The following paper discusses how I came to study international law and political status. I begin from my relationship to the history of the legal development of the status question inside the U.S., and from my own experience. Though I was unlearned about international law, all my previous political training – both experience and formal (though not University-accredited) political education – prepared me to engage in this learning process about international law and political status.
I conclude with the product of my codefendant’s, Dr. Mutulu Shakur, my own, and others’ labors in the form of a legal brief that responded to Judge Charles S. Haight’s questions regarding legal standing: the Political Offense Exception to Extradition, and political status, i.e., standing as political prisoners and/or prisoners of war. I did not do the majority of the writing. I had to appear for trial every day, rising at 4:00 AM to change into my court clothes in order to be removed from the jail to the courthouse. I did not return for legal meetings until after 6:00 or 7:00 PM, after I had returned from court and back into prison uniform. Other political prisoners who were there with us at the Metropolitan Correctional Center in New York City (MCC-NY) joined us in that. Nevertheless it was the collective product of our study and learning experience.
In the 1960’s the U.S. was ablaze with social and political conflict and strife. The Civil Rights movement exploded into the Black Power and Black Liberation movement. Demonstrations for civil rights and political rights escalated into demands for self-determination. The Universal Declaration of Human Rights, signed by the U.S. in 1948, reflected on the official level social, political and economic struggles worldwide, including in the United States. In 1966 the UN International Covenant on Civil Rights and Political Rights was elaborated. It too responded to post world war II anti-colonial struggles, articulating some of the demands and aspirations of oppressed and exploited peoples worldwide. Here in the U.S. activists had been demanding civil rights since the return of Black troops to Jim Crow America, were demonstrating against apartheid, sitting in at lunch counters and traveling South as Freedom Riders to challenge whites only, and protesting against the U.S. war in Vietnam. The Black Panther Party (BPP) demanded the right to self-determination and to self-defense for Black people; in one electrifying demonstration, they stood with firearms before the California State House. Civil disobedience as well as active resistance burgeoned. Activists were arrested, went to jail, got bail and continued social protest.
By the end of the ’60’s, political activists were being imprisoned for their radical challenge to the status quo. The question of prisons and prisoners, and the role of incarceration in the suppression of political dissent and opposition, rose to the forefront. More and more political militants and activists spent years in jail awaiting trial or as convicted persons — Huey P. Newton and countless other Black Panthers, Ahmed Evans of the Revolutionary Action Movement (RAM), draft resisters, Puerto Rican Nationalists, and North American anti-imperialists, anti-war activists and pacifists. Thousands of political activists were inducted into FBI files and logged on to jail and prison rolls. They were imprisoned with other women and men who had originally been imprisoned for social and economic offenses – social prisoners. Prisoners were being treated as beasts, not men (or women). Some of those prisoners became politically conscious and struggled for human rights within the prisons.
Those of us in the political and social movements who were not in jail or prison poured a lot of energy into supporting all those women and men who had fallen into the hands of the State’s repressive apparatus – the “criminal justice” system. In that period, we made little distinction about “political status”: if one was in the State’s clutches and/or was resisting the dehumanization, support was given. By the early 1970’s a debate began on who was or was not a political prisoner.
An Existential Question: The Experience of Political Detention
In 1973 the question of who and what is a political prisoner became an existential question for me. As an anti-imperialist and an internationalist, I supported and worked in solidarity with Black Liberation forces including the Black Liberation Army (BLA). Suddenly, in the dawn hours of March 22, 1973, with the kick-in of a door I became a political prisoner. I was convicted for buying firearms and sentenced to 10 years in prison, unheard of for such a minor offense at that time (but in retrospect a short sentence for the betrayal of white supremacist cultural assumptions). I went from trial to trial and was moved from jail to jail, isolation cell to isolation cell; finally in the fall of 1974, for no other reason than “political association,” I was dumped into the then-experimental behavior modification program at the Federal Women’s Reservation at Alderson WV. After more than 13 months of “behavior modification”(which consisted primarily of isolation and segregation with no discernible goals to be met to end the process), I was released into general population. There I met Lolita Lebron, the Puerto Rican Nationalist political prisoner who had been in prison since March 1, 1954. For several years we spent a lot of time together. From her I learned about other women political prisoners who had been there at different times – other Puerto Rican Nationalists such as Blanca Canales, Isabel Rosado Elizabeth Gurley Flynn, a Communist. I met another political prisoner there as well, a pacifist Roman Catholic nun, Sister Jane. Most importantly, I learned from Lolita resistance, commitment and about being a political prisoner. She was a shining example of commitment to her people and of human dignity under adverse conditions.
I had experience as a political prisoner, including the particular repression we were subject to at times. (Those imprisoned for political actions and offenses are considered to be the “worst of the worst”. We are subject to preventive detention or astronomically high bails; courtroom security is used to prejudice the jury; we receive disproportionate sentences; and we are subjected to isolation and efforts to break or destroy those who do not repent our political ideologies.) Nevertheless I had little knowledge of the history of political prisoners in the U.S. I began to read about the history and tradition of U.S. political prisoners: the Amistad rebellion and trial, Joe Hill, Emma Goldman, Sacco and Vanzetti, the Rosenbergs, Francisco Flores Magón, Don Pedro Albizú Campos and Don Juan Corretjer, the Communists imprisoned because of the HUAC “red scare” hearings in the 1950’s, as well as countless others.
In 1978, I was granted a furlough; I did not return. I continued my political activism underground until 1985 when I was captured.
The concept of political prisoner is as old as the history of political conflicts between and within nations and states. That prisoners of such conflicts were recognized as political prisoners has not always been a certainty. Most nation states unequivocally condemn the political opposition and militancy as “criminal.” Nonetheless, at the end of the Second World War, European and American statesmen sat down in order to define war, conflicts and the rules of war for the modern world, as well as to outlaw genocide and civilian murder and displacement. The Nuremberg Charter, as well as the Geneva Conventions of 1949 were elaborated.
The rule of and interpretation of international law has become broader in its reach since the Second World War. For those who have been imprisoned because of their involvement in struggles against colonial oppression and human rights – including inside the U.S. itself, it has been necessary to demand and advocate for recognition and inclusion of those struggles under international law. Forces of national liberation and anti-imperialism, having been excluded from the community of nations because of their colonial status, had erupted into wars of national liberation. Anti-colonial warfare – unconventional warfare – challenged the narrowness of the conventions, given that these conventions were elaborated relative to conventional warfare in the imperialist, developed nations. Many of the progressive changes in international law have been primarily impelled by those nations most excluded – the former and continuing colonies. (The Soviet Union as well had argued that all wars that were just might not adhere to prevailing legal standards. Thus while wars of national liberation were considered just they did not necessarily gain support of the UN until such time that it was clear about the outcome of many of those wars.) On June 8 1977 the Additional Protocols (I and II) to the Geneva Conventions of 12 August 1949 were adopted by the Diplomatic Conference on Reaffirmation and Development of International Humanitarian Law applicable to Armed Conflict. These Protocols expanded the Geneva Convention to protect those fighting against colonialism and foreign domination. The spirit of Article 45 as well as the entire Additional Protocol I was to confer as liberally as possible prisoner of war protections on legitimate national liberation combatants. The U.S. refused to sign Protocol I. As was stated in our , Memorandum in Support of Defense Motion to Dismiss the Indictment, November 2, 1987 (see Documentation/Appendix for entire brief):
A major reason why the United States refused to ratify this Protocol was because the spirit and intent of the Protocol conflicts with the government’s repressive approach that uses law to criminalize participants in liberation struggles. (Defendants’ Memorandum, 128)
In the 1960’s political movements had declared that those who had acted in concert with those movements and were imprisoned for their actions were political prisoners. Many Black Liberation Movement “cases” were supported worldwide, especially those of Angela Davis, Huey P. Newton, and the Panther 21. Weathermen, pacifists, draft resisters and anti-imperialists also became political prisoners. Some social prisoners, like George Jackson and the Soledad Brothers, and later the San Quentin Six and Ruchell Magee, had actively opposed the racism and inhumane conditions inside prisons, had become politicized and had paid heavy prices.. They too were recognized and supported as political prisoners. The U.S. judiciary and the repressive apparatus officially denied the political nature of all those cases. It relied on the FBI’s Counterintelligence Program, COINTELPRO, to quell political dissent and to maintain or restore the status quo in U.S. society.
After the defeat of the U.S. by the Vietnamese in 1975 and its other losses in Southeast Asia, the State’s repressive apparatus intensified its program to restore “order” in U.S. society. It sought to reassure or deceive the international community, as well as its own citizens, that the U.S was indeed the leading, stable force of democracy and human rights worldwide.
In the early 1970’s in the course of the domestic war against the war in Vietnam, when the Weather Underground bombed the Capitol, it was treated as a political attack. Thereafter, during the Reagan regime, in response to ongoing domestic left political struggles, the State reconfigured its definition of terrorism to include political actions of dissent, opposition and resistance. Thus, in 1983 when the Capitol was bombed, it was decried and propagandized as a ”terrorist” attack although the action did not fall under the Geneva Convention’s definition of terrorism; i.e., military acts of violence against the civilian population to inspire fear and subjugation. Those who were arrested or captured for political actions and protests were demonized as terrorists, not political activists and were subjected to extreme security measures: isolation, overwhelming armed force to move any political prisoner, and a steady stream of media propaganda.
The process of delegitimization of political resistance was under way.
The U.S. government asserts that there are no political prisoners in the U.S. It does so as well in relation to countries with military and other types of dictatorships that are friendly to the U.S. While it may have signed, in part, the 1977 Additional Protocols, its practice has been to assert that political prisoners and prisoners of war (POWs) exist only in those countries that are considered inimical to or that impede U.S. interests, such as Cuba and Libya. The U.S. resorts to international covenants, the Geneva Conventions in particular, in order to say that there are no conditions or situations of conflict within the U.S. that would result in political prisoners. That is, there are no acknowledged colonial relationships or conflicts with Puerto Rico, Native Americans, or African descendants of slaves. In 1988 in the course of the RICO conspiracy case against Dr. Mutulu Shaku and me, the Executive branch of the government submitted a brief in response to an order by Judge Charles S. Haight in which it states:
For example, it is well accepted in customary international law, the Geneva Convention, and the Protocols that the use of force by the regular military forces of a State in resisting rebels or insurgents by force is need before any situation can be properly described as an armed conflict (whether international or internal). (Cites omitted.) (See "Appendix: Government Brief in Response to Memorandum Order of January 19, 1988", 16)
It is the view of the Government that the actual application of the Geneva Conventions requires a political judgment on whether an international or internal armed conflict is present. Whether such a conflict or hostilities exists in a particular case presents a question that is appropriately reserved to the political branches of governments (Cites omitted.) (Government Brief, 19)
Thus, those persons arrested for their political activities are seen and treated as lawbreakers and criminals. To admit that there are political prisoners would open the U.S. to scrutiny for its own anti-democratic and repressive practices by other nations and its own population. This would be tantamount to officially acknowledging that there are serious conflicts of a national character within the borders.
…[A]ny decision that an armed conflict exists would have serious foreign policy and legal ramifications. Under tradition international law, for example, it would give rise to neutral rights, and thus confer the right on the belligerents (e.g., the United States and the so-called “Republic of New Afrika”) to search and seize certain neutral vessels engaged in commerce to ensure that contraband (e.g., weapons) is not being shipped to the other belligerent. It is extremely unlikely that other countries would tolerate action by the so-called “Republic of New Afrika”. (Government Brief, 22-23)
Despite its denials that political conflicts have existed, the government’s political, repressive measures and programs to monitor, control and destroy rising political movements and struggles is well-documented. COINTELPRO was the government’s most refined political police program to fend off and undermine those political movements that have demanded the same liberation and justice advocated by the U.S. in those areas of the world where it has sought to gain both economic and political footholds. It was the U.S.’ post- World War II “cold war” program of political control and repression. It began in the 1950’s in the wake of the HUAC hearings and imprisonment of “communists” who refused to bow before its ideological inquisition, coupled with the trial and execution of the Rosenbergs for espionage. Among its earliest targets was the Puerto Rican Independence movement, the Civil Rights movement, and Communists and Socialists who had not capitulated before HUAC. By the mid-1960’s COINTELPRO had issued its infamous dicta about preventing the rise of a Black Messiah and the necessity to “neutralize” any potential Black leadership or movement. Under the umbrella of COINTELPRO, the FBI, CIA and local police agencies employed nefarious, illegal activities against political activists across the Left spectrum, including white Leftists that supported the Black struggles and opposed the war in Vietnam. If the local police agencies were not before that time invested as a political, military force in what the U.S. government characterized as actions to protect U.S. democracy against Communism, they quickly took on that mantle, particularly in communities of oppressed national “minorities”.
After some of its most blatant activities were exposed and protested by the targets of its attacks, a Congressional investigation – the Church Committee – was initiated.
COINTELPRO essentially federalized the local police for its politically repressive purposes, and military intelligence played a major role in the successful implementation of the program. See The Select Committee Report, supra at 785-835. (Defendants’ Memorandum, 134)
Throughout the 1970’s, the National Black Task Force for COINTELPRO Litigation and Research, led by Dr. Shakur and Muntu Matsimela, played an important role in uncovering some of the government’s illegal actions against political activists and political prisoners. Through the Freedom of Information Act (FOIA) a number of abuses were uncovered and a civil suit, Clark v Gray, was filed through the efforts of the Black Task Force. It was subsequently settled by the government before trial. (The Task Force also played an instrumental role in building political prisoner support work.) In the late 1970’s, COINTELPRO was ostensibly dismantled after such scrutiny, but the Joint Terrorist Task Force (JTTF) was created to take up the functions of COINTELPRO in order to continue its program of intensified repression.
Where one stands in the world shapes and defines what one sees as reality. Those of us who believe in human rights, including the right to self-determination for peoples and nations, have a different worldview, experience and definition of political prisoners and prisoners of war. This worldview is diametrically opposed to the U.S. view of both international and domestic law.
We recognize that there has been an ongoing, historical conflict within the body politic of the U.S.A. Founded on genocide and slavery under the guise of “Manifest Destiny”, the U.S. developed as the dominant modern capitalist, nation state, and as a profoundly anti-democratic, white supremacist nation with internal and external colonies. This fundamental anti-democracy shaped the U.S.’ latter 20th century strategies to maintain power and a modicum of social peace.
The U.S. has never redressed the injustices of slavery, neither through reparations nor cessation of hostilities against Black communities nationwide. It has not withdrawn from Puerto Rico despite repeated votes for decolonization in the UN. Both situations are unresolved political conflicts. Therefore, the U.S. is fundamentally in violation of common international law as it has developed since the second World War, despite the fact that it ostensibly subscribes to the rule of international law.
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction. (The Paquete Habana, 175 U.S. 677, )
It is now established that customary law in the United States is a kind of federal law, and like treaties and other international agreements, it is accorded supremacy over State law by Article VI of the Constitution. (Restatement [Third] of the Foreign Relations Law of the U.S., Part I, Ch. 2  [Introductory Note])
The government consistently argues that the judicial branch only enforces that which the legislative and executive branches devise as the current state of the law. On the one hand the State represents the body of law as the immutable, neutral foundation of society. On the other hand, it denied the political and selective nature of the law. Laws had to be forcibly changed to outlaw slavery to criminalize lynching, to protect workers’ and immigrants’ rights. Political movements and their political prisoners have had not only to struggle for human rights and ending exploitation and oppression in the social-political reality, but have had to do so in the legal realm as well.
Over a period of 20 years the concept of political prisoner developed from first the practice and experience of people detained and imprisoned for their beliefs and actions. By the late 1970’s, there were prisoners from the Black Liberation movement – the Panthers in particular – along with several U.S. anti-imperialists and anarchists, who had been imprisoned since the late 1960’s for their political activities. Once the 1977 Additional Protocols were signed, political prisoners began to demand that they be treated as political prisoners and prisoners of war according to international law. The concept of the political offenses and political “crimes” began to be integrated into legal defenses in order to challenge criminal charges, criminalization, and the attempts of the U.S to hide the social-political contradictions and conflicts that are in full force in this society.
These legal claims – as challenges to the criminalization of political opposition –became sharper and more clearly defined. The definition of U.S. political prisoner was agreed to by a number of movements concerned with national self-determination justice and human dignity – including the political prisoners from those movements. The Introduction to the 4th edition of Can’t Jail the Spirit discusses the concept of political prisoner status:
Political prisoners exist as a result of real political and social conflicts in the society. There is no society free of contradictions, and therefore no society that does not have political prisoners. The absurd position of the U.S. government that it alone has no political prisoners is consistent with its position that there are no legitimate social or political movements struggling for fundamental change. The strategy of criminalization and isolation of political prisoners, i.e., the denial of their existence, in part allows the U.S. to propagate the lie that U.S. society has achieved social peace, and that whatever dissent there is functions solely within the existent bourgeois democratic framework. (Can’t Jail the Spirit, 19)
Our movements here in the U.S., as well as liberation-directed movements in other nations and even some foreign states, are clear that there are political prisoners and POWs in the U.S. After every major attack by the State in which political activists have been arrested, we have mounted a defense struggle in the realm of the domestic, criminal court both to challenge the criminal charges and to argue for treatment as such under international law.
In 1977, William Morales, a Puerto Rican independentista was arrested in New York after a pipe bomb exploded prematurely in his hands. He refused to participate in a “criminal” trial based on his declared status as a prisoner of war under the Geneva Conventions. This case was one of the first to challenge the right of the U.S. to try him under criminal law because, as a colonial fighter he was eligible for POW status under international law. Morales relied on the 80-year history of struggle against Puerto Rico's colonial status, led by Don Pedro Albizú Campos and the Puerto Rican Nationalist Party, five militants of which were, at that time, still imprisoned after 24 years or more.
Within a few years thereafter, a large number of other political militants were captured, arrested and charged as “criminals” – or “terrorists”. (The two terms increasingly have been conflated in order to raise the specter of terrorist attacks on civilians and civil society to and justify brutal, inhumane treatment.)
Had I not been captured I would not have engaged in studies of the international law relating to political conflict and political prisoners/POWs. The experience of being a political prisoner motivated that. Prior to my arrest, I did not see such study to be my responsibility. I was immersed in other strategies both to support and to free political prisoners, many of whom had been continuously subjected to harsh, extreme treatment inside the prison systems. My attentions and efforts were in other arenas.
Upon capture, I was compelled to learn about law and its philosophy. During my first trial, for escape in West Virginia, I acted as my own attorney; I argued a “necessity defense” that had been developed at the end of the 1970’s principally by the prisoners of the anti-nuclear movement. The “necessity defense” was based on the Nuremberg Principles embodied in the Treaty of London, to which the U.S. is a signatory. It provides:
…individuals have international duties which transcend the national obligations of obedience imposed by the individual state. (Treaty of London, August 8, 1945, 59 Stat. 1544, 1548 Article 8)
The principles recognized in the Judgment of the Nuremberg Tribunal, impose on individuals the affirmative duty to prevent the commission of crimes as enumerated therein at Article 6. (Brief Supporting Charges that the United States Federal Government has Acted as an International Criminal Conspiracy and a Criminal Organizations with Regard to the Political Incarceration and Commission of Human Rights Violations Against White, North American Revolutionaries and Activists., Marilyn Kalman, Attorney At Law, San Francisco CA, October 2-4, 1992, page 2)
Investigating the “necessity defense” began my active study of international law and political prisoner status. Although I had prepared a necessity defense with the help and advice of attorneys, I was not allowed to present it except to the extent I could elaborate the concept in my opening and closing statements. I was convicted, sentenced and returned to NY.
In New York, I was to stand trial for a RICO conspiracy. I began to prepare my defense case with my attorneys, fully engaged in all aspects. I focused on challenging the evidence, which we did successfully, initially, at lower court levels. My knowledge or understanding of the international, legal tradition that defined the concept of political prisoner was still limited, but Once again captive, Dr. Shakur urged me to study international law in order to advance the struggle in international terms and to attack better politically the indictment against us. Likewise, I was in the company of a number of other political prisoners and prisoners of war (POWs) – Grand Jury resisters, comrades from the New Afrikan Independence Movement, other North American anti-imperialists, Puerto Rican political prisoners, as well as an Irish Republican Army member, Joe Doherty. For years Joe had been fighting in the U.S. courts for political asylum against a demand by the British that he be returned to political detention there. He had based his legal battle in international law and the Political Offense Exception to Extradition (POEE).
In interactions limited by security attempts to keep the political prisoners separate, the men political prisoners discussed both the international and domestic laws concerning the definition and place of U.S. political prisoner in the international realm of law. Dr. Shakur recognized the import of the POEE , began to explore its possibilities and educated the other political prisoners, including me, as well as our attorneys, law students and paralegals. We analyzed the history of political prisoners’ challenges to U.S. criminal law, read previous briefs, and translated that history into a legal argument. Under Dr. Shakur’s direction, an argument was developed that the POEE must not be limited to extradition only since it is the method used in most western alliance countries as a guide to evaluate the political character of an offense and its common criminal elements.
Despite the Department of Justice’s protestations of our criminalizaiton, the conspiracy charged that the enterprise was political purposes; that is, to free political prisoners and provide economic support for the New Afrikan Independence Movement. Nevertheless, the conspiracy and the substantive acts and counts were indicted criminal offenses. We participated in the trial to challenge the evidence against us; We also consistently showed the political nature of the acts, particularly in cross-examination of the government’s central witness, a former political associate of Dr. Shakur who had succumbed to FBI/JTTF coercion and then been well-paid to elaborate and define the conspiracy as charged.
We argued for political prisoner status under International law based on the Geneva Conventions (1949), incorporated the International Covenant on Civil and Political Rights (G.A. Resolution 2200A[XXI], 21 U.N. GAOR Supp. [No. 16] at 52, U.N. Doc. A/6316 , 999 U.N.T.S. 171, entered into force Mar. 23, 1976.), and developed arguments using the Political Offense Exception to Extradition (POEE). Led by Dr. Shakur and Joe Doherty, we studied these particular aspects of international law. We referred to other political challenges to criminalization by other political prisoners and POWs including William Morales and Sekou Odinga, a New Afrikan POW comrade and codefendant who had been tried in an earlier trial under the same RICO indictment as we.
At the beginning of our trial in November 1987, Dr. Shakur filed a Motion to Dismiss the Indictment based on his status as a POW. I did not seek POW status because, as a citizen of the U.S., not a colonial subject, the same arguments could not be made relative to a “civil” war. In an earlier trial it had been decided, for political reasons, that the North American anti-imperialists, though acting in solidarity and in concert with the New Afrikan Independence forces, would declare as political prisoners and allies.)
He argued that African peoples inside the U.S. constituted a New Afrikan nation by virtue of their historical relation to the land in the South. As a citizen and militant of the Republic of New Afrika, he had a legitimate right to defend his nation against the white supremacist, genocidal war that the U.S had been waging against New Afrikan people as colonial subjects. In his petition, Memorandum in Support of Defense Motion to Dismiss the Indictment, he argued that the Political Offense Exception to Extradition could be extended to political conflict inside the U.S.
According to the Quinn Court, there are two distinct categories of political offenses: “pure political offenses” and “relative political offenses”.
Pure political offenses are acts aimed directed [sic] at the government and have none of the elements of ordinary crimes… The definitional problems focus around the second category of political offenses – the relative political offenses. These include “otherwise common crimes committed in connection with a politicial act,” or common crimes…committed for political motives or in a political context.
Quinn v. Robinson, supra at 793-794 (cited in SSS 82-CR.312 CSH, Memorandum in Support of Defense Motion to Dismiss the Indictment, November 2, 1987, November 2, 1987, 44-45)
It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not the reasons for wishing to do so or the nature of the acts by which they hope to accomplish that goal.
Quinn v. Robinson, 783 F. 2d at 805 (Memorandum in Support of Defense Motion to Dismiss the Indictment, November 2, 1987, 47)
He argued that within the POEE, treaties and international norms, there are various test know as the Anglo-American test, etc., which are the primary tests used by the judiciary to evaluate the character of the acts which requesting country demanding extradition of the defendants charged.
In January 1988, after the Government had filed its response to Dr. Shakur’s motion, the Judge directed the Government to answer five questions “regarding the possibly political character of the acts charged in the indictment.” (See SSS 82 Cr. 312 – CSH, Memorandum Opinion and Order by Charles S. Haight, Judge, Southern District of New York, January 19, 1988.) Those questions were:
1. What role, if any, did the United States play in the development of the 1977 protocols proposed as amendments to the 1949 Geneva Prisoner of War Convention?
2. What is the history and present status of the United States’ position with respect to the 1977 protocols?
3. Do the 1977 protocols reflect the current state of international law on the issue of when prisoner-of-war treatment must be accorded to accused persons?
4. Assuming that the United States has not adopted the 1977 protocols, but that the protocols do reflect current international law, is this Court required or permitted to decline to analyze the present motion under the principles enunciated therein? Cf. Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cir. 1980)
5. Analyzed under the principles enunciated in the 1977 protocols, should the criminal enterprise charged in the indictment be regarded as an insurgency?
The AUSAs (Federal prosecutors) forwarded the Court’s order to the Department of State to make the responding brief. Abraham D. Sofaer, Legal Adviser to the Department of State together with others, including the Chief of the Office of the Judge Advocate General of the Department of the Army and the Office of the General Counsel of the Department of Defense responded.
The government’s political brief filed argued essentially that any decision on POW (or political) status or declaration that a conflict exists is reserved to the political branches:
…[E]ven were the court otherwise inclined to address the defendant’s contention, it should take into account that there is an “absence of judicially discoverable and manageable standards” for determining whether hostilities or armed conflict exist for purposes of such laws and treaties. (case law cites omitted) (Government Brief, 24)
The government dismissed outright any consideration of the Political Offense Exception to Extradition as not applicable.
The political offense exception referred to by the defendants is relevant as a matter of law solely in cases involving extradition. Under no circumstances is it a defense to prosecution in the United States (Cites omitted) Government Brief, 2)
We responded to that brief. In March 1988, we had requested that a number of potential,political prisoner witnesses for the defense case be brought to New York. The Judge ordered Sekou Odinga and Cecil Ferguson, both comrades already convicted in our own case; David Gilbert an anti-imperialist comrade who had been convicted in New York state courts for participation in an action that included both New Afrikans and North American anti-imperialists and was one of the substantive acts charged in our own case; Susan Rosenberg, an anti-imperialist comrade indicted in the instant RICO conspiracy but who had been nolled in order to focus the prosecution on Dr. Shakur and me; Nuh Washington a Black Liberation Army combatant imprisoned since 1971 in NY state prisons; and Geronimo jiJaga Pratt, a Black Panther Minister of Defense who was falsely imprisoned for 27 years as a target of COINTELPRO.
We held joint legal meetings nightly after Dr. Shakur and I returned from court. Each evening was a legal education session on points of international law regarding political prisoners, definitions of combatants and non-combatants and on the POEE and its possible applications to our situation inside the U.S. We approached the subject from the point of view that the court had the discretion to address this issue:
The “political offense exception” to extradition arose in Europe and America because democratic governments supported the right of individuals "to resort to political activism to foster political change.”[footnote omitted]. The underlying tenets of domestic extradition law arise from (1) the desire to insulate executive involvement in the extradition determination, which is made by the Court, and, (2) the political decision that the executive should not help anther country suppress its own internal political dissent.(Footnote omitted) These concerns have governed American extradition policies for 150 years. [Footnote omitted] (Defendants Memorandum, 138)
In order to respond to the Judge’s questions and challenge the government’s response to those same question we immersed ourselves deeper into the case law and the theories behind international conventions, laws, in particular the Political Offense Exception to Extradition, given that the major point of contention was whether the crimes charged were political or not.
By the time we had read and discussed a significant amount of case law and international covenants related to political conflict, political offenses and judicial authority, we felt confident to write a response brief to answer the government’s misrepresentations of international law. We were advised by our attorneys, Chokwe Lumumba, Jill Soffiyah Elijah and Judith Holmes each of whom brought her or his own area of expertise and experience. Our response brief began by arguing that the U.S.’ political stance relative to Protocol I was based on its own history and policies. It had historically denied that political conflicts have existed internally. We argued that:
The real issue, assuming that the Protocols do reflect current international law, is whether there are controlling executive or legislative acts that preclude the Court from recognizing international law applicable to this case. (Defendants’ Memorandum, 131)
We also challenged the government’s assertion that if Congress doesn’t ratify a law of nations then that law is not controlling.
The Senate’s failure to ratify the Protocols means that these amendments do not have the status of a United States treaty. But, if the Protocols do indeed express contemporary international law, the Senate’s non-ratification merely means that no codification on how such international law may or may not apply in the United States has been established. (Defendants’ Memorandum, 132)
In response to Judge Haight’s final question, we argued that the Black Liberation struggle was indeed an ongoing internal conflict.
Given the body of factual data in defendant’s [Dr. Shakur] affidavit about the war against New Afrikans and the Black Liberation Movement, and the massive documentation the Church Committee revealed that chronicled the government’s “secret war”, involving the Army, the CIA, the FBI, the IRS and the state and local police against the Black Liberation Movement, such actions taken against any foreign nation would clearly constitute overt “acts of war” in international law. Any person captured would be considered a prisoner of war. (Defendants’ Memorandum, 133)
The government’s reply to the Court’s fifth question, asking whether the criminal enterprise charged in the indictment should be regarded as an insurgency as analyzed under the 1977 Protocols, evaded the central issue: whether the conspiracy charged is a part of the ongoing conflict between Black people in America and the United States government…The RICO statute has become a tool for criminalizing political movements that has enabled the government to define the New Afrikan Independence Movement as a criminal enterprise. (Defendants’ Memorandum, 135)
Dr. Shakur, posited that the Court could grant relief under the provisions for international armed conflict because the requirements for such an evaluation existed despite the U.S. government’s denials; i.e., the Political Offense Exception to Extradition could be applied by the Court to grant us political status.
In re Doherty, 599 F. Supp. 270,27 (S.D.N.Y. 1984) elaborated a more flexible standard for applying the political offense exception. It stated:
The court rejects the notion that the political offense exception is limited to actual armed insurrections or more tradition and overt military hostilities… (Defendants’ Memorandum, 139)
Finally we made an interest of justice argument and application in which we argued that the case presented by the State pointed out the relative political nature of the acts and of the defendants. We asked that the Court hold fact-finding hearings on our political status.
Following, in the Documentation / Appendix, The Defendants’ Memorandum in Reply to the Government’s Response to the January 19,1988 Order of Judge Charles S. Haight (as printed in Wazo Weusi) lays out all of our arguments based on the substance of the learning experience that occurred not only for myself but for all of us involved, both defendants and attorneys.
Both Dr. Shakur and I were found guilty of the RICO conspiracy and all the substantive acts therein. Post trial, as part of the defense’s sentencing briefings, Judge Haight ruled on Dr. Shakur’s POW petition and our joint request to be treated as political prisoners and to be allowed to go into exile to a country that would grant us political asylum. However, he accepted the government’s argument that he that he had no jurisdiction to rule on our political status given there was no precedence in U.S. law not related to extradition. He carried forward the criminalization process by sentencing us under criminal law guidelines.
In 1989 a campaign to demand amnesty for all political prisoners and POWs (of the progressive and Left movements) – Freedom Now – was launched. In 1990, the campaign culminated in an international tribunal on U.S. political prisoners and prisoners of war. The work we had done was useful in that work. Nevertheless, the work we did remains to be evaluated under changed political conditions. Perhaps our work will contribute to changes in the political conditions and, ultimately, in the law itself. Radical change generally precedes any change in the law. The law is the foundation stone of the political and social order as it has been and is not what it is to become.
Churchill, Ward, and Vanderwall, Jim, Agents of Repression (Boston: South End Press) 1990.
_______,The COINTELPRO Papers, (Boston: South End Press) 1990.
Editorial El Coqui , Can’t Jail the Spirit, 4th Edition,(Chicago: Editorial El Coqui)
Final Report of the Select Committee to Study Governmental Operation with Respect to Intelligence Activities, 94th congress, 2nd Session, Book II, April 23, 1976.
Wazi Weusi Journal, Vol. 1, Number 2/3, Spring-Summer 1993.
Note: Marilyn Buck was paroled from Federal prison July 15, 2010. Published in Imprisoned Intellectuals: America's Political Prisoners Write on Life, Liberation, and Rebellion, edited by Joy James, (Rowman & Littlefield, 2003, ISBN 0742520277, 9780742520271).
Kathleen Cleaver visiting Marilyn c. 2000
Lolita Lebron with Marilyn inside Alderson prison, c. 1974