Torture Used to Try to Link Saddam with 9/11

When I testified last year before the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties about Bush interrogation policies, Congressman Trent Franks (R-Ariz) stated that former CIA Director Michael Hayden had confirmed that the Bush administration only waterboarded Khalid Sheikh Mohammed, Abu Zubaydah, and Abd al-Rahim al-Nashirit for one minute each. I told Franks I didn’t believe that. Sure enough, one of the newly released torture memos reveals that Mohammed was waterboarded 183 times and Zubaydah was waterboarded 83 times. One of Stephen Bradbury’s 2005 memos asserted that “enhanced techniques” on Zubaydah yielded the identification of Mohammed and an alleged radioactive bomb plot by Jose Padilla. But FBI supervisory special agent Ali Soufan, who interrogated Zubaydah from March to June 2002, wrote in the New York Times that Zubaydah produced that information under traditional interrogation methods, before the harsh techniques were ever used.

Why, then, the relentless waterboarding of these two men? It turns out that high Bush officials put heavy pressure on Pentagon interrogators to get Mohammed and Zubaydah to reveal a link between Saddam Hussein and the 9/11 hijackers, in order to justify Bush’s illegal and unnecessary invasion of Iraq in 2003, according to a newly released report of the Senate Armed Services Committee. That link was never established.

The Senate Intelligence Committee revealed that Condoleezza Rice approved waterboarding on July 17, 2002 “subject to a determination of legality by the OLC.” She got it two weeks later from Jay Bybee and John Yoo. Rice, Dick Cheney, John Ashcroft, Alberto Gonzales and George Tenet reassured the CIA in spring 2003 that the abusive methods were legal.

Team Bush claimed - and still claims - that it had to use harsh techniques to protect us from the terrorists. They really sought to create evidence to rationalize an illegal, unnecessary, and tragic war.

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Center for Constitutional Rights Supports National Lawyers Guild Call for Dismissal and Prosecution of John Yoo

On April 1, a secret 81-page memo written by former Deputy Assistant Attorney General John Yoo in March 2003 was made public. In that memo, Yoo advised the Bush administration that the Department of Justice's Office of Legal Counsel would not enforce U.S. criminal laws, including federal statutes against torture, assault, maiming and stalking in the detention and interrogation of enemy combatants. The week after the publication of Yoo's memo, the National Lawyers Guild issued a press release calling for the Boalt Hall Law School at the University of California to dismiss Yoo, who is now a professor of law there. The NLG also called for the prosecution of Yoo for war crimes and for his disbarment.

Two days later, the Center for Constitutional Rights released a letter supporting the NLG's call for Yoo’s dismissal and prosecution. CCR Executive Director Vincent Warren wrote, "The 'Torture Memo' was not an abstract, academic foray. Rather, it was crafted to sidestep U.S. and international laws that make coercive interrogation and torture a crime. It was written with the knowledge that its legal conclusions were to be applied to the interrogations of hundreds of individual detainees... And it worked. It became the basis for the CIA’s use of extreme interrogation methods as well the basis for DOD interrogation policy... Yoo’s legal opinions as well as the others issued by the Office of Legal Counsel were the keystone of the torture program, and were the necessary precondition for the torture program’s creation and implementation."

The day after the NLG issued its press release, Boalt Hall Dean Christopher Edley, Jr. posted a statement on the Boalt Hall website, responding to "the New York Times (editorial April 4), the National Lawyers' Guild, and hundreds of individuals from around the world" who had criticized or questioned Yoo's continuing employment at Boalt Hall.

Dean Edley cited the University of California's Academic Personnel Manual sec. 015, which lists under "Types of unacceptable conduct: ... Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty." Edley said he was not convinced Yoo had engaged in "clear professional misconduct - that is, some breach of the professional ethics applicable to a government attorney - material to Professor Yoo's academic position." Edley was likewise not convinced "the writing of the memoranda, and [Yoo's] related conduct, violate[d] a criminal or comparable statute."

Edley felt Yoo's conduct was not "morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank, and place." Edley wrote, "Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders."

Indeed, ABC News reported last week that Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture of terrorism suspects by approving specific torture techniques such as waterboarding. George W. Bush, the decider-in-chief, admitted, "yes, I'm aware our national security team met on this issue. And I approved."

These top U.S. officials are liable for war crimes under the U.S. War Crimes Act, and for violation of the Convention Against Torture and the Geneva Conventions, which are all part of U.S. law. They ordered the torture which was carried out by the interrogators.

But John Yoo and the other Justice Department lawyers, including David Addington, Jay Bybee, William Haynes and Alberto Gonzales, are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate U.S. laws. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to "legally" disappear political suspects to special detention camps. The United States charged that since they were lawyers, "not farmers or factory workers," they should have known their technical justifications for circumventing the Hague and Geneva Conventions were illegal.

The cases of Altstoetter and those of the Bush lawyers share common aspects. Both dealt with people detained during wartime who were not POWs; in both, it was reasonably foreseeable that the advice they gave would result in great physical or mental harm or death to many detainees; and in both, the advice was legally erroneous. More than 108 people have died in U.S. detention since 9/11, many from torture. And the Department of Justice's Office of Legal Counsel later withdrew the memoranda, an admission that the advice in them was defective.

Furthermore, the Bush lawyers have engaged in ethical violations which should result in their disbarment. As New York University School of Law Professor Stephen Gillers wrote in The Nation, H. Marshall Jarrett, counsel for the Justice Department's Office of Professional Responsibility, who is examining the legal advice these lawyers provided, "should find that this work is not 'consistent with the professional standards that apply to Department of Justice attorneys.'"

Even Dean Edley appears to recognize that the case of John Yoo is not a simple issue of academic freedom, such as "merely some professor vigorously expounding controversial and even extreme views."

As CCR President Michael Ratner wrote in the forthcoming book, The Trial of Donald Rumsfeld, "Had these various opinions been written as a law school or academic exercise, they could be merely condemned and their authors would fail their class, but they would not be held criminally accountable. But they were not an academic exercise. They were written by high-level attorneys [such as John Yoo] in a context where the opinions represented the governing law and were to be employed by the President in setting detainee policy. This was more than bad lawyering; this was aiding and abetting their clients’ violation of the law by justifying the commission of a crime using false legal rhetoric."

It is inconceivable that Attorney General Michael Mukasey, who has served as a rubber stamp for Bush's illegal policies, will bring any of these leaders or lawyers to justice. There is a chance that a future Attorney General will do so. Barack Obama has pledged to have his Justice Department and Attorney General "immediately review the information that's already there and to find out are there inquiries that need to be pursued . . . if crimes have been committed, they should be investigated . . . Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law." Congress should repeal the provision of the Military Commissions Act that would give these deciders and lawyers immunity from prosecution for torture and other mistreatment committed from September 11, 2001 to December 30, 2005.

In addition to criminal prosecutions, disbarments, and the dismissal of John Yoo from the Boalt Hall faculty, Jay Bybee, who was rewarded for his illegal advice with a federal judgeship, should be removed from the bench by impeachment.

It is time for the impunity enjoyed by the Bush administration to come to an end.

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Michael Mukasey: Another Loyal Bushie

The Michael Mukasey Senate Judiciary Committee confirmation hearing has demonstrated that Mukasey cannot be relied upon to function independently as U.S. Attorney General. Nevertheless, Senators on the Senate Judiciary Committee seem so thrilled that Mukasey is not Alberto Gonzales that they're willing to vote for him even though he's another loyal Bushie. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, backed down on his promise to hold up the confirmation hearing until the administration turned over material his committee had requested regarding several investigations. Leahy said of Mukasey after the hearing, "He's at least answered the questions, which is better than his predecessor. He's going to be different than Gonzales on all the issues, I think. He will certainly be better than Gonzales on morale."

But saying that Mukasey compares favorably to Alberto Gonzales is faint praise for the nominee. The former Attorney General resigned during a firestorm of criticism about his U.S. Attorney purges, and his repeated claims of memory loss when he testified before the Senate Judiciary Committee.

Mukasey doesn't seem to have a memory problem; he relied on a different excuse for dodging the Senators' hard questions: he hasn't been "read in on" the details of Bush policies, such as interrogation techniques, or the "Terrorist Surveillance Program." Mukasey claims he doesn’t know what water boarding is, so he can’t say if it constitutes torture. Say what? Mukasey’s claimed ignorance of water boarding is about as credible as his predecessor’s convenient claims of amnesia. Rear Adm. John Hutson (USN Ret.) testified at the confirmation hearing, "Other than, perhaps the rack and thumbscrews, water boarding is the most iconic example of torture in history. It was devised, I believe, in the Spanish inquisition. It has been repudiated for centuries."

Mukasey made the incredible assertions that "we do not torture" and "I don't think people are mistreated" at Guantánamo. The main problem he sees with Guantánamo is that "nobody owns it," that is, there is jurisdictional overlap between the Justice and Defense Departments. Mukasey callously told Sen. Dick Durbin before the hearings that Guantánamo was used as a "fright wig," and after all, detainees receive "three hots and a cot, health care better than many Americans, and taxpayer-funded Korans."

The rest of us haven't been “read in on” the classified details either. But we know that torture and inhuman treatment is Bush policy in spite of the fact it's illegal. The 2005 Department of Justice memos recently leaked to the New York Times say the government is engaging in water boarding, head slapping and exposing people to frigid temperatures, the International Committee of the Red Cross said the treatment of prisoners in U.S. custody is tantamount to torture, and the U.N. Human Rights Commission concluded that force feeding Guantánamo prisoners amounts to torture. We also know that Bush spied on Americans without warrants in spite of the Foreign Intelligence Surveillance Act (FISA) because he and Gonzales admitted it. And we know what water boarding is.

Some of Mukasey’s testimony before the Senate Judiciary Committee should have raised red flags in the minds of Democratic Senators. Mukasey refused to reject the notion that the President can constitutionally violate FISA. He misread the Supreme Court's recent decision in Hamdan v. Rumsfeld, which clearly rejected Bush's claim that Common Article 3 of the Geneva Conventions doesn't protect al-Qaeda prisoners. Common Article 3 prohibits torture and cruel or inhuman treatment of all prisoners. In fact, the Hamdan Court referred to possible liability under the U.S. War Crimes Act for those who violate Common Article 3. And when asked about contempt charges against witnesses who refuse to respond to congressional subpoenas, Mukasey said he would refuse to follow the statute that requires a U.S. attorney to refer contempt citations to a grand jury.

Nonetheless, Mukasey appears to be a shoo-in, with the Senate proceedings resembling a charade. One month before Mukasey was tapped by Bush for AG, the former federal judge penned an op-ed in the Wall Street Journal complaining about too much due process in terrorism prosecutions and advocating special courts where the Constitution wouldn't get in the way of catching the bad guys.

Mukasey's excessive zeal for Bush's war on terror was evident right after 9/11. In an October 2, 2001 hearing in his court, then-Judge Mukasey dismissed attorney Randall Hamud's claim that his client, 21-year-old Jordanian Osama Awadallah, had been physically beaten while in custody and had the marks to prove it. Mukasey retorted, "As far as the claim he was beaten, I will tell you he looks fine to me." The judge then refused to direct that Awadallah be examined by a doctor, and ordered that he be held indefinitely. The marks were under Awadallah's clothing. He was one of the more than 1,000 men of Arab descent rounded up after 9/11, and later exonerated. Many suffered similar abuse while in U.S. custody. Ronald Kuby was a defense attorney in the 1995 Omar Abdel Rahman case, over which Mukasey presided. Mukasey "was violating the rights of Arabs before it was popular," Kuby said. "It was very much like trying a case with two prosecutors, one of whom was wearing a black robe."

After librarians complained about the USA Patriot Act's provision that required them to tell the government what books we read, Mukasey mocked them in a Wall Street Journal op-ed. He described civil liberties concerns as "recreational hysteria."

Although former Judge Mukasey ruled Jose Padilla had the right to consult with counsel, he held that the President has the power to detain U.S. citizens caught on U.S. soil without charging them with a crime. When Sen. Dianne Feinstein questioned him, Mukasey incorrectly cited Hamdi v. Rumsfeld to support his position. Hamdi, unlike Padilla, was captured on the battlefield in Afghanistan, and the high court held that even Hamdi was entitled to some basic due process. In response to Feinstein's question about whether Congress has the right to set boundaries on military action under Article I of the Constitution, Mukasey demurred, arguing his "learning curve" was "steep."

Mukasey ducked the question of whether he would advise the President to allow unlawful enemy combatants habeas corpus rights at Guantánamo Bay. "I would not advise the President to grant rights beyond those that they already have," he told Sen. Lindsey Graham. In spite of the Military Commissions Act, which purports to deny these people statutory habeas rights, the Supreme Court will likely decide this term that they still have the constitutional right to habeas corpus.

At the committee hearing on Wednesday, Mukasey was introduced by his dear friend and law school buddy Joe Lieberman. No one is fanning the flames of war against Iran more than Lieberman. Bush/Cheney likely see Mukasey as a reliable ally who will help "legitimize" their impending illegal attack on Iran.

When Bush nominated Mukasey for attorney general, he declared Mukasey would "ensure that our law enforcement and intelligence officers have the tools they need to protect the United States and our citizens." Mukasey, who refused to call water boarding torture, will likely support that "tool" in the war on terror. Mukasey told senators in advance of his hearings that he supports enhanced interrogation techniques, according to Newsweek's Michael Isikoff.

Michael Mukasey cannot be counted on to independently investigate the crimes of the White House. Elizabeth Holtzman, a former congresswoman who served on the House Judiciary Committee during the Nixon impeachment, advocated in a recent op-ed in the Progressive that the Senate should confirm Muksey only if he pledges to appoint a special prosecutor to investigate the Bush administration. That's what the Democratically-controlled Congress did in 1973 after Nixon nominated Elliot Richardson for attorney general. Richardson agreed, he was confirmed, and then appointed Archibald Cox as special prosecutor. Cox's investigations and summary dismissal resulted in the issuance of articles of impeachment against Nixon in the House Judiciary Committee followed by Nixon's resignation. It would be wonderful to have a Congress that once again stood up to the President when he breaks the law.

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Bush Plans War on Iran

The Sunday Times of London is reporting that the Pentagon has plans for three days of massive air strikes against 1,200 targets in Iran. Last week, Alexis Debat, director of terrorism and national security at the Nixon Center, told a meeting of The National Interest, a conservative foreign policy journal, that the military did not intend to carry out "pinprick strikes" against Iranian nuclear facilities. He said, "They're about taking out the entire Iranian military."

Bush has already set the wheels in motion. With Rovian timing, Alberto Gonzales' resignation was sandwiched between two Bush screeds - one aimed at ensuring Congress scares up $50 billion more for the occupation of Iraq, the other designed to scare us into supporting war on Iran. As Gonzales rides off into the sunset, the significant questions are who will take his place and how that choice will facilitate Bush's occupation of Iraq and attack on Iran.

One name that's been floated for Bush's third attorney general is Joe Lieberman, the "independent" senator from Connecticut. Lieberman, who advocates the use of military force against Iran, was the only person Bush quoted in his August 28 speech to the American Legion. Bush called Iran "the world's leading state sponsor of terrorism" and pledged to "confront Tehran's murderous activities."

Gonzales greased the Bush/Cheney wheels for torturing in violation of the Geneva Conventions, illegally spying on Americans, and purging disloyal Bushies.

Similarly, Lieberman would ensure the Justice Department mounts a vigorous defense of a war of aggression against Iran. And Bush would get a two-fer: Connecticut's Republican governor would appoint a Republican to fill Lieberman's seat, returning control of the Senate to the GOP. A Republican-controlled Senate would direct the agenda, thereby furthering the Bush/Cheney plan.

Lieberman is closely affiliated with American Israeli Public Affairs Committee. "AIPAC leverages its power by an alliance with the Christian Right, which has adopted a bizarre ideology of 'Christian Zionism,'" according to University of Michigan professor Juan Cole. "It holds that the sooner the Palestinians are ethnically cleansed, the sooner Christ will come back. Without millions of these Christian Zionist allies," Cole added, "AIPAC would be much less influential and effective."

During the 2004 election, a 100% "AIPAC voting record" was Lieberman's litmus test for an acceptable presidential candidate. As the House of Representatives was on the verge of passing a resolution that would've required Bush to consult Congress before attacking Iran, the AIPAC lobby stopped it in its tracks.

Bush's WMD-hyping against Iran is déja vu in the run-up to Operation Iraqi Disaster, where he played loose and fast with the truth about Iraq's alleged WMDs. His statement that a nuclear Iran could put the region "under the shadow of a nuclear holocaust" conjures up his images of a "mushroom cloud" in the hype-up to Iraq.

How inconvenient for Bush that the UN International Atomic Energy Agency (IAEA) just found Iran's uranium enrichment program is operating well below capacity and is nowhere near producing significant amounts of nuclear fuel. The IAEA report says that Iran "has been providing the agency with access to declared nuclear materials, and has provided the required nuclear material accountancy reports in connection with declared nuclear material and facilities."

Iran and IAEA agreed on a plan with a step-by-step timetable of cooperation to settle unresolved issues. The agreement said there were "no other remaining issues and ambiguities regarding Iran's past nuclear program and activities," and characterized the accord as "a significant step forward."

"This is the first time Iran is ready to discuss all the outstanding issues which triggered the crisis in confidence," said IAEA director general Mohamed ElBaradei. "I'm clear at this stage you need to give Iran a chance to prove its stated goodwill. Sanctions alone, I know for sure, are not going to lead to a durable solution"

In 2003, when Dr. ElBaradei reported there was no evidence that Iraq was reconstituting its nuclear program, the White House was not pleased. And as Saddam Hussein became more cooperative with the weapons inspectors, Bush became "infuriated," according to Bob Woodward.

Bush's vow, "We will confront this danger before it is too late," is the Iran incarnation of his illegal preemptive war doctrine, which he inaugurated in Iraq. In a clear signal he is seeking regime change in Iran, Bush called for "an Iran whose government is accountable to its people, instead of leaders who promote terror and pursue the technology that could be used to develop nuclear weapons."

Barnett Rubin reported on Global Affairs blog that one of the leading neo-conservative institutions has "instructions" from Dick Cheney's office to "roll out a campaign for war with Iran in the week after Labor Day; it will be coordinated with the American Enterprise Institute, the Wall Street Journal, the Weekly Standard, Commentary, Fox, and the usual suspects. It will be heavy sustained assault on the airwaves, designed to knock public sentiment into a position from which a war can be maintained. Evidently they don't think they'll ever get majority support for this - they want something like 35-40 percent support, which in their book is 'plenty.'"

Bush/Cheney created the White House Iraq Group (WHIG) to lead a propaganda campaign to bolster public support for war with Iraq. The White House decided to wait until after Labor Day of 2002 to kick off WHIG's mission. Chief of staff Andrew Card explained, "From a marketing point of view, you don't introduce new products in August." Five years later, they're marketing a new and even more dangerous product - war with Iran. British military historian Corelli Barnett says "an attack on Iran would effectively launch World War III."

Our military spending has reached $1 billion every 2-1/2 days and we are borrowing $2-1/2 billion per day. Bush is mortgaging our children's future security and wealth. We have lost more than 3,700 soldiers in Iraq and hundreds of thousands of Iraqis have died.

We have already seen how easily Congress caves in to AIPAC. It's up to the people. As Noam Chomsky said, "The most effective barrier to a White House decision to launch a war [on Iran] is the kind of organized popular opposition that frightened the political-military leadership enough in 1968 that they were reluctant to send more troops to Vietnam."

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FISA Revised: A Blank Check for Domestic Spying

Responding to fear-mongering by the Bush administration, the Democrat-led Congress put its stamp of approval on the unconstitutional wiretapping of Americans.

George W. Bush has perfected the art of ramming ill-considered legislation through Congress by hyping emergencies that don't exist. He did it with the USA Patriot Act, the authorization for the Iraq war, the Military Commissions Act, and now the "Protect America Act of 2007" which amends the Foreign Intelligence Surveillance Act (FISA).

FISA was enacted in 1978 in reaction to excesses of Richard Nixon and the FBI, who covertly spied on critics of administration policies. FISA set up a conservative system with judges who meet in secret and issue nearly every wiretapping order the administration requests.

But that wasn't good enough for Bush. In 2001, he secretly established his "Terrorist Surveillance Program," which the National Security Agency has used to illegally spy on Americans. Instead of holding hearings and holding the executive accountable for his law-breaking, Congress capitulated once again to the White House's strong-arm tactics. As Congress was about to adjourn for its summer recess, Bush officials threatened to label anyone who opposed their new legislation as soft on terror. True to form, Congress - including 16 Senate and 41 House Democrats - caved.

The new law takes the power to authorize electronic surveillance out of the hands of a judge and places it in the hands of the attorney general (AG) and the director of national intelligence (DNI). FISA had required the government to convince a judge there was probable cause to believe the target of the surveillance was a foreign power or the agent of a foreign power. The law didn't apply to wiretaps of foreign nationals abroad. Its restrictions were triggered only when the surveillance targeted a U.S. citizen or permanent resident or when the surveillance was obtained from a wiretap physically located in the United States. The attorney general was required to certify that the communications to be monitored would be exclusively between foreign powers and there was no substantial likelihood a U.S. person would be overheard.

Under the new law, the attorney general and the director of national intelligence can authorize "surveillance directed at a person reasonably believed to be located outside of the United States." The surveillance could take place inside the United States, and there is no requirement of any connection with al-Qaeda, terrorism or criminal behavior. The mandate that the AG certify there is no substantial likelihood a U.S. person will be overheard has been eliminated.

By its terms, the new law will sunset in 180 days. But this is a specious limitation. The AG and DNI can authorize surveillance for up to one year. So just before the statute is set to expire around February 1, 2008, they could approve surveillance that will last until after Bush leaves office.

There is provision for judicial review of the procedures the AG and DNI establish to make sure they are reasonably designed to ensure communications of U.S. persons are not overheard. But that requirement is also specious. They must submit their procedures to the Foreign Intelligence Surveillance Court 120 days after the effective date of the act. The court doesn't have to respond to their submission until 180 days after the effective date of the act, and the standard of review is appallingly low. It's limited to whether the government's determination is "clearly erroneous." Even if the court were to find the proffer clearly erroneous, the AG and DNI have another 30 days to fix it. That takes the entire review process beyond the 6 month sunset period. Meanwhile, the surveillance can continue.

The Supreme Court held in the 1967 case of Katz v. United States that government wiretapping must be supported by a search warrant based on probable cause and issued by a judge. In 1972, the Court, in U.S. v. U.S. District Court (Keith), struck down warrantless domestic surveillance. The Court has recognized the "special needs" exception to the warrant requirement. The special need must be narrowly tailored to the problem. However, the new law is much too broad to come under this exception. Congress eliminated any need that the person surveilled be a foreign power or an agent of a foreign power. The government need only show it is seeking "foreign intelligence information." There is no requirement of any connection with terrorism. The special needs exception also requires an absence of discretion in the implementing authority. There is unlimited discretion now as long as the target is reasonably believed to be outside the United States.

The AG is required under the new law to report to Congress semi-annually, but only on incidents of non-compliance. Can we really trust Alberto Gonzales to be forthcoming about compliance with this law? Senator Christopher Dodd told Glenn Greenwald at the YearlyKos convention last week that neither he nor the other senators have any idea of how the Bush administration has been using its secret program to spy on Americans.

Finally, the new law requires telephone companies to collect data and turn it over to the federal government. It also grants immunity against lawsuits to these companies, many of which are currently defendants in civil cases.

Indeed, the mad rush to push this legislation through last week was likely a preemptive strike by Bush to head off adverse rulings in lawsuits challenging the legality of his Terrorist Surveillance Program. On August 9, a federal district court in San Francisco will hear oral arguments by lawyers from the Center for Constitutional Rights and the National Lawyers Guild in CCR v. Bush. And on August 15, Guild lawyers and others will argue Al-Haramain v. Bush in the 9th U.S. Circuit Court of Appeals.

In six months, when the "Protect America Act of 2007" is set to expire, there will be even more political pressure on Congress to appear tough on terror in the run-up to the 2008 presidential election. We cannot expect a Congress that so easily caved in to the fears hyped by the Bush administration to stand firm in support of the Constitution.

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Time for an Independent Counsel

Congressional leaders are calling for the appointment of a special counsel to investigate possible perjury charges against Alberto Gonzales. As we saw during the Watergate scandal, the executive branch cannot be counted on to investigate itself.

Watergate led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President Jimmy Carter asked Congress to pass a law authorizing the appointment of a special prosecutor to investigate and prosecute unlawful acts by high government officials. The bill empowered the attorney general to conduct a preliminary 90-day investigation when serious allegations arose involving a high government official. President Carter, who signed the bill in 1978, declared, “I believe that this act will help to restore confidence in the integrity of our government.”

Under the act, the attorney general could drop the investigation if he determined it was unsupported by the evidence. But if he found some merit to the charges, he was required to apply to a three-judge panel of federal court judges who would appoint a special prosecutor to investigate, prosecute, and issue a report.

The referral clause of the independent counsel statute provided, "An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.” But Congress, reacting to Kenneth Starr's witch hunt which led to Bill Clinton's impeachment, allowed the independent counsel statute to expire by its own terms in 1999.

With the death of the independent counsel statute, the pendulum had swung back. By failing to renew the act, Congress returned the investigation of high government officials to pre-Watergate policies. Once again, the power to appoint an independent counsel would rest with the executive branch, that is, the attorney general. The Department of Justice drafted a set of regulations to guide future investigations.

Now the attorney general, not a three-judge panel, has the authority to appoint and remove special counsel to investigate top government officials. He exercises power over indictments and other prosecutorial actions, and the special counsel remains accountable to the attorney general. He can block “any investigative or prosecutorial step” he deems “inappropriate or unwarranted."

Justice Department regulations call for the appointment of an outside special counsel when (1) a criminal investigation of a person or matter is warranted, (2) the investigation or prosecution of that person or matter by a United States Attorney's Office or litigating division of the Department of Justice would present a conflict of interest for the Department, and (3) under the circumstances it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. When these three conditions are satisfied, the attorney general must select a special counsel from outside the government. (28 C.F.R. 600.1, 600.3 (2007).)

In light of material inconsistencies in Alberto Gonzales's testimony before Congress, a criminal investigation is warranted. Gonzales, who is suspected of committing perjury, has a conflict of interest. The public interest requires that the highest prosecutor in the land be brought to justice.

Congress should appoint a permanent special counsel to investigate and advise Congress about misconduct by high government officials, beginning with Alberto Gonzales. That procedure should lead the House Judiciary Committee to initiate impeachment proceedings against Gonzales.

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The Opportunistic Commuter-in-Chief: The use and misuse of presidential clemency power

When he announced the commutation of Scooter Libby's 30-month sentence, George W. Bush cited the ways Libby has and will suffer: damage to his reputation, the suffering of his wife and children, large fines, and the "long-lasting" consequences of being a convicted felon.

When he was governor of Texas, however, Bush showed no compassion for the 152 people whose death sentences he refused to commute. One was Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about Washington's mental condition. Bush was unmoved.

When Bush's Department of Justice recently convinced the Supreme Court to affirm the 33-month sentence of Victor Rita, a decorated war hero who was charged with the same crimes as Libby, Bush expressed no concern for Rita's family or future.

And when his attorney general, Alberto Gonzales, argued just last month that the Justice Department would advocate legislation to make federal sentences longer, Bush was unconcerned about how those long prison sentences would impact the family and future of the prisoners. Yet Bush found Scooter Libby's sentence to be "excessive." But instead of reducing the prison sentence of this convicted felon, Bush let him off without a day in jail.

By commuting Libby's sentence, Bush signaled his complicity in the obstruction of justice of which Libby was convicted. Bush and Cheney had initiated the smear campaign to discredit and punish Ambassador Joseph Wilson and his wife, Valerie Plame, after Wilson publicly debunked the centerpiece of the administration's lies about WMD in Iraq.

During Libby's trial, he subpoenaed Cheney and other top Bush officials to support his defense that he was the fall-guy for his superiors. But Libby ultimately backed down and presented almost no defense to the charges. The only logical explanation is that Bush promised Libby he would never see the inside of a prison cell. The quid pro quo: Libby keeps his mouth shut about Bush's and Cheney's involvement in the conspiracy. With the commutation, Bush made good on his promise.

Why didn't Bush simply pardon Libby and wipe his record clean? Because then Libby would be precluded from claiming the Fifth Amendment privilege against self-incrimination in any future criminal or congressional proceeding, and he would be susceptible to depositions in the Wilson/Plame civil lawsuit. This calculated commutation preserves his appeal rights (and thus his Fifth Amendment claim). It is a continuation of the cover-up.

James Madison warned, "if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty."

Rep. John Conyers Jr. has scheduled a hearing next week to investigate "the use and misuse of presidential clemency power." Responding to the Libby commutation, House Speaker Nancy Pelosi said Bush "abandoned all sense of fairness when it comes to justice, he has failed to uphold the rule of law, and he has failed to hold his administration accountable." Maybe now they will put impeachment back on the table.

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Alberto Gonzales: Tip of the Iceberg

As Democratic and Republican leaders alike pile on to demand Alberto Gonzales' resignation, only George W. Bush is singing his praises. Deputy press secretary Dana Perino said Bush was happy with Gonzales' testimony. "The attorney general continues to have the president's full confidence," she said.

It's not surprising that Bush would be pleased. Like a good soldier, Gonzales, who claimed a faulty memory 70 times, was careful not to incriminate his bosses.

Bush and Cheney hired Gonzales as attorney general to carry out their plan to amass governmental power in the hands of the Executive. They knew they could count on him.

Gonzales' bona fides were well-known to his bosses. When he was counsel to Texas Governor George W. Bush from 1995 to 1997, Gonzales provided his boss with "scant summaries" on capital punishment cases that "repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence," according to the Atlantic Monthly.

Gonzales prepared 57 such summaries, including one regarding the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about his mental condition. Gonzales's three-page summary of the case for Bush mentioned only that Washington's defense counsel's 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush refused to stay executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

The attorney general was central to the Bush-Cheney-Yoo illegal domestic surveillance program. When he testified before the Senate Judiciary Committee after the New York Times uncovered the secret spying program, attorney general Gonzales walked in lockstep with his bosses. Gonzales would not tell the senators whether Bush had authorized other secret programs. He refused to say whether the government could wiretap purely domestic calls without a warrant, or whether he had the authority to search the first class mail of American citizens or to examine people's medical records. When Republican Senator John Cornyn asked him whether law enforcement could shoot down a plane with drugs, Gonzales said, "I'd have to think about that."

At Gonzales' confirmation hearing for attorney general, he said he wasn't sure whether torturing prisoners could be lawful. The former Texas Supreme Court justice surely knew the terms of the Convention Against Torture, a treaty ratified by the United States and therefore part of the supreme law of the land under the Supremacy Clause of the Constitution. The convention says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."

Yet, as White House counsel, Gonzales had advised Bush that the Geneva Conventions, which mandate humane treatment for all captives, were "quant" and "obsolete." Gonzales' advice facilitated the torture of prisoners in Afghanistan, Iraq, Guantánamo and secret CIA prisons around the world. Gonzales had evidently done his homework. The Nazi lawyers at Nuremberg also advised their clients that the Geneva Conventions were "quaint" and "obsolete."

Gonzales' confirmation testimony led the New York Times to opine, "Mr. Bush had made the wrong choice when he rewarded Mr. Gonzales for his loyalty," and the Washington Post to say, "The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world." The Post concluded, "Those senators who are able to reach clear conclusions about torture and whether the United States should engage in it have reason for grave reservations about Mr. Gonzales."

In 2005, Bush said, "Al Gonzales is a great friend of mine. I'm the kind of person, when a friend gets attacked, I don't like it." Eventually, however, Bush will have to unload Gonzales the way he unloaded his friend Donald Rumsfeld. Loyal Republican senators trying to paint Gonzales as incompetent don't want the finger to point higher to the real culprits - Karl Rove, George W. Bush and Dick Cheney.

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The New Watergate: U.S. Attorneys and Voting Rights

The Bush administration is shocked, shocked, that the firing of a few U.S. attorneys has caused such a stir in Washington. After all, the Oval Office says, the President can choose whomever he wants to prosecute federal cases. But the Supreme Court declared in Berger v. United States that a prosecutor's job is to see that justice is done, not to politicize justice. The mass ouster of the top prosecutors had more to do with keeping a grip on power - by manipulating voting rights - than with doing justice. And like the Watergate scandal, the evidence points to a cover-up.

This cover-up revolves around efforts by the Bush administration to disenfranchise African-American voters in communities where the vote would likely be close. George W. Bush came to power in 2000 by a razor-thin margin awarded him by the Supreme Court. During the 2004 election, there were allegations of attempts to disenfranchise African-American voters, especially in Ohio. Yet no voting discrimination cases were brought on behalf of African-American or Native American voters from 2001 to 2006.

Instead, the administration instigated efforts that would further disenfranchise these voters. U.S. attorneys were instructed to prosecute "voter fraud" cases. "Voter fraud" has "become almost synonymous with 'voting while black,'" the New York Times' Paul Krugman observed. Also, Republican lawmakers enacted voter ID laws which established new hurdles for voters to jump.

Former staffers in the Justice Department's civil rights division said they were "repeatedly overruled when they objected to Republican actions, ranging from Georgia's voter ID law to Tom DeLay's Texas redistricting, that they believed would effectively disenfranchise African-American voters," Krugman added.

The administration's effort to prosecute voter fraud is a sham. The New York Times reports that voter experts have found "widespread but not unanimous agreement that there is little polling place fraud." However, the Election Assistance Commission, a federal panel charged with election research, skewed the findings of the voter experts.

The Bush administration has been hyping voter fraud since the last election; Karl Rove called it an "enormous and growing" problem. Two of the fired U.S. attorneys, David Iglesias from Albuquerque and John McKay from Seattle, were dismissed because they refused to file voter fraud charges after being warned to do so by well-placed Republicans. Others were fired for pursuing investigations of Republicans.

Kyle Sampson, Alberto Gonzales' former right-hand man, wrote in an email that the qualification to be a U.S. attorney was to be a "loyal Bushie."

Shortly after the Watergate break-in, President Richard Nixon and his loyal chief of staff H.R. Haldeman spoke in the old Executive Office Building. Their conversation was taped, but 18.5 minutes were erased. This gap incriminated Nixon in the cover-up which eventually led to his impeachment and resignation.

Likewise, there is a suspicious 16-day gap in the email records between the Justice Department and the White House just before seven of the U.S. attorneys were fired in December. Moreover, many of the communications about the matter were conducted using email accounts of the Republican National Committee instead of government accounts, possibly in violation of the Presidential Records Act.

The Los Angeles Times reported that senior Justice Department officials prepared documentation to justify the firings after the dismissals. One Justice Department official threatened to "retaliate" against the eight fired U.S. attorneys if they continued to publicly speak about their dismissals.

Attorney General Alberto Gonzales, who heads the Justice Department, denied he was involved in discussions about the firings. But Sampson testified that Gonzales was consulted at least five times and signed off on the plan to fire the U.S. attorneys. "I don't think it's entirely accurate what he [Gonzales] said," Sampson told the Senate Judiciary Committee.

Gonzales is reportedly sweating bricks over his own testimony before that Committee, slated for April 17. As a result of Gonzales' stonewalling in response to the House Judiciary Committee's request for documents, committee chairman Rep. John Conyers has subpoenaed the records. If the Justice Department defies the subpoena, the Judiciary Committee, and the full Congress, could cite the department for contempt of Congress, and a federal grand jury could issue criminal indictments for obstruction of justice.

The White House has indicated it will not allow Karl Rove and former White House Counsel Harriet Miers to testify under oath. Why the resistance unless they intend to lie?

Alberto Gonzales should be fired, not just for malfeasance in the U.S. attorney affair, but also for advising Bush to violate the Geneva Conventions which led to torture and abuse of prisoners in U.S. custody. Recall that Gonzales told Bush the Geneva Conventions were "quaint" and "obsolete." Those were the same words the Nazi lawyers used at Nuremberg to describe the Geneva Conventions.

Firing Gonzales may temporarily stanch the flood of accusations about the U.S. attorney matter. But the corruption, the lawbreaking, and the cover-up go deeper - all the way up to the Oval Office. Hopefully, Nancy Pelosi and John Conyers will put impeachment back on the table.

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Patriot Act Unbound: Political Purging and Spying on Americans

Last year, Republican Senator Arlen Specter slipped a clause into the reauthorized USA Patriot Act that allows Attorney General Alberto Gonzales to appoint U.S. Attorneys without Senate confirmation.

Gonzales took advantage of that crafty little provision to fire eight U.S. Attorneys who weren't goose-stepping to the Bush agenda and replace them with Bush loyalists. Denying any impropriety, Gonzales dismissed the significance of the mass ouster (seven federal prosecutors were asked to resign on the same day last December), calling it an "overblown personnel matter."

The Attorney General swore to the Senate Judiciary Committee in January that he "would never, ever make a change in a United States attorney for political reasons." But the evidence belies Gonzales' protestations.

Why did these prosecutors run afoul of the Bush gang?

David Iglesias from Albuquerque received an evaluation that said he was "respected by the judiciary, agencies and staff." But he didn't file a corruption case involving New Mexico Democrats before the 2006 election which would've embarrassed the Democrats. New Mexico Republican Senator Pete Domenici called Iglesias and asked whether charges were "going to be filed before the election." Iglesias said he felt "sick" after Domenici called him. "I felt leaned on, I felt pressured to get these matters moving." Iglesias also received a call from Republican Representative Heather Wilson, who was running neck-in-neck with a Democrat in a race where the corruption investigation was a campaign issue. Justice Department spokesman Brian Roehrkasse admitted Domenici's complaint to Gonzales about Iglesias was a factor in the prosecutor's removal.

Carol Lam, "an effective manager and respected leader" from San Diego, conducted an investigation of Republican Representative Randy "Duke" Cunningham for taking over $2 million in bribes from defense contractors. It resulted in a guilty plea and an eight-plus year sentence. In February, Lam indicted Kyle Dustin Foggo, formerly the number 3 man at the CIA. If Lam were permitted to continue, she might have uncovered more official wrongdoing in defense-contracting. Lam was replaced by a member of the Federalist Society with almost no criminal law experience.

Bud Cummins, a "very competent and highly regarded" U.S. Attorney from Little Rock, Arkansas, was removed and replaced with J. Timothy Griffin, one of Karl Rove's key researchers. Deputy Attorney General Paul McNulty testified that Cummins had done nothing wrong to justify his removal. "I'm not aware of anything negative," he said. Cummins said a senior Justice Department official warned him that the fired U.S. Attorneys should keep quiet about "their" firings.

Daniel Bogden, a "highly regarded" and "capable leader" from Las Vegas, had opened an investigation into allegations that Nevada's Republican governor had accepted inappropriate gifts.

Paul Charlton, from Phoenix was "well respected" for his "integrity, professionalism and competence." He had undertaken an investigation of two Republican Arizona Representatives.

John McKay, "an effective, well-regarded and capable leader" from Seattle was called by a well-placed Republican, who inquired about whether McKay intended to convene a grand jury to examine claims of voter fraud in a close gubernatorial election, which was won by a Democrat. McKay also favored a computerized law enforcement information-sharing system that the Justice Department opposed.

These prosecutors were punished for doing their jobs too well. In the Bush administration, justice has become politicized. Democrats have been investigated by the Department of Justice seven times more frequently than Republicans.

On the defensive as a result of the U.S. Attorney firing scandal, the administration has engaged in damage control. It has agreed not to oppose legislation overriding the Specter Patriot Act loophole.

Another Patriot Act provision that has been misused by the Gonzales Justice Department authorizes the use of "national security letters." These are administrative subpoenas that enable the FBI to obtain our e-mails and telephone records, and travel and financial information without approval from a judge. An audit by the Inspector General concluded last week that the FBI has used this provision to illegally force businesses to turn over customer data, then lied to Congress about it.

The Bush gang has engaged in a pattern and practice of misconduct, including a war of aggression, torture and war crimes, and spying on Americans without warrants. Congress has begun to hold hearings and conduct investigations. As increasing evidence of high crimes and misdemeanors emerges, it is high time for the House of Representatives to undertake its constitutional duty to initiate impeachment proceedings.

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The Perfect Storm

Here, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references.
- Eleventh Circuit US Court of Appeals, three-judge panel opinion reversing the convictions of the Cuban Five, August 9, 2005

Many of our leaders seem to view Florida's Cuban conservatives, including the assassins and terrorists among them, as People Who Vote.
- Alice Walker, introduction, The Sweet Abyss

Since September 11, 2001, George W. Bush has made "the war on terror" the centerpiece of his policy. He uses this mantra to justify his wars on Afghanistan and Iraq, his warrantless surveillance of American citizens, and his escalating threats against Iran.

But Bush defines "terrorist" selectively. When it comes to Cuba, the Bush administration harbors the terrorists and punishes the anti-terrorists. The 700,000 Cuban-Americans in Miami are "people who vote," as evidenced by their critical role in both the 2000 and 2004 US elections.

On June 8, 2001, five Cuban men known as the Cuban Five were convicted of criminal charges in US district court in Miami. Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González are serving four life sentences and 75 years collectively for crimes including conspiracy to commit espionage and conspiracy to commit murder.

In a 93-page decision, a three-judge panel of the 11th Circuit US Court of Appeals unanimously overturned their convictions on August 9, 2005, because the anti-Cuba atmosphere in Miami, extensive publicity, and misconduct by the prosecutor denied them the right to a fair trial.

Attorney General Alberto Gonzales appealed the panel's ruling. The case is now pending before the whole, or en banc, Court of Appeals. The court will decide whether the district court wrongly denied the defendants' motions to change venue and move the trial out of Miami because an impartial jury could not be selected there.

The three-judge panel said that its review of the evidence at trial was "more extensive than is typical for consideration of an appeal involving the denial of motion for change of venue ... because the trial evidence itself created safety concerns for the jury which implicate venue considerations."

For more than 40 years, anti-Cuba terrorist organizations based in Miami have engaged in countless terrorist activities against Cuba and anyone who advocates the normalization of relations between the US and Cuba.

Terrorist groups including Alpha 66, Omega 7, Comandos F4, Cuban American National Foundation (CANF), Independent and Democratic Cuba (CID) and Brothers to the Rescue (BTTR), operate with impunity in the United States - with the knowledge and support of the FBI and CIA.

Ruben Dario Lopez-Castro, associated with a number of anti-Castro organizations, and Orlando Bosch, who planted a bomb on a Cubana airliner in 1976, killing all 73 persons aboard, "planned to ship weapons into Cuba for an assassination attempt on Castro," one witness testified at the trial.

The panel noted that "Bosch had a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-related activities in the United States and in other countries."

Luis Posada Carriles, the other man responsible for downing the Cubana airliner, has never been criminally prosecuted in the United States.

Percy Francisco Alvarado Godoy and Juan Francisco Fernandez Gomez described in depositions attempts between 1993 and 1997 by affiliates of CANF to recruit them to engage in violent activities against several Cuban targets. They both said they were asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction.

The panel found:

Alpha-66 ran a paramilitary camp training participants for an invasion of Cuba, had been involved in terrorist attacks on Cuban hotels in 1992, 1994, and 1995, had attempted to smuggle hand grenades into Cuba in March 1993, and had issued threats against Cuban tourists and installations in November 1993. Alpha-66 members were intercepted on their way to assassinate Castro in 1997. Brigade 2506 ran a youth paramilitary camp. BTTR flew into Cuban air space from 1994 to 1996 to drop messages and leaflets promoting the overthrow of Castro's government. CID was suspected of involvement with an assassination attempt against Castro. Comandos F4 was involved in an assassination attempt against Castro. Commandos L claimed responsibility for a terrorist attack in 1992 at a hotel in Havana. CANF planned to bomb a nightclub in Cuba. The Ex Club planned to bomb tourist hotels and a memorial. PUND planned to ship weapons for an assassination attempt on Castro.
Several terrorist acts in Havana were documented in the panel's decision, including explosions at eight hotels and the Cuban airport. An Italian tourist was killed, people were injured and all locations sustained property damage. Posada has twice publicly admitted responsibility for these bombings.

The panel characterized Posada as "a Cuban exile with a long history of violent acts against Cuba."

In the face of this terrorism, the Cuban Five were gathering intelligence in Miami in order to prevent future terrorist acts against Cuba. Former high-ranking US military and security officials testified that Cuba posed no military threat to the United States. Although none of the five men had any classified material in their possession or engaged in any acts to injure the United States, and there was no evidence linking any of them to Cuba's shooting down of two small aircraft flown by Cuban exiles, the Cuban Five were nonetheless convicted of all charges.

A survey conducted before trial showed that 69 percent of all respondents and 74 percent of Hispanic respondents were prejudiced against persons charged with engaging in the activities alleged in the indictment.

Legal psychologist Dr. Kendra Brennan characterized the results of a poll of Miami Cuban-Americans as reflecting "an attitude of a state of war ... against Cuba" which had a "substantial impact on the rest of the Miami-Dade community." She found that 49.7 percent of the local Cuban population strongly favored direct US military action to overthrow the Castro regime.

Dr. Lisandro Pérez, Director of the Cuban Research Institute, concluded that "the possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero ... even if the jury were composed entirely of non-Cubans, as it was in this case."

One prospective juror stated that he "would feel a little bit intimidated and maybe a little fearful for my own safety if I didn't come back with a verdict that was in agreement with what the Cuban community [in Miami] feels, how they think the verdict should be."

A banker and senior vice president in charge of housing loans was "concern[ed] how ... public opinion might affect [his] ability to do his job" which could "affect his ability to generate loans."

David Buker stated he believed that "Castro is a communist dictator and I am opposed to communism so I would like to see him gone and a democracy established in Cuba." Buker became the foreperson of the jury.

During deliberations, "some of the jurors indicated that they felt pressured." They "expressed concern that they were filmed 'all the way to their cars and [that] their license plates had been filmed,'" according to the panel's opinion.

The change of venue motion occurred during the Elian Gonzalez matter. "It is uncontested," wrote the panel, "that the publicity concerning Elian Gonzalez continued during the trial, 'arousing and inflaming' passions within the Miami-Dade community." The panel noted "the various Cuban exile groups and their paramilitary camps that continue to operate within the Miami area." It concluded, "The perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable."

The panel found: "Despite the district court's numerous efforts to ensure an impartial jury in this case, we find that empaneling such a jury in this community was an unreasonable probability because of pervasive community prejudice."

Noted criminal defense attorney and long-time National Lawyers Guild member Leonard Weinglass represents Antonio Guerrero. Weinglass told me, "In seeking a review of the panel decision, the government has asked the en banc court to convert the finding of a 'perfect storm' of prejudice (reached unanimously after a 16-month scrupulous review of the record on venue) into a 'sunny day' of placid tolerance."

The US government's 47-year economic blockade of Cuba was mirrored by the US media's blockade of press coverage of the trial. In spite of the avalanche of coverage in Miami, it was hardly mentioned in the national media.

"It is inexplicable that the longest trial in the United States at the time it occurred, hearing scores of witnesses, including three retired generals and a retired admiral, as well as the President's Advisor on Cuban Affairs (all called by the defense) and a leading military expert from Cuba, all the while considering the dramatic and explosive 40-year history of US-Cuba relations, did not qualify for any media attention outside of Miami," Weinglass said.

The Cuban Five were placed in solitary confinement for 17 months, in tiny cells where they could barely stand, until the start of their trial. Two have been denied visits from their wives for the last seven years in violation of US laws and international norms.

Hopefully, the Court of Appeals will agree with its three-judge panel that the poisonous atmosphere surrounding the trial of the Cuban Five in Miami warrants a new trial.

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Bush Mouthpiece Defends Illegal Spying

Attorney General Alberto Gonzales was called before the Senate Judiciary Committee on February 06 to explain why George W. Bush's program of warrantless spying on Americans is lawful.

Before Gonzales began his testimony, the committee voted along party lines to dispense with the oath. Thus, if Gonzales were to lie, he could not be convicted or even charged with perjury, which requires the lie be made under oath. Why would the Republican senators insist that Gonzales not be sworn to tell the truth unless they expected him to lie?

Gonzales testified that Bush authorized his "Terrorist Surveillance Program" in late 2001, and has renewed it every 45 days since then. The program allows the National Security Agency to eavesdrop on telephone and computer communications of Americans in the United States if the NSA decides there is probable cause to believe that one party is a member or agent of al Qaeda or an affiliated terrorist organization, provided one party to the conversation is overseas.

The program is so highly classified that Gonzales refused to tell the senators how many US citizens' emails or phone calls had been intercepted, whether there have been abuses, and whether anyone had been disciplined for abuses.

Bush established this program to circumvent the Foreign Intelligence Surveillance Act. Congress enacted FISA in 1978 in response to the Nixon administration's abuses of national security wiretaps, which it used against its domestic opponents under the guise of conducting counterintelligence investigations. A senate committee chaired by Idaho Senator Frank Church documented the NSA's abuses that led to the enactment of FISA.

FISA requires that the government convince a judge that there is probable cause to believe the target of the surveillance is a foreign power or the agent of a foreign power. FISA specifically allows for warrantless wartime domestic electronic surveillance, but only for the first 15 days after Congress declares war.

By its express terms, FISA provides that FISA and specified provisions of the federal criminal code (which governs wiretaps for criminal investigation) are the "exclusive means by which electronic surveillance … may be conducted."

FISA anticipates the need to act quickly by allowing a warrantless wiretap, provided the government applies for a FISA court order within 72 hours. However, Gonzales testified that the FISA procedure was "burdensome." He cited the paperwork as an impediment to the "nimble" gathering of intelligence. Although both the Department of Justice and the NSA have batteries of lawyers, Gonzales said we "can't afford to pose layers of lawyers" in the process.

Gonzales insisted that Bush's program complies with FISA because FISA exempts from criminal liability those who conduct electronic surveillance without following FISA procedures where such surveillance is "authorized by statute." Gonzales maintained that Congress's authorization for the use of military force (AUMF) passed shortly after the September 11, 2001, attacks was a statute that authorizes surveillance outside of FISA. He cited the Supreme Court's decision in Hamdi v. Rumsfeld, which said the AUMF allows for the detention of US citizen enemy combatants in spite of another statute governing detentions of US citizens.

However, the Hamdi Court determined that the AUMF permits the use of force only against people captured on the battlefield during the Afghanistan war. When the Bush administration asked former Senate majority leader Tom Daschle to include the words "inside the United States" in the AUMF, he refused, and those words do not appear in the resolution.

Gonzales also said that the president's commander in chief powers allow warrantless wiretaps. But as Justice Jackson wrote in the seminal case of Youngstown Sheet & Tube Co. v. Sawyer, the president's power is "at its lowest ebb" when he acts in defiance of "the expressed or implied will of Congress." Nowhere is Congress's intent expressed more clearly than in FISA, which comprises the exclusive scheme for electronic surveillance to gather intelligence.

Congress's October 2001 amendment of FISA in the USA Patriot Act underscores its intent that FISA remain the exclusive means for authorizing intelligence wiretapping. Gonzales was asked why the administration didn't approach Congress to amend FISA again if it needed more flexibility to fight terrorism. Gonzales said he opposes amending FISA, ironically maintaining it would interfere with the NSA program.

So why is the Bush administration loathe to obtain warrants to authorize wiretaps?

"The most logical reason for not getting a warrant is that the president's intelligence acolytes, who behave as though they graduated from the Laurel and Hardy school of data mining, have not been able to demonstrate that the people being spied upon are connected to Al Qaeda or any other terror organization," Bob Herbert wrote in yesterday's New York Times.

In other words, even the super-secret FISA court may be refusing to give Bush what he wants because he is overreaching.

A rare May 2002 opinion of the FISA court stated that in March of 2001, the government had reported misstatements in a series of FISA applications. The court modified then-Attorney General John Ashcroft's request for expanded intelligence-gathering procedures. In November 2002, the FISA appeals court reversed the lower court and granted Ashcroft's request. Nonetheless, Bush continued his end-run around FISA with the NSA program.

Gonzales, who said the government still uses FISA in some cases, would not respond when Senator Arlen Specter asked him why he didn't take the broad NSA program to the FISA court for approval. Gonzales wouldn't say whether he tells the FISA court that information supporting a warrant request was gathered through the NSA program. And he refused to tell Specter whether the FISA court is declining to issue warrants because it is not satisfied with the NSA program.

In a February 2003 report on FISA implementation failures, the Senate Judiciary Committee uncovered several problems: "a misunderstanding of the rules governing the application procedure, varying interpretations of the law among key participants, and a break-down of communication among all those involved in the FISA application process. Most disturbing," the committee found, "is the lack of accountability that has permeated the entire application procedure."

The committee concluded that "key FBI agents and officials were inadequately trained in important aspects of not only FISA, but also fundamental aspects of criminal law."

Notably, the report determined that "in the time leading up to the 9/11 attacks, the FBI and DoJ had not devoted sufficient resources to implementing the FISA, so that long delays both crippled enforcement efforts and demoralized line agents."

At the end of the hearing, Gonzales let slip the real reason Bush set up a program to evade FISA. Gonzales said that if the government had to apply for a FISA warrant, it "can't begin surveillance based on a whim of someone at NSA."

Gonzales would not tell the senators whether Bush has authorized other secret programs besides the NSA spying. Gonzales refused to say whether the government could wiretap purely domestic calls without a warrant, or whether he has the authority to search the first class mail of American citizens or to examine people's medical records. When Republican Senator John Cornyn asked him whether law enforcement could shoot down a plane with drugs, Gonzales said, "I'd have to think about that."

Gonzales declined to rule out the president's commander in chief power to torture, notwithstanding Congress's passage of the McCain Amendment on December 30. When Republican Senator Lindsey Graham asked him whether a Congressional statute that forbids abuse of prisoners could infringe on the president's commander in chief powers, Gonzales said, "It depends."

Graham was concerned that the "inherent authority of the president" theory that Gonzales set forth "could basically neuter the Congress and weaken the courts." Graham said he had "never envisioned that the AUMF would give the president carte blanche to go around FISA." Graham worried that it "would be harder for the next president to get a use of force resolution." He said, "When a nation is at war, you need checks and balances more than ever."

Bruce Fein, a former Justice Department official in the Reagan administration, predicted that Bush's theory could be used to authorize internment camps for groups of US citizens the president deems suspicious.

Senator Richard Durbin (D-Ill.) said, "Our greatest fear is that this president will go far beyond" the NSA program and "comb through thousands of ordinary Americans' email."

Although Gonzales continually waved the 9/11 flag in his defense of the NSA program, the Washington Post reported Sunday that nearly all of the thousands of Americans' calls that have been intercepted have revealed nothing pertinent to terrorism.

After the non-partisan Congressional Research Service issued a 44-page analysis that concluded the NSA program was unlawful, House Intelligence Committee chair Rep. Pete Hoekstra insisted on assurances that CRS "truly provides 'comprehensive and reliable' legislative research that is 'free of partisan or other bias.'"

Former Colorado Senator Gary Hart, a member of the Church Committee in the 1970s, said, "What we're experiencing now, in my judgment, is a repeat of the Nixon years. Then it was justified by civil unrest and the Vietnam war. Now it's terrorism and the Iraq war."

When Senator Charles Grassley asked Gonzales if he thought it was incredible that they were having the Senate Judiciary Committee hearing, Gonzales replied, "I think we have a good story to tell."

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First Officer Publicly Resists War

Yesterday, US Army First Lieutenant Ehren Watada became the first officer to publicly state his refusal to obey an order to deploy to Iraq. Lieutenant Watada said at a press conference in Tacoma, Washington, "The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war." He stated, "An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq."

Citing "deception and manipulation … and willful misconduct by the highest levels of my chain of command," Lt. Watada declared there is "no greater betrayal to the American people" than the Iraq war.

The "turning point" for Lt. Watada came when he "saw the pain and suffering of so many soldiers and their families, and innocent Iraqis." He said, "I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable." Lt. Watada felt he "had the obligation to step up and do whatever it takes," even if that means facing court-martial and imprisonment.

Lt. Watada asked me to speak about the legality of the war at his press conference.

The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war. An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq.
US Army First Lieutenant Ehren Watada

I cited the Nuremberg Charter, which set forth the three most serious crimes: crimes against the peace, war crimes, and crimes against humanity. The US Army Field Manual 27-10, art. 28, incorporates the prohibition against these three crimes. The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.

The United States Is Committing a Crime Against the Peace in Iraq

The Nuremberg Tribunal called the waging of aggressive war "essentially an evil thing ... to initiate a war of aggression ... is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.

Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US, or any other country, for 12 years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones."

Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused to give its stamp of approval. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.

Moreover, the Constitution gives only Congress, not the President, the authority to declare war. Congress cannot delegate that authority to the President. Even if Congress could delegate the war power to the President, it cannot authorize the President to execute an aggressive war.

The United States Is Committing War Crimes in Iraq

All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment.

Violations of the laws of war, memorialized in the Hague and Geneva Conventions, constitute war crimes.
All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment. These prohibitions are memorialized in the Army Field Manual 27-10, art. 506. The Pentagon is trying to remove Article 3 Common from the newly revised instructions that go with the Manual. The implication is that the Defense Department intends to treat prisoners inhumanely.

Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture or inhuman treatment, and willfully causing great suffering or great bodily harm are grave breaches.

The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians at Haditha and in other Iraqi cities are war crimes.

Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their inferiors were committing war crimes and failed to stop or prevent them. However, it is unlikely that Attorney General Alberto Gonzales will charge Bush, Cheney or Rumseld with war crimes.

The United States Is Committing Crimes Against Humanity in Iraq

Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.

No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.
Supreme Court Justice Robert Jackson

The dropping of 2,000-pound bombs in residential areas of Baghdad during "Shock and Awe" were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a "weapons-free" zone, with orders to shoot anything that moved, was a crime against humanity.

Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: "No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

The Uniform Code of Military Justice, in articles 90-92, sets forth the duty of military personnel to obey lawful commands. The Nuremberg Principles, which are part of US law, provide that all military personnel have the obligation not to obey illegal orders. The Army Field Manual 27-10, sec. 609 and UCMJ, art. 92, incorporate this principle. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States …"

The Bush administration is committing crimes against the peace, war crimes and crimes against humanity in Iraq. Lieutenant Ehren Watada is correct when he says this is an illegal war. I salute his courage.

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Bush Game on Padilla May Backfire

Once again, at the 11th hour, the Bush administration has pulled its punches in the case of Jose Padilla. Using an approach that more closely resembles a game of chess than a system of justice, Team Bush has altered its strategy, while seeking to keep all options open. Its fancy footwork, however, may ultimately backfire.

Last Tuesday, just before today's due date for the government's reply to Padilla's petition to the Supreme Court, Attorney General Alberto Gonzales announced the criminal indictment of Padilla. With this move, Bush hopes to prevent the high court from placing limits on his power to hold anyone he designates an "enemy combatant."

I remember the day in May of 2002 that Jose Padilla, a US citizen, was arrested at O'Hare Airport in Chicago. Former Attorney General John Ashcroft interrupted his trip to Moscow to ceremoniously announce on television that the government had foiled Padilla's effort to detonate a radioactive "dirty" bomb on the streets of America. Coming just 8 months after the September 11 attacks, those were fighting words to the American people.

The day of Padilla's arrest, I appeared on MSNBC's Abrams Report. Dan Abrams was foaming at the mouth about "the dirty bomber." When I reminded Abrams, a lawyer himself, about the presumption of innocence, he became furious, slamming his papers on the table.

Bush & Co. were banking on a similar reaction from the American people and the US courts. Team Bush hoped we would just salute and march when they rounded up hundreds of "terrorists," locked them up, and then threw away the key. They hoped we would look the other way when they tortured their prisoners. They hoped that the Imperial President could designate anyone an "enemy combatant" and no questions would be asked.

The government has changed its designation for Jose Padilla 3 times. When Padilla was arrested, he was called a "material witness," being held to testify against the terrorists. A month later, Bush labeled Padilla an "enemy combatant." Padilla was transferred to a military brig in South Carolina and denied any contact with counsel. Even though a federal judge ruled in December 2002 that Padilla was entitled to have a lawyer to challenge his detention, he was not permitted to consult with counsel until March 2004.

Bush finally allowed Padilla to meet with a lawyer in order to pre-empt an unfavorable ruling in his upcoming Supreme Court case in 2004. And while the Court was considering Padilla's case, the Justice Department announced that he had planned to use natural gas to blow up apartment buildings in the US. These 2 moves by the administration were designed to save face and undercut Padilla's case in the Supreme Court.

In June 2004, the Supreme Court ruled in the case of Yaser Hamdi that a US citizen held in the United States as an enemy combatant has a due process right to contest his detention before a neutral decision maker, and that includes the right to counsel. Justice Sandra Day O'Connor wrote for the Court: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

The same day, however, the high court declined to rule on Padilla's case because his habeas corpus petition had been filed in New York, where he was originally held, rather than South Carolina, where he was currently incarcerated. Five of the 9 justices said that Padilla must re-file his petition in South Carolina and name the commander of the military brig, rather than Donald Rumsfeld, as a defendant. Padilla filed a new petition.

In the Hamdi case, Justice Sandra Day O'Connor and 4 other justices limited the definition of "enemy combatant" to someone "carrying a weapon against American troops on a foreign battlefield." But Padilla was arrested in the United States. Padilla's lawyers are asking a question that the Bush administration is afraid for the Court to answer: "Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

Bush will argue that this issue is now moot, since he filed criminal charges against Padilla. But, talking out of both sides of its collective mouth, the Bush administration also maintains that even if Padilla is ultimately acquitted of the criminal charges, it can re-arrest him and hold him as an enemy combatant. Thus, Padilla's lawyers are arguing that the issue is not moot and the Supreme Court should decide it.

Ironically, the charges the government brought against Padilla have nothing to do with dirty bombs or natural gas explosions. The indictment portrays Padilla as a bit player in a conspiracy to murder and kidnap, but not in the United States. And it accuses him of providing material aid to terrorists. It does not even allege he is a member of al Qaeda.

If the government had charged Padilla with dirty bomb or explosion charges, the testimony of the prosecution's only "witnesses" would be inadmissible or unbelievable since they were tortured to implicate Padilla. One of them, Khalid Sheikh Mohammed, suffered excessive use of "waterboarding," a torture technique that simulates drowning. This was confirmed last year in a report by the CIA inspector general. Another review released by US intelligence agencies in April 2003 assessed the quality of Mohammed's information as "Precious Truths, Surrounded by a Bodyguard of Lies."

A second government "witness" against Padilla, Binyan Mohammed, was taken to Morocco to be tortured, according to his lawyer Clive A. Stafford Smith. "He signed a confession saying whatever they wanted to hear, which is that he worked with Jose Padilla to do the dirty bomb plot. He says that's absolute nonsense, and he doesn't know Jose Padilla."

Padilla has been held by the Bush administration in solitary confinement for more than 3 years without criminal charges. Now, in the government's haste to avoid an unfavorable ruling in the Supreme Court, it has charged Padilla with crimes that may be trumped up. For the first time, Padilla will have an opportunity to tell his side of the story in court; it may be a story of harsh interrogation that the government would prefer to keep quiet. Padilla will undoubtedly be offered a plea bargain to prevent his telling the truth about what happened to him while he languished in military custody for so long. The government may offer Padilla a deal like the one it offered John Walker Lindh, who was also facing life in prison. Lindh was allowed to plead guilty to lesser charges on the condition that he not mention the mistreatment he suffered while in custody.

The legal maneuvering by the Bush administration is "a remarkable game of musical courtrooms," said Eugene Fidell, president of the National Institute for Military Justice. "The Justice Department cannot continue changing course each time action from the courts is imminent," according to Rep. Adam B. Schiff (D-Calif.), a member of the Judiciary Committee.

Bill Goodman, Legal Director of the Center for Constitutional Rights, characterizes the charges against Padilla as a "stale conspiracy" and predicts the government will try to have Padilla's petition to the Supreme Court dismissed as moot. "In my judgment," Goodman said on Democracy Now!, "that borders on abuse of process by the Justice Department. What they are doing is manipulating the process in order to sustain an opinion that says the President can virtually shred the Constitution ... and saying someone who had been held in violation of constitutional principles because he was such a danger to the United States because of these allegations, now they're irrelevant. It's shocking. It's an outrage."

Jose Padilla's case may end up being a lose-lose situation for the Bush administration if the Supreme Court decides to go ahead and hear Padilla's petition anyway. Depending on the composition of the high court after Samuel Alito's confirmation hearing, the Court could place some limits on the President's power to indefinitely detain a US citizen arrested on American soil and held as an "enemy combatant." Padilla could refuse a plea bargain and testify about how he was treated - or mistreated - while in custody. And the defense may have a meritorious motion to dismiss the criminal charges because the government denied Padilla due process by its delay in filing the charges against him.

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No War Criminal for Supreme Court

No sooner had the ink dried on Sandra Day O'Connor's resignation letter, than the right-wing evangelicals began shouting threats: Bush had better pick a justice who would decimate the right to abortion as we know it. And corporate lobbyists promised to fight hard for a justice who would insulate big business from punitive damages, and against state regulation to protect consumers and the environment.

But most of the post-O'Connor discussion about possible candidates has focused on the bona fides of Bush's Attorney General and confidant Alberto Gonzales, who many describe as a "moderate." The religious conservatives find Gonzales unacceptable, since he refused to say that Roe v. Wade should be reversed when he sat on the Texas Supreme Court. Senate Democratic leader Harry Reid, however, thinks Gonzales is "qualified" to sit on the high court. Indeed, Reid chastised "the far right" for attacking Gonzales.

In their zeal to ensure that Bush does not choose a justice who would tip the court's balance away from allowing a woman to make decisions about her own body without governmental interference, many Democrats would apparently settle for a war criminal. In spite of opposition from the right and the left, Gonzales is expected to be confirmed easily, without the necessity of the nasty filibuster.

Several senators posed hard questions to Gonzales during his attorney general confirmation hearing. Ultimately, however, the Senate confirmed Gonzales 60-36, with 4 abstentions. Six Democrats voted to confirm Gonzales and 3 didn't cast votes. Curiously, Reid, who voted against Gonzales for attorney general, now finds him qualified to sit on the nation's highest court.

When Senator Richard Durbin asked Gonzales at his hearing, "Can U.S. personnel legally engage in torture under any circumstances?", Gonzales failed to give a categorical negative answer. "I don't believe so," he testified, "but I'd want to get back to you on that." Gonzales surely knew that the Convention against Torture, which the United States has ratified, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."

Gonzales is the very one who, as White House counsel, advised Bush that the President need not follow the law. The Geneva Conventions, which Gonzales called "quaint" and "obsolete," are ratified treaties, and thus part of United States law under the Supremacy Clause of the Constitution.

Gonzales also counseled Bush on how to avoid prosecution for war crimes under the federal War Crimes Act.

Gonzales commissioned the Department of Justice's Office of Legal Counsel's August 1, 2002 memorandum, which illegally redefined torture so narrowly that the pain caused by interrogation must include death, organ failure or serious impairment of body functions. Any treatment short of that would be allowed.

That memo remained in place until December 30, 2004, on the eve of Gonzales' attorney general confirmation hearing. In order to forestall tough questioning of Gonzales by Democrats on the Senate Judiciary Committee about the August 2002 memo, the Justice Department issued a new memo, broadening the definition of torture.

Gonzales' advice to Bush led to the establishment of policies that set the stage for the torture and inhuman treatment of prisoners in U.S. custody in Iraq, Afghanistan, Guantánamo Bay, and secret CIA prisons throughout the world. Torture and inhuman treatment constitute war crimes under the federal War Crimes Statute. That law provides that one who commits a war crime "shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."

It is not necessary to personally conduct the torture in order to be liable under the War Crimes Statute. Under the well-established doctrine of "command responsibility," a superior who knew or should have known his inferiors would commit war crimes, but who failed to stop or prevent those acts, is just as responsible as those who committed the criminal acts. Gonzales knew or should have known the policies he advocated would result in the torture and inhuman treatment of prisoners in U.S. custody.

Alberto Gonzales should not sit on the United States Supreme Court. He should be indicted and tried as a war criminal. (See The Gonzales Indictment, http://marjoriecohn.com/2005/01/gonzales-indictment.html.)

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Payback Time?

"It is time to make good on those campaign promises, Mr. President. You have been given a mandate to end abortion in our nation by the American people who cast their votes for you."
-- Troy Newman, president of Operation Rescue, an anti-abortion group

"Al Gonzales is a great friend of mine. I'm the kind of person, when a friend gets attacked, I don't like it."
-- George W. Bush, responding to right-wing criticism of Alberto Gonzales

With the unexpected resignation of Sandra Day O'Connor, George Bush finds himself on the horns of a dilemma. After his 2000 campaign pledge to appoint justices in the mold of Antonin Scalia and Clarence Thomas, Bush garnered the crucial support of right-wing evangelical Christians. Mobilizing in thousands of churches across the country, they provided the foot soldiers and the votes to elect and re-elect Bush. Their eyes were on the big prize - overturning Roe v. Wade, to stop the "holocaust" of abortion. The Supreme Court vacancy they've prepared for so long and hard has finally materialized, and the right-wing fundies are calling in their chits.

However, if Bush succumbs to pressure from his right-wing religious base and nominates an anti-abortion extremist, he is in for the mother of all confirmation battles. Pro-choice advocates recognize the significance of the Supreme Court seat that Justice O'Connor has occupied. They also are ready to rumble.

O'Connor was a swing vote on the abortion issue, but she ultimately voted to uphold Roe v. Wade. In the event Bush were to replace O'Connor with a justice who would vote to overrule Roe, that would not necessarily tip the balance sufficiently to outlaw abortion. Assuming William Rehnquist remains on the Court or is replaced with an anti-choice justice, there would be four solid pro-choice votes (John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer) and four solid anti-choice votes (Scalia, Thomas and the two new justices, or Rehnquist and the new justice). Anthony Kennedy swings both ways. Although personally opposed to abortion, he voted to affirm Roe. So, until the 85-year-old Stevens, or Ginsburg (who is not in good health) leave the Court, Roe will remain the law of the land - for now.

If Rehnquist steps down before the Court's new term begins, that would alter the confirmation equation. While the Christian right would be gunning for two anti-Roe justices, the Democrats are more likely to accept a justice like Rehnquist if the other were more moderate, like O'Connor.

And Bush's quandary is further complicated by his own situation. He no longer faces re-election and would like to focus on his legacy. Bush the politician would love to reward a loyal friend with a plum appointment. Long eager to appoint the first Hispanic to the Supreme Court, this is his chance. There is a Hispanic who would satisfy the religious right, the anti-choice Emilio Garza, touted by evangelical Hispanic groups. Bush, however, would prefer his dear friend Attorney General Alberto Gonzales, whom he affectionately calls "mi abogado" (my lawyer). They go way back - to the days when Texas Governor George W. Bush turned to Gonzales for advice on legal issues such as whether the governor should pardon prisoners facing the death penalty. Gonzales never met a death row inmate he didn't want to execute.

As soon as O'Connor stepped down, right-wing interest groups, which have raised millions to eliminate a woman's right to choice, took aim at Gonzales. Never mind that Gonzales champions policies that conservatives love. He was chief architect of the memos that would allow the United States to torture prisoners in the name of Bush's "war on terror." And Gonzales' zealous support for the death penalty in Texas led to execution in nearly every case that came before him.

But abortion is the trump card for the religious right, and Gonzales does not satisfy their requirements. When Gonzales sat on the Texas Supreme Court, he voted to overturn a law that would require parental notification before a minor could have an abortion. Even though he voted the opposite way in a similar case, the right-wing evangelicals allow for no wiggle room on this subject.

Although both the right and the left would oppose a Gonzales nomination, ironically, he would be confirmed without a major conflagration. Senators already aired most of the contentious issues during Gonzales's attorney general confirmation process. The filibuster and the nuclear option would not likely be used if Bush nominates Gonzales to fill O'Connor's seat.

A Gonzales nomination would enrage right-wing fundamentalists, but could move many Latino voters into the Republican camp for the midterm elections.

Yesterday, once again mouthing his mantra that he will use "no litmus test" on abortion for a Supreme Court nominee, Bush added that he will "try to assess their character, their interests." These may be buzz words for a Gonzales nomination. Bush knows Gonzales' character and interests well. And he likes them.

Both the White House and the Senate Republican leadership are trying to rein in the right-wing hyperbole against Alberto Gonzales. "The extremism of language, if there is to be any, should be demonstrably on the other side," warned Eric Ueland, chief of staff to Senate Majority Leader Bill Frist. "The hysteria and the foaming at the mouth ought to come from the left."

Conversely, Nation columnist David Corn warns progressives to avoid labeling a Bush choice "extremist," and instead urge confirmation of a judge who won't eliminate or curtail abortion rights, favor corporate polluters over consumers, or restrict the federal government's role in advancing social justice.

With so much at stake, we must exhort our senators to demand a commitment from the nominee to put constitutional rights above corporate and conservative interests. This means opposing Alberto Gonzales for his torture and death penalty policies, as well as opposing any nominee who would gut a woman's right to make decisions about her own health and life without governmental interference.

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