AMY GOODMAN: Calls are growing for new ethics rules for Supreme Court justices as
more information emerges about Justice Clarence Thomas’s secretive
financial dealings with the Republican activist billionaire Harlan Crow.
Last month, ProPublica revealed
Thomas had failed to report frequent luxury trips paid for by Crow,
including trips aboard Crow’s private yacht and jet. Thomas also failed
to disclose he had sold property to Crow, including a home where
Thomas’s mother now lives rent-free. In addition, Crow paid for the
private school tuition for Thomas’s grandnephew, including a year at
Hidden Lake Academy in Georgia, where the tuition is over $6,000 a
month.
Also, The Washington Post has reported
conservative judicial activist Leonard Leo arranged for the Judicial
Education Project to secretly pay Thomas’s wife, Ginni Thomas, $80,000
for consulting work over a decade ago, without mentioning her name.
Months later, the nonprofit filed an amicus brief in the landmark case Shelby County v. Holder, in which Clarence Thomas cast the deciding 5-to-4 vote that gutted the Voting Rights Act of 1965.
Despite these revelations, Supreme Court Chief Justice John Roberts
has refused calls to issue new ethics rules for justices. And then we’ve
got the case of his wife getting over $10 million for being a
headhunter for elite firms. This is Chief Justice Roberts’ wife. And
these law firms often have cases before the Supreme Court.
We’re joined now by Dahlia Lithwick, who covers the courts and the law for Slate and hosts the podcast Amicus. Her recent book is titled Lady Justice: Women, the Law, and the Battle to Save America. Joining us from Seattle, where she spoke at the Crosscut Ideas Festival.
Dahlia, thanks for joining us again on Democracy Now! Can you respond to this avalanche of information, starting with Justice Thomas but not ending with him?
DAHLIA LITHWICK:
It’s such an amazing story, Amy, and it is really, in some sense,
surprising to me that a story that I thought would be a one-day story,
when we heard the superyacht story and the travel story, has turned into
weeks of sustained focus as investigative reporters for a whole bunch
of outlets essentially say, “But that’s not all.”
And I think you’re quite right, the capstone of it, in some sense,
were the stories at the very end of last week, both about Harlan Crow
paying for Clarence Thomas’s grandnephew’s tuition, never, ever
disclosed, despite the fact that Justice Thomas, earlier in his career,
had disclosed that he was getting his tuition paid for. So he knew this
required disclosure.
And then, in some sense, the thermonuclear story that came last
Thursday night, that, as you said, Leonard Leo, who is sort of the front
man for a whole bunch of groups that have worked to take over the
court, was, quite literally, directing Kellyanne Conway to put money in
Ginni Thomas’s pocket, and included a note that said, quote, “No mention
of Ginni, of course.” He knew this was wrong. Nobody disputes it’s
wrong. Now what we’re really doing is haggling about the price.
AMY GOODMAN: I want to go to Senate Judiciary Chair Dick Durbin interviewed on CNN by Jake Tapper Sunday.
JAKE TAPPER:
So, because of the separation of powers, I believe, you’re not willing
to subpoena the Chief Justice John Roberts. You’ve indicated that it’s
unlikely you’re going to be able to pass any legislation that would
impose an ethics code on the court. And you’ve said you don’t think the
Justice Department should investigate Justice Thomas’s actions. So, in
essence, aren’t you kind of throwing up your hands and saying the
Supreme Court isn’t really accountable to anybody but themselves?
There’s nothing you can do, even though you’re the chairman of the
Senate Judiciary Committee?
SEN. DICK DURBIN:
Not at all, Jake. Let me just tell you, the bottom line is this:
Everything is on the table. Day after day, week after week, more and
more disclosures about Justice Thomas. We cannot ignore them. The thing
we’re going to do first, obviously, is to gather the evidence, the
information that we need to draw our conclusions. I’m not ruling out
anything.
AMY GOODMAN: So, Dahlia Lithwick, if you can respond?
DAHLIA LITHWICK:
We’re in such a weird moment, Amy, historically, where, for some
reason, Congress has taken the posture that they can’t do anything to
regulate the court. And the court, conveniently, takes the same posture,
that this is a separation of powers issue, a judicial independence
issue.
It’s really useful to remember — and professor Steve Vladeck at UT
Austin has been making this point for weeks — that Congress has
regulated the court’s conduct for centuries. Congress has determined the
jurisdiction of the justices. For a long time Congress forced the
Supreme Court justices to, quote, “ride circuit,” travel around the
country and hear cases. Congress has set the number of seats on the
court. So the notion that Congress has no business intervening with how
the judiciary works because that would be a separation of powers
conflict is simply wrong.
And I think what you were hearing there from Senator Durbin is an
understanding that now is not the time to stand back and let the courts
say more or less what you talked about in your last segment: “The
judiciary is a monarchy. It cannot be regulated by anyone other than
itself.” It seems as though, between the hearing we had last week at the
Judiciary Committee and the conversation we’re hearing over the
weekend, that members of the Senate are beginning to understand that it
is going to be incumbent on them to step in and issue some ethics rules
or demand that the court issue ethics rules for itself — that’s the
Angus King-Susan Collins bill — but that the notion that there’s
absolutely nothing that the other branches of government can do, because
the court is made of magic and unicorn and rainbows, I think that era
is now over.
AMY GOODMAN:
Now, federal judges are much more strictly regulated. Is that right?
And aren’t there judges across the country that are demanding that the
Supreme Court abide by similar rules?
DAHLIA LITHWICK:
It’s been such an amazing revelation. We heard over the weekend that
there was a lower federal court judge, a district court judge, who was
asking the body that — the Judicial Conference, that enforces rules, to
do something about Justice Thomas a decade ago.
So, yes, it is absolutely true that lower court judges are bound by
really strict rules. You can’t buy them a cup of coffee. I know federal
judges who won’t get in an elevator with someone who’s got business
before them. They are very careful to police themselves, because they
understand — and this is in The Federalist Papers — that the only power the judiciary has is public approbation, and that that is an incredibly fragile thing.
And so, the idea that the chief justice put forth when he said he was
not going to come testify before that hearing last week, that somehow
it’s unreasonable to ask judges to police themselves, or that they
should be left to determine their own ethics rules, it’s not just a
question of, you know, this looks kind of hinky. It’s that they are
undermining the integrity of the judicial branch. Every judge except the
Supreme Court justices have to abide by the ethical canons and by the
statutes. The notion that there’s some sphere of privacy in Clarence
Thomas’s personal life, or that Leonard Leo said, “Oh, you know, we
didn’t disclose this donation — this payment to Ginni Thomas because the
gossips were going to go after Clarence Thomas,” that’s not how this
works. That’s not how any of this works. They are meant to use these
laws to guide their conduct, and they choose not to.
It's
May 9th and each day brings new scandals regarding Clarence Thomas.
You'd never know that if you followed noted transphobe Jonathan Turley
who poses as a legal scholar. The biggest legal news in the country and
Turley can't write about it this month or even Tweet about it. He can
Tweet about SATURDAY NIGHT LIVE and Bud Light and endlessly about Hunter
Biden but now about Clarry Thomas. Crooked Clarence isn't an issue.
We
need to note something here. At this point, Clarence is just tawdry.
He is a public servant who has taken private money and lied about it
over and over. That should be the end of it for him. He's spitting on
the taxpayers and farming out his job. He's not fit to serve on any
court.
These
judges are bought and sold. Clarence Thomas has disgraced the Court
but Jonathan Turley wants to bury his head in the sand because even he,
idiot that he is, grasps that his April defense of Clarence, his
minimizing of Clarence, isn't going to fly. All they can hope for is to
remain silent and hope something else comes along to distract from the
corruption.
Iraqi
authorities have failed to pay financial compensation that thousands of
Yazidis and others from the Sinjar district are entitled to under Iraqi
law for destruction of and damage to their property both by the Islamic
State (ISIS) and the Iraqi and US-led coalition military battles
against them, Human Rights Watch said today. A US-led international
coalition expelled ISIS from Sinjar in late 2015, but at least 200,000
Sinjaris continue to languish in displacement camps across northern
Iraq.
“Without compensation, many Sinjaris lack the financial means to
rebuild their homes and businesses, so returning home is simply not an
option,” said Sarah Sanbar,
Iraq researcher at Human Rights Watch. “Iraqi authorities should
distribute funds already earmarked for compensation to help people go
home and rebuild their lives.”
Sinjar, a mountainous district in northwestern Iraq, is home to a
mixed population of Kurds, Arabs, and Yazidis, an ethnic and religious
minority. As of 2023, the 200,000
Sinjaris who remain displaced includes 85 percent of the district’s
Yazidi population. Many displaced people have been living in camps since
2014. Those who have returned face an unstable security situation and
inadequate or nonexistent public services, including education, health
care, water, and electricity.
To understand the barriers to their return, Human Rights Watch
interviewed dozens of Sinjaris living in displaced camps in Duhok
governorate; three Sinjaris who had returned to Sinjar; local government
officials including the governor of Ninewa, Najim al-Joboury; a member
of parliament representing Sinjar, Majid Shingali; Sinjar’s acting
mayor, Naif Saido; a former Ninewa provincial council member; and a
representative from the provincial government’s compensation office in
Sinjar. Human Rights Watch also interviewed the former mayor of the
Sinjar Self Administration, representatives of six civil society organizations; and two Western diplomats.
The only Sinjaris to receive compensation so far are a small number
of Yazidis who applied under a law passed by the Iraqi government in
2021, the Yazidi Survivors Law,
to provide compensation specifically for Yazidis and other ethnic
minorities, including Turkmen, Christians, and Shabaks, who were summarily killed, kidnapped, enslaved, and raped by ISIS in 2014. Thousands of Yazidis remain displaced and 2,700 remain missing.
The first group of 420 Yazidi women
received financial compensation under the Yazidi Survivors Law in
February 2023. While this is a positive and necessary step toward
addressing the abuses committed against the Yazidi community and other
ethnic minorities, which amount to crimes against humanity, it only provides for the needs of a small fraction of the Sinjaris entitled to compensation, Human Rights Watch said.
Those not covered by the Yazidi Survivors Law are entitled to apply for compensation under Law No. 20 of 2009,
which has a broader remit and entitles Iraqis to make compensation
claims for damages “as a result of war operations, military mistakes,
and terrorist operations.” The law provides for compensation to all
civilian victims of war or their family members in cases of “death, enforced disappearance,
disability, injuries, damaged property and/or disadvantage related to
job or education.” Compensation for property damage extends to damaged
vehicles, houses, farmland, furniture, shops, and companies.
Since the Sinjar Compensation Office under Law No. 20 opened in 2021,
10,500 Sinjaris have applied for compensation, an office representative
told Human Rights Watch. Although about 5,000 of these claims have been
approved, not a single family has received the funds to which they are
entitled, the representative said.
Majid Shingali, a member of parliament from Sinjar, told Human Rights
Watch that compensation claims have not been paid in Sinjar because of
federal budgetary issues since 2021. Iraq did not pass a federal budget
in 2022 due to its inability to form a government following the October
2021 elections. A draft budget covering 2023 – 2025 was approved by the Iraqi council of ministers in March 2023.
People interviewed cited the government’s failure to provide
compensation as a primary barrier to their return, in addition to a lack
of essential services and security risks in Sinjar.
“Your house is destroyed and then you need to pay to be compensated
for something that wasn’t your fault,” a shopkeeper living in a
displaced person’s camp said.
People interviewed said that the compensation procedures under both
the Yazidi Survivors Law and Law No. 20 are complex, lengthy, expensive,
and in some cases entirely inaccessible. The process under Law No. 20
in Sinjar, as in other areas of Iraq, has been plagued by procedural and
processing inefficiencies and budgetary issues.
People interviewed reported spending up to two years and from 300,000
Iraqi Dinars (IQD) to up to 1 million IQD (US$205 to US$762) on legal
and administrative fees, and transportation to complete the procedures.
Often, they said, the amounts of compensation that the Sinjar
Compensation Committee recommended are substantially lower than the
value of the destroyed home or business or the cost to fully rebuild.
For some, the cost and bureaucratic complexity of the process coupled
with the apparent fruitlessness of doing so has led them to give up or
not even apply for compensation.
The committee that oversees compensation under Law No. 20 includes
representatives from the Health, Defense, Interior, and Justice
Ministries and the provincial government. Claims are evaluated case by
case, considering the value of the home or business lost and the
percentage of damage. The committee is significantly understaffed, with
only five officials from the Sinjar Compensation Office, the local
government agency that receives and adjudicates claims in Sinjar, tasked
with processing thousands of claims.
A representative of the Sinjar Compensation Office said that when the
Sinjar Compensation Committee approves a claim, they are sent for final
approval to either Mosul, for claims under 30 million IQD ($20,500), or
to Baghdad, for claims above 30 million IQD. The claim is then sent to
the relevant Finance Department for payment processing and distribution.
The representative said that understaffing contributed to the wait
times, but that the lack of payment for approved claims was the result
of a bottleneck in the Finance Department of Ninewa Governorate in
Mosul.
Of the 5,000 claims that have been approved by the Sinjar
Compensation Committee, 1,500 are awaiting final approval from Mosul or
Baghdad, and 3,500 are waiting for payment from the Finance Department.
The Iraqi government should address bottlenecks in the compensation
process that hinder the timely payment of funds to applicants and ensure
that Law No. 20 is sufficiently funded, Human Rights Watch said.
Additionally, to lift other barriers to return for Sinjaris and fulfill
the economic rights of everyone who had been living there, Iraqi
Authorities should fund the development of both needed physical
infrastructure and the delivery of public services in Sinjar, including
education, health care, water, and electricity among others.
The Iraqi Constitution of 2005 guarantees compensation to the
families of those killed and injured as a result of acts it deems to be
terrorist. Human Rights Watch has previously reported on how the discriminatory application of Law No. 20 has prevented families with perceived ISIS affiliation from receiving or applying for compensation.
“Compensation is a crucial step in recognizing the suffering
civilians have experienced and helping them rebuild their lives,” Sanbar
said. ”The government needs to allocate and pay out funds for approved
compensation claims as quickly as possible. Sinjaris should not have to
keep waiting in vain.”
Flaws in Compensation under Law No. 20
Sinjaris interviewed said that the compensation process under Law No.
20 is complicated, lengthy, and expensive. Applicants must obtain
stamps or documents from multiple agencies including the local
municipality office, courts, the Electricity and Agriculture Ministries,
the Water Department, the district damage detection committee that
assesses property value and damage levels, the police, the National
Security Agency, and the Compensation Department.
People interviewed reported spending up to 1 million IQD ($762) in
administrative fees, legal fees, and the costs of traveling between
Sinjar, Mosul, and Dohuk. The final step of the process is to obtain
security clearance from the Interior Ministry’s Intelligence and
National Security Service, to ensure the applicants are not wanted for
ISIS affiliation, which can take months.
Applicants are also required to list every piece of furniture that
was looted or destroyed. Naif Saido, the acting mayor of Sinjar, said
that he estimated that 90 percent of items under review for compensation
are furniture. The process can take years to complete.
A shopkeeper in the Khanke camp for displaced people lamented the
time and money he had spent on the process: “I spent one year and
300,000 IQD ($205) working on my claim and going from department to
department. It was a big hassle. Everybody knows we fled because of
ISIS, so why do we need to go to National Security to prove we aren’t
ISIS? It’s a crime. Your house is destroyed and then you need to pay to
be compensated for something that wasn’t your fault.”
As he was speaking, his friend sitting with him nodded vigorously, adding: “The process is not worth the money or time.”
The costs of completing the compensation process coupled with slim
prospects for swift and adequate compensation have led many Sinjaris to
forgo the procedure altogether. For others, the process may be entirely
inaccessible. Compensation claims must be filed in person in Sinjar,
meaning those unable to do so – due to security fears, reduced mobility,
or because they live outside Iraq – are unable to file a claim.
Two people interviewed said that the amounts the damage detection
committee recommends are rarely enough to rebuild a home, and often are
far lower than the value of the home destroyed. One Sinjari man, Khalil
Hasan, said he was displaced by ISIS from the village of Tel Banat in
2014, and his home and shop were destroyed during military operations.
He completed the compensation process in early 2023, but he has not yet
received any money:
I spent 1 million IQD ($762 USD) on the compensation process and had
to travel to Sinjar from Dohuk six times. I had to pay the damage
detection committee 100,000 IQD ($68) for my shop and 300,000 IQD ($205)
for my house to have them assess the damage. They recommended
compensation of 10 million IQD ($6,800) for both my shop and house, even
though I bought my house for 50 million IQD ($34,000). The whole
process could be simplified.
A returnee to Sinjar said that his house and farm were destroyed by
ISIS and that he was now living in a relative’s house. He said, “I’ve
just begun my compensation file. I hadn't started working on it right
away since I couldn't afford the costs, including fees and
transportation. I learned from others that they worked on their
compensation file for two years but haven't yet received their pay.
Given that it will require time and money, I'm not sure if I'll finish
it.”
Another returnee whose house and store were looted said: “I haven't
started working on it because it costs me time and money. It is not
worth spending money and time on something you are unsure of receiving
because nobody I know has received it up to this point.”
Several houses of displaced Sinjaris that were not damaged by
military operations, or that were only partially damaged, are being
occupied by other Sinjari returnees. Representatives of local
nongovernmental organizations said that providing compensation that
allows Sinjaris to rebuild their homes could go a long way in solving
this issue. Adel Majeed Omar, director of the local organization Beit
Sinjar (Sinjar House), said:
There are displaced families who can’t return because their house is
being occupied by returnees. There is nobody in Sinjar who can resolve
these disputes, but even if there was mediation in occupation disputes,
the other family would have nowhere else to go and no money to rebuild,
so it’s a stalemate. Most people occupying houses in Sinjar Town came
from nearby villages that are destroyed or unsafe.
Human Rights Watch spoke with a man displaced to the Kurdistan Region
whose house in Sinjar town remains intact but is currently occupied by a
family displaced from a neighboring village. When asked if he would
return if his house was vacated, he said he had no intention of
returning, since he had settled in Dohuk and did not want to uproot his
family again. Naif Saido, acting mayor of Sinjar, estimated that about
10 percent of Sinjaris are in a similar situation and would not return
to Sinjar since they have settled elsewhere.
Inadequate Compensation under the Yazidi Survivors’ Law
The passage of the Yazidi Survivors’ Law and payments under the act
to a first group of survivors are positive developments, but serious
gaps in implementation and procedural issues remain, Human Rights Watch
found.
Two months after the application process opened, in September 2022, the government began requiring survivors to file a criminal complaint
to receive reparations, even though the payments are administrative.
The Yazidi Survivors’ Law Committee, established to oversee applications
by survivors, is chaired by a judge nominated by Iraq’s High Judicial
Council. Membership includes the director general of female Yazidi
survivor's affairs and representatives from the Ministries of Interior,
Health, and Justice.
The psychological impact of survivors having to recount the details
of their abuse coupled with the mistreatment, stigma, and shame they may
face from police and courts during this process risks retraumatizing
them, Human Rights Watch said. For survivors outside Iraq unable to
access the courts, this requirement renders the process even more
arduous. The Yazidi community is highly traditional, and many survivors
of sexual violence as well as Yazidi children born of rape have faced stigmatization or rejection from their community.
Lack of faith in the Iraqi judiciary, including concerns over its
ability to maintain confidentiality, has led some survivors to choose
not to apply for compensation. For others, filing a criminal complaint
would expose them to other risks. For example, kidnapped Yazidi children
forced to participate in ISIS acts may risk self-incrimination by
filing a criminal complaint.
The committee also introduced highly onerous evidentiary standards. These include
a requirement to provide court documents from the judicial complaint,
four witnesses who can testify to the accuracy of the applicant’s claim,
documents issued by ISIS proving a kidnapping, medical reports issued
by official authorities, registration with four government offices, and
photographs, videos, or articles proving the kidnapping or survival
incident in addition to the criminal complaint.
The requirement to file a criminal complaint and these burdensome evidentiary requirements lack a legal basis within the law and its bylaws,
contradict the safeguards deliberately included in those texts, and are
unnecessary given the plethora of evidence collected by official
bodies, nongovernmental groups, and the media. The bylaws explicitly
allow for supporting documents like government records, reports from
nongovernmental groups, and witness testimony to be considered
admissible. Committee members may also interview applicants who lack
sufficient evidence.
Unlike Law No. 20, which limits possible reparations to financial
compensation, the Yazidi Survivors Law includes provisions for other
forms of restitution and restorative justice. The law includes clauses
on rehabilitation, land, housing, continued education, employment,
recognition of the genocide, criminal prosecutions of those responsible
for abuses, the search for those who remain missing, protection of
witnesses and survivors, and the establishment of a National Day of
Remembrance on August 3.
However, these commitments remain largely unimplemented as well.
Recommendations
To the Iraqi government:
- Strengthen the capacity of institutions involved in the
compensation process, including by ensuring sufficient staffing of
offices and addressing bottlenecks in application procedures, to ensure
claims are processed and paid swiftly and adequately.
- Ensure adequate funding is allocated for reparations programs,
including both for institutions needed to process claims and for
payments for entitlements.
- Adopt a multi-pronged approach to reparations that goes beyond
financial compensation, including measures such as restitution,
rehabilitation, and reconstruction.
- Take concrete steps toward achieving the non-financial reparations envisages in the Yazidi Survivors’ Law.
- Remove the requirement for survivors to file a criminal complaint
to be eligible for reparations under the Survivors’ Law and adopt
simplified evidentiary requirements in line with international
standards, allowing speedy and accurate processing of claims, without
undue and unnecessary burdens on applicants.
To the US-led coalition:
- Conduct thorough and impartial investigations into all instances
of civilian casualties caused by coalition military intervention in
Iraq and provide reparations to victims.
- Provide technical and financial support to the Iraqi government in
implementing reparations programs including but not limited to Law No.
20 and the Survivors’ Law.
To the international community:
- Provide support to organizations supporting victims filing claims or raising awareness about reparations processes.
- Provide technical and financial support to the Iraqi government in
implementing reparations programs, including but not limited to Law No.
20 and the Survivors’ Law.
International Legal Obligations
International human rights law establishes a right to compensation
for victims of violations. This right has been explicitly stated in the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, and the International Convention for the Protection of All
Persons from Enforced Disappearances. The right to compensation is
also derived from the right to an effective remedy under the
International Covenant on Civil and Political Rights.
The framework for redressing human rights and humanitarian law violations is provided in the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005).
This document specifies that victims have a right to “adequate,
effective and prompt reparation for harm suffered,” clarifying that
reparation may take the form of restitution, compensation,
rehabilitation, satisfaction and guarantees of nonrepetition.
The Guiding Principles on Internal Displacement
say that competent authorities should provide compensation or other
appropriate forms of compensation to displaced people when recovery of
their property is not an option. The Principles also require authorities
to provide them with basic shelter and housing. The right to adequate housing
under human rights law is part of the right to an adequate standard of
living. Individuals have a right to adequate compensation for any
property affected as part of an effective remedy for the violation of
their rights. Those who are left homeless as a result of displacement or
destruction of their homes have a right to shelter.
