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Archive for July, 2009

30 Jul

Judge Sues Blue Cross for Autism Treatment

“It is unfortunate that Blue Cross continues to violate its own insurance policies….”

DETROIT, July 30 /PRNewswire/ — An Oakland County Circuit Court Judge filed a lawsuit today against Blue Cross Blue Shield of Michigan. In her suit, Judge Cheryl Matthews alleges that Blue Cross wrongfully refused to cover the costs associated with the applied behavioral therapy provided to her son, who has autism spectrum disorder.

This suit was filed approximately a month after another challenge to Blue Cross’ wrongful refusal to pay for autism therapy resulted in Blue Cross paying $1,000,000 in damages. That case — Christopher Johns v. Blue Cross Blue Shield of Michigan — was the first successful challenge to an insurer’s refusal to pay for applied behavioral analysis, and the families in that case were represented by Gerard Mantese and John J. Conway.

Mantese, co-counsel for Judge Matthews, stated, “It is unfortunate that Blue Cross continues to violate its own insurance policies by refusing to provide needed health care to these children. It has already been demonstrated in the federal case we just settled for Mr. Johns that applied behavioral therapy is highly effective, yet Blue Cross persists in refusing to provide coverage. The bottom line is, these children are entitled to this care.”

The Johns v. Blue Cross suit was filed in federal court and addressed applied behavioral therapy that was provided by Beaumont Hospital. This new suit filed by Judge Matthews challenges Blue Cross’ refusal to authorize this treatment at a similarly credentialed facility, the Early Intervention Center, which is located in Southfield, Michigan. Judge Matthews stated, “The scientific studies show that this therapy helps autistic children improve their lives. Shame on Blue Cross Blue Shield for intentionally choosing to neglect autistic children.”

Co-counsel, John Conway, stated, “We will bring as many of these suits as we have to, to force Blue Cross to comply with their contracts and with the law. Blue Cross’ actions are indefensible and we expect to prevail.”

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30 Jul

US Says It’s Willing to Send Young Afghan Detainee Home

Government attorneys, however, reserved the right to file new charges in federal court against Mohammed Jawad if they find evidence against him before he’s freed.

By: Marisa Taylor McClatchy Newspapers, Wednesday 29 July 2009

Article

Washington – The Obama administration on Wednesday said it plans to release a young Guantanamo detainee after military and civilian judges banned almost all evidence against him that they ruled was extracted through torture.

Government attorneys, however, reserved the right to file new charges in federal court against Mohammed Jawad if they find evidence against him before he’s freed.

The Justice Department asked U.S. District Judge Ellen Segal Huvelle to grant them 22 days to release Jawad – seven days to notify Congress of the release plans, as current law requires, and then 15 days until a cooling off period mandated by law expires.
If no new charges are filed during that time, the government said it would promptly release Jawad. The Justice Department didn’t specify where it would send him, but his lawyers say they expect he’d be returned to his native Afghanistan.

In a separate decision, another federal judge ordered a second detainee released late Wednesday because the government didn’t have enough evidence against him.

Justice Department spokeswoman Tracy Schmaler said the department’s handling of the Jawad case showed that the administration has “made a dramatic break with the policies of the past by rejecting the use of torture without exception or equivocation.”

“It is clear that, in addition to serving as a recruiting tool for terrorists, the status quo left behind by the previous administration at Guantanamo is legally unsustainable,” she said.

“We are working to close Guantanamo and develop a new legal framework to govern detention policy that is grounded in the rule of law and will strengthen our national security.”

Jawad’s lawyers with the American Civil Liberties Union said that while they’re hopeful that their client will be sent home soon, they think the government should move more quickly.

“We’re cautiously optimistic that they appear closer to recognizing that Mr. Jawad needs to be sent home as soon as possible,” said Jonathan Hafetz, a lawyer with the ACLU’s National Security Project. “We remain concerned by some of the arguments they make with regards to the court’s power to order an immediate remedy.”

Jawad was originally charged with throwing a grenade that wounded two U.S. soldiers in Kabul. A military judge ruled last year, however, that his confession to Afghan authorities had been coerced by torture. A federal judge in Washington earlier this month told Justice Department attorneys that without the confession they had no evidence against him and should consider sending him home.

Jawad has been in Guantanamo almost seven years. U.S. officials think he was 17 when he was first detained, but Afghan officials have said they think he was actually 12.

If he’s released, Jawad would be the first detainee transferred from Guantanamo since Congress imposed new restrictions on the Obama administration intended to make sure Congress is notified in advance of any plans either to bring Guantanamo detainees to the U.S. for trial or to send them to another country.

Under those limits, passed as part of a supplemental Defense spending bill, Congress must be told 45 days in advance of any plans to bring a detainee to the U.S. for trial and 15 days in advance of plans to send a detainee, such as Jawad, to another country.

The legislation also prohibits the administration from releasing Guantanamo detainees into the U.S.

The Justice Department’s case against Jawad has underscored the difficulties the U.S. government faces in justifying its continued imprisonment of Guantanamo detainees.

President Barack Obama ordered the closure of Guantanamo by January, but the administration has struggled to come up with a way to either release or try detainees.

The Justice Department has said a task force convened by Obama to review Guantanamo cases considered Jawad’s case and referred him for possible prosecution. Jawad’s lawyers with the American Civil Liberties Union, however, accused the government of relying on delaying tactics and questioned whether any new evidence existed.

Jawad, meanwhile, has been moved to a section of the detention center reserved for detainees ready for release, and his lawyers said that the Afghan government is ready to dispatch a plane to Cuba to pick him up.

Jawad grew up in a refugee camp in Pakistan, where he left just months before his capture. His military judge ruled that Afghan interrogators tortured the youth into confessing soon after his arrest by threatening to arrest and kill his family.

In the second ruling, U.S. District Judge Colleen Kollar-Kotelly said Khalid al Mutairi should be released as soon as arrangements can be made for him to travel to a third country and the congressional notification requirements are met.

A spokeswoman said the department is reviewing the ruling. Kuwait has long sought Mutairi’s release.

Mutairi was taken into custody in Pakistan in 2001 after he traveled to Afghanistan to build a mosque with money from his parents, and to provide funds for schools and orphans. The military described him in a 2005 document as a “hard-core extremist,” and said he had been associated with al Qaida and the al Wafa fund, which the U.S. branded a terror organization.

Kollar-Kotelly’s full opinion was classified, but she ordered that an unclassified version be released in two days. There was no immediate reaction to Kollar-Kotelly’s ruling, which the Obama administration can appeal.

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29 Jul

A Sudanese female journalist facing 40 lashes for wearing trousers in public

Another Heroic Woman

Lubna Hussein, who was arrested July 3 for wearing pants and is now standing trial, openly defied the court by wearing the very same outfit to trial that she was arrested for, AFP reports.

From the Associated Press

Article

A Sudanese female journalist facing 40 lashes for wearing trousers in public in violation of the country’s strict Islamic laws told a packed Khartoum courtroom Wednesday she is resigning from a U.N. job that grants her immunity so she can challenge the law on women’s public dress code.

Lubna Hussein was among 13 women arrested July 3 in a raid by members of the public order police force on a popular Khartoum cafe for wearing trousers, considered indecent by the strict interpretation of Islamic law adopted by Sudan’s Islamic regime. All but three of the women were flogged at a police station two days later.

But Hussein and two other women decided they wanted to go to trial and Hussein invited human rights workers, western diplomats and fellow journalists to Wednesday’s hearing.

Some of her women friends showed up in court Wednesday wearing trousers in a show of support.

“This is not a case about me wearing pants,” said Hussein, who works in the media department of the U.N. Mission in Sudan and contributes opinion pieces to a left-leaning Khartoum newspaper.

“This is a case about annulling the article that addresses women’s dress code, under the title of indecent acts. This is my battle. This article is against the constitution and even against Islamic law itself,” she said after the hearing.
Story continues below

Judge Mudathir Rashid adjourned the hearing until Aug. 4 to give Hussein time to quit her job.

Hussein said she would immediately quit and thanked the U.N. for intervening to spare her possible punishment.

She said the U.N. mission was trying to stand by her, invoking a clause in an agreement between the Sudanese government and the world body’s representatives in Sudan that obliges authorities to ask permission before starting legal proceedings against a member of its staff.

Hussein’s defense lawyer, Nabil Adeeb, said the U.N. wanted to protect its staff, but Hussein wanted her trial to proceed.

“We have contradicting interests,” he said. Hussein can face at least 40 lashes, according to Adeeb.

Islamic Sharia law has been strictly implemented in Sudan since an army coup led by President Omar al-Bashir seized power in 1989, toppling an elected but ineffective government. Activists and lawyers say the implementation of the law is arbitrary.

Public order cases usually involve quick summary trials with sentences carried out shortly afterward, as was the case with the 10 of the 13 women arrested earlier this month. They were flogged and fined 250 Sudanese pounds, or about $120.

Women in the mostly Arabized and Muslim northern Sudan, particularly in the capital Khartoum, dress in traditional outfits that include a shawl over their head and shoulder. Western dress is uncommon.

Still, the raid on a Khartoum cafe popular with journalists and foreigners was unusual.

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28 Jul

The Price of Intervention: Autism Underground

“I knew that my life was meant for one purpose only: to find the treatments, protocols, and experts who would bring healing to my child and return her to me again. There was no obstacle that would stop me.”

The McGlynn: The words above and the story that follows is the story of many parents with autistic children and that of my son, his beautiful wife and their autistic twin boys. I am on this journey with them and am honored to be.

(“The first case of autism was diagnosed in California in 1943, 12 years after thimersol (mercury) appeared in childhood vaccines and three years after the use of pesticides in farming became routine in the U.S. The number grew to 6 in 10,000 by 1955. Today, the Center for Disease Control in Washington confirms that 1 in 150 births nationwide is autistic, roughly 30,000 new cases per year in the US today. In the State of California the number is 1 in 94. True numbers for the autism birthrate in the rest of the world is unquantified, though it is estimated the number is in the millions, as the medical community fails to diagnose until it’s too late for early intervention. Autism’s current rate quadruples every four years. It’s showing no signs of plateau, and has long ago eclipsed childhood cancers, cerebral palsy, downs syndrome, mental retardation and other childhood disorders combined, in prevalence. Autism is a world epidemic that no one can fully explain, and it’s shrouded in political secrecy. Experts call autism “the fire at the door”, an epidemic that can no longer be ignored.”)

Autism is a civil rights crisis of the most grievous order

The Huffington PostJuly 28, 2009

Article

My daughter was diagnosed with autism several times. The first time was by her first preschool teachers, who told me they were not qualified to diagnose, but that I should seek professional diagnosis for a syndrome they had seen many times in other children over the years. The second time was by a UCLA specialist named Dr. Alessia di Paolo Gottleib, at the office of Dr. Jay Gordon in Santa Monica. I looked at Dr. Gottleib after she had spent an hour on the floor playing with Lila, wanting a sign that the teachers had been mistaken. Her face was stony. I said “What do you think?” Her face broke a little with a grim resignation. “Lila has autism”, she stated. My daughter jumped and whirled before us as the silence took over in my head.

I asked nothing about what I could do for Lila that afternoon. Dr. Gottleib told me she would send a written report as I stumbled from the office, struck numb and destroyed by grief.

The third diagnosis came from a doctor of psychology at the local Regional Center, who also pronounced “autism” quite openly after half an hour with Lila. This was about three weeks after the time with Dr. Gottleib, and my despair had leaked a pin-size hole where I could finally formulate words about my daughter’s situation. During my midnight and early dawn pillaging of the internet I had discovered the gluten and casein free diet and had learned a little about what Dr. Rimland was purveying for our children from The Autism Research Institute in San Diego. I mentioned the diet to the Regional Center doctor. She shook her head sadly and reported it was mean and predatory for people to spread such information, when parents getting this diagnosis are so vulnerable. She told me plainly that there is no treatment for autism, the diet is considered a farce, and that anyone telling me different was a quack to be avoided.

Again I was spun by the words from the visit with the Regional Center psychologist as we stumbled home. As a single parent I was processing everything happening to my daughter alone, and I vacillated between questioning my sanity and feeling a determination inside that something could be done to help Lila. Something about pushing her diagnosis under a rug and resigning myself to never seeing her again, never knowing my daughter who was once totally neurologically intact and healthy again, was ringing impossible for me.

That night and for many nights thereafter I did not sleep. This went on for several weeks, but at the beginning, within the first few nights, I found a woman named Mary Romaniec on the internet who claimed in a magazine article, that her son had been totally recovered from autism. Within a day of reading this article a friend of mine called me. I must have fallen in too familiar with the despair that had settled in, she expressed an uncommonly serious concern for my well-being after hearing my voice on the phone. She also told me she had a friend in Orange County whose son had autism, and she gave me that woman’s number. I remember that day as a milestone in the life of my child. I called that woman, and we talked for hours, like we had known each other for years. Her son had been diagnosed four years prior, and she had a DAN (Defeat Autism Now) doctor, the product of Dr. Rimland’s work. There were doctors peppered throughout the United States who believed autism is treatable, that gains could be made in the lives of these once healthy, now deeply compromised, children. None of the doctors or specialists we had seen had told me anything about this; the party line was firmly in place that autism could not be treated.

This mother’s son had not recovered from autism. She and her physician husband (who incidentally ran interference between her and the world after the diagnosis had happened, a luxury I found myself deeply jealous of) had enlisted a DAN doctor named Robert Sears, Jr. to treat their son’s autism. Her boy had improved a great deal, had gotten language back after a period of time on “the diet” still took copious amounts of supplements, but he was not recovered. She explained to me that she had finally reached a place of acceptance about her son’s condition never going away, and had the experience of raising a neuro-typical child with her daughter, born before their first child had been diagnosed. Part of me wondered if I would ever have that experience again.

Something so powerful, so undeniable, took me over after that talk. I had evidence of a child who had recovered, according to his mother Mary Romaniec. I had further evidence that a child could improve with treatment, from the mother in Orange County. In that moment I decided, irrevocably, that my child would recover. I knew that my life was meant for one purpose only: to find the treatments, protocols, and experts who would bring healing to my child and return her to me again. There was no obstacle that would stop me.

Notice, dear friends, that this dawning of realization came to me surreptitiously, through the Autism Underground, a place filled with pioneering parents and doctors willing to take professional risks to save our children. It sounds dark and forbidden and mysterious, as the medical establishment may actually want it to sound, to scare parents away from seeking treatment, at any cost. But as autism parents, even in the age where autism pervades our population at a rate 10,000 times what is was in 1985, we remain in the position of having to find help for our children through this underground.

I put Lila on the gluten and casein free diet (another story of heroism we autism parents undertake universally) and took her to see Dr. Sears after over a month of waiting to get off his waiting list. The cost of that consult was my first staggering blow, and I sold photography equipment and used our rent money to pay for it. Photography at that time was my livelihood, so I was selling my work materials to pay for medical treatment. You may or may not know that autism is legally excluded from medical insurance coverage in the United States (in every state except Arizona, whose legislature forced insurance companies to cover autism starting in 2008). So, yes, we autism parents second and third mortgage and sell our homes, sell our work equipment, ransom our time in second and third jobs and in some cases lose close to everything to procure medical and therapeutic intervention for our children. In the United States of America in the year 2009, our kids are excluded, because they have been diagnosed with a permanent disability, from getting medical care.

This is where we look up the meaning of discrimination in the dictionary and discover that autism is a civil rights crisis of the most grievous order. In addition to being barred from insurance coverage for treatment, our children are offered poor, sometimes totally bogus options for education and therapy through the bureaucratic agencies appointed to mete out provisions. They frequently get bound, and sometimes tortured by those same entities, during the school day — a pervasive problem in the US. They get this inferior provision because, again, they are disabled with a particular disorder called autism. One of the biggest shocks and disbeliefs that has leveled me in this journey with all the other autism parents I have stood beside in Sacramento and D.C., is that the discrimination goes unrecognized by those in power. They simply cannot or will not see the gross level of deprivation these children face because of their disability.

I followed in the footsteps of many parents who came before me into autism and I got Lila some medical treatments that traditional pediatricians told me were absurd. Aside from the odyssey into the world of Candida Albicans and Dublineisis, (aka yeast) that plagued Lila’s guts for two years without relent, Lila underwent IVIG (Intravenous Immunoglobulin) therapy like Mary Romaneic’s son. Mary was available to me throughout the process and we talked many an early morning about what was happening with Lila. The total cost for Lila’s 18 monthly treatments was $45,000, cash money. That money was raised by having a rock concert with friends from college times: Tenacious D. (I later found out there was a way for that doctor to have gotten insurance to cover it, but since that would have meant 50% less profit for him, he had us pay cash, another story for later.)

Of the dozens of medical interventions that Lila experienced, IVIG was the most dramatic. The first time we went to the clinic in Orange County, our wagon filled with toys and books for the all day affair on an intravenous drip, I saw a miracle. My daughter came back to me, fully recovered, verbal, without flapping and flailing, lucid: my Lila. The euphoria I experienced was other-worldly. I dropped to my knees and thanked God. I wept with tears of endless gratitude.

Lila was with me that time for about 5 days until I watched the immunoglobulin harvested from 1500 donors metabolize out of her system and she slowly slipped back in to autism again. This happened 17 more times. Twice she was rushed to the hospital after an infusion in the middle of the night with a 104+ fever that would not go down. About 15 infusions in, a heart murmur developed. (This was later resolved and was found benign when the infusions ended.)

Every month she would return to me calm and lucid, and slip away again. At the end of that year and a half, I contacted two family friends for more money to keep her going. She went three more times, and each time my disbelief that she was slipping away again became more crazy-making. I called a DAN doctor in Florida to beg advice. I called mothers in autism I knew, agonized. Finally, with no more funds, and no sign that the pattern would change, I had to let IVIG go and settle in to the daily life of a child who was fully trapped inside the vortex of autism. I was told that those brief reprieves from the immune component of Lila’s autism had given her brain a chance to weave itself together a bit. Some gains remained. Lila was more verbally competent than she had been before.

This is one simple tale of many in the galaxy of bio-medical treatments we seek to help our children regain their neurological and immunological faculties after autism has been visited upon us. The saga of testing, metal load, gastrointestinal plagues, sensory processing disorders, auto-immune disaster, all of it took the time and money to investigate possible cures. Today, five years after the diagnosis, we are fundraising for Lila’s Hbot (hyperbaric oxygen therapy) which costs thousands of dollars and won’t be provided for by insurance.

One of the flimsy claims the insurance lobby makes for excluding autism is that its treatments are not proven. However, there are now hundreds of children who have recovered through IVIG, diet and chelation therapy. Further, there are thousands of cancer patients who die each year despite having received costly “medically proven” chemical treatments. The difference? There are ten thousand times more children with autism than cancer, and ten of thousands more coming down the pike each year who the insurance lobby don’t want to treat. This is a tidal wave epidemic that government and society can longer ignore. As a champion in autism Rick Rollens often says: “Autism is the fire at the door.”

To the parents in Orange County in our film, who are living in the guest quarters of their parents home after spending every penny they had on the legal battle for their autistic daughter’s inclusion in school, to the parents who have lost their homes in foreclosure from the financial burden of giving their autistic child the chelation and oxygen therapy he needs to recover, to the mothers who don’t speak English, and who have dark skin, who never dare to challenge the powers because of their uncertainty in the pecking order: Our children are worth this struggle. Speak to the government, speak to the doctors, speak to the other hundreds of thousands of parents in this country alone who are being involuntarily inducted into the confraternity of autism as their children fall into the void: let them know that this underground struggle must be brought into the light. There is one goal as we enter into this age of autism, and that is to open the doors to access for this new generation to get medical intervention, to avoid vaccinations if necessary, to obtain the highest possible level of educational and therapeutic supports to regain their lives.

I had to come to terms with the fact that Lila is not going to recover from autism, about a year ago. She’s come up about 75% with the interventions she’s received, and she still continues to improve. She never stops working. Today she has a chance to go to school with typical peers, to enjoy sports activities and play dates, to excel academically to the best of her ability, because of this intensive work we have done. I wouldn’t take back a minute of the fight to get her where she is today.

We are here now to bring light to the autism underground, to make intervention open to all children affected by autism regardless of race, origin, or socio-economic status.

More information about the autism journey can be found at http://pilgrimsmovie.com, The Pilgrims: the journey to a new world for autism is narrated by Aidan Quinn and directed by Amanda Copeland. Produced by Aaron Ryder and Rodrigo Garcia and sponsored by Iberia Airlines of Spain. Email Amanda Copeland for more info on the film or for help and questions regarding intervention for your child with an autism diagnosis. Autism is reversible.

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27 Jul

Interrogations and Prosecution

Let us sacrifice more underlings

Washington Post Editorial, Monday, July 27, 2009

Editorial

IN APRIL, Attorney General Eric H. Holder Jr. declared that it “would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” He was speaking, of course, of CIA operatives and other government interrogators who complied with the “torture memos” authored by the George W. Bush-era Office of Legal Counsel (OLC).

Mr. Holder was right to shield these interrogators from criminal prosecution. He is now confronted with a different question: What to do about those who may have gone beyond — perhaps far beyond — even what the OLC sanctioned?

We reject the distorted interpretations that underpin the OLC memos and that serve as legal justification for harsh interrogation techniques that either border on or constitute torture. But those who relied on the memos and shaped their behavior in the good-faith belief that they were following the law should not be subject to prosecution.

To the Washington Post,  I say that what you write is the infamous Nuremberg Defense

Let us stop right here and revisit Nuremberg.

The Nuremberg Defense is a legal defense that essentially states that the defendant was “only following orders” (“Befehl ist Befehl”, literally “order is order”) and is therefore not responsible for his crimes. The defense was most famously employed during the Nuremberg Trials, after which it is named.

Before the end of World War II, the Allies suspected such a defense might be employed, and issued the London Charter of the International Military Tribunal (IMT), which specifically stated that following an unlawful order is not a valid defense against charges of war crimes.

Thus, under Nuremberg Principle IV, “defense of superior orders” is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty. Nuremberg Principle IV states:

“The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders, and one who accepts one will probably be jailed for committing unlawful acts, in a Catch-22 dilemma.

Wilhelm Keitel, Alfred Jodl and other defendants of the Nuremberg trials unsuccessfully used the defense during their trials. The defense was employed during the court martial of William Calley following the My Lai Massacre in 1968. Some have argued that the outcome of the My Lai Massacre courts martial was a reversal of the laws of war that were set forth in the Nuremberg and Tokyo War Crimes Tribunals. Secretary of the Army Howard Callaway was quoted in the New York Times as stating that Calley’s sentence was reduced because Calley honestly believed that what he did was a part of his orders — a rationale that stands in direct contradiction of the standards set at Nuremberg and Tokyo, where German and Japanese soldiers were executed for similar acts.

Ehren Watada refused to go to Iraq on account of his belief that the Iraq war was a crime against peace (waging a war of aggression for territorial aggrandizement), which he believed could make him liable for prosecution under the command responsibility doctrine. In this case, the judge ruled that soldiers, in general, are not responsible for determining whether the order to go to war itself is a lawful order – but is only responsible for those orders resulting in a specific application of military force, such as an order to shoot civilians, or to treat POWs inconsistently with the Geneva Conventions. This is consistent with the Nuremberg Defense, as only the civilian and military principals of the Axis were charged with crimes against peace, while subordinate military officials were not so charged.

In 1996, the Nuremberg Defense was successfully used by Erich Priebke, although the verdict was appealed and he was later convicted[citation needed]. It was used with varying degrees of success by those involved in the Hostages Trial.

Based on this principle international law developed the concept of individual criminal liability for war crimes which resulted in the current doctrine of “command responsibility”.

“Command responsibility”, sometimes referred to as the Yamashita standard or the Medina standard, is the doctrine of hierarchical accountability in cases of war crimes.

The doctrine of “command responsibility” was established by the Hague Conventions IV (1907) and X (1907) and applied for the first time by the German Supreme Court in Leipzig after World War I, in the trial of Emil Muller.

The “Yamashita standard” is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted for atrocities committed by troops under his command in the Philippines. Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.”

The “Medina standard” is based upon the prosecution of US Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. (Medina was, however, acquitted of all charges.)

Source for the preceding: A Reading of History and :

The Truman Library

Nuremberg Trials

The My Lai Courts-Martial

Returning to the Editorial:

It is an entirely different story for those who went well beyond the often-extreme measures authorized by the memos.

In 2004, the Pentagon reported that 34 deaths had occurred in detention facilities in Iraq and Afghanistan; at that time, nine deaths were classified by military medical examiners as homicides. While the Defense Department has conducted several courts-martial of military personnel in abuse or death cases, the same level of scrutiny has not been applied to civilian personnel.

Take, for example, the case of Manadel Jamadi, an Iraqi insurgent captured in late 2003 and taken to the now-infamous Abu Ghraib prison. Navy SEALS delivered Jamadi “alive, kicking and shouting” to CIA interrogators, according to a Post account. Jamadi is believed to have died during the interrogation, while in CIA custody.

A Navy SEAL was court-martialed and ultimately acquitted for his role in the Jamadi case. Yet CIA operatives involved in the matter have thus far escaped accountability. This is inexcusable. Even under the warped logic of the OLC memos, interrogations are forbidden if they result in pain associated with organ failure or death. Jamadi’s interrogation clearly crossed that line.

The task before Mr. Holder is not an easy one. If he authorizes an investigation, he could be accused by some of criminalizing policy differences with his predecessors. He may also appear to undercut President Obama’s desire to leave the past behind and “look forward.” The attorney general must put political considerations aside. He should assign a career prosecutor to look at the facts and apply the law.

We continue to believe that an independent commission would best be able to shed light on a wide range of questions regarding detainee detention and treatment policy. It would help to ensure that such mistakes are never repeated. But some acts, including the violent deaths of detainees at the hands of U.S. personnel, must be investigated and addressed by law enforcement.

Glenn Greenwald’s article is especially germane to the last sentence above.

Full Article

“That, in a nutshell, is the twisted Washington mentality when it comes to lawbreaking:  when political crimes become so blatant and extreme that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it’s necessary to sacrifice some underlings who carried out the crimes by prosecuting them, but — no matter what else happens — the high-level political officials responsible for the crimes must be shielded from all accountability.  In ordinary criminal justice, what typically guides prosecutions is the opposite mindset:  namely, a willingness to immunize low-level soldiers in order to ensure that the higher-level criminals suffer the consequences of their crimes.  But when it comes to crimes committed by political officials in America’s Versailles culture, only the pawns are subjected to the rule of law while the monarchs and their highest royal court aides are immunized.”

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