May article 2012

Reflections – May 2012

Friends: Those who’ve followed these postings know that my legal battle with the federal government over a $16,000 fine (for traveling to Iraq to bring medicine without a U.S. license) has ended. The judge dismissed the government’s efforts to collect saying the government waited too long to sue. See Bert’s Case for a history of the legal issues.

I’ve decided to continue to reflect on what these past years working on the Iraq sanctions issue have meant to me. Was it worth it? What have I learned? How has it changed me?

As part of my personal reflections, I realize there are two factual areas which need further mention: they involve the U.S. Courts and the U.S. State Department.

In 1996, when I first began to understand what we were doing to the Iraqi people, I could not believe that it would be judged legal. I wanted to get into court to present the evidence and argue against the policy. Thanks to lawyers at the firm of Garvey Schubert Barer – especially to attorney Don Scaramastra – we began a law suit against the Office of Foreign Assets Control (OFAC), the federal agency which oversees U.S. sanctions.

The years of our law suit against OFAC have been a real-world education for me. After OFAC fined me $10,000 I replied to them with these words: “I want to explain here, as I would to any personal friends of mine, why I have done this ….” It was my initial effort to begin a dialogue with the people who fined me for going to Iraq to bring medicine.

From a biography of Mahatma Gandhi titled My Life is My Message by Narayan Desai, I recently came across this paragraph: “Those who are convinced that truth and justice is on their side seize every opportunity of entering into a dialogue with the opponent. Those who use physical force do not comprehend the power of thoughts and disregard the efficacy and validity of the process of dialogue.”

I cannot think of a better comment on my initial efforts responding to the fine.

After 15 years of dealing with OFAC – including supplying them with over 100 pages of documentation showing what sanctions were doing – I have never had one word of response to my efforts to discuss the substance of what U.S. policy was doing. Perhaps I should not be too surprised. But I really expected more from our legal system.

In 2004 our law suit reached Judge James L. Robart in U.S. District Court. At the end of oral arguments he unexpectedly invited me to address the Court and, in part, I said this:

[I]f we have honored, accepted in some form either the Geneva Convention, the convention against genocide and the customary international law that we, I trust, should respect, then what prompted me in my trips to go to Iraq was the knowledge from the New England Journal of Medicine from 10 years ago, when I first discovered it, that 46,900 children in Iraq had died within the first eight months.

Now, I’ve been struggling for many years to find something that I could do that would help to be a responsible citizen of this country to stop this process which is clearly killing thousands of children every month.

If it is in fact correct that the customary international law that applies in this case, the rights of the children, the Geneva  Convention, the Genocide Convention, cannot be brought in front of a domestic Court because the President [sic, and Congress] has standing to overrule those customary international laws, then that issue puts me, and I think all the other citizens of the country, in a quandary.

What can we do if we feel that some gross, terrible human rights violation is occurring under our government? And that to me is the central issue.

Judge Robart then replied to what I’d said:

Mr. Sacks, you’re right in that the issues that are before the Court many times involve legal principles that seem very separated from the facts that are also before the Court.

The Judge is saying that the undisputed facts of the case – that economic sanctions had caused the deaths of 100,000s of Iraqi children – were separate from “the legal principles” before the Court. And that in this case the legal principles render the facts irrelevant.

In short, if Congress chooses to kill Iraqi children and the Executive implements the policy – as long as they cross all the t’s and dot all the i’s – the legal principles trump any customary international law. And this includes the international prohibition of genocide.

That should be a shock to all of us who believe in the importance of the rule of law.

(Just to be clear: Judge Robart did not weigh the facts and then rule that U.S. policy on Iraq was not genocide; he did not rule that if U.S. policy on Iraq did constitute genocide it would nevertheless be legal; he did rule that Congress had prohibited anyone from raising a charge of genocide in federal court – except for the U.S. itself.)

It was not until after our appeal to the Ninth Circuit Court, when we were petitioning the U.S. Supreme Court to take up our case, that I learned of the legal concept jus cogens. Also called peremptory norms, they designate “a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.”

Genocide is generally considered such a norm. My point is not to claim that U.S. policy on Iraq was genocide – legal scholars do debate that – but rather that in the suit we brought, the Court held U.S. law can override any international norm, even genocide!

(Of course the most egregious case is that the Courts refuse to rule on “the supreme international crime, initiating a war of aggression” – to quote Justice Jackson at Nuremberg – instead asserting it is a “political question” whether a war is a crime.)

After the Supreme Court refused to hear our case – including the jus cogens argument – I imagined my struggles on the legal front were over. But in March 2010, I was served notice that the Department of Justice was suing me to collect the fine which I’d refused to pay all these years. By this time, I had become fully convinced that the economic sanctions on Iraq – for the purpose of overthrowing the President of Iraq (as senior U.S. officials have clearly stated) by means of inflicting massive suffering on the Iraqi people – came to constitute the crime of international terrorism … according to our own laws.

My Declaration to the Court provides evidence and makes this argument very clearly.

U.S. District Judge Richard A. Jones presided over this case. He eventually dismissed the suit to collect the fine as being untimely. While that was a relief of sorts, I would have wished for him to hear the arguments I made in the material I provided the Court.

Even if he had already decided to rule on the narrow (and essentially technical) grounds of Statue of Limitations, was it not important to publicly listen to the facts that the U.S. had engaged in a massive crime of terrorism against the Iraqis? All the more so because the U.S. is now engaged in an essentially endless war against (yes, that’s right) terrorists.

I can only wonder if Judge Jones didn’t allow this evidence because of its relevance.

The education I’ve received from pursuing the matter in U.S. courts is that – whatever sympathy the judges may have with the issues I raised – they were unwilling to allow in their courts any serious legal challenge to a major official policy of the United States.

(For those who are new to this blog, earlier posts and pull-down menus contain much supporting evidence, many more details, and links to original sources where possible.)

I can see now that my reflections on the U.S. State Department will have to wait for next month. I also realize that I have more things of a general nature I want to reflect on.

For example, in my March posting I wrote about “activism as a tool for coming to truth.” My activism in the U.S. court system has certainly brought me closer to a truth about how our legal system operates when dealing with a major foreign-policy issue.

And that raises a related question: Do I really want to know truths like this?!

The answer to that question, I would say, depends on what I call my world-view “working hypothesis.” Others might call it their “faith” in how the world actually is. (Yes it’s true, I studied science and engineering in college, not theology.)

By a “working hypothesis” I mean, what do I suspect is true: Do I believe that knowing some truths will just make me miserable? Or do I believe that, in the end, finally knowing truths will bring me peace? (In religious terms, will the truth “set me free.”)

It was Mahatma Gandhi who famously said that “Truth is God.” In my April posting I quoted a former British diplomat who cited Gandhi on the intimate relation of means and ends – and who spoke about Gandhian nonviolence. I understand that Gandhian nonviolence is based on a world view that one must follow truth no matter where it leads – and by doing so, that process will bring one to peace within oneself and in the world.

The relevance of this view of nonviolence to our world today could not be more urgent. I (and many others) believe that the future of the Occupy Movement rests on an commitment to accepting nonviolent attitudes and following practices of nonviolence.

I am currently reading a four-volume biography of Gandhi by Narayan Desai, who grew up as a young boy with Gandhi in his ashram. His statement on “The Roots of Nonviolence” is available at which I find very helpful.

Finally, almost as a P.S. to this posting, I want to mention a talk I recently heard by Rocky Anderson. He is the former mayor of Salt Lake City, now the Presidential candidate of the newly formed Justice Party. As I have written much on this post about the rule of law, I want to commend and support him for his forthright criticism of the current policies of both political parties which so deeply undermine the rule of law. You can learn more about him — hear his Seattle talk a few days ago – and be inspired.

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