As mentioned in a prior post, Rev. Charles Edwin Brown (my maternal great-great grandfather or 2nd great-grandfather in Henry Louis Gates, Jr.’s terminology) was a Baptist missionary to the Iowa Territory in 1842. His and, therefore, my lineage in the U.S. has been traced to at least 1686.
William Brown was born somewhere in England around 1669 and emigrated to the American colonies sometime before 1686. William was one of the early settlers of Hadley (later Hatfield), Massachusetts and the builder of its first house. By 1720 he had relocated to Leicester, Massachusetts approximately 45 miles west of Boston. He died in Leicester, Massachusetts in 1752. (William was my maternal 7th great-grandfather.)
One of William’s sons was John Brown, who was born in Hatfield, Massachusetts on November 3, 1703. Sometime before 1720 he and his family moved to be among the original settlers of Leicester, Massachusetts, where he became an important figure. John was a representative in the Commonwealth’s legislature for many years between 1749 and 1768. He died on December 24, 1791 in Leicester. (John was my maternal 6th great-grandfather.)
One of John’s sons was Perley Brown, who was born on May 27, 1737 in Leicester, Massachusetts and who died on October 28, 1776, in White Plains, New York. (Perley was my maternal 5th great-grandfather.)
John and Perley and four of John’s other sons (John, Jr., Benjamin, William and Daniel) had significant military experience, including the American Revolutionary War, that will examined in subsequent posts.
One of Perley’s sons was Nathaniel Brown, who was born in Leicester, Massachusetts on November 5, 1767 and who died on October 1, 1854 in Hamburg, New York. (Nathaniel Brown was my maternal 4th great-grandfather.)
Phillip Perry Brown was one of Nathaniel’s sons, having been born on September 17, 1790 in Bennington, Vermont. He was an ordained Baptist pastor who served several churches in Madison County, New York. He died in Madison, New York on September 23, 1876. (Phillip Perry Brown was my maternal 3rd great-grandfather.)
Phillip Perry was the father of Charles Edwin Brown, who was born on February 23, 1813 in Augusta, New York and who died in Ottumwa, Iowa on July 23, 1901.
Future posts will explore Charles Edwin’s ministry and service in Iowa and the lives of (a) his son, James DeGrush Brown (my maternal 1st great-grandfather); (b) Charles Edwin’s grandson, George Edwin Brown (my maternal grandfather); (c) and Charles Edwin’s great-grand-daughter, Marian Frances Brown Krohnke (my Mother). Another son of Charles Edwin–William Carlos Brown–had a remarkable railroad career that will be examined in other posts.
 The source for this geneology is Carol Willits Brown, William Brown–English Immigrant of Hatfield and Leicester, Massachusetts, and His Descendants c. 1669-1994 (Gateway Press; Baltimore, MD 1994).
On May 2, 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco unanimously held that John Yoo was immune from civil liability to Jose Padilla (and his mother) for Yoo’s authoring legal memoranda in 2001-2003 for the U.S. Department of Justice regarding the detention and interrogation of U.S. citizens who had been declared to be “enemy combatants.”
This civil case arises out of Padilla’s arrest and detention by U.S. military officials. In May 2002 Padilla was arrested at O’Hare International Airport near Chicago on suspicion of plotting a radiological bomb attack in the U.S. and was detained under a federal material witness arrest warrant until June 9, 2002, when President George W. Bush declared Padilla to be an “enemy combatant.” For the next 3 and a half years Padilla was detained in a military brig where he repeatedly was subjected to sleep deprivation, shakling, stress positions, solitary confinement and administration of psychotropic drugs. In January 2006 he was transferred to a federal civilian detention facility in Miami, Florida, where a federal jury in August 2007 found him guilty of conspiring to kill people and to support overseas terrorism and a federal judge in January 2008 sentenced him to 17.3 years imprisonment. This conviction was affirmed in September 2011 by the U.S. Court of Appeals for the Fourth Circuit, which vacated the 17.3 sentence as too lenient. The case was remanded to the district court where the case awaits the new sentencing.
This civil case was commenced by Padilla and his mother in January 2008. The complaint alleged that Yoo, as an attorney in the U.S. Department of Justice’s Office of Legal Counsel, had authored various legal memoranda that provided purported legal justification for Padilla’s detention and interrogation, all in violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution, Article III and the Habeas Suspension and Treason Clauses of the Constitution and a federal statute. The complaint sought nominal damages of one dollar and a declaration that his treatment violated these constitutional and statutory provisions.
After the district court denied Yoo’s motion to dismiss the complaint, he appealed to the Ninth Circuit, which reversed the trial court on the previously mentioned immunity ground.
The Ninth Circuit correctly concluded that this appeal was governed by the U.S. Supreme Court’s 2011 decision, Ashcroft v. al-Kidd, 131 S. Ct. 2974, which held that “[q]ualifed immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” The alleged right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”
With this major premise in hand, the Ninth Circuit then concluded that in 2001-2003, when Yoo was at the Department of Justice, it was not clearly established that a U.S. citizen held in military detention as an enemy combatant was entitled to the same constitutional and statutory rights as convicted prisoners and that Padilla’s treatment amounted to torture.
John Yoo himself in an op-ed article in the Wall Street Journal naturally applauded the decision. His resistance to this lawsuit, he said, was “not just to defend the tough decisions that had to be made after 9/11. We fought to protect the nation’s ability to fight and win the war against al Qaeda—and other enemies—in the future.”
Yoo also launched bitter attacks on human rights groups that support lawsuits like the one against him and others who hold opposite opinions on the interrogation tactics. Such groups, he said, seek to “advance their agenda by legally harassing officials, agents and soldiers, and so raise the costs of public service to anyone who does not hew to their extreme, unreasonable views.” Democratic Representative Nancy Pelosi was cited by Yoo as being misleading on the substance of a briefing by the CIA on its interrogation tactics. President Obama, according to Yoo, lacked “backbone” by declaring “the CIA’s interrogation methods to be ‘torture’ before the courts or his own Justice Department had delivered a considered opinion . . . [by launching] an independent counsel to hound CIA agents, even though career prosecutors had already looked into claims of abuse and found no charges appropriate . . . [by trying] to close Guantanamo Bay without any real alternative . . . [by stalling] special military commissions established by President Bush and ratified by Congress, and [by relying] on drones to kill rather than capture al Qaeda leaders for their intelligence.”
The Wall Street Journal, a long-time supporter of Mr. Yoo and the other authors of the legal memoranda in question, also welcomed the Ninth Circuit’s decision. The Journal declared in an editorial that the decision “vindicates the principle that government officials are immune from private litigation for their national-security decisions. The law has long held that executive branch officials can’t be sued for other than criminal acts so they can carry out their duties in the best interests of the country without threat of personal liability.” More vindictively, the Journal said the decision was a “watershed for repudiating sham tort claims whose goal is to intimidate—and perhaps bankrupt—anyone who dares to treat terrorists differently from shoplifters. In a better world, Padilla’s pals at the ACLU and the . . . [Yale Law School] Human Rights Clinic would be hit with sanctions and a bill for Mr. Yoo’s costs.”
The New York Times, on the other hand, criticized this decision. Its editorial acknowledged that the Ninth Circuit followed, as it had to, a U.S. Supreme Court ruling in 2011 that the so-called qualified immunity existed unless “existing precedent” put the claimed right “beyond debate.” This Supreme Court decision, however, had changed the legal standard for such immunity; previously it had required that a reasonable person would have known about the alleged right he allegedly had violated.
According to the New York Times, the Ninth Circuit’s decision this week showed why the new Supreme Court standard was “unworkable.” The newspaper said “the Bush administration manufactured both ‘debates’ — about torture and enemy combatants. . . . By using the ‘enemy combatant’ category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.” The Ninth Circuit decision can be used, the Times said, by future administrations “to pull the same stunt as cover for some other outrage.”
In the meantime, as reported in a prior post, Yoo and five other authors of the legal memoranda regarding detention and interrogation of individuals in the so-called war on terrorism are the suspects in a criminal case in Spain under the principle of universal jurisdiction that the trial court had temporarily dismissed or stayed so that the issues could be pursued in the U.S. On March 23, 2012, an appeals court in Spain affirmed the trial court’s decision. However, three of the 17 members of this appellate court dissented on the grounds that the conduct authorized by these memoranda were crimes under international and Spanish law and that the requirements for a Spanish court to defer to U.S. authorities under Spain’s concept of “subsidiarity” had not been satisfied.
As reported in a prior post, on April 26th the Special Court for Sierra Leone convicted Charles Taylor, the former President of neighboring Liberia of 11 counts of crimes against humanity and war crimes. The hearing on his sentencing has been scheduled for May 16th with the sentence to be pronounced on May 30th. The deadline for any appeal is 14 days after the sentencing judgment.
Before we look at the reactions to that conviction, we should be aware of the gruesome details of what happened in Sierra Leone according to witnesses at Taylor’s trial. Here are only two examples. One male witness, “Then I put this other hand. Then he [a Sierra Leone rebel] chopped it, but when he chopped it it was not severed initially. He chopped it twice, and it hit here and some bones were broken in it. Then the third time it was severed.” Another male witness, “Well, they [the rebels] used to treat them [civilians] badly. They used to rape them. They used to kill them. Sometimes they even ate them.” A video with photos of some of the Sierra Leone victims should be watched as well as current photos from the country.
Another aspect of the trial needs highlighting. One of the challenges facing the prosecution was how to link Mr. Taylor in Liberia to the crimes committed in Sierra Leone. There was no paper trail showing orders from Taylor. Nor was there any evidence of his ever going to Sierra Leone. He was not at the scene of the crimes in that country, and the Liberian army was not involved. Instead the link was proven by radio and telephone communications from Taylor to the rebels in Sierra Leone, by shipments of arms and ammunition to the rebels from Taylor’s forces and by bank records showing transfers of funds to Taylor’s accounts from Sierra Leone.
The Special Court’s chief prosecutor, Brenda J. Hollis, who is a U.S. lawyer, said the conviction was a triumph for the idea that political leaders should be held accountable for their deeds in “the new reality of an international justice system.”
The U.N. High Commissioner for Human Rights stated that the conviction “marked a major milestone in the development of international justice. . . . A former President, who once wielded immense influence in a neighbouring [sic] country where tens of thousands of people were killed, mutilated, raped, robbed and repeatedly displaced for years on end, has been arrested, tried in a fair and thorough international procedure, and has now been convicted of very serious crimes.” Such a result, she said, was “a stark warning to other Heads of State who are committing similar crimes, or contemplating doing so.”
The U.S. Department of State issued an official statement welcoming the conviction as “an important step toward delivering justice and accountability for victims, restoring peace and stability in the country and the region, and completing the Special Court for Sierra Leone’s mandate to prosecute those persons who bear the greatest responsibility for the atrocities committed in Sierra Leone. The Taylor prosecution at the Special Court delivers a strong message to all perpetrators of atrocities, including those in the highest positions of power, that they will be held accountable.” The U.S. statement also noted that the U.S. “has been a strong supporter and the leading donor of the Special Court . . . since its inception. The successful completion of the Special Court’s work remains a top U.S. Government priority.”
Amnesty International (AI) asserted that the conviction sends “a clear message to leaders the world over that no-one is immune from justice.” However, AI lamented that because of the limited jurisdiction and funding of the Special Court, “Thousands of persons suspected of criminal responsibility for incidences of unlawful killings, rape and sexual violence, mutilations and the use of children in Sierra Leone’s armed conflict have never been investigated, much less prosecuted.” In addition, AI emphasized that “only a limited number of Sierra Leone’s thousands of victims who bear the terrible scars of the conflict have received reparations, despite the [provisions for reparations in the Sierra Leone] Peace Accord and the clear recommendations [for reparations] by [Sierra Leone’s] Truth and Reconciliation Commission.” AI also reiterated its call for the repeal of the amnesty provision in the Peace Accord and [for Sierra Leone’s] enactment of legislation defining crimes against humanity and war crimes as crimes under Sierra Leone law.”
Human Rights Watch had a similar reaction. It said the conviction “sends a message to those in power that they can be held to account for grave crimes.”
A New York Timeseditorial said the conviction “is a historic victory for justice and accountability: the first time a former head of state has been convicted by an international court since the Nuremberg trials after World War II. Mr. Taylor . . . richly deserves this distinction.” The editorial also reminded us that “other leaders . . . deserve the same fate” from the International Criminal Court in its prosecutions of the Ivory Coast’s brutal former president, Laurent Gbagbo, and Sudan’s current president, Omar Hassan al-Bashir.
The Guardian newspaper from London commented that the conviction was “an important step in what can only be described as the faltering path of international justice.” It noted that even though there were dysfunctional justice systems in Russia and China, it is “a safe bet that no Russian [or Chinese] leader will ever appear before an international court of justice for war crimes . . . . The same is true of . . . US or British generals for war crimes committed in Iraq and Afghanistan. Might, or a seat on the UN security council, still appears to be right. If the arm of international law is long, it is also selective. . . . If impunity is to end, jurisdiction has to be universal.”
Taylor’s conviction was for crimes against humanity and war crimes in Sierra Leone. But the conviction reminded Liberians of the horrible similar crimes committed in their country by Taylor and his forces.
An expert on Liberia stated that in “Liberia, Mr. Taylor fought a brutal campaign against West African peacekeepers and other armed factions. As many as 250,000 Liberians out of a prewar population of just over [3,000,000] lost their lives, while more than [1,000,000] others became refugees — crimes for which no one has yet been held accountable. An internationally brokered peace deal in 1997 led to the travesty of a frightened population’s electing Mr. Taylor president for fear of what would happen if he did not get his way. He was driven from power only in 2003.” Moreover, “many of his closest former associates remain at large and active in public life . . . . Mr. Taylor’s ex-wife, Jewel Howard Taylor, who filed for divorce after his fall from power in part to protect her assets from international sanctions, is a member of the Liberian Senate. So is Prince Y. Johnson, a onetime Taylor ally who literally butchered President Samuel K. Doe at the start of the civil war and was so certain of his impunity that he had the entire episode videotaped for posterity. Far from becoming a pariah, Mr. Johnson played kingmaker in Liberia’s presidential election last year, delivering the bloc of votes that assured President Ellen Johnson Sirleaf a second term.”
The previously mentioned New York Timeseditorial said that Taylor now “must also be held accountable for his role in Liberia’s 14-year civil war. Liberia needs to enact the legislation to bring him, and the other murderous warlords from that era, to trial either in Liberian or international courts.”
Amnesty International and Human Rights Watch also remembered that Taylor and his forces had committed grave crimes in his native Liberia, but had not been subject to any criminal prosecutions for those crimes. Said AI, “during “the 14-year Liberian civil war that raged while Taylor was first the leader of one of the numerous armed opposition groups and later the President, all parties to the conflict committed war crimes and crimes against humanity, including murders along ethnic lines, as well as torture, rapes and other crimes of sexual violence, abductions, and recruitment and use child soldiers.” After the end of the civil war, AI said the Liberian Truth and Reconciliation commission had recommended “that a criminal tribunal be established to prosecute people identified as responsible for crimes under international law [but that it] is yet to be implemented, as are most TRC recommendations on legal and other institutional reforms, accountability, and reparations. The lack of justice for the victims of the Liberian conflict is shocking. The government of Liberia must end the reign of impunity by enacting the necessary legislation and acting on its duty to investigate and prosecute alleged perpetrators.”
Finally, two African observers commented that justice having “had to come from international courts does not reflect well on . . . Liberia in particular. The process exposes the failure by Liberians to provide themselves with a legal and judiciary system capable of effectively administering justice.” More generally “the verdict and the process should be a wakeup call to Africans. The successful conviction for such crimes is a glaring example of the failure of Africans to govern themselves effectively. . . . Africans must focus on building strong institutions to deal with human rights violations ourselves . . . .” On the other hand, the conviction “informs future Liberian, and indeed African, dictators and tyrants that they cannot escape justice by hedging their bets on a dysfunctional domestic legal system. Where national systems are incapable of adequately and effectively prosecuting leaders who engage in wanton violations of human rights, citizens can look to the international criminal court for justice.”
On April 26, 2012, the Special Court for Sierra Leone convicted Charles Taylor, the former President of neighboring Liberia, of 11 counts of crimes against humanity and war crimes as defined in the Court’s governing Statute.
The Court’s judgment was based upon detailed findings that the prosecution had proved beyond a reasonable doubt that:
Sierra Leone rebels had committed crimes against humanity in Sierra Leone by murder (Count 2), rape (Count 4), sexual slavery (Count 5), other inhumane acts (Count 8) and enslavement (Count 10).
Said rebels had committed violations of Common Article 3 to the Geneva Conventions and of their Additional Protocol II in Sierra Leone by acts of terrorism (Count 1), violence to life, health and physical or mental well-being of persons, in particular murder (Count 3); outrages upon personal dignity (Count 6); violence to life, health and physical or mental well-being of persons, in particular cruel treatment (Count 7); and pillage (Count 11).
Said rebels had committed violations of international humanitarian law in Sierra Leone by conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities (Count 9).
Mr. Taylor had provided practical assistance, encouragement and moral support that had a substantial effect on the commission of said crimes by the rebels, and he knew that such crimes were being committed and that his actions would provide said practical assistance, encouragement or moral support to the commission of such crimes. Therefore, Mr. Taylor was guilty of the crime of aiding and abetting the commission of such crimes.
The Court, however, determined that the prosecution had failed to prove beyond a reasonable doubt that Mr. Taylor had participated in a common plan, design or purpose to commit the rebels’ crimes.
Mr. Taylor will be sentenced in the coming weeks. There is no death penalty in international criminal law, and any prison term would be served in a British prison pursuant to a special agreement with the Court.
The Court was established in 2002 in a partnership between the United Nations and Sierra Leone to prosecute those responsible for atrocities in a conflict that led almost half the population to flee and left an estimated 50,000 dead. With its main seat in Sierra Leone’s capital of Freetown, the Court already has sentenced eight other leading members from different forces and rebel groups for crimes in Sierra Leone. Mr. Taylor is its last defendant whose trial was moved to The Hague in the Netherlands for fear of causing unrest in the region where he still has followers.
Not since Karl Doenitz, the German admiral who briefly succeeded Hitler upon his death, was tried and sentenced by the International Military Tribunal has a head of state been convicted by an international court.
The opening event at noon (CDT) on Thursday, May 3rd, will be a Westminster Town Hall Forum presentation entitled “Playing for Peace in Gaza” by Patrick McGrann. A Minnesota native, McGrann has spent the last 15 years creating toys and events for young people living in the midst of violence. He now lives in Gaza where he has taught at the Islamic University, lead the rebuilding of the American International School and developed educational partnerships between the Middle East and the West. The Forum is free and open to the public and broadcast on Minnesota Public Radio. The Forum is preceded by a half-hour of free music and followed by a free reception and a discussion group.
Later that same day (May 3rd) at 7:30 p.m. at the Women’s Club of Minneapolis (410 Oak Grove Street) 14 young dancers from the Diyar Dance Theatre of Bethlehem, Palestine will perform. Tickets at $10 are available at Westminster on Sundays or on the web. Starting at 5:00 p.m. the public is welcome to dine at the Women’s Club; call 612-813-5300 for reservations. A reception with dessert will follow the performance.
On Friday, May 4th, at 6:00 p.m. an art exhibit, Room for Hope, opens at Westminster. It brings realistic, abstract and provocative images by Palestinian artists expressing their visions of the present and their hopes for the future.
Also on Friday, May 4th, at 7:30 p.m. will be a concert at Westminster. Ibtisam Barakat will present her “Freedom Doors Made of Poems.” She grew up in Ramallah, West Bank, and now lives in the U.S. Her work focuses on healing social injustices and the hurts of wars, especially those involving young people. Ibtisam emphasizes that conflicts are more likely to be resolved with creativity, kindness, and inclusion rather than with force, violence, and exclusion. The concert will also include Palestinian musicians playing music from their homeland.
On Saturday, May 5th at 1:00 p.m. a Palestinian Short Film Festival will be presented in Westminster’s Great Hall.
The concluding event of the Festival will be part of Westminster’s Sunday worship service on May 6th at 10:30 a.m. (CDT). Rev. Dr. Mitri Raheb of Evangelical Lutheran Christmas Church in Bethlehem, Palestine will be the preacher. Palestinian musicians will lead the world debut of specially commissioned music during the service. Our guests will sing in Arabic while Westminster members and others sing in English. For those who cannot attend the service, it is live-streamed and subsequently archived on the web.
This historic Festival is the outgrowth of Westminster’s partnership with the Christmas Church and of mission trips to that church by Westminster members. (Westminster also has partnerships with churches and other organizations in Brazil, Cameroon and Cuba.)
This March a court in the Netherlands awarded 1 million euros to a Palestinian plaintiff against 12 Libyan officials for torture and inhumane treatment over eight years in a Libyan prison.
The plaintiff, Dr. Ashraf al-Hajuji, who now lives in the Netherlands, along with five Bulgarian nurses had been charged in Libya in 2000 with deliberately infecting over 400 children with HIV-AIDS. In 2004 they were convicted and sentenced to death by a firing squad. A year later the convictions were overturned and a new trial was ordered after Bulgaria agreed to establish a fund for the families of the infected children. In December 2006, however, Dr. Hajuji and the nurses were again convicted and sentenced to death, but in July 2007 their sentences were commuted to life imprisonment after the children’s relatives agreed to accept compensation of $1 million per child. In 2007 the doctor and nurses were pardoned and released after French President Sarkozy negotiated with Col. Muammar Gaddafi . Gaddafi admitted they had suffered horrible torture in Libyan prisons.
This may be the first time another legal system has granted a civil monetary damages award to a foreigner due to violation of international human rights norms by other foreigners in a foreign country similar to the awards made by U.S. courts in civil lawsuits under the Alien Tort Statute.
In the meantime, Bulgarian prosecutors are still investigating what happened in Libya for a possible criminal prosecution of those responsible for the torture.
This past week has seen several important developments for the International Criminal Court (ICC).
Libya.The two remaining subjects of arrest warrants have been apprehended in Libya by militia groups, but have not been turned over to the ICC, and the Court and the National Transitional Council have been engaged in a dispute as to whether they should be turned over or tried in Libya, which does not have a functioning judicial system.
On April 4th an ICC Pre-Trial Chamber rejected the second request by the National Transitional Council to postpone the ICC’s surrender request for Saif Al-Islam Gaddafi pending the completion of proceedings against him in Libya. The Chamber, therefore, stated that Libya must (i) make its decision to grant the Surrender Request; (ii) afford Mr. Gaddafi the procedure described in Article 59 of the [Rome] Statute which necessarily follows from arresting a person subject to a surrender request; and (iii) start making arrangements in preparation for the surrender of Mr. Gaddafi to the Court without further ado.”
Article 59 provides the subject of an arrest warrant has the right to a prompt hearing before the competent national judicial authority to determine that the warrant applies to the individual, his/her arrest has been in accordance with proper process and his/her rights have been respected. There is also a right for the individual to apply for interim release, which in this case seems exceedingly unlikely to be granted by any authority.
Palestine. On April 3rd the Office of the Prosecutor released a report about its preliminary examination of the Situation in Palestine. It said the ICC’s jurisdiction is not based upon the principle of universal jurisdiction. Instead, the Rome Statute requires that the U.N. Security Council or a “State” provide jurisdiction by becoming a State Party or by making an ad hoc declaration accepting the Court’s jurisdiction.
Here, the statement said the Prosecutor was not the proper person to make a determination as to whether Palestine was a “State” for purposes of the ICC. That was a decision, the statement concluded, that had to be made by “relevant bodies of the [U.N.]” or by the ICC’s Assembly of States Parties.
Guatemala. On April 2nd the U.N. received from the Government of the Republic of Guatemala its instrument of accession to the Rome Statute. The Statute will enter into force for Guatemala on 1 July 2012, bringing to 121 the total number of States Parties, 27 of which are from Latin America and the Caribbean