Dreadful post coitum in the backstage of power (2)

Dominique Strauss-Kahn VS. Nafissatou Diallo: A case of Comparative Law

A MEDIA EVENT ON THE THRESHOLD OF THE AMERICAN CRIMINAL PROCEDURE

A brilliant career, stunning accusation · © CNN

Reality is a hard nut to crack.
Dominique Strauss-Kahn is a major figure who has friends who may be sincere in their affection, no matter how often crossbred with ulterior political motives. Whenever a person is accused of something incredibly serious, his relatives have the natural reflex to refuse to believe that it is just possible.

The first instinct is to protect, to rush to help, sometimes awkwardly, like that wife who thought helping her husband accused of robbery and who found nothing better to say at the bar of the criminal court: « Murderer maybe, but a thief, surely not! »

Clumsy reactions, not to say completely ill-advised have been held. Most of those who did so have retracted or expressed their regrets by realizing the nonsense of their arguments.

It is not herein about demonstrating the guilt or innocence of the IMF’s managing director. No more than trying to prove a hypothetical plot, in one way or another, but to describe and explain the criminal proceedings which he is subject to understand what is happening and what will happen. Note that I do not pretend to be a lawyer practicing in New York and I beg more eminent experts than me to forgive my probable errors and approximations, and I will correct the post if required.

The U.S. procedure, a much more balanced system than the French feedback might suggest.
Let us briefly recall the facts: DSK is charged of having appeared suddenly naked, facing a maid who had entered the room thinking it was cleared out, to put it back in order. After closing and locking the door, DSK would have intended to force her for oral sex, he would have tried to take off her clothes in order to go further, but she managed to escape. The police arrived, reportedly found that he had left the scene, forgetting one of his (seven) mobile phones, and tracked him down in the list of passengers on an Air France flight to Paris.

He was arrested onboard by the Port Authority of New York and New Jersey – the local Border Police – and delivered to the NYPD, the Special Victims Unit to be precise.

In the United States like in England, police have broad powers of inquiry and initiative in investigations. Unlike France, where the prosecutor leads the investigation and gives instructions to the police – which are in fact orders –, the district attorney discovers the records when the police bring them together with the suspect. For some serious cases, police officers may have an advisory role, stating the evidence that the DA needs to go further on prosecution. Both authorities are more separated in the U.S. than in France.

The arrest may take place without an arrest warrant in two cases: the crime takes place in the presence of the police officer or if the officer has sufficient evidence to arrest the person (sufficient grounds). In general, a home arrest requires a judge to issue an arrest warrant.

The first stage is booking and it is held at the police station. Fingerprinting, photo identification, judicial collect of criminal record (in New York it is called NYSID report or rap sheet. The person under suspicion may be questioned but he has the right to remain silent (which will never be retained for the prosecution against him unlike in French law). He may be assisted by a lawyer who has the right to intervene during interrogations (the Paris prosecutor shivers in terror at this perspective). The police officer in charge of the case (usually the first on scene) prepares a report – the criminal complaint— which is the basis for prosecution.

Less serious facts give rise quickly to release from custody with straight summons by the judge (Desk Appearance Ticket, DAT). Here we are facing a felony – on top of the scale of gravity, not DAT, but submission to a judge. This arrest should be as brief as possible. The law provides for a period of 48 hours in case of arrest a weekend away, but this rule does not apply in NYC, where hearings are held 365 days a year (from 9:00 a.m. to 1:00 a.m.). In this matter, DSK agreed that such hearing which could take place on Sunday – as New York city’s justice doesn’t sleep’— might be postponed to allow achieving DNA testing.

Once the booking is completed, the suspect is escorted to the Court Building, the competent court (here, in the case of felonies, the New York City Criminal Court, but only for the preliminary phase). It was there that DSK was featured on May 16: his memorable walking out under the flashes, that most French journalists published by asking if they could do it, and his transfer from police station to Criminal Court.

There, the police officer handling the case – and/or the complainant – is received by a substitute (Deputy District Attorney, DDA) who decides whether to prosecute or not. The DDA does NOT speak to the suspect, since in the United States, they have realized quite a long time ago that he is the opposing party (in France, there is hope it finally occurs all along the XXII century). If DDA considers the record substantial, he should formalize a ‘written complaint’, i.e. the official complaint of public prosecution.

The suspect is then brought before a judge for a hearing called the arraignment. The judge notifies the suspect of charges against him (a copy is delivered to him), of his right to counsel (he must be assisted, if necessary by a court-appointed lawyer at the arraignment), he is entitled to a preliminary hearing (in the case of a felony as it happens to DSK). He will not be asked at this stage whether he pleads guilty or not guilty, only in cases of misdemeanors and minor offenses, the equivalent in France of ‘délit’ and ‘contravention’ (but the suspect is entitled to give it up and, if need be, to plead guilty before the Criminal Court, this option is already ruled out by DSK’s lawyers).

The judge may decide to immediately stop the proceedings if he believes that the offense is not clearly established (case dismissed, French’s ‘affaire classée’)). With regard to alleged felonies against DSK, the indictment is incumbent on the Grand Jury.

The judge will then decide what happens to DSK until the Grand Jury decides. He can be released on his promise of appear spontaneously (Released on his Own Recognizance, ROR), released on bail or exceptionally remanded –i.e. arrested up to 120 hours until the Grand Jury has ruled or a Preliminary Hearing is held if the suspect, who is now the defendant, asks for it; but the prosecution does not bet on it usually).

The essential difference between Preliminary Hearing and Grand Jury is that the former is public and is held in the presence of the defendant while the Grand Jury meets closed-doors in the presence of the sole District Attorney and witnesses brought to testify.

The Grand Jury is composed of 23 people (a quorum of 16 people is required for it to decide). It outlines the evidences gathered and deliberates and it either votes a true bill – 12 jurors at least consider that there is prima facie, and then the case goes to trial (indictment) – or a no bill – i.e. no trial, then the case is dismissed.

In case of indictment by the Grand Jury, a new arraignment hearing is held before the Superior Court competent to try crimes (felonies), here the New York Supreme Court. Thus began the preparatory stage: the parties may negotiate a plea bargaining, ie, a guilty plea, where they have 45 days to submit petitions (motions) to be settled before the trial, eg to exclude illegally obtained evidence, or direct certain actions. Once these motions considered, a trial date is set. The trial shall be public, and judged by a jury who votes only over the conviction. The penalty, under the sole judge’s domain, is ruled at a subsequent hearing.

Finally there are 3 qualifications retained at this point: criminal sexual act, attempted rape, unlawful imprisonment. The penalty system is somewhat complex. Crimes are divided into categories AI, A-II. B. C, D and E. DSK appears to fall into the category B, so a maximum of 25 years imprisonment and a minimum of 1 to 8 years (Criminal Code of New York State. art. 70).

Dreadful post coitum in the backstage of power (1)

Dominique Strauss-Kahn vs. Nafissatou Diallo: A case of Comparative Law

On the eve of the hearing to be held June 6, throughout Dominique Strauss-Kahn will have to plead guilty or not guilty on the seven charges against him, it seems appropriate to analyze the situation – and report progress – from the perspective of comparative law. To be precise, if DSK pleads guilty, there will be no trial but a conviction to several years in prison, whose number will be negotiated with the judge. If he pleads not guilty – as his lawyers have suggested – a trial will take place.

FROM CRIME DISGUISED AS VAUDEVILLE TO PRESUMPTION OF INNOCENCE

DSK was the favorite candidate for the French presidential elections of 2012

Falling of an idol. After two breathless weeks of one of the most spectacular cases in French politics, with hearings filmed, suspense, shocking images, conspiracy theories – will this century experience a significant event without its conspiracy theory? – and of course sex – which means outselling–, the excitement will drop, so to speak, and a media relief will be imposed from necessity.

But the jurist loves nothing more than the calm and serenity, which are propitious to reflection.

In hindsight, 15 days later, it is clear that the omnipresence of this case in the timeliness will inevitably recess. « At last! » some masochists might say – the same ones who are sick of this case but who still read this article.

Dominique Strauss-Kahn has been released (but is very closely supervised) and I am delighted, beyond any consideration, of his eventual guilt. Everyone expects to be released until their trial, as detention must be truly exceptional. This is not the case in France. This principle is best applied in the U.S. than in France, especially in criminal cases. Not to mention that before 2000 in the French criminal procedure, before a criminal court, the accused was free until he would necessarily become a prisoner on the eve of the hearing.

The conditions under which this freedom has been granted (a deposit of one million dollars, in addition to a 5 million warranty executed if Dominique Strauss-Kahn does not attend the hearing; prohibition from leaving NYC where he ought to live in a CCTV apartment, an armed guard at the door entrance, waged by the accused himself; a permanent electronic tracer anklet… anything at his expense) have prompted comments on Justice of richest (the accused had to raise $ 6 million and spend about $ 200,000 a month to ensure his own 24-hour monitoring). One thing must be understood.

Though a person who’s well off can probably – and in the U.S. probably more than anywhere else among the democratic countries with an independent judiciary – easily put the necessary resources to ensure his defense and will necessarily be much better defended than a person that may not do so, at this point it was not the New York justice who imposed stringent conditions for releasing DSK. It was the DSK defense who proposed what is called a lease package made of reinforced concrete: the defense came with such a turnkey probation, saying « That’s what we propose.» Basically, the judge just alleged: «Okay, I’m fine with this. » Defense brought out the (very) heavy artillery, for it knew that the prosecutor’s office (District Attorney, DA) would do everything possible to keep this very big fish in the fishpond of Rikers Island. Being elected, the NY prosecutor (in contrast to French judges who are appointed by the President of the Republic on proposal of the Minister of Justice, and the opinion of the Supreme Council of Magistracy; if someone could point it out to some know-it-all, thank you) has everything to gain by showing that he’s severe with the powerful, especially if this powerful is an alien. The prosecutor’s office has pushed to the limits the Polanski precedent: the flight risk (under French law, one talks about « lack of guarantees of representation »), stressing that the accused was arrested on an airplane when he was getting ready to leave the territory. The defense did expect this and anticipated correctly: it showed the ticket purchased before the facts occurred and came up with a proposal that no judge would probably have dared to require since it is costly and burdensome. Add to this the argument that the IMF Managing Director may be considered an honorable man, and the decision has been taken away…

Now begins a period that in French law would be called « pretrial » –understand « making the case ready for trial. » Indeed, U.S. law in general and New York in particular ignores the criminal enquiry conducted by a judge, specific to the Anglo-American inquisitorial system. It is an accusatory system, where the Judge is at a retreat – on a temporary basis – and acts as arbitrator.

A clarification: the Anglo-American accusatory system has never meant that it was on the accused to prove his innocence. It does not preclude the innocentation scheme, but the inquisitorial system, where Justice leads the investigation and keeps the bulk of the initiatives. The systems are not incompatible: in France, civil proceedings are accusatory, while criminal procedure is inquisitorial, with accusatory parties (such as the procedure before the trial chamber). Both parties – and I mean both parties because under U.S. law the complainant is not a party to criminal proceedings – will present their motions to the judge who will decide essentially on the admissibility of an evidence a party wants to produce and which the other does not want to hear about (Let’s say if a DNA test charges the defendant but the chain of custody was broken, meaning that at some point the integrity of the sample was not preserved with certainty -if  the sample has been forgotten in the police officer car at night, so as that could allow its contamination or its replacement- the Judge will exclude this evidence and the prosecution may not fall back on it). They have 45 days to do so. The hearings will be held in the Office of the Judge without publicity so the jury is not aware of these elements. If the DA had fled the information that a DNA test was rejected the defense may request a mistrial, (which is) to consider that the right of the defendant to a fair trial was irreparably damaged and that case should be permanently dismissed. And for those wondering, if it was the defense that was the source of the leak this would allow the DA to make a point of mentioning before the jury. Proceedings are not messy…

To sum up,at the end of the day,  until the trial begins the case will be prepared secretly, without further hearing or videoed suspense. So goodbye, hilarious scenes of special correspondents from the courthouse live from New York, less well informed about what is happening than journalists in Paris who have access to Twitter. I will miss it.

I have heard the optimistic statements of a DSK’s lawyer, Mr. Benjamin Brafman. I must confess my astonishment. Such statements, even cautious are not common in general and it is a first for this lawyer who has now a lot to loose in the event of a guilty plea or of a conviction. I can only speculate that he has a wild card up the sleeve to be so affirmative.

This leads me naturally to the presumption of innocence. In short, it is primarily a rule of evidence (it is up the prosecution to prove the guilt) to which French law added a protection matter of reputation: it is forbidden to make a person being subject of an investigation or prosecution as guilty until he has not been finally convicted. It is not easy (enough), even a lawyer like President Sarkozy cracks up regularly.

Respect for the presumption of innocence is then both a fundamental principle of trial, a pillar of the rule of law – listed by the Declaration of the Rights of Man and of the Citizen, Article 9, since this assumption was far from obvious in 1789 – and a rule limiting freedom of expression.

So to avoid torturing Language, let us clarify concepts so far. Talking about Dominique Strauss-Kahn as a suspect or indicted or accused is entirely correct. Legally speaking, the most accurate perception at this stage is ‘defendant’ since the indictment has been delivered by the Grand Jury. To designate him as « rapist » would undermine the presumption of innocence. But designate him as « alleged rapist » is cumbersome, inelegant and imprecise – as the implicit concept, probably inspired by presumption of innocence, has a sense of « Who is supposed by hypothesis or conjecture. » The opposite of what we mean actually. An alleged rapist is not a presumed innocent.

Where the auditor risks headache is when the victim becomes in turn alleged. Lord! If the rapist is presumed innocent, the victim is an alleged liar? No, of course not, she’s just downgraded to alleged victim category. This makes a lot of suspects, presumed and alleged, isn’t that so?

The French word for « alleged victim » (‘victime présumée’) is « complaining » (‘plaignant’). The concept of « victim » which etymologically refers to the religious as it refers to what is offered in sacrifice to the gods (‘victima’ in Latin) is legally adequate once the crime is established or after conviction. In short, the term victim is inconsistent with presumption of innocence.

This leads me to my second assessment (next week), namely, the French perception of the U.S. procedure –which often forgets the U.S. context and aims to exonerate the alleged abuse of power while forgetting the alleged victim.

Libya, the international community and the responsibility to protect

The situation in Libya requires the international community to get involved early. In such cases, the problem of sovereignty must give way to the responsibility to protect. The international community cannot accept that the government of Muammar el-Qaddafi keeps on insisting that these are facts that relate only to Libyan domestic policy, then to be managed in terms of domestic policy.

The international community’s response must be fast, firm and effective. The history of Rwanda in 1994, Srebrenica and Darfur does not allow us to be very optimistic about the effectiveness of the international community when responding to emergency situations. But we must try it. A special meeting on Libya took place at the Human Rights Council in Geneva on Friday February 25. The next day, the Security Council of United Nations met in New York in this regard. This last resort has ultimately a role and in particular the International Criminal Court – once the ICC is entitled to act at the request of the executive organ of the UN.

The fact that the Security Council of United Nations recognizes that the Libyan issue is of its concern, portends a significant point. At most if the Council just requested the ICC to take hand in the matter. Libya is not a State Party to the Rome Statute (1). Conversely, the Security Council can always promote preliminary investigations: in the case of Darfur, the Council established an investigation committee headed by Italian jurist Antonio Cassese (2). The work of the commission allowed the ICC to be aware and to have jurisdiction on the atrocities committed in the Darfur region.

Such a committee would be useful in elucidating the events in Libya and would be a quick reaction faster to materialize in situ. Its presence and implementation would largely stem the state of violence and abuses that run on the ground at the moment. There are precedents.

So, can the UN act effectively? What can be done?

Both much and little. Because the United Nations are States. The ones that might be fully involved and committed. There has been progress lately, yet the UN machine still remains slow-moving today. The Security Council meets permanently and the Human Rights Council can be in session urgently. Obviously a watchdog having a streamlined executive resolving power would be more effective, but the reality of the current international relations does not allow a real quick response in dealing with such concerns.

Since Monday 28 February, the Human Rights Council shall be meeting for 3 weeks. Surely Libya shall be at the center of the debate. Last Friday, during the Council special session, while the Libyan seat remained empty in the morning, the second secretary at the Libyan embassy in the UN announced in the afternoon, amidst loud applause, that from that moment the Libyan delegation in Geneva represented « the free people of Libya. »

________

(1)  The treaty that established the International Criminal Court (ICC). Adopted in Rome on July 17, 1998, and that 139 countries have now ratified.

(2) Antonio Cassese was the first President of the International Criminal Court for the Former Yugoslavia. He is Professor of International Law at the University of Florence and Editor in Chief of the Journal of International Criminal Justice

Related Posts:

· The ‘Responsibility to Protect’ in the spotlight

Convention against Enforced Disappearances comes finally into force

On 23rd December 2010, almost four years after its adoption by the General Assembly of the United Nations, the International Convention for the Protection of All Persons from Enforced Disappearance eventually reached the 20th ratification by Iraq which was necessary for its entry into force. Later on Brazil also ratified this treaty, which the Convention enters into force with 21 member states.

“This is an historical date”, said Mary Aileen D. Bacalso Chair of the Asian Federation Against Disappearances (AFAD) and focal person of the ICAED (1), which gathers associations of families of the disappeared together with human rights NGOs.

“The Convention represents by itself an achievement of associations of relatives of disappeared people and NGOs from all over the world. Its adoption was first requested by families of victims of disappeared people from Latin America, back in the eighties. It took more than 30 years to the international community to adopt this legal tool, which fills an immense and intolerable gap: the lack of an international treaty to prevent and suppress enforced disappearance. Contrary to what many people think, enforced disappearance is not a practice of the past nor is it limited to a few regions of the world. All the continents have experienced or are experiencing this criminal practice. People are disappearing in many parts of the world. In such light, the Convention will be an effective tool for the international community in its struggle against this scourge”.

Everyone remembers the mothers of Plaza de Mayo whose we’re still hearing about today. In the late 70′s they paraded on the main square in Buenos Aires at the worst moment of the Argentine dictatorship, when thousands of people disappeared. They brandished pictures of their sons, their daughters by asking “¿Dónde están?” (“Where are they?”)

It is these and other organizations of families of the disappeared who rally together in support of this convention to stop these practices. Olivier de Frouville (2), member of the UN Committee on Enforced Disappearances:

This is the culmination of a long and arduous process that began in the late ’70s with the action of the families of the disappeared in Latin America next to United Nations to first identify the practice of enforced disappearances as such and achieve (…) bannishing them.

For several months, 19 states had already ratified the convention. All was needed was one more country to sign so the treaty comes into force. Iraq was the 20th country that ratified this international treaty and consequently it allowed the instrument coming into force December 23, 2010. Besides, according to Olivier Frouville:

There are undoubtedly pressures, but also the interest of the new Iraqi regime (…) to shed light on violations of human rights that took place during the former regime (of Saddam Hussein).

Iraq is indeed one of the countries where it was found the highest number of disappearances. The Committee on Enforced Disappearances has identified that country as a one with the largest number of cases reported and demonstrated.

Neither China nor Russia nor the United States have ratified the Convention. In contrast, many Latin American countries have done so. Some African countries like Senegal, Burkina Faso, Mali and Nigeria, as well. Very few Asian and very few European countries. It’s a shame. Especially since the disappearances involve European countries: they have affected them in the past, especially through the colonial wars, and they still affect them through practices related to the fight against terrorism, particularly secret detentions and extraordinary renditions that are practiced by the United States with the complicity of a number of European countries.

The Convention provides for the right not to be subjected to enforced disappearance as well as the right for the relatives of the disappeared persons to know the truth. The Convention contains several provisions concerning prevention, investigation and sanctioning of this crime, as well as the rights of victims and their relatives and the wrongful removal of children born during their captivity. The Convention further sets forth the obligation of international cooperation, both in the suppression of the practice and in dealing with humanitarian aspects related to the crime. The Convention establishes a Committee on Enforced Disappearances, which will be charged with important and innovative functions of monitoring and protection at the international level.

Enforced disappearance is considered a continuing crime. Families of victims can now use this convention to require that light be shed on the fate of their missing.

________________

(1) International coalition against Enforced Disappearances

(2) Olivier de Frouville is professor of law at the University of Montpellier 1 and member of the Academy of European Law of Human Rights.

The seamy side of American diplomacy and China’s true face

The Wikileaks list seems interminable. American diplomats spy on the United Nations Secretary General and on other senior UN officials, to the extent of learning their credit card numbers. The Gulf monarchies are pressing Washington to start a war against Tehran before Iran becomes a nuclear power and brings them to their knees. Turkey’s moderate Islamist government faces continued resistance from secular army officers, and a secret Islamist plan is feared. Beijing orders a cyber-attack on Google at the end of 2009, while planning to ditch its long-time Stalinist ally in North Korea in return for hegemony over a unified Korean peninsula. Pakistan discreetly supports terrorist groups, while its nuclear arsenal grows. To do business in Morocco you have to pass on a cut to the royal house, which maintains its army in a deplorable state. Saudi Arabia is the main source of financing for Islamist terrorism.

The list extends to every continent. The emotional stability of the president of Argentina, Cristina Fernández de Kirchner, is a worry to many; when her husband was alive she passed official business on to him. Cuban-Venezuelan relations are so close that Cuban spies operate freely on Venezuelan soil. The Cubans also treated the Bolivian president for a serious nose tumor. The German coalition government is limping along due to the chancellor’s timid, reserved personality. The French president, the most pro-American since De Gaulle, has a despotic streak. The Spanish prosecutor’s office played a questionable role in the inquiry into torture at Guantánamo…

Further material may yet emerge from the State Department papers, which renowned newspapers (1) have been publishing having had access to the massive leak mounted by the Wikileaks organization. Significantly, its founder is wanted by Interpol, and his website is being boycotted by servers and service providers.

The publication of the diplomatic cables has stirred international opinion and surprised some governments, who often adduce false arguments to downplay or discredit this news bomb. The security of individual sources has been assured by eliminating names and data that might endanger them. The media that have published the revelations have acted within the limits sketched out by the US Supreme Court in the Pentagon Papers case (2), opting for freedom of information and the citizen’s right to know.

There is no historical precedent for this in term of scope, as it affects so many conflicts throughout the world. The revelations show a seamy side of the political world, about which we all had well-grounded suspicions, but no clear certainty. We are, in a sense, freer now than we were before.

China shows its true face

If the Chinese government was hoping to snuff out the international repercussions of yesterday’s presentation in Oslo of the Nobel Peace Prize to the dissident Liu Xiaobo, the results of its attempt turned out quite differently. The Beijing regime sentenced him to 11 years in prison as a deterrent to all other dissidents, as has been revealed by the US State Department cables by WikiLeaks. And once Liu Xiaobo had been designated a Nobel winner, China managed to reduce the numbers of foreign state representatives at the ceremony after a forceful campaign of diplomatic threats, at the risk of exposing the limitations of the country’s political system in full view.

All this, added to the campaign of slander and harassment against the Nobel winner, his family and friends, seriously damages China’s international reputation.

The status of emerging power has turned China into an inescapable force in the world. With this award for Liu, Beijing had the chance to prolong the current situation in which all the leading powers, with the United States at the forefront, choose to minimize their demands in terms of human rights given the necessity of reaching understanding with a country considered so crucial to the shaping of the world’s future. After such a display of bad temper on the part of Beijing, maintaining the delicate balance somewhere between cynicism and realism becomes that much harder.

Among the steps it has taken in reaction to the Norwegian committee’s decision, China decided to create an alternative to the Nobel, the Confucius Peace Prize. The aim of this distinction is to reinforce the singularity of China’s attitude toward internationally accepted principles, such as the need to respect human rights and political and civil liberties.

China to award Confucius peace prize

This is yet another mistake. The reasoning behind the Confucius Prize is identical to that which is employed by other authoritarian regimes when they are denounced for human rights violations. China is therefore aligning itself with such nations.

Dealing with the situation created by China with its reaction to the Nobel for Liu Xiaobo will not be an easy task for the international community. Cynicism and realism cannot be so easily combined from now on. And in the same way that China has been forced to show its true face, so too now must all the governments which maintain an ever-more intense relationship with the emerging power.

So, does traditional diplomacy have any contemporary relevance yet?

Related posts:
Should we be afraid of China?
WikiLeaks reveals essentials of the ‘dirty war’ in Iraq

_____________________

(1) WikiLeaks turned over all of the classified U.S. State Department cables it obtained to Le Monde in France, El Pais in Spain, The Guardian in Britain and Der Spiegel in Germany. The Guardian shared the material with The New York Times, and the five news organizations have worked together to plan the timing of their reports.

(2) The Pentagon Papers was a top-secret United States Department of Defense history of the United States’ political-military involvement in Vietnam from 1945 to 1967. The papers were first brought to the attention of the public on the front page of the New York Times in 1971. A 1996 article in the New York Times said that the Pentagon Papers “demonstrated, among other things, that the Johnson Administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance”. In the summer of 1971, David Ellsberg, a Harvard graduate and former Marine, brought out 7,000 pages of secret notes on the war in Vietnam. The Nixon administration had no mercy with Ellsberg, spied him, harassed him, attacked him. Ellsberg won his trial in 1973. Also did The New York Times — which published excerpts of the Pentagon Papers.
New York Times Co. v. United States, 403 U.S. 713 (1971), was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.
President Richard Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press, guaranteed by the First Amendment, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. The Supreme Court ruled that the First Amendment did protect the right of the New York Times’ to print the materials.

Aung San Suu Kyi faces her destiny

Freed at present, the Burmese opponent seems to be bound hand and foot. According to the international press, it is far too early to declare victory.

Aung San Suu Kyi even released and celebrated by activists of her party, remains the bete noire of the military regime in Burma. (Soe Than Win / AFP)

Aung San Suu Kyi, released Saturday after seven years under house arrest in a minute-by-minute operation described by the Guardian, has come back to work Monday morning at her party’s headquarters, the National League for Democracy (NLD officially dissolved by the junta). Sunday, Burmese dissident had held her first political speech since 2003. Burma’s Nobel peace laureate (1991) has called on the opposition to merge, telling her supporters that she would take time to listen to her fellow citizens before deciding on a strategy. Because we know that for the past fifteen years, her leeway against the military junta in power is narrow actually.

“So what is her political future?” seems wondering the Bangkok Post in its editorial: If she wants to launch a protest movement and “challenge her enemies in the new government, she needs to urgently consolidate the opposition forces. Now that the new political landscape in which Burma becomes a little more civilianised is providing the rightful context for Mrs Suu Kyi to play a role, she must take this opportunity to work with numerous factions in the opposition and the ethnic minorities. But it will not be an easy task.”  Because of her long years under house arrest, Mrs Suu Kyi has little experience political dealings: “She has never directly participated in politics and has been idolised as the icon of democracy and the face of Burma’s struggle against dictatorship. Her angelic image has sustained the anti-military junta movements inside and outside Burma.” But this isolation “has come at a heavy price. It has made her more “divine”, thus separating her from the political reality.”

Her party singularly lacks of activists who can make the link between pro-democracy personalities and the electorate base. Thus, she is exposed to a threat: “she will be locked in a subtle, yet intensifying, competition among opposition forces. The continued fragmentation of the opposition would in turn strengthen the power interests of the new regime.” For the exile journal The Irrawaddy, these personalities may even try to sabotage her return to politics [...]. The battle that awaits opponent is complex: “how to rebuild and reinvent herself in the new Burmese political environment?”

Besides, Libération asks: “Freedom, so what?”, pointing that Mrs Aung San Suu Kyi “will have to learn again to know her country” where, as “female symbol” in the words of La Repubblica. “Daughter of the hero of independence, General Aung San, [she] is the bête noire of the military junta,” brings Radio Canada. And it will not probably be enough that the Lady of Rangoon calls Burma’s generals for dialogue “, writes Le Devoir in Montreal. “Behind this joy oh so legitimate,” says L’Express, emerge “power relations which remain very tense.”

This “icon of freedom can do nothing against the junta. Her freedom is a sham. Her release is a [marketing] operation. By maintaining the suspense until the last minute, the Burmese junta has made a huge publicity for the event, ensuring the headlines of international media.” (Slate). Anyway, the military do not think much of the international opinion, even if they may have calculated that her release overshadow the electoral masquerade. In addition, Mrs. Suu Kyi is weak enough to be kept away from public life.

Same analysis backed by Eurotopics: “The main concern of the generals who have ruled the country for 50 years is an end to the unpleasant foreign sanctions.”And above all, “the junta wants to test whether the opposition is strong and whether it can manage to divide it into those who play along with the new parliament’s game and those who could potentially be isolated. But this game of poker is an unequal contest, for the generals can imprison the freshly released dissident whenever they want.”

If The New York Times called it junta’s latest “ruse” and FrankFurter Allgemeine “a gift in exchange for her political abstinence”, El País says she has “hands cut off,” that is to say, she is literally muzzled in a context where it is still far “from the darkness to the light.” Even so, if the opponent said on Sunday (Le Soir, in Brussels), “she would be willing to meet General Than Shwe, the junta’s strongman,” we know well that he “royally hates her [...] and is similarly reluctant to pronounce her name.”

Dialogue is not looking promising…. The New Light of Myanmar, the dictatorship official press organ, indeed barely mentions the events of the weekend.

Related Posts:
· A Shout to Nothing
· The Burmese Junta Steps Back from Aung San Suu Kyi’s Unconditional Release

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Lament for a woman and frivolity of the chorus of nations

“They’ll kill me for being a woman in a country that can do what it wants with women” (Sakineh Ashtiani)

We knew they were going to kill her. When the government of Iran announced it had halted the stoning, the Nobel Prize Shirin Ebadi said: “I do not trust them. They’ll execute her.” And so it was; the Iranian regime confirmed she wouldn’t be stoned, just  hanged. Given that Sakineh Ashtiani was asking not to be stoned in front of their children, the ruling is a step forward.

Of course the regime has assembled a legal corpus to sustain the conviction, but the chronicle of tragedy gives us a measure of the devious perversity of this tyranny. Sakineh is an Iranian Azeri of Azerbaijan hardly speaking Persian. When sentenced to death, she did not even understand the Arabic word used by the Iranian penal code for stoning: Rajam. Her jailers told her she had been sentenced to die under the rocks. Throughout the process, her lawyer was persecuted, harassed and  prevented from being with Sakineh and finally, after many risks for his family, he was able to flee from Iran. Five hours on foot through the mountains and the rest on horseback, to get Turkey, where Amnesty International helped him to obtain asylum in Norway.

In an interview with Bernard-Henry Levy, Sakineh’s lawyer Mohammad Mostafaei defined her as follows: “she’s just a woman, a simple woman, just a woman.” The court that sentenced her to death found no evidence at all, but three out of the five members were radical clerics that condemned her, through their “intimate conviction”, as an adulteress. As Sakineh said: “they will kill me for being a woman in a country that believes it can do what it wants with women.” After an international campaign to save her life, the system charged her with murder (and forced her to confess). Everything else is well known. Gallows will be her fate.

In the prison in Tabriz, two more women await stoning. Azar Baghri is 24 years old, 10 of which in prison. Married at 14, she was accused of adultery and since then she’s waiting to be stoned. For fun, her jailers have done two stoning shams. Maryam Ghobaranzadeh, 25, dreams only to be hanged instead of stoned. She was 6 months pregnant and forced to abort … In Iran women are considered sexually mature at the age of 9 and can therefore be married and adulterous. Nobody knows how many have been stoned to death without having been made it public. The courageous Iranian dissidence speaks of many.

I know this article will not have any effect, just a shout. But it serves at least as a reminder that not everyone is accomplice to the silence which Iran is covering its crimes. This silence is resounding in Europe, not in vain we are not interested in unprofitable victims: Iran does not fit into the phobias of political correctness. Nor its victims. Many countries, organizations or individuals are accomplices to the barbarism that characterizes the government in that country — a country of ancient culture, now led by a pack of male fanatics. The same government of macho fanatics who criticized the U.S. during the 9th session of the UPR in Geneva on 5 November!

By the way, what about Teresa Lewis, the woman mentally retarded who was put to death last October in Virginia? Isn’t there as well a deafening silence? (See the article by Anna North Is Teresa Lewis’s Execution A Gender Issue?)

The very problem is that there is no real respect for women, neither in our western latitudes, nor in many Arab countries where women have their rights, their freedom, their dignity, violated –just for being women.

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