with the neglect of the so-called Middle-East process as it does with the controversy spawned by the Danish cartoons.

This has lead some critics of Durban II to believe the U.S. should boycott the conference. “Durban II, planned for April in Geneva, promises to be an encore of the same old Israel-bashing” argues a Wall Street Journal Editorial. “If the Durban II drafters have their way, any challenge of Islamic teachings, including teachings used to justify violence, would be taboo.”

Of course, the document is called a draft for a reason, and an active effort by the U.S. in negotiating the final text of the Durban II document could change things significantly.

Changing the Face of U.S. and U.N. Relations

Not everyone thinks the U.S. should be content to it on the sidelines. In 2008, the U.S. House of Representatives passed a resolution sponsored (H.R.1361) by Rep. Howard Berman, urging the Secretary of State to “lead a high-level diplomatic effort” in order “to defeat any effort by states to use the forum to promote anti-Semitism or hatred against members of any group or to call into question the legitimacy of any state.”

Other UN observers have been more direct. “Unfortunately, plugging our ears to this kind of dreck neither makes it any less likely to occur, nor deprives it of a forum. The only way to counter speech we don’t like, as the constitutional adage goes, is with more speech” argued John Boonstra at UN Dispatch, a blog that covers UN issues.

Even the America Israel Public Affairs Committee, a staunchly pro-Israel group, urged the United States “to use the preparatory process to halt the further demonization of Israel, ” as opposed to prematurely abandoning the process entirely.

But even if Israel was not central obsession of a few yet influential countries at the U.N., the U.S.  should at least strongly consider participating in the process if it wants to improve its image in the world, which is something Obama aims to do. Choosing to boycott Durban II, the first UN human rights gathering the in-coming Obama administration would have a chance to attend, may after all send the wrong message to the world -  something that the first black president could ill afford to do given the nature of the conference.

The question of race in 21st will only get more complicated with increased immigration from the global south to the global north, and as various countries including the U.S. try to grapple with rapidly changing demographics. Also, Barack Obama needs to demonstrate that he wants to move beyond the excesses of the Bush’s war on terror policies, which has been seen by many as an excuse to target Arabs and Muslims. In other words, the civil strife associated with racism could present diplomatic obstacles and create more instability in the world.

At the same time, however, he should impress on certain countries that terrorism is as real threat to U.S. as it is to countries anywhere else in the world and satirical depictions of religious figures, while offensive, should not be used as an excuse to place limits on freedom of expression, as some OIC countries want to do.

Additionally, Durban II could serve as a stepping stone for an Obama administration looking to reedefine the U.N.-U.S. relations in the post-Bush era. Making sure the conference maintains its central focus on the combating racial discrimination, instead of a proxy battle over Arab-Israeli relations will be a difficult task. But it is still achievable with an energetic and committed team of diplomats. UN Ambassador Dr. Susan Rice is certain capable of leading such an effort on her own and is familiar with the sort of entanglements awaiting her in Geneva.

In a November 2002 speech before a an audience at the University of Delaware, she made the following remarks:

Against this dismal back-drop, we also encounter an international community increasingly skeptical of U.S. intentions and resentful of our power. How did we get here? In large part, we did so by almost reflexively spurning collective instruments – from international treaties such as the ABM treaty, the Bioweapons Convention and the International Criminal Court to multilateral gatherings such as the UN Conference on Racism.

Of course, that was more than six years ago. Dr. Rice may have a different opinion today. But note Dr. Rice’s insistence on the connection between the exercise of American power and blacklash toward retreating from organizations within the U.N. system.

But Secretary of State-designate Hillary Clinton’s is less likely to support U.S. participation, assuming her statements on the campaign trail are any indication.  “I will never forget how the world’s first conference against racism became a mockery of itself when it descended into anti-Semitism and hatred,” she said in a June 2008 speech at an AIPAC conference.  “The debacle at Durban must never be repeated. We should take very strong action to ensure anti-Semitism is kept off the agenda at Durban II and if those efforts fail, I believe that the United States should boycott that conference.

With Obama’s decision to elevate the U.S. Ambassadorship to the UN to a cabinet level post, Dr. Rice will report directly to the president without the filter of the State Department, though the Secretary of State will likely to be consulted as well. But even in that scenario its difficult to say whose opinion will be given more weight. After all, Dr. Susan Rice is more of the UN expert than Clinton is even if the Secretary of State is regarded as the nation’s top diplomat.

Their statements on Durban II will surely be scrutinized during their respective confirmation hearings, particularly by Senators seeking to pin the in-coming administration down on a definitive ye or nay position on the issue.

Further complicating this issue is Israel’s war in Gaza and the U.S. kneejerk response to support it. Now while Israel’s current bombardment campaign is a separate matter, it will undoubtedly influence what Obama decides.  In his letter, to the outgoing Ambassador to the UN, Obama affirmed his support for Israel in its war in Gaza even as its unpopularity grows exponentially with each passing day and the Palestianian death toll rises.

Hopefully, President-elect Obama will not allow accusations that he is not a “friend” to Israel affect how he determines how to recast U.S.-U.N. relations. Whatever course he decides on this issue should be consistent with his promise to “to renew the trust and faith of our people — and all people — in an America that battles immediate evils, promotes an ultimate good, and leads the world once more” as he said in his Foreign Affairs essay.

That kind of bold leadership requires a break from the past and the political will to create your own opportunities even if they initially present themselves as crises.

Note:  I have changed the title of this post from “The World Conference on Racism and its Critics”  to the “Durban Review Conference and its Critics.” since the former refers to the gathering in that took place in 2001 in Durban, South Africa, and the latter actually refers to the upcoming meeting in April 2009, which is a follow up to the first one.

Reforming the Prison System

Senator Jim Webb will introduce legislation aimed at reforming the prison system during upcoming session of Congress. According to the Washington Post, Webb wants to reform law enforcement’s efforts targeting low-level drug actors instead of more influential players in the drug trade, policies incarcerating ex-convicts for technical parole violations, and laws depriving or curtailing the voting rights of ex-offenders.

The effects of the proliferation of failed criminal justice policies and enforcement strategies have been well documented. Despite having only five percent of the world’s population, the U.S. has a quarter of the world’s prison population. The 2.3 million behind bars are not only disproportionately black and Latino, but also amounts to one percent of the U.S. adult population, according to the Pew Center on the States.

In 2004, Latinos and African Americans  inmates made up 19.4  and 43.4 percent of those population state penitentiaries, respectively. Yet the 2006 U.S. Census Bureau estimates that Latinos and African American only 14.8 and 12.8 percent of the U.S. population.

Approximately, one in 106 white men aged 18 or older are in prison, compared to one in 36 Hispanic men and one in 15 for black men in the same age group. More strikingly, one in 9 black men between 20 and 34 are in prison, according to Pew.

(Source: Hamilton Project)

For some, Webb seems an unlikely figure champion of progressive criminal justice, since his biography has all the makings of a law and order conservative. But the one time Republican and highly decorated Marine captain, Vietnam war veteran and former Reagan Naval Secretary, had what he described as an “eye opening” experience as a journalist reporting on how the Japanese prison were run.

In a speech at the National Press Club, Senator Webb said he was struck by how Japan in the early 1980’s managed to have only 40,000 people in prison in a society with more than 100 million. By contrast, the U.S. incarcerated about 780,000 people in a society of more than 200 million at that time, according to Webb in his speech.

He was also impressed with how the Japanese, unlike the their U.S. counterparts, separated offenders in prison by the type of offense they committed instead of lumping together violent felons with non-violent ones. And he also took notice of the overall focus on the readmission of inmates in the greater society with marketable skills. In other words, the Japanese authorities actually invested in rehabilitating people in their correctional facilities.

As a freshman Senator, Webb joined a growing number of policy experts and lawmakers advocating for alternatives to incarceration. Webb co-sponsored the Second Chance Act in the U.S. Senate, which Illinois Congressman Danny Davis helped conceive, and signed into law by President Bush in April 2008. The measure provides more than $360 million in federal funding to help ex-0ffenders reintegrate into society by providing substance abuse treatment for those who need it, assistance in obtaining identification cards, which is critical to landing a job, job training, and financial incentives for employers willing to hire ex-felons.

The goal of the bill was to reduce the recidivism rate, which has skyrocketed in recent years along with state spending supporting incarceration policies. According to the Wall Street Journal, “Annual criminal-justice expenditures for police, prisons, probation and courts have risen to more than $200 billion from $36 billion in 1982.”

Meanwhile, state correctional spending is gradually edging out other priorities such as higher education, as evidenced by the graph below. States such as Vermont, Connecticut, Delaware, Michigan and Oregon spend just as much on corrections as they do on higher education.

But in addition to reentry programs lawmakers should reconsider the variety of policies supporting the failed war on drugs too. For starters, Congress should direct its attention to correcting the disparities in sentencing guidelines for crack and power cocaine. Despite the fact that we now know that they pharmacologically induce the same effects, 5 grams of crack – less than two sugar cubes, carries a mandatory minimum of five years in prison. The same penalty applies to those with power cocaine if they are caught with 500 grams. That’s a 100 to 1 disparity. Interestingly enough, about 75 percent of crack cocaine defendants are only low level offenders, not the major king pings and traffickers that are truly profiting from the drug trade.

During the last 25 years or so, drug arrests have tripled, thereby creating a 1100% increase in drug offenders in prisons and jails since 1980. The U.S. went from imprisoning 41,100 in 1980 to nearly half a million on drug charges alone according to the Sentencing Project, a criminal justice reform advocacy group.

The same organization also found that while African Americans constitute 14 percent of regular drug users and yet they are still 37 percent of arrested for a drug offense in state prison.

On the change.gov website, Obama’s agenda includes not only eliminating the crack-cocaine disparity, but also the expansion of drug courts, since they are more effective at reducing recidivism, drug use and other forms of criminal activity.

States and the federal government should also reconsider jailing and imprisoning ex-convicts for mere technical violations of their parole, since they are nonviolent offenses. It needlessly enlarges the prison population and impedes the reintegration of people who deemed threats to public safety simply because he missed an appointment, failed a drug test, or lost a job. Such routine violations indicate a greater need for counseling and other forms of intervention rather than incarceration.

Lastly, felons should be allowed to vote after completing their sentence and parole.  Felon disenfranchisement laws date back to the Jim Crow era and were engineered to suppress minority voting. Today, the ACLU estimates about 5.3 million people are affected by laws barring those with criminal records from voting.

Webb seems to understand the importance of it all when he said, “If you have paid the price that your community, through its government, has decided you should pay for the crime that you have done, then you should be made whole. I don’t think that’s a difficult concept.”

Hopefully, the new administration and new Congress will move forward with these reforms while they have they still have the political momentum on their back rather fear the next campaign attack ad calling them soft on crime because they were smart on policy.