Lecture 9 Tuesday, July 30, 2013
o Globe and Mail article (from November of last year)
o Aerial photos of two sites in Pakistan, another in Pakistan, another in north
Yemen. Thesea re taken by British non-profit association (journalism), release
statistics. Estimate that last year in the Pakistani border, approximately 391-780
people were the unintended targets of drones
o “Living under drones”—report by groups at Stanford and NYU law schools. Their
o CIA director Mr. Brennan, responsible for the drone program.
o Law school report says the drones undermine international respect for the rule of
law. Not much that’s legal in terms of the procedure—some exec decides in
some country (usually US). No appeal procedure, no counseling along the way.
o Also, in respect to earlier standard rebuttal (it makes America safer), it’s targeted
only at those persons/groups who directly threaten American safety, the report
questions whether America is in fact safer. There’s no doubting that recruiting is
something that Al Qaeda does benefit from in relation to drone statistics.
Pakistan also interesting—that’s where a lot of the drones are falling, and yet
markets are open/schools/cafes, and that’s because people feel safer. The
groups like Al Qaeda or Taliban don’t feel quite so confident about coming into
town an dmaking large strikes.
o Has the de facto usage of drones reversed the ordinary burden of proof in a
criminal law case?
In Canada, the Crown has to prove their case beyond reasonable doubt
The onus (in our system) is to require the prosecuting entity to discharge
that onus (not to prove your innocence—you’re assumed innocent until
**The question is how drones affect the rule of law in the States. “You are
killed in a drone strike in north Weziristan, so you’re assumed to be a
militant and guilty until you come out of the coffin and prove otherwise.”
We have to have rule of law to have civilized society, this is illegal killing.
It’s an interesting question.
• The whole thing about the post-9/11 era== a letter to the editor
o The idea that everything has changed since 9/11 comes from the discourse just
after the event, which dominated the US o Not because everything actually was different because of the event—it’s the idea
that extraordinary times justified extraordinary measures—values and the rule of
law were inadequate to deal with terrorism
o Over the decade: arrests without warrant, without trial, wiretap programs and
surveillance, illegal deportations, extraordinary renditions, abuses of prisoners,
o The early official reaction in Canada refused this “everything has changed,
anything goes” mentality. Chretien told the House of Commons that Canada
wouldn’t give in to the temptation of sacrificing our values for security.
o The struggle against terrorism requires that we defend and depend on our way of
o **Sophocles, Aristotle, Plato, etc. would say the same: you defend from the
inside and outside. The enemy on the outside exists when you yield the thing that
o **You don’t suddenly curtail all the values (ex. Democracy) just because of
o And how much do you hear about terrorism these days anyway?
• **We’ve spoken of the red terror, the cyclic nature of fear
o McCartheyism (after WWI and into the early 50s) and the Red Scare (after WWII)
o And now we have terrorism
It may not be as monolithic as we once perceived it to be
Al Qaeda more characterized as disparate cells in various locations
around the world
We have driven them to certain areas where they’re localizing their impact
But there are a couple of cases that ring out through the years and
• 1) The Scopes Monkey Trial—summer of 1925, Tennessee court
o Case that rang around the world.
o World’s media descended on this little town
o Legislators of Tennessee had duly and democratically
passe da statute that prohibited teaching the Origin of the
Species o **Duly promulgated statute but it says that people of
Tennessee are not allowed to think about the origins of
o It engendered the name fo the teacher who was called to
take the case—John Scopes. He was later arrested and
charged with the offence
o The central issues had nothing to do with guilt or
innocence but with ideas, thought, behavior.
o Photo: civil liberties association in the States (ACLU) hired
dude on the left—most famous criminal lawyer of all time,
Clarence Darrell. He was brought in to defend Scopes (the
freedom of education).
**he’s also famous for his defence in the Leopold
killings in the 30s (Hitchcock movie bassed on
o His protagonist, Willliam Jennings Brian, “the silver-
tongued orator”. Basically like Sarah Palin, fundamentalist.
His fan had the name of a funeral home. Very folksy trial.
o Court referred to them as “colonel”, wearing shirts (jackets
off, way too hot), had a southern touch.
o Jennings Brian: he knew because of his reading of the
scirptiures that the world had commenced just a few
thousand years before. Darrell showed him a rock that was
a multi-million years old. This was the character of the trial.
o It went on for several days.
o **A movie was made of it: “Inherit the Wind” (Spencer
Tracey plays Clarence Darrell). But the transcript is
verbatim in the movie. At the climax, Darrell in the movie
performs the finest cross-examination ever.
o Sadly, Jennings Brian died of a heart attack right after.
o **It’s as relevant today as it was then! There’s ongoing
litigation against various school boards to require that
Darwin not be taught, creationist backing. In the States,
even in some parts of Canada.
o Same fundamentalism still alive now!
o Fantastic trial because it’s a clash of ideas. o How the state can get into trouble when it interferes with
thought (porn, hate literature, what is obscenity, trying to
o **”Inherit the Wind” comes from a Biblical phrase:
“whosoever troubles the house shall inherit the wind” (you
lose your foundations when you disrupt things…)
o Darrell had been denied the ability to put in Origin of the
Species as evidence for the trial. Calls the prosecutor as
evidence (his knowledge of the Bible). That was the fatal
o Issues that are still alive politically in their tenor and in the
criminal sense (state trying to criminalise thought,
behavior, freedom in education)
• 2) The Case of Sacco and Venzetti
o Most notorious criminal case in the US ever
o Read this article
o Appeared in The Atlantic, March 1927, seven years after
two passionate Italian radicals were electrocuted despite
o The article was a learned piece by Felix Frankfurter
(leading legal scholar, at the time the most distinguished
justice in the American Supreme COurt)—dissects it,
excoriates the trial judge, concludes that they were loaded
to death on evidence that wasn’t even presented/didn’t
o Dissects the social times, of how these guys met their
death in one of the most cause celebre trials of all time.
o Palmer (attorney general in spring 1920, post-WWI
paranoia about Bolsheviks)—executed a lot of raids like
the post-9/11 raids on people with brown skin, began
holding a bunch of people who otherwise would be just
o Things hit a peak in spring 1920—there was a famous
activist named Sol Sato who was held incommunicado in
the New York offices of the Department of Justice. He had
been found in the sidewalk outside of that building. The
Palmer raids threw the fear of god into people who thought
they had a different thought than the government. o A fish peddler and a shoemaker were arrested. They had
alibis. Their Italian-speaking witnesses attested to them,
but the jury did’t understand them. The trial was held on
basis of “are you an American, what are your loyalties”
(guilt by association, like the Communist witch hunts of the
1950s, the questions by Joseph McCarthey, “are you or
have you ever been a card-carrying Communist?”)
o Ridiculous questions in the cross-examination for Sacco:
“did you love this country in May 1917? Did you got o
mexico to avoid going to war for this county? Don’t you
think going away from your country is a vulgar thing to do
when she needs you? Do you think it would be brave to go
away form your own wife?”
o **this is irrelevant and prejudicial. Has nothing to do with
the murder case!
o Judge, Webster Thair, was horrible. He went to a club
during the trial and told a friend, “Do you see what I’m
doing to those Italian bastards?”
o In the Commonwealth of Massachusetts, at the time, first
level of appeal lay from the actual judge you were
appealing from. Thair shot down allt he new evidence that
came in, the ballistic testimony.
o This case holds that Sacco and Venzetti were tried and
executed not for murder but for disloyalty—Americans
were more incensed by anarchism than by the mafia.
Everyone knew that the robberies related to this payroll
murder holdup were conducted by the Morelli gang, so all
the evidence was just a fraud. They were just poor
o **Remember this when we’r ein the heat of “who’s really a
terrorist and who should we be prosecuting and to what
extent, should we take extraordinary measures, etc. the
superficiality of it is so painful.
o Eventually, almost before their execution, in another cell in
the same jail, the man who had committed the robbery
confessed to it!
o Demonstrations took place in France, Italy, Switzerland,
etc. Thousands of French police called to protect the
American embassy in Paris when they were being
electrocuted. There was such outrage at it. Everyone,
including Einstein, wrote on their behalf. o The firearms expert recanted his evidence afterwards (and
the ballistic evidence was so crucial that that itself would
have freed them). Heartbreaking.
• **Digest those two cases—good whiff of American justice in the light of intense social
o Book on that case: “The Case That Will Never Die” by Herbert Ehrman
o Fascinating read because fo the photos, social commentary, ballistic evidence
o Working lawyer’s document o how a trial goes
o How thin the veil of rule of law is—how it can be easily reoved when prejudice is
leading the trial
• Another one: “The New McCarthyism: Repeating History in the War on Terrorism”—
o Some people after 9/11 said we haven’t made the same mistake since McCarthy
error and the Red Scare, that we’ve learned from our mistakes (deporting people,
o He’s questioning whether that’s true
o We’ve used the “once-removed” designation to get at people. CSIS/FBI/CIA,
when focusing on individual, rationalize by saying he’s a known associate of
someone. Or when you donate to some Middle Eastern charity, don’t know that
that charity might have Al Qaeda link and you’d show up in directory as “aiding
and abetting terrorism”—guilt by association, dangerous wide net to be cast.
o Good article
• War Crimes
o How long to pursue it? The problem of the elderly war criminal being wheeled
o The case of John Denganjug, Ukrainian first prosecuted in Israel as being Ivan
the Terrible (horrific butcher from Treblinka), later identified as a guard at
Sovubor and a couple of other camps
o He was hauled into court on a stretcher
o His trial in Munich a couple of years ago is probably the last major war crimes
trial in Germany marking the end of an era that really began October 1945. The
evidence, witnesses have grown old/died/disappeared, the jduges are restrained
by what is in front of them, hard to prosecute.
o Denganjug was a symbol of many issues related to Nuremberg for a long time.
Evidence id come to light after his first misidentification that he’d been present
when Jews were transported, children gassed and exterminated, that he’d been
actively fighting with German Nazi unit. He’d formerly been prisoner of the Soviets at the start of the war, he was Ukrainian by birth. Fascinating subject in
the war crimes area.
o There were other Nuremberg-type proceedings, but certainly not as blessed with
the surface integrity of Nuremberg. They were trouble,d not so well-publicized.
Most infamous: General Tomoyuki Yamashita in the Tokyo War Trials. Gives
evidence to Nuremberg, too: the trail of command. If we had followed what we
had determined at Nuremberg and the Yamashita trial, Nixon and others would
have been implicated in Vietnam with the Milai massacre because they were
commander-in-chief—the captains, colonels, etc. (including George S. Patton,
Jr.) were aware of the general policy of free-fire zones that related to the Milai
o Yamashita gave rise to Yamashita standard—he’d failed to discharge his duty as
a commander to control the acts of members under his command to commit war
crimes. There are factual discrepancies as to whether he really was in
command/control of certain areas. Could be partly because the Americans just
hated the Japanese at the close of hostilities. But Yamashita gave his name to
o Yamashita was called the “Tiger of Malea”—horrific war. Jungles, snakes, torture,
death marches. Horrific things, POW camps where the Japanese had a cultural
belief that if you were alive (surrendered), you were less than human and not
deserving of humanitarian treatment. Against the rules of the Geneva
conventions, which the Germans were arguablyin their POW camps.
o Yamashita was principally prosecuted for events in November 1941, and that
was the launch of Japanese invasion from Malea into China—led to the fall fo
Singapore in 1942. When Singapore fell, largest surrender of British troops in
history (103,000 troops captured). Many civilians including nurses, raped and
murdered. For this, Yaamshita stood trial. But apparently he had the officer who
instigated the hospital massacre executed and personally apologized tot eh
o As with Nuremberg, Colonel Clark distinguished himself for being counsel for
Yamashita, just as there were many counsel in Nuremberg who argued
honorably on behalf of the various defendants. There was a pretense of justice.
o Something interesting to read and pursue…
• International Criminal Court—the end-product of our look at war crimes as they were
envisaged in October 1945. But the ICC is definitely having an impact
o Historic verdict last year, when the War Crimes court at the Hague found the
Congolese warlord (Thomas Lubanga) guilty—first ruling after a decade. He used
child soldiers, etc. Some contention that he wasn’t a big wig, but it was an
o Atrocities still continue to happen—Syria. British Home Secretary had an
interview with Assad from Syria, said the man is absolutel delusional, still murdering children and civilians, calls anyone who gives aid to the rebels as
terrorists, gets away with a big lie.
o Other problem: the ICC does not have any enforcement power. You can come to
it for a judgement, and if the warrant is executed and court case starts, great. But
Omar al Bashir from __ has been ignoring his warrant for three years.
o But ICC is still world’s first permanent criminal court. Can proceed to carry out a
warrant an dlaunch an investigation, even though it’s menat to be a court of last
o One of the major issues for the ICC is the definition of one of its war crimes—the
Statute of Rome included in its crimes the crime of aggression (one of the war
cirmes in Nuremberg). But they failed to find a working definition for aggression.
o Ex. Invasion of Iraq by Americans—they didn’t declare war, the UN didn’t
sanction it, Iraq didn’t invite them in, Iraq wasn’t atakcing the US. Arguably, that’s
a crime of aggression.
• Before the break, highlight one case in Canada: Abdullah al-Maki (one of three people
who were subject of federal judicial inquiry (Yakabucci inquiry). He was Syrian-born, an
Ottawa businessman, graduated from Lisgar, graduated from Carleton, married a
Carleton economics student, ahd been living here fro 15 years. Had an export business.
o May 3, 2002, went to Damascus, Syria, to visit grandmother. Some relatives
greeted him at airport, then someone took him to customs for interrogation.
o He was questioned, blindfolded. If he said he didn’t know someone, they slapped
him in the face
o 22 months in a small dark cell, questioned and tortured.
o RCMP sent three pages of questions for his Syrian captors even though it put
him at risk of torture.
o Apparently the Department of Foreign Affairs had penned several memos to
RCMP telling them not to send the questions, but they never received them,
RCMP assumed it was okay to send the questions. Even went so far as
considering asking Syrian investigators to come here to share information.
o It was a malicious fishing expedition.
o The judicial inquiry determined after two years that Mr. Malki had been in part the
victim of Canadian malfeasance in all of this, sued the federal government.
Unlike Mahar Arar, the government offered no explanation or
o Judicial inquiry recommended that Parliament apologize and give compensation,
but Conservative government said no and disavowed the findings of fact by
Justice Yaccabuchi so that in the ensuing litigation which Malki has brought to us
(for $100 million), all the facts that took two years to come out in judicial inquiry, have to be reproven because the government says “we’re not the ones who
o Aftr Yaccabuchi filed his final report, a memo came to light—RCMP memo dated
before Malki was targeted at Syrian airport (dated October 4, 2001)—from “O”
division, “finding it hard to establish aynthign on him other than the fact that he’s
an Arab running around”—racist, irrelevant, going to paint Canada in the litigation
when it gets to court—government has refuse dto settle on this issue.
o He’s definitely going to get something—already got a prior judicia