The International Human Rights Conference On Winning Amnesty For U.S. Political Prisoners And POWS
Tear Down The Walls by Dr. Mutulu Shakur – February, 2002
Naturally the impulse to fight justice should be as intimate as our will to breathe so my only conceivable response to this historic conference is to utter a prayer of thanksgiving for at long last, the struggle of imprisoned Freedom Fighters will be given voice. Hopefully– a strong voice.
While I am awed at the immeasurable and all of its ramifications studied. In following the road of struggle, there is no path of least resistance, so without either depression or hysteria I will attempt to outline an overview of the current (and past) situation concerning the status of confined Freedom Fighters.
First, it is imperative that the blusters of the United States be acknowledged since despite the countless Freedom Fighters it has confined, only one – Manuel Noreiga–has the status of a recognized POW. No else has been accorded that recognition and after decades of legal protests, the U.S. acting upon its own self-interests has been immobile in its recognition of any prisoner of war other than Noriega. It is this type of national cynicism that must be defeated if America is ever going to ease up on its brutal insensitivity to Freedom Fighters.
With all due respect, if this Conference and any attendant investigation is to be successful, it must note that COINTELPRO was a political/military strategy that depended on its survival from the U.S. government and further that their illegal actions deliberately circumvented the rights of Freedom Fighters in this country. COINTELPRO was also designed to prevent people of color from receiving fundamental human rights in this country and it was this type of belligerent low-intensity warfare that the Freedom Fighters were at war with. And for this reason, the Conference must reject the notion that the Freedom Fighters and the U.S. government were not engaged in a state of war during the 60′s and 70′s and 80′s.
In America, organizations such as The Republic of New Afrika, The Black Panther Party, RAM, SNCC, The African Blood Brotherhood, and other networks were used as springboards to resist both the overt and covert acts of the government. Though at times, the resistance took the form of armed conflict, the motive of the Freedom Fighters was, at all times, political!
After the capture of these Freedom Fighters, the proceedings were a criminal trial although the evidence suggested they were indeed political prisoners and should have been accorded the dignity of POW status.
The struggle of people of color evolved in America out of the legacy of slavery and the subsequent Jim Crow laws of the Reconstruction Period. Following decades of oppression, people of color in this country recognized they had to negotiate their liberation through armed resistance and it was during this period of history that the BPP, RNA, RAM, etc., were major players.
The collective aim of the Liberation movement was to promote black nationalism and to free themselves from the political oppression of the government. In return and as a response, COINTELPRO was launched to pave the way to the absolute destruction of the Black Liberation movement . COINTELPRO was conceptualized for this purpose and this purpose alone and its quasi-military nature is clearly illustrated by the punishment it meted out to Freedom Fighters. Sadly the numerous murders of Freedom Fighters at the hands of COINTELPRO support the characterization of the government as a racist, repressive regime in the same pattern of other military regimes of the era, familiar to the attendees at this Conference.
In this context, considering that the structural aspects of COINTELPRO was the government’s creation as a mechanism to destroy black nationalism, the proper analysis should be that the Freedom Fighters were victims of human rights abuses and responded to these violations in a strictly political fashion. Though the acts were armed conflicts, the objective to be achieved was the total restoration of their civility and human rights and to establish a resolution to the conflict.
Once established as a political organization, the Freedom Fighters were empowered to protest and defend the right to organize against the repression by any and all means which fell within the standards of the Protocols. It should be clear that the Freedom Fighters possessed a legitimate interest in curtailing the activities of COINTELPRO and sundry other governmental perpetrators.
Second, it must be clear that throughout the history of the New Afrikan presence in America, there has been consistent turmoil arising from the resistance of Freedom Fighters during the 60′s and 70′s.
Such attacks were always aimed at the police or banks and at no time was any civilian or and civilian operations targeted. This attests to the fact that the rebellions or acts of armed self-defense were overtly political in nature and were not then or now seen in the context of war crimes, criminal, or terrorist behavior.
The Conduct Of the Government
In connection with the capture and arrest of the Freedom Fighters fortunate enough to survive the iron fist of COINTELPRO, the government had the responsibility to conduct any investigation it deemed necessary to establish the status of the captives. Despite these broad and extensive investigative powers, the government, without any regard for international law, branded Freedom Fighters such as myself, Assata Shakur, Marilyn Buck, Sekou Odinga, Nehanda Abiodun and others of the so-called Brinks 6 as common criminals and placed us under the provisions of a trial court, knowing full well that such a venue would disrupt our rights to dignity, fairness, and impartiality.
Over the years, the government placed a priority on amassing information regarding the Black Liberation movement, its conduct, activities, and members. Such data, no doubt, presented reasonable grounds to suspect that our (Freedom Fighters) aims and political objectives placed our behavior in the distinct category of political offenses. [A pure political offense is an act aimed directly at the government and has none of the elements of an ordinary crime]. As previously noted, my comrades and I should have been identified as political prisoners thus qualifying us for amnesty.
The government’s underlying rationale behind their blatant affront was to protect themselves from having to admit or face their perpetrated atrocities against the Freedom Fighters, but notwithstanding this, they were bound unequivocally to the Nuremberg Charter as well as the Geneva Convention on the nature of political prisoners.
The concept of political prisoners is as old as the history of political conflicts between and within nations, but it was only after World War II that European and Americans statesmen defined the rule for modern warfare. Still, some Liberation movements’ acts were precluded, however in June 1977, the additional Protocols one and two to the Geneva Convention were adopted which expanded prisoner of war protections.
President Carter, during his tenure, did sign on to the Protocols, so technically at the time of the acts charged in my case, U.S. was a signatory to the Protocols, especially at the time of Assata Shakur’s liberation from prison although by the time Reagan came to office he withdrew the U.S. from the Protocols.
In view of ongoing U.S. abuses of political dissidents, both state and federal courts procedures must be scrutinized to guard against the unwanted criminalization of religious and political conduct and to guarantee the necessary protections of these basic human rights.
Most U.S. laws used to prosecute religious and politically motivated conduct against state and federal powers systematically denies political prisoners the right to a full defense by prohibiting relevant evidence and information with regards to the Geneva Accords, Protocols I and II, and Common Article 3.
This judicial deception allows the U.S. government to continue its denial that there are no political prisoners within its borders while in fact there are countless confined individuals who qualify for such status. Their imprisonment by the government is a clear contravention of international law.
Ironically, the U.S. government has attempted to disguise its outlaw behavior of criminalizing political prisoners by usage: of special criminal statutes, the most frequently used one being advanced for counter-terrorism activities.
Conduct Of The Courts
Using domestic courts to enforce international human rights law is a new and challenging area of human rights advocacy and many procedural-difficulties arise in this context.
According to Hasting Law Journal [vol. 40, pg. 420], “international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.” Still, when it comes to the political prisoner application in America, domestic and federal law will prevail over customary international law.
Under the formulation of the Nuremberg Principles, Freedoms Fighters have the right to invoke the Principles in order to prevent the genocide of his/her group and upon closer scrutiny, it is judicially discoverable that the actions of Freedom Fighters were designed to do just that. To confront the genocidal acts of the government. In any such case: based on the doctrine of political question and standing, the courts routinely take great pains to insist that the doctrine is one of political question, not political cases.
Notwithstanding the various political defenses have been utilized in U.S. courts, legal efforts in this are have proved unsuccessful despite the fact that most of the cases correspond to the “political offense exception.” Recognized under this defense are twin types of political of political offense exceptions, (1) the pure political offense that involves acts directed solely against the state, and (2) the relative political offense, in which the act is “a common crime so connected with a political act that the entire offense is regarded as political.”
The “POE” is noteworthy not because it is an internationally recognized standard enforceable in U.S. courts, especially where the defense was raised where the political content of charged criminal acts determined the nature of those acts.
Despite the process of decriminalization of political acts, the United States still asserts-that there are no political prisoners inside its borders, relying on the inference that POWs and political prisoners exist only in countries such as Cuba or Libya that impedes U.S. interests. The U.S. further contends that there are no conditions or situation of conflicts within the U.S. that that would result in political prisoners. An acknowledgement as such would admit that there are serious conflicts of a national character within its borders. This view is diametrically opposed to the international one as the Black Liberation movement makes it clear that there are political prisoners and POWs in the U.S.
As a legal counter, the courts argued essentially that any decision on POWs or political prisoners status was reserved to the political branches of the government and Judge Charles S. Haight, who presided over my case, is the foremost proponent of this line of thought. It follows that this assertion, the U.S. political stance relative to Protocol I was based on its own history and policies, and that it denied that politically conflicts existed internally, yet this false commentary is challenged by data in my affidavit about the war against New Afrikan and the Black Liberation movement as well as documentation from the “Church Commission”, which revealed the government’s “secret war”, against the Black Liberation movement. Such acts, no doubt, constitute “overt acts of war”, and any person captured would be considered a prisoner of war.
Furthermore, in 1977, additional Protocols to the Geneva Convention were adopted to reflect the character of guerilla warfare practiced by national liberation movements which states, in part, “that any person who takes part in hostilities and falls into power of the adverse part shall be presumed to be a prisoner of war.” Additionally it asserts that “if a person who has fallen into the power of an adverse party is not held as a prisoner or war, he shall have the right to assert his entitlement to POW status before a judicial tribunal before the trial for the offense.”
In 1986, Marilyn Buck, and myself presented a Motion in the 2nd Circuit court contending that the acts charged in our indictment were political acts which were not the proper subject of criminal prosecution. This was a litmus test for the analysis of POW applicability. Without much legal ado, the court concluded that juries could not determine violations or applications of international law with respect to domestic charges, however in the 1998 Trident nuclear Submarine case, the court did just that. In that instance, the defendants charged that their actions were to prevent violation of international law, yet their was decided by a jury in a domestic court. The same analysis should be applied to the case of Freedom Fighters confined in the U.S.
Alternative Dispute Mechanism
Traditionally, ADM’s have been used to settle non-criminal-matters amenable to negotiation or mediation. In fact, the function of ADMs is to achieve a solution which offers something to both parties.
Although many would cringe at a judicial remedy where no one is declared a winner, a legislatively implemented “Truth and Reconciliation Commission” based on the South African model is needed in this country. Here, as there, the subject matter of the Commission’s hearings would be human rights violations, including murder, even though these acts, on their face, constitute crimes under domestic law. Notwithstanding this, the procedures of the Commission are aimed at full disclosures of truth by perpetrators and public acknowledgment for victims, with the possible resolution being amnesty instead of the customary punishment for the perpetrators. The theme of the Commission would be both political necessity and legal justice.
In this country, as in South Africa, the Commission’s aim would be to “to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past.” This can only be achieved by establishing as complete a picture as possible of the gross human rights violations perpetrated from the 1960′s up to the present by (1) holding hearings, (2) facilitating the granting of amnesty in exchange for full disclosure or truth for acts with a political, (3) recommending reparations, and (4) conceptualizing means to prevent future human rights violations.
Such Commissions have proven effective in Chile, El Salvador, Bolivia, Argentina, Chad, Ethiopia, Germany, Philippines, Rwanda, Uganda, Uruguay, and Zimbabwe. In each case, the Commission, through its amnesty process, rejected a notion of retributive justice in favor of restorative justice. The same should and must be done here in America.
Moreover, corporate America should endorse such Commission. The major reason being that racism is a political, social and economic apparatus that depends on all three pillars to work. In effect, the interrelationship of these pillars circumscribes a society’s framework and for this reason, the human rights environment in a county can impact, either negatively or positively, on the political and social structure of that country.
Such a Commission would be vested with the power to grant amnesty for sentences being served and to preclude prosecution for crimes, rind in some cases, the granting of amnesty can be done without holding a hearing and in the absence of the applicant. However amnesty can only be granted if all the Act’s requirement are met; namely that the act be associated with a political objective committed in the course of the conflicts of the past and that the applicant; has made a full disclosure of all relevant facts. The Commission’s authority covers act against the state, and acts of Liberation organizations against each other, acts of the state against liberation movements, and acts of- state against other states, but excludes offenses committed for personal gain and out of personal malice.
If ever the time seemed right for a reappraisal of America policy on the nature of POW’s and political prisoners, that moment has now arrived. In the wake of much-deserved criticism, Bush has reconsidered his previous stance on the status of many of the detainees here at Guantanamo. Initially, the White House seemed unperturbed that by denying POW status to the Taliban this would place the administration in direct contravention of the Geneva Convention. Even his later forced acknowledgment shows his disdain for international law because the matter of who truly qualifies for POW status is supposed to be settled by a legal tribunal and not a unilateral executive branch of any one government no matter if a Superpower or not, so Mr. Bush’s arbitrary decision is still lacking due process. However, despite the irregular nature of his decision, Freedom Fighters in this country must now demand that he invoke the same rights for them. Bush cannot be allowed to further weaken the protections of the Geneva Convention and the moment is fully at hand when the issue of imprisoned Freedom Fighters inside this country must be laid squarely in his lap.
The world must know that we, Freedom Fighters, are eligible for POW status and that our cases be laid out demonstrating our cause while forcing America to uphold and honor all the requirements of Geneva Convention.
In the same way that European allies of this country pressured the Bush Administration to alter its policy of the military detainees here in Cuba, the same allies, in the interests of fairness and justice, should do likewise for us.
Clearly the same standard/criteria presented by the Black Liberation movement for application of Pow status mirrors the qualifying reasons for the certification of the Taliban with the only exception being that the Black Liberation movement was an internal conflict, yet still under the provisions of the Norgaard Principle. [ * Bush's stance in regards to the Taliban is not a correct legal status since he is basing his decision on the '49 Accords. That's wrong comparison since the Protocol is a standard for bestowing a hearing to determine what is required*]
For all these reasons, Bush must be compelled to deal with the abandoned question of how to apply the Genenva Convention Protocols to imprisoned Freedom Fighters inside this country. This is not the first time this country has been faced with such dilemma and one doesn’t have to look any further than the Vietnam conflict. In that war, America denied the Vietcong POW status, but later reversed its position. Now the time has come for the White House to reverse itself and grant POW status to imprisoned Freedom Fighters.
Human Rights Watch has argued that in the case of the military detainees in Cuba that it is inconsistent for the U.S. to contend the Geneva Convention does not apply because this was an unconventional war. Some insist that since America did not pursue the alleged terrorist by traditional law enforcement means, but instead opted to engage in armed, military operations, the Geneva Convention do apply-and must apply.
By the same token, the American government relied on COINTELPRO to quell political dissent and to actively engage in low-intensity warfare against the Black Liberation movement. Clearly, such counterinsurgency measures were militaristic in scope and design. COINTELPRO essentially federalized the local police for its politically repressive purposes and used them militaristically, vesting them with the authority to “prevent the rise of a Black Messiah, and the necessity to neutralize any potential Black leadership movement.” Since America chose to adopt military tactics to achieve its aims and objectives against the Black Liberation movement, the imprisoned Freedom Fighters deserve the protections of the Geneva Convention.
When the Genenva Convention Protocols were charted, they were to be a celebrated illustration that men could wage war and still practice humanity at the same time, but in the years since the Convention, that notion has been betrayed by the U.S., due to the fact that it parades members of the Black Liberation movement before the international community, treating the Freedom Fighters as second class captives in much the same way as it treated them as second class citizens which, in effect, sparked the dissent.
Sadly, the Bush administration is even more the villain because it lacks the political flexibility to realize that they have not fulfilled their duty under Geneva simply by “humanely providing POWs with three meals and a cot.” This deep ignorance seems to suggest that, as long as no one says anything, the White House can treat POWs as so much collateral damage. Hasn’t anyone noticed that the concept of humanity must follow the accused into the courtroom where the propensity for injustice is the greatest?
If the current Bush trend of political blindness follows the prescribed trend, then the open talk of retaliation against terrorism abroad will become a smooth-as-butter jumping-off point for a new round of counterinsurgency in America.
As I have warned on countless occasions, the weak union between who is and who is not a terrorist and what is and what is not an act of terrorism will offer no legal impediment to the wholesale round-up of dissidents of every stripe. This is precisely what happened to myself and my comrades and once branded as terrorists, none of – the highly- touted due process measures applied.
With no fixed definition of terrorist, the government will continue to possess the political vanity to declare who is a Freedom Fighter and who is a terrorist as it deems appropriate. It is worth nothing that there is no silver lining in this type of “political profiling” and it is wholly inconsistent with international law to brand someone when he indeed is a Freedom Fighter.
Bush’s steel-trap mind must be changed and Tear Down The Walls is the ultimate devise for enhancing that possibility, however in according with the American position, Tear Down The Walls must exercise all of its prerogatives and denounce domestic change.
In conclusion, I submit that the struggle must include PPPs, politicized political prisoners. These are those incarceration was for criminal, objectives, but whose confinement exposed them to the political, social and religious repression of the state and federal governments in the form of racism, capitalism and fascism. One politicized, the prisoner commits himself to active participation in the ongoing struggle, thus transforming himself.
In many ways the PPP suffers more than the political prisoner or POW since he is basically without the possibility of international law protection and they generally are not part of an external organizational base. This being so the government uses the prison machinery as its instrument to isolate them and to break their wills. Unless our movement creates organizational bases for PPPs, we will lose a strong support system. In this period the penitentiary is an extension of the oppression and promotes genocide. Therefore, struggle within the penitentiary is within the movements purview. We must fight valiantly to certify PPPs and add them to our agenda for protection under international law.
Finally, I salute and applaud Tear Down The Walls for being the courageous organization they are for being willing and able to stand against America imperialism and fascism.
Long live the struggle. Free the Land.