On June 14, 2013, Ecuador’s national legislature adopted the Organic Law on Communications with the following provisions that threaten freedom of the press:
Prohibition of “media lynching,” which is defined as “a concerted effort, coordinated by several media or carried out by just one, to destroy a person’s honor or prestige.”
Establishment of “everyone’s right that information of public interest received through the media should be verified, balanced, contextualized and opportune” without defining those terms.
Establishment of media’s responsibility to accept and promote obedience to the Constitution, the laws and the legitimate decisions of public authorities.
Creation of the office of Superintendent of Information and Communication with the power to regulate the news media, investigate possible violations and impose potentially large fines.
Creation of the Council for Media Regulation and Development headed by a representative of the President with the power to exact a public apology (and impose fines for repeat offenses) when media fail to accord someone the right to a correction or the right of reply.
Retention of the system of “cadenas,” or official messages which all over-the-air TV and radio stations have to broadcast that the President and the National Assembly speaker may use whenever they think it necessary and that other public office holders may use for five minutes per week.
Another provision on the surface may appear to be non-controversial: a requirement for allocation of broadcast frequencies (state, 34%; private, 33%; and community, 33%). Currently an estimated 60% are privately owned. Therefore, this requirement is seen as a means of the government’s closing privately owned media, presumably those critical of the government.
Other provisions of the new law are more benign. It prohibits any form of censorship by government officials or civil servants, guarantees the right of journalists to protect their sources and to maintain professional confidentiality.[1]
Ecuadorian legislators opposing the Communications Law
This new law was strenuously challenged by the Ecuadorian legislators opposing the law, who said it will allow the government to control media through loosely defined regulations. (To the right is a photo of the objecting legislators with signs and masks over their mouths.)
The law was defended by its author who is a member of President Correa’s political party and who said it will “protect freedom of speech with a focus on everybody’s rights, not just for a group of privileged.” Another member of that party who is the president of the legislature predicted that the law would promote more balanced news coverage.
In his TV and radio speech to the country on June 15th President Correa said that law was a precedent that other Latin American countries would follow. Critics of the law, he said, were members of the “gallada” or club that opposes any regulation of the media.
This is not the first effort by Ecuadorian President Rafael Correa to restrict the media. Such prior attempts have been protested by the previously mentioned NGO’s, the U.S. Department of State in its annual human rights reports and the Inter-American Commission on Human Rights.
The Commission’s criticisms have caused Ecuador to launch a full-scale attack on the Commission that was not successful this last past March, but that Ecuador promises to keep pursuing.
[1] This summary of the new law is based upon articles in an Ecuadorian newspaper (Hoy), the New York Times and the Wall Street Journaland a commentary by Reporters Without Borders. As always, I invite others to provide comments to correct any errors of mine and to express other opinions about the new law.
Under the baton of Maestro Osmo Vanska in recent years, the Minnesota Orchestra has played beautifully. When they performed at Carnegie Hall in March 2010, a New Yorker reviewer said, “The Minnesota Orchestra sounded, to my ears, like the greatest orchestra in the world.” As Minnesotans, we loved the music produced by the Orchestra and the praise from New York City.
Alas, the Orchestra’s entire 2012-2013 season has been cancelled due to an unresolved dispute over the musicians’ compensation. As a result, some key members of the Orchestra have left for positions elsewhere.
Even more ominous, on April 30, 2013, Maestro Vanska in a letter to the Orchestra’s Board of Directors said, our “musical policy of excellence in symphonic music programming . . . is now under critical threat.” After noting the need to prepare for scheduled recording sessions in September and Carnegie Hall concerts in November (“one of the most significant goals of my entire Minnesota Orchestra tenure”), Vanska said that if those concerts were cancelled, “I will be forced to resign.”
The dispute started last September when the Board proposed a new contract with the musicians that called for an average annual salary of $89,000 with a minimum of a 10-weeks annual paid vacation, a comprehensive medical plan and defined benefit pension plan. This represented a huge decrease from their compensation under the prior contract and was necessitated, according to the Board, by the immediate need to stop additional significant draws on the Orchestra’s endowment.
According to public information, the Musicians rejected this proposal, but have never made a counteroffer on compensation. Instead, they have proposed a review of the Orchestra’s finances and binding arbitration. Such a financial review has been undertaken, but not without apparent disputes regarding some of its details. The Board rejected binding arbitration as inconsistent with their fiduciary duty to guard the endowment.
Most recently the Board proposed submitting the dispute to mediation next week (the week of May 20th), but the Musicians apparently have not yet responded to this proposal.
We are obviously saddened by the ongoing dispute between the Orchestra’s Board and the Musicians. We also have empathy with the Musicians on being presented with a proposal last Fall for a large reduction in compensation. No one wants to be subjected to such a jolt.
Early last December I sent an email to Minnesota Governor Mark Dayton saying the “Orchestra’s cancellation of many concerts has left a major void in the cultural life of the Twin Cities and thus has caused a major negative impact on the quality of life here and in the State as a whole.” After noting that “over the years Dayton family members have been strong supporters of the Orchestra . . . [and] the cancellations have to be particularly sad for you and your family,” I implored the Governor “to become involved in this matter. Publicly invite both sides to meet with you at your office to explore how this dispute could be resolved. If there are any mediation services the State can offer, perhaps that could be offered as well. I also wonder whether there is any State funds that could be provided to help pay for the renovation of Orchestra Hall so that the gifts for same could be re-directed to the endowment to help pay the musicians.”
I received no response from the Governor, and there have been no public reports of his being involved in any way to try to resolve this dispute. I, therefore, reiterate my plea for his help.
On May 5th the Musicians had a full-page ad in the StarTribune that, among other things, called for the Board leaders “to step aside so that truly civic-minded and globally aspirational leadership can step forward” to resolve the dispute. This was a totally unfounded and unwise move by the Musicians, in my opinion. The Board members, some of whom are friends of mine, are all honorable citizen unpaid volunteers who have given of their own time and financial resources to help the Orchestra. Therefore, on May 10th I sent an email to the Musicians that said the following:
“As we understand, the Musicians have never made a counteroffer on compensation. As a retired lawyer, I have been involved in many negotiations to settle legal disputes. The normal process in such negotiations is offer and counteroffer, often with many iterations. A similar phenomenon often occurs in buying a house. Wake up. Engage in the process.
The Musicians must recognize that the national financial collapse of several years ago has caused damage to the finances of many corporations, organizations and individuals and made it more difficult for non-profit organizations to raise charitable contributions. In addition, the low interest rate policies of the Federal Reserve System have made it very difficult for all persons to obtain significant income on their endowments and savings. As a retiree, I am very aware of this phenomenon. So too the Musicians have to be aware of these facts.
The financial problems of our Orchestra are not unique in the U.S. The Musicians obviously are aware of this.
To respond to these facts, as the Musicians have done, with calls for binding arbitration, financial studies, no further negotiations unless the lock-out is ended and resignation of the honorable, unpaid volunteers on the Orchestra’s Board is unreasonable and irresponsible.
In our opinion, the Musicians have known enough from the first day of this dispute to make a counteroffer of reduced compensation, undoubtedly as an initial position by the Musicians the reduction would be modest. But it would facilitate the negotiation process.”
The Orchestra’s website has information about the dispute as does the website for the musicians. The dispute has received extensive coverage in the Minnesota media along with full-page ads by the Board and the Musicians. And the New York Times had an extensive article about the dispute.
Maureen Dowd of the New York Times on April 21st criticized President Barack Obama. She said “he still has not learned how to govern” and “doesn’t know how to work the system.” The next day a similar critique was made in the Times by two “reporters”–Michael Shear and Peter Baker–that used the bullying President Lyndon Johnson as a model of what a president should do in these circumstances.
I disagree with these criticisms, and my letter to that effect was published in the Times on April 24th. I said,
“Maureen Dowd asserts that President Obama ‘still has not learned how to govern.’ I disagree.
Last week the Senate, by a good majority, voted in favor of expanded background checks and making straw purchases and gun trafficking a federal crime. Those votes were attributable, in part, to strong advocacy by Mr. Obama and Vice President Joseph R. Biden Jr.
The true outrage lies in two places.
First is the Senate’s filibuster rule, which is being used by the Republicans to require a supermajority vote of 60.
Second is the Republican senators’ determination to prevent Mr. Obama from accomplishing anything. Remember Mitch McConnell’s statement in the last Congress that his top priority was to stop Mr. Obama’s re-election.”
This letter was a synopsis of my post, The Outrageous, Dysfunctional U.S. Senate, and my previous blog posts criticizing the Senate’s filibuster rule and the Republican Senators’ obstructionism.
Two columnists for the Washington Post–Greg Sargent and Jonathan Bernstein–also have taken vigorous exception to the opinions of Maureen Dowd and Messrs. Shear and Baker.
Sargent sees this recent criticism of Obama as focusing on his alleged failure “to put enough pressure on red-state Democratic Senators like Mark Begich.” However, says Sargent, even if all four of the red-state Democrats [who voted against the measure instead] had voted for the measure, it still would not have passed because of the 60-vote requirement of the Senate’s filibuster rule. Moreover, if these four Democrats “were basing their vote in the calculation that they need to achieve distance from the president and signal cultural affinity with their red state constituents, as many have speculated, any open pressure [by Obama] would only make the vote harder for them.”
The plain conclusion for Sargent was “the Republican Party — and the 60 vote Senate — are the prime culprits in the killing of [the bi-partisan background-check bill].”
Bernstein has had enough of others comparing Obama to President Lyndon Johnson. Bernstein pointed out the following reasons why such a comparison is inappropriate:
The situation for Johnson was very different. He had huge majorities in both chambers of Congress, and in the aftermath of a presidential assassination, there was a strong national desire for unity and action.
In the mid-1960s, political parties were much weaker and not as polarized as today.
Although Johnson faced filibusters on key civil rights legislation, he did not face filibusters on every single thing he proposed. Nor did he have to fight a dedicated partisan opposition over every judicial and executive branch nomination.
Obama, on the other hand, to get anything through the Senate needs the votes of Republicans, every one of whom has strong partisan incentives to oppose him. Johnson really never faced anything like that.
“Generally, the political science literature on presidential persuasion emphasizes how little presidents are able to accomplish when it comes to swaying votes in Congress.
“Johnson wasn’t just any president; he was a president who had been a very effective Senate Majority Leader. He came to the White House with years of relationships with many senators; to the extent he was successful, it’s probably not something that’s easy for anyone else to duplicate.”
“Johnson’s bullying style was successful … for a while. By the end of his presidency, it wasn’t working any more. Getting a reputation as an effective negotiator has a lot of advantages, but getting a reputation as a bully who can’t be trusted creates a lot of problems — even if bullying can be effective in the short run.”
I, therefore, continue to be a strong supporter of our President and a severe critic of the dysfunctional U.S. Senate (and the House of Representatives too).
Yesterday was supposed to have been the day when the U.S. Senate would decide whether and how to reform its rules regarding the filibuster. However, it did not happen. Decision was postponed again.
The apparent reason for the delay is the desire of Senate Majority Leader, Harry Reid (Democat of Nevada), to continue discussions about a possible bipartisan, compromise reform package with Senate Minority Leader, Mitch McConnell (Republican of Kentucky).
Manu Raju of Politico reports that the two Senators met yesterday morning on this issue. The exact details of their discussions are still unknown.[1]
But Reid apparently is pressing to eliminate filibusters preventing debate on legislation from even starting, from entering talks with the House of Representatives and from voting on certain presidential nominations, particularly district court judicial nominees. Reid also is reported to be considering requiring 41 senators to vote to sustain a filibuster, a subtle shift from the current practice that requires 60 votes to break the stalling tactic. This proposal would shift the burden on the opposing party and force the opponents to ensure all their votes are present.
McConnell, on the other hand, apparently wants to ensure that the minority has a guaranteed number of amendments if the majority chooses to speed debate. Previously Senators Carl Levin (Democrat of Michigan) and John McCain (Republican of Arizona) were leaders of a small group suggesting the minority be able to offer at least two amendments while preventing them from filibustering in a handful of situations.
After yesterday’s Senate Democratic caucus luncheon, Reid said that having the Senate decide the filibuster reform issues would be postponed 24 to 36 hours in order to allow the two leaders to continue their discussions.
However, Reid added in his public statement that if the Republicans still did not agree on this bipartisan proposal in that time period, Reid would proceed with adopting a reform measure with the so called “constitutional” or “nuclear” option whereby a simple majority of the Senate (at least 51 of the 100 Senators and all Democrats and Independents).
Yesterday afternoon Reid recessed the chamber, rather than adjourning, in order to extend the first legislative day of the session and thereby extend the time to use the “constitutional” or “nuclear” option.
In the meantime, the New York Times reiterated its editorial support for reform. It complained that over the last six years, there has been “an unprecedented abuse of the filibuster by Republicans, who have used the practice to hold up nominees high and low and require a supermajority for virtually every bill.” The newspaper also lamented that the Democrats appeared to be considering “only a few half-measures” and instead should also abolish the so called “silent filibuster.”
The Times said, “Supermajorities were never intended to be a routine legislative barrier; they should be reserved for the most momentous bills, and the best way to make that happen is to require that objectors work hard for their filibuster, assembling a like-minded coalition and being forthright about their concerns rather than hiding in the shadows or holding up a bill with an e-mailed note.”
As explained in prior posts, I agree with the Times, except I would go further and abolish the filibuster altogether.
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.
Jose Padilla
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.
Charles Taylor (Rebel leader)Charles Taylor, President of Liberia
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.”
A prior post reported that on February 9th the Supreme Court of Spain, 7-0, convicted Judge Baltasar Garzon of prevarication (knowingly making an unjust decision) in the case involving his authorization of police bugging of communications between individuals charged with corruption and their attorneys. Judge Garzon was sentenced to removal from the bench for 11 years plus a fine of Euros 2,500. The last post examined initial reactions to this conviction.
Further Comments on the Conviction Decision Itself
Before we look at additional reactions, articles in El Pais have provided more detail about the court’s decision itself. (The decision itself (en espanol) is available on the web.)
One commentator said this entire wiretap case was based on the interpretation of article 51.2 of Spain’s General Penitentiary Law (Ley General Penitenciaria) that allows prisoner communications to be monitored “by order of the judicial authority and in cases of terrorism” (“por orden de la autoridad judicial y en supuestos de terrorismo”). This commentator noted that other judges in non-terrorism cases–without controversy–had used this statute to approve monitoring of prison conversations.
El Pais reported that the court’s decision set forth the following seven reasons for the conviction:
The right to defense was restricted without justification. The rights of the criminal defense are important to having a fair process. Therefore, any restriction of that right must be “especially” justified. In the underlying corruption case, there were no “data of any kind to suggest that the lawyers mentioned in the events were taking advantage of the exercise tested the defense to commit new crimes.”
Judges are also subject to the law. It violates the rule of law when the judge, under the guise of law enforcement, serves only his own subjectivity. This case against Garzon is not an attack on judicial independence, but “a democratic requirement imposed by the need to criminally condemn” any conduct that “under the guise of law enforcement, frontally infringes the rule of law. Judge Garzon did not commit a “misinterpretation of the law,” but rather “an arbitrary act.”
Judge Garzon had to have been aware of the unfairness of his decision to allow the monitoring of the conversations. The Judge’s use of the statute (51.2 of Spain’s General Penitentiary Law) could not be reached by any of the methods of interpretation of the rules permitted by law.
The confidentiality of the relationship between the accused and his counsel is essential. The court cited the Court of Justice of the European Communities and the European Court of Human Rights to support the thesis that one of the fundamental requirements of a process is the defendant’s right to communicate with his lawyer without being heard by others.
The limits of the right to confidentiality of communications of inmates are regulated by the General Penitentiary Law. This Law, as it stands, can only be applied to cases of terrorism and prior order of judge. To apply it in other cases requires an amendment to the law.
There was not an error of interpretation, but an arbitrary act. Judge Garzon did not use any of the accepted methods that would have allowed restrictions to the right of defense. Therefore, Judge Garzon did not commit a “misinterpretation of the law,” but rather “an arbitrary act.”
Judge Garzon’s approval of monitoring these attorney-client conversations puts Spanish criminal proceedings at the level of totalitarian regimes. The Judge’s approval is a practice today only found in totalitarian regimes in which all attempts to obtain information of interest to the state are valid “regardless of the minimum guarantees for citizens.”
Apparently the court made no mention that Garzon’s order to monitor the attorney-client conversations in a non-terrorism case was approved by two anti-corruption attorneys and by a judge of the regional Madrid High Court. None of these individuals was permitted to testify by the court in the case against Garzon.
Criticisms of the Conviction
A spokesperson for the U.N. High Commissioner for Human Rights stated “”judges should not be prosecuted for doing their job,” and that international law establishes “that amnesty should not be granted to perpetrators of crimes against humanity.” This individual also recalled that in 2009 the U.N. Human rights Committee had recommended that Spain should revoke its 1977 amnesty law as being inconsistent with international human rights laws.
The Argentine Human Rights Secretary said Garzon was not the person convicted, but rather the Spanish judicial system. The decision, he added, “bares . . . the black memory of Franco.”
Similar views were expressed by Argentina’s Mothers of Plaza de Mayo, who said it had filed a habeas corpus petition before the European Court of Human Rights to challenge the case against Garzón.
Newspapers around the world have criticized the conviction decision. The New York Times editorial stated, “Convicting a jurist over a court ruling is an appalling attack on judicial independence. . . . [The]decision by the Spanish Supreme Court to remove [Garzon] from the bench is enormously damaging to the prospects of fair and impartial justice.” Britain’s Guardianstated: Garzon’s “enemies celebrate the fall of a human rights defender.” France’s LeMondsaid the victims of Francoism lead the defense of the judge. The Argentine newspaper Clarinrejected the decision and quoted the son of a man who had been killed by Franco’s forces as saying the judgment had fallen “like a bomb there, here and around the world.”
A Spanish commentator expressed the opinion that the wire-tapping case was the most important and the strongest of the three criminal cases against Garzon and, therefore, was put on a fast track by the court. For Garzon’s critics and enemies, the commentator suggested, it would be poetic justice to convict Garzon for violating the basic rights of Spanish citizens, the presumably innocent lawyers, not their clients, the criminal defendants.
Defense of the Decision
The Spanish government continues its defense of the court’s decision to convict Judge Garzon. The Deputy Prime Minister said, “[A]ll judicial decisions are worthy of respect. All Spaniards must respect court verdicts, but even more so public representatives. When [such representatives] question the institutions, [they] are also questioning democracy – here and beyond our borders. I am appealing to their sense of responsibility. Spain is a democratic country. I am very worried about the image that some are trying to convey about a Spain that is not really Spain.”
Thee presidency of the Spanish Supreme Court itself and Spain’s General Council of the Judiciary issued a statement saying that the court acted “with absolute independence and impartiality.”
Conclusion
As a U.S. lawyer with no first-hand knowledge of Spanish law and procedure, I see this case on the surface at least of being primarily one of statutory interpretation, and as an outsider I can understand different points of view on that issue. Article 51.2 of Spain’s General Penitentiary Law (Ley General Penitenciaria) allows prisoner communications to be monitored “by order of the judicial authority and in cases of terrorism” (“por orden de la autoridad judicial y en supuestos de terrorismo”). One interpretation would be the one adopted by Spain’s Supreme Court: such monitoring is only permissible by court order in terrorism cases. The other interpretation would be monitoring is permissible (a) when ordered by a court in any kind of case; and/or (b) in terrorism cases with or without court order.
This kind of issue, however, is one to be resolved in the normal appellate review of trial court decisions, not in a criminal case against the trial court judge who made the initial decision on the issue.
This case along with the other two against Judge Garson are far from over. Anyone who is interested in human rights, judicial independence and the rule of law needs to be concerned about these cases and to be vigilant in seeking to protect these values in Spain and elsewhere around the world.
