The Bothwell Letter
NEWS FROM THE LAW OFFICES OF ANTHONY P.X. BOTHWELL
350 BAY STREET, SUITE 100 PMB314, SAN FRANCISCO, CA 94133 TEL. (415) 370-5971
JUL 16,2007 Vol. IX / No. 1- attorney@apxbothwell.com - www.apxbothwell.com

[1] Pilots’ class action asks federal court to declare age 60 forced-retirement rule unconstitutional
[2] Rulings favor a whistleblowing flight attendant
[3] Guantanamo prisoners are entitled to rights despite a treaty Cubans were forced to sign
[4] Bush appointee amused by nuclear terror talk; Hans Correll, Hans Blix call for new accords
[5] Rendition program author decries mercenaries
[6] Karachi commentator sees new ‘Axis’ peril
[7] JAG generals contemplate ‘rule of law’
[8] High crimes attributed to NSA spy program
[9] War dead honored at the Presidio
[10] Catastrophic climate change seen by 2050; decades ago, scientists knew it was coming
[11] Polio volunteers put drug profiteers to shame; Gandhian vision suggests new Rotary agenda
[12] ‘That argument and $1.50 will get you a ride…’

[1] Pilots’ class action asks federal court to declare age 60 forced-retirement rule unconstitutional
The PBS News Hour with Jim Lehrer July 5 reported on a class action for thousands of airline pilots challenging a rule that bars them from flying after age 59. The challenge to the age rule is based on Fifth Amendment due process, “which requires federal agencies to ensure equal protection of law,” says Tony Bothwell, the pilots’ lawyer. The suit also charges the FAA, by enforcing the age rule, interfered with pilots’ “prospective economic relations,” co-counsel Rey Hassan notes. Lead plaintiff Michael Oksner, retired Southwest captain, and over 150 other active and retired pilots volunteered to be representative plaintiffs. The News Hour, reporting the new case “seeks damages…for lost income,” showed Bothwell reviewing files from a case he brought to the Supreme Court docket for pilots who sought exemption from the age rule.

David Mann of Irving, Tex., a representative plaintiff in the class action, told Lehrer’s science correspondent, Tom Bearden, that the FAA had “no scientific basis” for age bias. Also on the July 5 News Hour segment, a rebroadcast of a May 8 PBS report, Stanford scientists Joy Taylor and Jerome Yesavage explained that many 65-year-old pilots could pass the same medical tests as 55-year-olds, and that experience is a plus in the cockpit. FLTops.com, an on-line news source for pilots, says the new suit cites “objective studies” showing that more experienced pilots have better safety records.

"At 60 you really don't want to quit but you're forced to; and it's not about money – it's the love of an occupation that's really challenging and fun,” Oksner told KCBS on Apr. 26, the day the case was filed in U.S. District Court in San Francisco. "It's an arbitrary and capricious rule,” Oksner said on KPIX-TV. The San Francisco Chronicle reported that the FAA “declined to comment on the suit.” The airlines need their more experienced pilots. As ABC7 aviation consultant Ron Wilson commented in a KGO telecast May 28: "There's going to be a crunch coming very, very soon with pilots that are older, ready to retire, and the airlines are not going to be able to fill those slots."

[2] Rulings favor a whistleblowing flight attendant
The Bothwell law firm, representing a flight attendant who reported safety violations such as broken escape chutes on passenger airliners, recently won a series of rulings against one of the world’s largest commercial air carriers. The airline’s lawyers tried to get the whistleblower retaliation case transferred to a federal district in Texas. But the judge accepted Bothwell’s arguments that the suit charges California defendants inflicted emotional distress, and that the case doesn’t require interpretation of union contract clauses or federal regulations – and isn’t precluded by workers’ compensation law. The federal judge granted Bothwell’s motion to remand the case to state court.

[3] Guantanamo prisoners are entitled to rights despite a treaty Cubans were forced to sign
Bush administration denial of Guantanamo prisoners’ right to appear before a judge violates habeas corpus, a right recognized in common law since 1305 and promised by the Constitution since 1789, Tony Bothwell said in a World Affairs Council lecture. Most Americans don’t realize how the Guantanamo gulag has wrecked U.S. standing in the world, said Bothwell, a former American Bar Association delegate to the European Parliament. The Constitution gives U.S. authorities jurisdiction over Guantanamo for the purpose of running a military base and holding prisoners but, according to Bush theory, but does not give jurisdiction for the purpose of enforcing human rights. That leaves a “black hole” where the U.S. refuses to recognize, and Cuba is unable to do anything about, Guantanamo prisoners’ basic rights, Bothwell told the council’s East Bay chapter meeting Jan. 11 in Walnut Creek.

Habeas corpus may be suspended only “in cases of rebellion or invasion” when “the public safety may require it,” according to the Constitution, Art. I, sect. 9(2). During the Civil War, Congress ratified Lincoln’s suspension of habeas corpus when many thousands of rebel POWs were held; no comparable situation exists today, Bothwell said.

U.S. military forces occupied Cuba for three years after the Spanish-American War and then forced Cuban leaders to agree in 1903 to give Washington a lease to Guantanamo and the right to intervene in Cuba in the future, said Bothwell, whose great uncle served in the U.S. Army in the war in Cuba. In 1934, the U.S. forced new terms on the Cubans, demanding that the lease be extended “in perpetuity” or else Washington would maintain its right of military intervention, Bothwell said. The lease would have been void under the UN Charter, which prohibits use or threat of force in international relations. But, under the principle of inter-temporal law, an international agreement remains binding if it was valid when first entered into, as this one was long before the 1945 UN Charter, Bothwell said. But he said the Constitution defines rights as well as powers where the U.S. has jurisdiction over the leased naval base.

Kangaroo-court procedures at Guantanamo were detailed in an affidavit by Lt.Col. Stephen Abraham, a military lawyer in the Army Reserve, filed with the Supreme Court June 22. Seven days later, the high court reversed itself and granted a writ of certiorari, agreeing to hear habeas corpus claims of Guantanamo prisoners.

[4] Bush appointee amused by nuclear terror talk; Hans Correll, Hans Blix call for new accords
A top State Dept. neocon shrugged and laughed when international lawyers challenged Bush foreign policy at an American Bar Association meeting May 4 in Washington. John Rood, assistant secretary of state for international security and nonproliferation, whose claim to fame is the dismantling of the Anti-Ballistic Missile treaty, was confronted by Hans Correll, UN undersecretary-general for legal affairs. Correll said President Bush, by engaging in namecalling instead of diplomacy, harmed America’s interests. Correll asked Rood, “Haven’t you understood the damage this has done to the United States? You can’t begin by insulting people! You lost your credibility because you invaded Iraq in violation of the United Nations Charter.” Rood shrugged and said nothing. Then Jonathan Granoff, president of the Global Security Institute, recited Bush administration foreign policy errors and invited Rood’s response. Again, Rood shrugged and gave no reply. Then Tony Bothwell, a John F. Kennedy law professor, asked Rood, “What, if any, is your answer to the fundamental critique by Hans Correll that the Bush administration practice of insulting leaders of other nations has been self-destructive?” Granoff concurred, “That’s my question!” Rood replied, “I don’t accept the premise…. I take the point that it is important to use judicious language.”

‘Arms control, what’s that?’

Rood made fun of two nonproliferation experts in the ABA session, Sharon Squassoni and Laura S.H. Holgate. White House opposition to treaties “undermines” the traditional “rules-based approach” and causes “crumbling” of safeguards against nuclear terror, said Squassoni, Senate Armed Services Committee counsel. Qaeda has been recruiting physicists and engineers and could acquire a “Hiroshima type bomb,” said Holgate, vice president of the Nuclear Threat Initiative (NTI). Rood laughed at Squassoni and Holgate, calling them and their presentations “lovely…lovely, heh, heh, heh.” (NTI, co-chaired by former Sen. Sam Nunn (D-Ga.) and philanthropist Ted Turner, contributed $50 million to the International Atomic Energy Agency in 2006 for a program that supplies uranium for civilian energy to countries that give up the right to build nuclear fuel cycle facilities.)

Rood boasted, “the Executive Branch, I proudly serve in it. I served in the Senate.” Rood was not a senator; he was an aide to Sen. John Kyl (R-Ariz.) before going to work for the National Security Council’s congressional liaison, Michael Allen. The Washington Post, in a report on Bush’s “small group of conservative Gen Xers,” said the young neocons favor “go-it-alone strategies” and “no longer fear war.” The Mar. 12, 2006 Post article by Dafna Linzer quoted Rood’s boss, Allen, as saying: “We’re like ‘Arms control, what’s that?’”

Now more than ever, the world “can’t have security without international conventions,” Hans Blix, former director-general of the International Atomic Energy Agency, told ABA leaders later in the May 4, 2007 meeting. The fact that the United States has been the lone dissenter in key General Assembly votes is “profoundly disturbing,” Blix said. The fact that the Bush administration “refuses to discuss” space arms is “perverse,” said Amb. Thomas Graham, Jr., president of the Lawyers Alliance for World Security, a think tank founded by the late Sen. Alan Cranston (D-Cal.). “Anti-missile weapons in space will provoke others to go with satellite weapons and nuclear weapons in space,” said Graham, who took part in negotiating of every major arms control and nonproliferation agreement over the past thirty years. He concluded: “Since the age of Enlightenment, it has been recognized that a state to be truly legitimate must follow, at least in principle, international law.” For fifty years, the United States has led the formation of international covenants, “but in the last few years” the U.S. “has moved away, he said, adding, “Strengthening international law” would make world “safer for Americans.”

[5] Rendition program author decries mercenaries
Mercenaries sent to Iraq by U.S. companies such as Blackwater USA are “the equivalent of a division of private military forces,” Dr. Michael Scheuer, author of Imperial Hubris, told a meeting in Washington May 3. He called it “unconscionable for America to field mercenary forces,” and asked the roomful of lawyers, “Is there a constitutional or legal problem here?” Scheuer said he resigned from the CIA “because the 9/11 commission failed to hold anyone responsible for the 9/11 failures.” Main steps needed “to prevent nuclear terror,” he argued, are to “close the borders” of the United States and “secure” 22,000 old Soviet nuclear devices. (Closing borders may be overkill, but securing nukes is sine qua non, according to Tony Bothwell.) Scheuer continued, “Iran and Hezbollah have large networks inside the United States. They were here to control Iranian dissidents but they can be used for other things.” Scheuer added, “There is no greater danger to the United States than the Saudis,” which he called “Taliban with smiling English-speaking princes.” He went on, “By 2012, twenty to twenty-five percent of our crude will come from 27,000 square kilometers of swamp and forest in the Niger Delta,” “a bad battleground.” He argued that U.S. national security will require “something like a Manhattan project” for “energy independence.”

Scheuer said, “I was the author of the rendition program…with lawyers’ permission.” He said “locals,” not CIA employees, seized “intelligence sources” in Italy and Sweden for rendition. (Sources say the agency sent individuals, kidnapped in various parts of the world, to torture chambers in third countries.) Scheuer lamented that “3,000 marines at Tora Bora wanted to go get Bin Laden, but U.S. bureaucrats assigned proxies instead.” The United States will be “paying for a long time” for mistakes of former Defense Secretary Donald Rumsfeld, he said. Regarding Iraq and Afghanistan, Scheuer said, “These two are gone. These two are lost. It is irretrievable.”

Letter from Pakistan
[6] Karachi commentator sees new ‘Axis’ peril
BY MUHAMMAD SALEEM CHAUDRY
(Karachi) - The fertile mind of Harvard historian Niall Ferguson worked on a Shakespearean analogy to fit the central actor, "King George" of the current era. "The tragedie of King George has three more scenes." Against the ill-cooked term of Axis of Evil (with Iraq, Iran and North Korea in it) comes the rather worse-done term, Axis of Allies (with Saudi Arabia, Pakistan and Israel, the three most committed, most pliant for Bush's “war on terror”). With Israel's several hundred nuclear warheads and rockets (as claimed by Israeli historian Martin Van Cleven) ready in case of any eventuality, with al-Qaeda followers inside Saudi Arabia tacitly supported by Prince Bandar bin Sultan, and with Islamist extremists and nuclear weapons in Pakistan, Prof. Ferguson insinuates that horrific scenarios could follow any unwise move by "King George."

[7] JAG generals contemplate ‘rule of law’
“In a counterinsurgency operation such as Iraq, you cannot establish the rule of law if you don’t follow the rule of law yourself,” Brig. Gen. James Walker, staff judge advocate to the U.S. Marine Corps commandant, told a Washington session featuring Army, Navy, Marine, Air Force and Coast Guard generals. When they were asked to address what the rule of law means, Maj. Gen. Daniel Wright, U.S. Army assistant judge advocate general, told the audience of several hundred international lawyers: “I’ll try to give it to you as quick as I can without confusing you.” Then he proceeded to list Geneva conventions and other sources of the law of war, and concluded, “If we follow the Uniform Code of Military Justice and the Constitution, then the treaties will be satisfied.” The rule of law is the principle that all members of society, including highest civilian and military officials, must conform their conduct to law. Taking only selected written queries, the generals on the May 2 ABA panel avoided hard questions about Guantanamo, Abu Graib, Blackwater USA, Halliburton, and various atrocities.

[8] High crimes attributed to NSA spy program
The Recorder, San Francisco legal newspaper, published a letter suggesting remedies for violations of the Fourth Amendment and criminal code in White House-directed spying on Americans. The letter by Tony Bothwell urged impeachment of President George Bush and Vice President Dick Cheney for their roles in the National Security Agency spy program. Bothwell wrote that Bush, Cheney and NSA officers could be prosecuted for warrantless spying on citizens’ phone calls, faxes and e-mails. Americans harmed by such violations can sue in tort law for compensatory and punitive damages, he said. The letter in the Jan. 26 Recorder said Atty. Gen. Alberto Gonzalez could be prosecuted for lying when he testified in a 2005 Senate Judiciary hearing that the administration always complied with the Foreign Intelligence Surveillance Act.

[9] War dead honored at the Presidio
Members of Sons of the American Revolution and other patriots waved flags, sang America the Beautiful and Amazing Grace, and silently prayed for war dead and veterans at the annual Memorial Day ceremony May 28 at the Presidio. Consuls general of Korea and the Philippines attended. Rep. Tom Lantos (D-Cal.), chairman of the House Foreign Affairs Committee, told the assemblage, “For those who laid down their lives before they laid down their arms, we give our most profound respect.”

[10] Catastrophic climate change seen by 2050; decades ago, scientists knew it was coming
The world will have “150 million climate-change refugees by 2050,” Daniel Magraw, Jr., director of the Center for Environmental Law, told an ABA meeting in the nation’s capital. Planetary heat-up is “the worst threat except for nuclear terrorism,” he said. Thirty percent of earth’s species may be doomed due to global warming, said Edna Sussman, an attorney with the New York law firm of Hoguet Newman & Rega. Polar bears, for example, could be extinct (except for those in zoos) in fifty years, Prof. Joseph Dellapenna of Villanova law school told the May 3 session. Magraw said “commercial wild fisheries in oceans will end by 2050.” Prof. Holly Doremus of University of California, Davis law school, said “California will lose most of its snowpack by 2099,” and noted it is the state’s “main reservoir.” Inuits may be among the first humans to have their culture destroyed by severe climate change, Magraw said, as the Arctic peoples will be unable to hunt or build igloos.

The UN Intergovernmental Panel on Climate Change reported Feb. 2 that global warming is “unequivocal,” poses “dangers” very likely to “affect the future of our children,” and requires urgent action. In An Inconvenient Truth, Al Gore has made millions of Americans aware of the climate crisis. Scientists have been aware for decades. “It is the consensus of the scientific community that, within the lifetime of our grandchildren, the world will be hotter and steamier than at any time since the age of the dinosaurs,” Tony Bothwell reported in a lecture at an energy technology conference in Madison, Wis. in 1979.

[11] Polio volunteers put drug profiteers to shame; Gandhian vision suggests new Rotary agenda
Now that Rotary International, with help from the United Nations and others, has almost wiped out polio worldwide, “it’s time to decide what Rotary’s next big goal will be,” says Tony Bothwell, president of the Rotary Club of Fisherman’s Wharf. Polio has been cut 99 percent since 1979, Gillian Sorensen, senior advisor to the UN Foundation, told a Rotary conference Apr. 21 at Yosemite. Polio now exists only in Nigeria, India, Pakistan and Afghanistan, according to the World Health Organization. Rotarians have immunized children around the world against the disease that once crippled about 1,000 young people every day. The United Nations, strong supporter of Rotary’s anti-polio campaign, is itself the outgrowth of a Rotary International committee, Sorensen noted. She recalled that Eleanor Roosevelt – who worked with Rotary on varied projects – was enlisted to spearhead a campaign for the UN’s founding. In a Rotary session on Apr. 22, Sorensen decried drug companies’ profiteering in the AIDS crisis. Sorensen is the wife of Ted Sorensen, who was President Kennedy’s speechwriter and alter ego.

September 11, 1906

The ironic fact that the attacks of Sept. 11, 2001 occurred on the 95th anniversary of the day Mohandas Gandhi launched the nonviolent-resistance movement was noted by a South African diplomat addressing the 2007 Rotary International convention June 18 in Salt Lake City. Violence is “not inevitable,” Francis Moloi, South Africa’s ambassador to India, said, urging action to meet today’s challenges. “Malnutrition, famine, disease hold peoples at ransom,” he said. “The poor and defenseless are considered collateral in wars they had no say in. Decisions about the health and safety of populations are in juxtaposition to corporate profits.” Moloi added that individuals’ small acts “are changing the face of the earth” for the better. Rotarians gave Moloi a standing ovation as he concluded, “Let us rededicate ourselves to nonviolent action…. There is hope for the world!” Gandhi, a British-educated lawyer, started the campaign of peaceful resistance against apartheid on Sept. 11, 1906 in Johannesburg. Returning later to his homeland, Ghandi led the nonviolent campaign that led to India’s independence from British colonial control.

[12] ‘That argument and $1.50 will get you a ride…’
The Muni, San Francisco’s Municipal Railway System, often is a subject of discourse in local courtrooms where claims get heard arising from mishaps involving streetcars, buses and trolley cars. But Muni came up in a different context during a hearing on Apr. 20. Superior Court heard arguments that day on whether the City of San Francisco should have to pay fees of attorneys Michael Sorgen and Tony Bothwell for work on a case won by a City employee fired after reporting unsafe practices in the City’s health department. Sorgen brought the case to trial. Bothwell drafted legal briefs, defeating the city’s demurrer and summary judgment motion, and testified at trial. Assistant city attorneys, opposing Sorgen and Bothwell, presented various lines of legal reasoning as to why they thought the City should not have to pay fees of the plaintiff’s attorneys. The judge listened patiently but finally told the assistant city attorneys, “That argument and $1.50 will get you a ride on the Muni.”