Toward a Truth and Reconciliation Commission for New African/Black Political Prisoners, Prisoners of War and Freedom Fighters

There is a need for a Truth and Reconciliation Commission in the U.S. to examine the history of slavery, oppression, racism, segregation, and lynching, and to resolve the issues of political prisoners of the Civil Rights/Black Liberation struggle who fought against these gross human rights abuses The original Truth and Reconciliation Commission (TRC) was setup in South Africa to redress the gross violations of human rights by the apartheid regime. It was a tool to assist a peaceful transition to a democratic society by public acknowledgement of the abuses by the government and its agents.

TRC allows the victims’ voices to be heard and the perpetrators to confess their crimes in an application for amnesty, as well as amnesty for political prisoners.

The concept of crimes against humanity comes under International Law and the Geneva Convention adopted by the world at the U.N. in 1948. The idea of the TRC is premised on the fact that to truly have a democratic society, transitioning from one where human rights violations and crimes against humanity were grave and extensive, there has to be a process for reconciliation, acknowledgment of abuses, documentation of abuses, accountability, reparation and an effort to establish the facts.

Encompassing this process is the idea of amnesty to “solidify” the democratic society. As one considers these principles and ideas of the TRC process and considers the history of race relations and the gross human rights abuses against Blacks and particularly Black political prisoners for opposing the “neo apartheid” in America, it must be said that the democratic process will never truly work in America without such a commission.

Four hundred years of gross and shocking human rights abuses against Blacks in America, especially in the Civil Rights and Black Liberation struggle era of the 1950s through the 1980s, and particularly the mass killings and imprisonment through the infamous COINTELPRO by the FBI, cannot be overlooked or dismissed as crimes against humanity under International Law and the Geneva Conventions. To do so is shortsighted and antidemocratic.

The same events happened in South Africa under the apartheid regime. The ANC (African National Congress) and other Freedom Fighter organizations were targeted, killed, harassed, terrorized, and imprisoned for their opposition to the criminal oppression and laws against Blacks.

But as the facts of history prove, the ANC and other freedom fighters against apartheid were the pursuers of human rights and human dignity, while the apartheid government was the violator of these rights and therefore in violation of International Law and the Geneva Conventions.

Furthermore, it must be understood that it doesn’t have to be a complicit act by the whole government, but agents of the government can share the culpability for crimes against humanity.

Such is the story in the U.S. The agencies who carried out these crimes through various programs, most notably the FBI’s COINTELPRO, had explicit orders to target, neutralize, harass, kill, destroy and imprison Black Liberation movement participants who opposed the violations of human rights against Blacks in the U.S. Many of these victims, political prisoners, are still imprisoned today. And yes, I am speaking for them as one of them.

The argument is that they should be granted amnesty under accepted International Law as victims of crimes against humanity committed by the US government and various agents thereof. The facts and histories are well documented that can leave no doubt as to these political prisoners being victims of state repression, prosecution, and suppression for confronting the U.S. government and its agents for the crimes they were covertly and overtly committing against Blacks in the US. And that they are in prison for doing so.

The legal quandary of the New African/Black liberation political prisoners committees is that they have not yet realized a process that encompasses their class or allows for a legal review based on standard universal acceptance of political offenses. In various court cases, our support committees, political organizations, and legal advocates have been forced to fight each legal battle on a case-by-case basis, unable to put forward a process that embraces a national resolution for all political prisoners and POW’s.

In some instances, the political prisoners organizations have embraced the US legal system tactically; while others, not so much. Most organizations, committees, and support groups acknowledge that an internal conflict exists regarding the Truth and Reconciliation process. For them, the jury is still out.

Although I have not as of yet encountered a clear and articulate opposition from the various political prisoners committees to the idea of a Truth and Reconciliation Commission (TRC) as a method to win freedom for political prisoners in the US, any acceptance of the idea has been muted due to the lack of a process for its application.

The indications are that the thinking is that the South African TRC with all its benefits and flaws conflicts with US political prisoners organizations’ ideologies and goals regarding the outcome of a such a process in America. What would be its application in this reality?

My analysis is that the US political prisoners committees see the South African TRC as a “brand” where one size fits all, which is an erroneous perspective based on the objective reality of the wide application of TRC internationally to resolve internal conflict. Fifty countries have implemented truth and reconciliation processes which have varied given the politics and power relations in those states. For example, a left-oriented government in Argentina addressed violations during right-wing, military governments of the 1970s. Part of the effort included identifying the 9000 disappeared persons and prosecuting human rights violators. The Black/New Africans call for a process to politicize our struggle within the context of international standards for amnesty, freedom, and relief for PP’s and POW’s predates the South African brand of TRC, the 1951 Civil Rights Congress petition to the United Nations charging the U.S. with genocide is a clear example. The efforts of National Conference of Black Lawyers, the December 12th Movement and the National Black United Front’s various petitions to the UN Human Rights Commission and the Committee to Eliminate Racial Discrimination. Therefore its application as to the New African nation as a political process should be viewed in this new light.

Various PP and POW organizations and individuals, working within the U.S. legal system, have gained relief for some, while delaying the development of a process that could expose the political nature of the conflict, providing relief for many. Thus the New African/Black PP and POW classes have been denied any relevant prisoner class relief politically.

I don’t consider the freedom of Geronimo Pratt, Angela Davis, Dhoruba Moore, Huey B. Newton and many of the paroled, exonerated freedom fighters as a representation of a process for our class within a historical context; that objective still needs to be realized in a true post internal conflict process. Compared to standards set in other post internal conflict resolutions, it falls far short.

The establishment of a Truth and Reconciliation Commission to resolve the internal conflicts of the U.S. is in my opinion an important step in relieving the suffering, the isolation, and, in some cases, abandonment of our political prisoners.

The conflict that existed between the United States and the Black/New African liberation struggle, particularly during the FBI COINTELPRO low intensity warfare against Civil Rights and Black liberation struggle, represents a specific era.

The US and South African historical racial policy parallel each other for most of the 19th and 20th century. The historical development and distinction of the racial policy is very important for study and analysis particularly as we evaluate the process of resolution.

The institution of a Truth and Reconciliation Commission was encouraged by International parties, governments, and corporations as an “alternative dispute mechanism” to resolve the intensities of war and the casualties on both sides. The nature of apartheid and the resistance to apartheid did not present a perfect pathway to military and political settlement in South Africa. Both parties in the conflict used violence, repressive or liberatory. Our comrades in the throngs of struggle believed in a revolutionary vision that could exist post-apartheid, and they were relentless in their resistance. Conversely, the military and political protectors of apartheid used extra-judicial counter-intelligence low intensity warfare tactics to extend the white minority domination over the Black majority.

The war was brutal and in many cases shocked the conscience of the world with gross violations of human rights and International norms. But international bodies such as the U.N. never saw the need to charge the South African apartheid regime with attempted genocide or war crimes.

Facing this dilemma, peacekeepers searched for a process internally that could resolve the contentions that existed between the warring elements—one that would allow both sides to save face and provide relief to their injured or imprisoned comrades, give comfort to the victims, and allow both parties to the conflict to move forward in establishing a new post-apartheid existence in South Africa.

So in order to come to a negotiated peace, an alternative dispute mechanism was needed that could develop a method to distinguish politically motivated action from deviant criminal acts, and provide an amnesty pardon for political offenses. In the end, the solution was the establishment of the South African Truth and Reconciliation Commission. It wasn’t perfect, but it helped.

The historical struggle to have the United States admit to its human rights violations, especially during its low-intensity warfare-counterinsurgency program (generally accepted as COINTELPRO articulated under FBI director J. Edgar Hoover), has not yet identified a black prisoner class that acted in response to that era of political repression. As political prisoners and prisoners of war, we are entitled to amnesty under some process, like TRC, that acknowledges the bilateral process of an alternative dispute mechanism where there are no winners. For too many years, the process for freedom and recognition of our political freedom fighters has been buried in a legal process, both parties with no allowance for political motivation to be considered in judicial proceedings.

The TRC that addresses our specific reality, legally and politically, must be based on the same foundations of an alternative dispute mechanism (an alternative to a judicial process, a political process offering something to both parties) that would require that both parties (and the left and right of our movement as well) be willing to acknowledge that New African/Black political prisoners do exist, and they waged legitimate resistance to oppression, and are deserving of recognition and support.

It’s important to mention that when U.S. Ambassador to the United Nations Andrew Young publicly proclaimed in 1979 that there were hundreds of political prisoners in America, he expended all of his political capital and even President Jimmy could not save his job. Congresswoman Cynthia McKinney suffered a similar defeat when she held the COINTELPRO hearings.

The political capital necessary to support our specific style of TRC is not dissimilar to South African model, which also faced political challenges both from the right and the left.

Our movement must accept that our history of struggle consists of both legal and “illegal” tactics (but legitimate under International Law). The U.S. legal system is designed to ignore on the one hand “legal” oppression, and on the other hand the right of the oppressed to resist that oppression.

As of the last three decades, no Black/New African freedom fighters has received amnesty politically from the executive branch or judicially on a state level. I do think that our efforts on the International level did create pressure that gained the freedom of Puerto Rican PPs and POWs and white anti-imperialists in the United States. This could be considered the Clinton era.

The era that saw the New African liberation struggle resisting COINTELPRO is now becoming a fading memory. It’s our responsibility to not let that happen.

From the 1960s we followed the Malcolm X doctrine, pursuing a posture that looked toward an International body to resolve the internal contradictions with the United States.

Pre-1990s this rationale was the correct perspective, because International NGO’s, nonaligned nations, and human rights advocates did in fact impact various internal conflicts around the world.

In that era Malcolm X was right; as long as the nonaligned nations maintained a principled position in the various world bodies, there was a support mechanism for our struggle to expose as well as oppose the human rights violations of the U.S. government. But when the nonaligned nations bloc dissolved and unity unraveled around the world, our struggle in the U.S. suffered the consequences because there was no International forum to support our struggle. Few nations or NGOs wanted to incur the wrath of U.S. foreign policy by pleading our cause.

It was at that point, in the 1990s, that we should have developed a new analysis of our situation and plight and put forward a new or parallel strategy. It is past time now.

As I noted before, in 1979 the mere admission from Andrew Young, that there were hundreds of political prisoners in the US, led to members of Congress calling for his termination as the U.S. ambassador to the United Nations In the intervening years, many Black elected officials took a public and private position on political prisoners. It was not unusual for some state representatives to give support to celebrated cases of PPs and POWs, but never or rarely did they petition the federal government or introduce legislation that could create a process to free PPs and POWs.

The exceptions are important to mention: On September 14, 2000, Congresswoman Cynthia McKinney held a forum before the Congressional Black Caucus forcing them to take a position on the unfinished story of political prisoners as victims of COINTELPRO, with the help of Congressman John Conyers’ leadership

On November 27, 2000, at the request of the honorable Brother Sonny Abudidika Carson, Congressman Charles Rangel directly requested that President Clinton pardon Black political prisoners; and he listed 11 with a copy to Clinton’s Chief of Staff John Podesta.The offices of the Clinton White House acknowledged receipt and promised to give it a meaningful consideration. The reply came on December 21, 2000 from Kay Castevens, deputy assistant to President Clinton. A similar attempt by Jericho Committee attorneys Bob Boyle and Soffiyah Elijah got a similar response

Before leaving office in 2000, President Clinton freed 14 Puerto Rican freedom fighters and 3 white anti-imperialist comrades; a great victory indeed.

In order to move toward a process to free our PPs and POWs, we must solicit on a local and national level Black politicians who are willing to demand our freedom – not just offer slogans of support.

NYC Councilman Charles Barron’s 2002 campaign of amnesty for NY Black political prisoners established a political narrative that did enlist allies from within our ranks that have been elected to public offices.

The pardon approach does offer an alternative to relying on the legal process to resolve the political prisoner problem. But the question remains: in our efforts to secure pardons and/or amnesty or legal status, for political actions, have we failed? It’s time to acknowledge that, by and large, we have. We must now make a critical analysis of what other process is possible. Can we find a parallel process that will work? And develop it to meet our unique conditions?

I believe that the application of the TRC process with an alternative dispute mechanism that addresses the complexity of the paramilitary issues of the New African/Black liberation struggle is doable.

The question: Is there a possibility of amnesty through a TRC that highlights the many sacrifices of our people and freedom fighters, a legitimate transition that averts continued political/military conflict persisting during the black liberation struggle era? As in Northern Ireland, will it signal an end of the current stage of the “troubles” while the political process is taking form?

Amnesty is not punishment for wrongs, either to individual or a society. It is a political remedy at a national level at a certain stage of an internal conflict in a nation state. It’s a political remedy at a national level to begin reconciliation and rebuilding a divided society through a TRC process.

If we accept this process, it will still leave outstanding political, moral, and principle issues such as the question of reparations for the violations of human rights, Jim Crow segregation, quasi-apartheid, and COINTELPRO low-intensity warfare. All of the above violations set the stage for resistance from our Freedom Fighters, when civil disobedience was confronted with state violations.

It was exactly this form of resistance that was envisioned when the United Nations codified the additional protocols I and II to the Geneva Convention of 1977. President Jimmy Carter signed it into law at the time when Andrew Young was US ambassador to the U.N.

And indeed, many other internal conflicts have used similar TRC processes from 1974 to 1999 (see Priscilla B. Haynor, Fifteen Truth Commissions, Human Rights Quarterly 597, 1994) with different formulas and standards.

So again, the principles that qualify our political prisoners and prisoners of war as candidates for amnesty stem from the South African concept of a political offense, drafted by Carl Aage Noorgard, a Danish national and president of the European Commission on Human rights. The foundation was drafted as guidelines defining the concept of political prisoners for use in the Namibia Settlement and was applied in a context of reconciliation. The qualifications were based on the concept of political offenses found in extradition law. The concept was adopted by the South African TRC in 1990.

During the 1986 trial of Marilyn Buck and me (revolutionary armed task force “Brinks” case), we were searching for a standard that would parallel our POW petition submission to the trial court Judge Charles Haight, hoping for a jury charge that would allow the jury to consider political motive and the political nature of the acts charged in the indictment.

Political offense exceptions are the International test that establishes the political offense as distinguished from criminal acts. There are two types of political offense exceptions: the “pure” political offenses that involves acts directed solely against the state, such as treason, espionage and sedition; and the “relative” political offenses in which the act is a common crime so connected with a political act that the entire offense is regarded as political.

We set before the court in our POW POE petition two interrelated but distinct arguments: (1) The prisoners of war petition applied to Dr. Shakur, and (2) The applicability to present indictment (1981) against both defendants of the political offense exception. Dr. Shakur requested that the court address the proposed relief for each argument separately.

The government response is instructive. The court order of the government to answer issues about whether the 1977 protocols to the 1949 Geneva Conventions on Prisoners Of War (16 UST 3316 TIAS No. 3364) are applicable, and whether it would be appropriate for the court to evaluate the act charged as part of an armed conflict.

In our cases the prosecution’s witness had testified to the completely political goals held by the participants in the alleged offenses.

The fact that Judge Abraham Sofaer, legal adviser to the Department of State as well as attorney for the Department of the Army and the Department of Defenses, answered Judge Charles Haight’s question, rather than the criminal division of the United States Attorney Office, indicated that the U.S. executive branch recognized the intensely political context of the cases.

The political offenses found in extradition law, we argued, should be the basis for the jury to determine political motive. Both petitions were denied after a lengthy hearing, which addressed the third question the judge posed:

“Was whether the 1977 protocol reflected the current state of International Law on the issue of when prisoner of war status treaties such as the American Convention on Human rights that afford even wider protection to those captured pursuant to armed conflict.” This is one example of the black/New African political prisoner defining their principle motive and status, in an attempt to embrace a process that establishes an objective criteria for political motive and a class of Black/New African Freedom Fighters under International standards.

The list of the honorable PP’s and POW’s who helped to prepare the above POW and POEE is an indication of the comprehensive voice for such a strategy. Our brief was prepared by Mutulu Shakur, Marilyn Buck and their allies and comrades listed below:

1. Elmer Geronimo Pratt, San Quentin State Prison

2. Albert Nuh Washington, Albern State Prison

3. Sekou Abdullah Odinga, Leavenworth Federal Prison

4. Cecilio Chui Ferguson-El, Lewisburg Federal Prison

5. Susan Rosenberg, Lexington Kentucky Federal Prison

6. David Gilbert, Clinton State Prison

If we look at the guidelines of the Norgaard Principles, there are few distinctions between the two applications, the U.S. Black/New African PPs and POWs, and the South African process.

Norgaard Principles:

1. Motivation of the offender

2. Circumstances

3. Nature of the political objectives

4. Legal and factual nature of the offenses

5. The object of the offense

6. The relationship between the offense and its political objective (directness, proximity, proportionality)

7. Act’s requirement: it is an act associated with a political objective committed in the course of the conflict of the past and applicants have made a full disclosure of relevant facts.

8. Acts covers acts against the state and acts of liberation organizations, against each other, acts of state against liberation movements and acts of state against other states. It includes armed and security forces of the state, as well as Interorganizational conflict acts, excludes offenses committed for personal gain or out of personal malice.

So our position on TRDC is not only its application in South Africa; in reality our PP and POW legal position predates Carl Norgaard’s correct analysis.

In 1986 we stated the objective of the PP’s and POW’s POEE application. We present this brief in the interest of all political prisoners, freedom fighters, and prisoners of war who have been denied the protection of International Law, and have unjustly suffered criminalization of their participation in the liberation struggle. It is toward a just recognition of their sacrifices and just resolution of this conflict that this brief is filed.

There are still very pressing material conditions that our people face that must be resolved; the TRC is not to be the answer for the overall struggle. The struggle will continue in whatever form the people will. The outstanding issue of reconciliation will be the question of reparations and the freedom of our political prisoners. Barack Obama’s election has established a symbolic milestone in the minds and hearts of our people, a view of a new political reality that changes the narrative of the Black liberation movement.

I think it also provides a strong case for a TRC argument that addresses the decade of conflict we fought in the liberation struggle. So how do we distinguish our TRC process from the ongoing political prisoners defense committee work; can we realize a vertical approach?

The mantra “search for the truth and closure,” our vision of TRC through its amnesty process, is/could be statutorily permitted to intervene in the judicial process both procedurally and substantively—as in the Mumia Abu-Jamal case, which seems to have run its legal course procedurally.

The commission would not be a substitute for criminal justice. It is not a judicial body where the objective is to dispute legal justice. The commission serves a specific political objective as the product of a negotiated settlement with the granting of amnesty for acts of the past as its control point.

The alternative dispute mechanism (ADM) functions as an alternative to the judicial process, aiming to achieve a solution that offers something to both parties, but not determining which of the parties is the “winner.” I define the ADM again because I know it’s a great political lead that must be weighed strategically.

The TRC generally is not the conventional alternative dispute mechanism from this stage in our conflict. Human Rights violations which included murders, torture, illegal detention, COINTELPRO, low intensity warfare, are all acts by agents of the government that could/would receive amnesty with this process. The acts charged against our PPs and POWs, our exiles and freedom fighters could as well receive amnesty under reconciliation.

The :

1. Do we have the political capital to convince the Black legislature?

2. Do we impact the masses of Black people that such a process and resolution is in our best interest and that it honors our struggle?

3. Is the Obama factor a realistic change in the political narrative to push for TRC at this time? If not, when?

4. Can we have a broader coalition to promote the process among the younger generation?

5. Can we build a strong interfaith coalition?

Personalities that have demonstrated interest in the question of PP’s and POW must be surveyed.

As I’ve said before, the Brother Charles Barron, Irv Joyner, North Carolina, TRC, Sister Cynthia McKinney, Sister Maxine Waters, Quincy Jones, Rev. Jeremiah Wright, we are standing in a special place in history, this process will take hard work internally and externally. Finally, “it is said in the Bible, in the book of Leviticus, that every 50 years prisoners should be freed and all debts forgiven.” This is the 50th anniversary of the freedom fighters.

Nations neglect no people more shamefully than the heroes of their wars – are we a Black Nation? Will we do the same?

Stiff Resistance

Dr. Mutulu Shakur