The Bothwell Letter

News from the Law Offices of Anthony P. X. Bothwell
350 Bay Street, Suite 100 PMB314, San Francisco, CA 94133-1966 Tel. (415) 370-9571
November 22, 2004 Vol. VII / No.3

[1] Mexican American legal workers settle suit against a law firm
[2] International lawyers compare 1930s Germany, post-9/11 U.S.
[3] NSA falsified Gulf of Tonkin intel
[4] Vietnam déjà vu in Iraq war?
[5] Nixon case – a timely precedent?
[6] Alabama ‘establishes religion’
[7] Heroes honored in Montgomery
[8] No need to probe Oil for Food?
[9] Banks help hunt for terrorists
[10]Treasury Claims Power to Censor


[1] Mexican American legal workers settle suit against a law firm
Elizabeth Murrillo Hook, Angelica Mendiola and Gabriel Olivares have settled their lawsuits against the Adelson, Testan, Brundo & Popolardo law firm. Terms of settlement were not disclosed.

The suits in Superior Court in Fresno charged that the Mexican American legal workers were subjected to discrimination, harassment and assaults in the workplace. The plaintiffs were represented by Attys. Tony Bothwell and Rey Hassan of San Francisco and Tom Sharpe of Fresno.

The team of Bothwell, Hassan and Sharpe currently represents a plaintiff in a sexual harassment case pending in federal court against the Los Banos Unified School District.

Bothwell and various associates – sometimes working with the Government Accountability Project – have won monetary awards, saved jobs or otherwise assisted whistleblowers against Lawrence Livermore National Laboratory, Los Alamos National Laboratory, the University of California-San Francisco, the City and County of San Francisco, and a multinational technology company.

Bothwell has assisted clients on age discrimination issues; helped minority employees of Pacific Gas & Electric Co. transfer out of a biased supervisor’s group; enabled a minority student to graduate from junior college after a bigoted professor fraudulently altered grades; stopped a private high school from expelling a disabled student; helped Oglala Sioux Nation stop National Park Service descecration of sacred burial grounds; won asylum for Mayan survivors of the Guatemala genocide; brought a claim against the Federal Aviation Administration by commercial airline pilots to the docket of the U.S. Supreme Court; advised clients in the U.S. and Europe on contract issues; and helped win remedies in consumer product and vehicle accident cases.

[2] International lawyers compare 1930s Germany, post-9/11 U.S.
Representatives of the departments of State and Justice, the CIA and international organizations, Nuremberg prosecutors and other international lawyers met at Georgetown University Law Center to recall the history and consider current relevance of the Nuremberg tribunals. Atty. Tony Bothwell of San Francisco said:

“At Nuremberg, representatives of the civilized world called before the bar of justice members of a regime that told some citizens they had no rights; caused some aliens to become disappeared; ran secret prisons abroad; practiced torture; launched aggressive war and called it preemptive; claimed that international law was trumped by ‘military necessity;’ and claimed that its actions were not subject to judicial review. We called it criminal then.”

Bothwell added that, to a limited “extent…these same [kinds of] behaviors are engaged in by the present administration in Washington.”

“I agree with you,” Henry King responded. King was the Nuremburg war crimes prosecutor who interviewed Armaments Minister Albert Speer, and, during the trial, spoke with Reichmarschal Hermann Goering and Feldmarschal Wilhelm Keitel.

“The law applies to all,” said Benjamin Ferencz, who, at Nuremberg, was the chief prosecutor against the SS. He said it was his “considered judgment” that U.S. leaders committed “the crime of aggression” in Iraq.

Michael Scharf, a Nobel Peace Prize nominee, said post-9/11 America “is reminiscent of 1930s Nazi Germany.” Scharf trained prosecutors of the Iraqi Special Tribunal in which Saddam Hussein is on trial.
“Politicians and diplomats must conform their conduct to the law instead of the other way around,” said David Crane, ex-Pentagon inspector general and UN undersecretary-general. Crane was the special prosecutor for Sierra Leone who indicted Liberian President Charles Taylor on charges of war crimes and crimes against humanity.

“Tyranny leads to inhumanity, and inhumanity to death,” said Whitney Harris, taking a broader view. At Nuremberg, Harris prosecuted Ernst Kaltenbrunner, who controlled the Gestapo and was responsible for the murder of millions of Jews. Harris said Hitler was symbolic of the failure of law to contain revenge, the failure of humankind to uphold moral principle.

Ferencz and Harris momentarily were overcome by emotion as they recalled the Holocaust.
“Every nation is accountable for its deeds,” said Rev. Robert Drinan, S.J., Georgetown law professor and former congressman. “We want to revive Nuremburg. You are involved in something profound,” he told 200 lawyers at the American Bar Association (ABA) Nuremberg seminar 11/11 in Washington. “The bar must say this must go to Peoria and San Francisco….”

[3] NSA falsified Gulf of Tonkin intel
The National Security Agency 11/4/05 released documents showing that its officers falsified intelligence to convince policymakers that North Vietnamese boats attacked a U.S. ship in the Gulf of Tonkin 8/4/64. The documents are consistent with disclosures made three years ago by Ron Courtney, a Vietnam veteran who served as a seaman first class aboard the U.S.S. Maddox in the Gulf of Tonkin incident. In a recorded interview in Texas with Atty. Tony Bothwell on 9/25/02, Courtney recalled that the Maddox entered North Vietnamese waters and fired the first shot. Falsified intelligence, indicating that the North Vietnamese attacked the Maddox in international waters, was relied on by President Lyndon B. Johnson to persuade Congress to approve a war powers resolution that led to vast expansion of the U.S. commitment of lives and treasure in the Vietnam war.

[4] Vietnam déjà vu in Iraq war?
Congress approved a presidential war powers resolution after the White House disseminated false intelligence information about enemy activity.

The world was horrified by photographs of atrocities committed by Americans.
U.S. military intelligence personnel tortured and killed suspected insurgents.
Growing numbers of civilians were killed in U.S. combat actions.
The Pentagon adhered to a secret policy of “plausible deniability” by which high officials claimed they were unaware of any U.S. war crimes.
Spectacular suicides of religious fanatics occurred in the war-torn capital.
Political conflict between opposing religious sects threatened the stability of the U.S.-backed government.
The U.S. president lost credibility when people learned he made false statements about the war.
The U.S. vice president argued that bringing the troops home would cause other countries in the region to fall to the enemy (the domino theory).
The president’s apologists claimed that Americans who criticized the war policy were “unpatriotic” and “not supporting our troops.”
The Pentagon illegally classified large volumes of information for the sole purpose of preventing disclosures that officials feared would cause more Americans to oppose the war policy.
Growing numbers of young Americans turned away from military service because they did not want to be part of a war that appeared to be doing more harm than good.
Federal law officers and some local police harassed citizens for expressing opposition to the president’s war policies.
It all happened in the Vietnam war…and again in the second Iraq war.

[5] Nixon case – a timely precedent?
Could articles of impeachment that led to the resignation of President Nixon provide precedent for impeachment of the current president and vice president? Articles approved by the House Judiciary Committee in July 1974 read in part:

Article 1: Obstruction of Justice.
…in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice….
…Endeavoring to misuse the Central Intelligence Agency, an agency of the United States.
…Making false or misleading public statements for the purpose of deceiving the people of the United States….
…acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of law and justice and to the manifest injury of the people of the United States.
Article 2: Abuse of Power.
…repeatedly engaged in conduct violating the constitutional rights of citizens, imparting the due and proper administration of justice…or contravening the laws governing agencies of the executive branch and the purposes of those agencies.
…failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities….
Article 3: Contempt of Congress.
…failed without lawful cause or excuse, to produce papers and things as directed…substituting his judgment as to what materials were necessary….
In all this…acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.

“The Judiciary Committee should consider consulting constitutional scholars to help determine whether recent allegations of White House misconduct rise to the level of impeachable offenses,” Atty. Tony Bothwell said today. Such allegations may include:
Vice President Cheney’s pre-war visits to Langley, badgering CIA analysts to produce desired conclusions regarding Iraq.
The outing of a CIA covert agent by top White House aides, and the subsequent coverup.
The no-bid award of billions of dollars of contracts to Halliburton and other favorites.
Outsourcing national energy policymaking to corporate interests.
Obstructing enforcement of laws protecting civil rights, the environment, national parks, workers, and small investors.
Appointment of unqualified persons to high positions in FEMA and many other federal agencies.
Denying detainees’ constitutionally guaranteed due process and fair trial rights.
Violating treaties governing conduct of war and treatment of prisoners.
Failing to provide protective equipment needed by U.S. troops in combat.
Failing to assign needed resources to emergency responders.
Failing to act on pre-9/11 warnings of Qaeda attack.
Failing to act effectively to counter the risk of smuggling of weapons of mass destruction into the United States.

[6] Alabama ‘establishes religion’
The Alabama Supreme Court, which removed a granite carving of the Ten Commandments from its rotunda under a 2003 federal court order, apparently has renewed its violation of the U.S. Constitution by exhibiting a printed copy of the Ten Commandments in the same rotunda.

The exhibit, entitled “Foundations of Law,” features only one religious text – the Ten Commandments. Alongside it are secular texts – from the Code of Justinian, Magna Carta, the Mayflower Compact, the Declaration of Independence, the U.S. Constitution, the Bill of Rights, and the 13th, 14th, 15th and 19th amendments to the U.S. Constitution.

By displaying only one religious document in the rotunda of the state judicial building in Montgomery, Alabama appears to violate the “establishment of religion” clause of the First Amendment.
The particular version on display is titled “Ten Commandments” but includes eleven commandments. According to explanatory material provided by the high court staff, the text “is adapted from…a nonsectarian version that could not be identified with any one religious tradition,” originally prepared for the Fraternal Order of Eagles.

The text begins, “I AM the LORD thy God. Thou shalt have no other gods before me.” It includes the mandates, “Thou shalt not make to thyself any graven images,” and “Remember the Sabbath day, to keep it holy.”

By establishing this rendition of the Ten Commandments as the only recognized religious foundation of law, Alabama evidently discriminates against non-Judeo-Christian traditions and against anyone who prefers a different doctrinal foundation.

[7] Heroes honored in Montgomery
Atty. Morris Dees, director of the Southern Poverty Law Center (SPLC), welcomed thousands of people from across the nation to the 10/23 dedication of the Civil Rights Memorial Center in Montgomery. Relatives of civil rights martyrs – including former State Rep. Chris McNair, whose daughter was one of four little girls murdered in the 1963 bombing of Birmingham’s 16th Street Baptist Church – took part. Julian Bond, president of the NAACP, paid tribute to Rosa Parks, to all who sacrificed and those who still toil for racial justice.

Before the ceremony, supporters heard briefings by SPLC Intelligence Project Director Mark Potok and Security Director Tom Brinkman. Potok recounted the history of home-grown terrorists from the founding of the KKK to today’s violent anti-immigrant militias. He noted the Bush administration’s failure to designate neo-Nazi terrorist groups as terrorist. Brinkman said SPLC spends $1 million yearly on its own security He noted that 26 persons are in federal prison for plots to kill Morris Dees, who has won multimillion-dollar lawsuits against domestic hate groups.

That night, State Rep. Joseph Clovis Mitchell, a noted virtuoso, led a lively jazz concert – including He Looked Beyond My Fault (And Saw My Need), Ave Maria – and When the Saints Go Marching In) at Dexter Avenue Baptist Church, where the late Dr. Martin Luther King Jr. organized the Montgomery Bus Boycott. Fifty years ago, on 12/1/55, Rosa Parks was arrested for refusing to give up her bus seat to a white man, sparking the movement that led to passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. “We met civil rights veterans in the streets and parks of Atlanta, Birmingham and Montgomery,” Atty. Tony Bothwell said today. “On the day we came home from the South [10/25], Rosa Parks went to her eternal reward. She’ll always be remembered. She showed how one person can change the world.”

[8] No need to probe Oil-for-Food?
Washington lawyers reported on developments related to the UN’s Iraq Oil for Food program. U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) “doesn’t need to investigate” the 19 U.S. firms named in the Volcker Report, according to Sylvia Rhodes of Bryan Cave. The report by former Fed Chairman Paul Volcker named firms in Australia, India and elsewhere, and alleged that $1.5 million in kickbacks were paid to the Saddan Hussein regime. India’s foreign minister and UN officials resigned in the scandal, Rhodes said. John Reynolds of Wiley, Rein & Fielding said Oscar Wyatt, Houston oilman, was indicted 10/22 in New York on conspiracy and wire fraud charges. The U.S. Attorney seeks forfeiture of $1 billion of Wyatt’s assets, Reynolds said, adding: “My client has received a letter from the government of Turkey saying it won’t prosecute anyone.” Reynolds said that Benan Sevan, ex-head of the Oil for Food program, fled to Cypress and is under investigation by the New York D.A.

[9] Banks help hunt for terrorists
Bank execs tell how they use software to profile customers by name, address, and other factors under OFAC antiterror guidelines. Speaking at a bar session 11/14, Serena Moe of Citigroup Inc. said its filter scored up to 40,000 hits and, a number of times, “helped OFAC find potential terrorists.” According to Moe, Citigroup’s OFAC program has avoided $25 million in penalties and fines by blocking more than 70 accounts. Hank Grant of Bank of America said its system picks 6,000 out of 200,000 transactions daily, and rejects or blocks two or three per day. “My numbers are bigger than yours,” Grant said. “So are your fines,” said Moe.

[10] Treasury claims power to censor
Rules created by the Office of Foreign Assets Control make it a federal crime for a U.S. citizen to coauthor a scholarly paper with a citizen of an “enemy” country such as Cuba. Participants in an American Bar Association meeting in Washington 11/14 pondered what this means for academic freedom.
Daniel Chapman, legal counsel for Baker Hughes Inc., a Houston oilfield services firm, said a First Amendment test may have a problem trying to interpret OFAC guidelines. Barbara Hammersly, the Treasury agency’s assistant director, said the agency favors free speech and wouldn’t take enforcement action if American and Cuban scholars coauthor a journal article. Hammersly told the gathering of more than 130 lawyers that her remarks were “off the record” and “not in an official capacity.” Dennis Wood, OFAC deputy director, said that “we will go very quickly to criminal enforcement” against any “egregious violation” of OFAC’s “strict liability” rules, but agreed with Chapman that interpreting the guidelines could be a problem. Heather Sears, substituting on a bar panel for James Bartlett, senior counsel of Northrup Grumman Corp., said, “Don’t defend your actions. Admission…‘we made a mistake’…is the right way to go when you’re facing the government.”

During a break, Wood told Matthew Tuchband, OFAC deputy chief counsel, to “talk to” Atty. Tony Bothwell, who had brought up the First Amendment issue. OFAC has power to “regulate content” and “prohibit coauthoriship,” Tuchand asserted, adding: “The First Amendment does not apply to us.” Tuchand said OFAC will listen if First Amendment advocates “come up with new arguments.” Bothwell replied, “We probably will cite James Madison.”

ANTHONY P. X. (TONY) BOTHWELL, Esq. – Member: The State Bar of California, Bar of the U.S. District Court for the Northern District of California, Bar of the U.S. Court of Appeals for the District of Columbia Circuit, American Bar Assn. (2003 delegate to the International Court of Justice, The Hague), National Lawyers Guild (chair, Native American Indian Affairs Committee), American Bar Association, International Bar Association (Human Rights Institute), U.S. Holocaust Museum, Southern Poverty Law Center (Leadership Council). Academe: Georgetown Univ. School of Foreign Service, B.S.F.S.; Boston Univ. School of Public Communication, M.S.; John F. Kennedy Univ. School of Law, J.D.; Golden Gate Univ. School of Law, LL.M. summa cum laude. Professor of Law, John F. Kennedy Univ. School of Law. Listings: Who’s Who in the Law ,Who's Who in America, Who's Who in the World.

Anthony P. X. Bothwell, Esq.
Law Offices of Anthony P. X. Bothwell
350 Bay Street – Suite 100 PMB314
San Francisco, CA 94133-1966 USA
Telephone (415) 370-9571
Facsimile (415) 362-5469

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