National Lawyers Guild, Other Human Rights Groups Send Open Letter to Eric Holder

Seventeen human rights and civil rights organizations and 45 prominent lawyers and civic leaders have sent a letter to Attorney General Eric Holder last week urging him to appoint a special independent prosecutor to investigate and prosecute Bush officials and lawyers involved in setting illegal interrogation policies.

Holder had expanded the mandate of Justice Department lawyer John Durham to include a preliminary investigation but limited Durham's focus to a handful of interrogators who exceeded the limits set by the "torture memos."

The groups and individuals stressed that the special prosecutor should come from outside the Department of Justice and not limit the investigation to low-level operatives, but "should investigate and prosecute all those who ordered, approved, justified, abetted or carried out the torture and abuse."

The letter cites "political pressure" which has "led to [Holder's] office taking too narrow an approach to the investigation."

Signatories of the letter include the National Lawyers Guild, Center for Constitutional Rights, U.S. Human Rights Network, and Psychologists for Social Responsibility, as well as prominent torture survivor Sister Dianna Ortiz. Also signing is the International Association of Democratic Lawyers, the American Association of Jurists and many other international bar associations. They urge Holder to "hold firm against any attempts by former Vice President Dick Cheney, the CIA directors, and the media to silence those who demand that the United States hold accountable those who have committed and authorized torture."

Both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Geneva Conventions "expressly require the United States to either extradite or initiate prosecution of persons who are reasonably accused," the letter says, adding "this is a legal obligation."

"Whether actionable intelligence was gained is not the issue," the letter in conclusion reminds the Attorney General, and says that he cannot "pick and choose those laws you will enforce."

If you or your organization wish to sign the letter, contact Marjorie Cohn at libertad48 'at' san.rr.com.

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Bush Memos Reveal Policy of Cruelty; Obama Refuses to Enforce the Law

In response to a Freedom of Information Act request by the ACLU, President Obama released four Bush-era memos that describe unimaginably brutal techniques and provide “legal” justification for clearly illegal acts of torture and cruel, inhuman or degrading treatment. In the face of monumental pressure from the CIA to keep them secret, Obama demonstrated great courage in deciding to make the grotesque memos public. At the same time, however, in an attempt to pacify the intelligence establishment, Obama said, “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He guaranteed free legal representation for CIA employees investigated by Congress or international tribunals, and indemnification for any financial judgments rendered against them.

Obama’s intent to immunize those who violated our laws banning torture and cruel treatment violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

The memos

The memo dated August 1, 2002 was signed by Jay Bybee, and the other three memos, dated May 10, 2005, were signed by Stephen Bradbury.

In startlingly clinical and dispassionate terms, the authors of the newly-released torture memos describe and then rationalize why the devastating techniques the CIA sought to employ on human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques, including banging heads into walls 30 times in a row, prolonged nudity, repeated facial and abdominal slapping, dietary manipulation, and dousing with cold water as low as 41 degrees. They allow shackling in a standing position for 180 hours, sleep deprivation for 11 days, confinement of people in small dark boxes with insects for hours, and waterboarding to create the perception they are drowning. Moreover, the memos permit many of these techniques to be used in combination for a 30-day period. They find that none of these techniques constitute torture or cruel, inhuman or degrading treatment.

Waterboarding, admittedly the most serious of the methods, is designed, according to Bybee, to induce the perception of “suffocation and incipient panic, i.e. the perception of drowning.” But although Bybee finds that “the use of the waterboard constitutes a threat of imminent death,” he accepts the CIA’s claim that it does “not anticipate that any prolonged mental harm would result from the use of the waterboard.” As psychologist Jeffrey Kaye points out, the CIA and the Justice Department “ignored a wealth of other published information” that indicates dissociative symptoms, changes greater than those in patients undergoing heart surgery, and drops in testosterone to castration levels after acute stress associated with techniques that the memos sanction.

The Torture Statute punishes conduct, or conspiracy to engage in conduct, specifically intended to inflict severe physical or mental pain or suffering. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from either the intentional infliction or threatened infliction of severe physical pain or suffering, or from the threat of imminent death.

Bybee asserts that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” He makes the novel claim that the presence of personnel with medical training who can stop the interrogation if medically necessary “indicates that it is not your intent to cause severe physical pain.”

Now a federal judge with lifetime appointment, Bybee concludes that waterboarding does not constitute torture under the Torture Statute. However, he writes, “we cannot predict with confidence whether a court would agree with this conclusion.”

The Bush administration claimed it only used waterboarding three times. But a footnote in one of Bradbury’s memos says waterboarding was utilized “with far greater frequency than initially indicated” with “large volumes of water” rather than small quantities as required by the CIA’s rules.

Bybee’s memo explains why the 10 techniques could be used on Abu Zubaydah, who was considered to be a top Al Qaeda operative. “Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from [the CIA’s] proposed interrogation methods,” the CIA told Bybee. But Zubaydah was a low-ranking Al Qaeda operative, according to leading FBI counter-terrorism expert Dan Coleman, who advised a top FBI official, “This guy is insane, certifiable, split personality.” This was reported by Ron Suskind in his book, The One Percent Doctrine.

The CIA’s request to confine Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA it could place a harmless insect in the box and tell Zubaydah that it will sting him but it won’t kill him. Even though the CIA knew that Zubaydah had an irrational fear of insects, Bybee found there would be no threat of severe physical pain or suffering if it followed this procedure.

Another noxious aspect of these memos is the use of medical professionals to enable the torture and cruel treatment. They are on hand to monitor the victims to make sure they come close to death, but don’t actually die. But the medical personnel may well allow the abuse to cause severe physical pain and do nothing to stop it until the victim reaches the point of impending death. One of Bradbury’s memos requires that a physician be on duty during waterboarding to perform a tracheotomy in case the victim doesn’t recover after being returned to an upright position.

Employing a standard used to measure due process violations, Bradbury concluded that “the CIA interrogation techniques, with their careful screening procedures and medical monitoring, do not ‘shock the conscience,’” and thus were not cruel, inhuman or degrading. It is difficult to imagine how the techniques described above would fail to shock the conscience of any human being.

Obama’s refusal to faithfully execute the law

The Constitution requires the President to enforce the law against both the petty thief who stole salmon from the market, and the CIA agent who tortured or abused a prisoner.

Our law prohibits torture and cruel, inhuman or degrading treatment, and requires that those who subject people to such treatment be prosecuted. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation. The Geneva Conventions proclaim an “obligation” to bring those who have committed torture and cruel treatment before our “own courts.” The Torture Convention and the Geneva Conventions are both part of U.S. law under the Supremacy Clause of the Constitution, which says, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Two federal statutes – the Torture Statute and the War Crimes Act (torture is a war crime) - provide for life imprisonment and even the death penalty if the victim dies from torture.

Obama has made a political calculation to seek amnesty for the CIA torturers. He expressed his “intention” to protect people who relied in good faith on Justice Department advice. However, good faith reliance on superior orders was rejected as a defense at Nuremberg and in Lt. Calley’s Vietnam-era trial for the My Lai Massacre. The Torture Convention provides unequivocally, “An order from a superior officer or a public authority may not be invoked as a justification for torture.”

There is evidence that the CIA was using the illegal techniques as early as April 2002, three to four months before the August memo was written. That would eliminate “good faith” reliance on Justice Department advice as a “defense” to prosecution. And Obama did not say he favored amnesty for those who set the policy – which would include Cheney, Rumsfeld, Rice, Powell, Ashcroft and Gonzales who comprised the Principals Committee that authorized the torture and Bush who approved of it. Nor did Obama include in his intended amnesty the lawyers – like Yoo, Bybee, Bradbury, Addington and Haynes - whose opinions under girded the policy.

When ABC’s George Stephanopoulos asked Rahm Emanuel on Sunday, “What about the people who designed the policies?", Emmanuel said the President doesn’t support their prosecution either.

But the decision about whether and who to prosecute is up to the Attorney General, Eric Holder. If Holder continues to carry out Obama’s political agenda by resisting investigations and prosecution, Congress can, and should, authorize the appointment of a special independent prosecutor to do what the law requires.

The Watergate scandal led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President 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.

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. This procedure was used to appoint Kenneth Starr, whose witch hunt led to Bill Clinton's impeachment. In reaction, Congress allowed the independent counsel statute to expire by its own terms in 1999. It’s time for the people to demand that Congress enact an independent counsel statute.

Universal jurisdiction

What happens if the United States government refuses to prosecute those who ordered, justified and carried out the torture and abuse? Other countries will launch criminal investigations of U.S. nationals under universal jurisdiction. See Spain Investigates What America Should [http://marjoriecohn.com/2009/04/spain-investigates-what-america-should.html].

Indeed prosecutors in Spain decided to file criminal charges against Yoo, Bybee, Gonzales, Haynes, Addington and Feith for torture. But in a rare move, Candido Conde-Pumpido, Spain’s attorney general, overruled the prosecutors’ decision, saying the case had “no merit” because the six men were not present when the abuse took place and it was up to the United States to prosecute.

Universal jurisdiction is used to prosecute foreign nationals when their own country refuses to prosecute. Adoph Eichmann, often called “the architect of the Holocaust,” was tried, convicted and executed by Israel for crimes unconnected to Israel. He orchestrated the deportations but was not necessarily present at the gas chambers when millions were murdered.

Curiously, Conde-Pumpido’s decision followed discussions between the U.S. and Spanish governments in which the Obama administration strongly suggested that charges against the six would be “inconvenient,” according to Scott Horton of Harpers. Apparently and unfortunately, Obama is following the same tack Bush took by pressuring countries to back down on universal jurisdiction prosecutions.

The Spanish case is not dead, however. Judge Baltasar Garzon, who issued the arrest warrant for Augusto Pinochet in 1998, still has the power to determine whether the case will proceed.

Ultimately, it is up to Obama to fulfill his constitutional duty to ensure that the laws are faithfully executed. As he seems inclined to shirk that duty, it is up to us to pressure him, and Congress to hold accountable, those who violate our laws. Obama said that “nothing will be gained by spending our time and energy laying blame for the past.” He is wrong. There is more to gain from upholding the rule of law. It will make future leaders think twice before they authorize the cruel, illegal treatment of other human beings.

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Israel’s Collective Punishment of Gaza

Since Israel began its war on Gaza 11 days ago, more than 560 Palestinians – about a quarter of them civilians – have been killed. Some two thousand Gazans, including hundreds of children, have been wounded. Israel’s “Operation Cast Lead” marks an escalation of Israel’s two-year blockade of the Gaza Strip which has deprived 1.5 million Palestinians of necessary food, medicine, fuel and other necessities.

Israel is using white phosphorous gas, an illegal chemical weapon that burns to the bone. Dr. Mads Gilbert, a member of a Norwegian triage medical team working in Gaza, has documented Israel’s use of Dense Inert Metal Explosive (DIME), which cuts its victims to pieces and reportedly causes cancer in survivors. Gilbert, who has worked in several conflict zones, said the situation in Gaza is the worst he has ever seen. Two United Nations schools have been hit by airstrikes, killing at least 30 people. The New York Times reported on Monday that Gazan hospitals are full of civilians, not Hamas fighters.

The targeting of civilians violates the Fourth Geneva Convention. Since the rockets fired from Gaza into Israel cannot distinguish between civilians and military targets, they are illegal. But Israel’s air and ground attack in Gaza violates Geneva in four ways. First, it constitutes collective punishment of the entire population in Gaza for the acts of a few militants. Second, it targets civilians, as evidenced by the large numbers of civilian casualties. Third, it is a disproportionate response to the rockets fired into Israel. Fourth, an occupying power has an obligation to ensure food and medical supplies to the occupied population; Israel’s blockade has created a humanitarian crisis in Gaza.

Israel’s airstrikes and ground assault on the people of Gaza have little to do with the Gazan rockets, which hadn’t killed any Israelis for a year before Israel’s current military operation. Israel’s leaders are bombing and attacking Gaza in order to gain an advantage in the upcoming Israeli elections in February.

Foreign Minister Tsipi Livni is locked in a tight race with Benyamin Netanyahu, who has criticized Livni for her “soft” treatment of the Palestinians. The Israeli government seeks to do as much damage as possible to Gaza while Bush is still in office. The New York Times cited several Middle East experts who “believe that Israel timed its move against Hamas, which began on Dec. 26, 25 days before Mr. Bush leaves office, with the expectation of such backing in Washington.” Obama, in spite of his unequivocal support for the policies of Israel during the campaign and his deafening silence about the recent casualties, is an unknown quantity.

Israel would be unable to carry out its aggressive policies in Gaza without the support of the United States, which gives Israel $3 billion in U.S. taxpayer money each year. The F-16 bombers and Apache attack helicopters Israel is using on Gaza were bought with U.S. money.

The war on Gaza also violates U.S. law. The Human Rights and Security Assistance Act mandates that the United States cease all military aid to Israel, which has engaged in a consistent pattern of gross violations of internationally recognized human rights. The Arms Export Control Act prohibits U.S. weapons from being used for any purpose other than inside the borders of a country for self-defense. Targeting schools, police stations and television broadcast centers is not self-defense.

Although Israel’s supreme court ordered the government to allow international media into Gaza to report on the situation there, Israel has refused. But, according to the New York Times, Israel has given “full access to Israeli political and military commentators.” Ethan Bronner, the Times bureau chief in Jerusalem, said, “Israel has never restricted media access like this before, and it should be ashamed . . . It’s betraying the principles by which it claims to live.”

In spite of the one-sided pro-Israel media coverage in the United States, Newsweek said, “Does it make sense for America to support [Israel’s] policy of punishing Hamas by making life unbearable for 1.5 million Gazans by denying aid and economic development? The answer is no.” An editorial in the Los Angeles Times called for “an end to a blockade that amounts to the collective punishment of Palestinians under Hamas rule.” And the New York Times editorialized that “the longer the Israeli incursion. . . the more Hamas’s popularity grows among its supporters.”

Hundreds of thousands of people around the world are protesting Israel’s aggression in Gaza. Ten thousand demonstrated in Israel and scores have taken to the streets in Europe, the Middle East and throughout the United States.

A recent Rasmussen Reports poll found that Americans generally “are closely divided over whether the Jewish state should be taking military action against militants in the Gaza strip.” But Democratic voters overwhelmingly oppose the Israeli offensive by a 24-point margin (31-55%). Republicans, on the other hand, overwhelmingly support it (62-27%). Nevertheless, Democratic Party leaders have followed Bush in their uncritical support for Israel.

The United States has blocked a ceasefire resolution in the Security Council. In the absence of council action, the General Assembly is empowered to act under the Uniting for Peace Resolution 377. Assembly president Miguel D’Escoto, who has been critical of Israel’s actions in Gaza, said that “the time has come to take firm action if the UN does not want to be rightly accused of complicity by omission.” The Human Rights Council should send a high level fact finding mission to Gaza.

It’s time to call a halt to the violence and bloodshed.

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Cheney Throws Down Gauntlet, Defies Prosecution for War Crimes

Dick Cheney has publicly confessed to ordering war crimes. Asked about waterboarding in an ABC News interview, Cheney replied, “I was aware of the program, certainly, and involved in helping get the process cleared.” He also said he still believes waterboarding was an appropriate method to use on terrorism suspects. CIA Director Michael Hayden confirmed that the agency waterboarded three Al Qaeda suspects in 2002 and 2003.

U.S. courts have long held that waterboarding, where water is poured into someone’s nose and mouth until he nearly drowns, constitutes torture. Our federal War Crimes Act defines torture as a war crime punishable by life imprisonment or even the death penalty if the victim dies.

Under the doctrine of command responsibility, enshrined in U.S. law, commanders all the way up the chain of command to the commander-in-chief can be held liable for war crimes if they knew or should have known their subordinates would commit them and they did nothing to stop or prevent it.

Why is Cheney so sanguine about admitting he is a war criminal? Because he’s confident that either President Bush will preemptively pardon him or President-elect Obama won’t prosecute him.

Both of those courses of action could be illegal.

First, it is not clear that a president can immunize himself or his subordinates from prosecution for committing crimes that he himself authorized. During the Constitutional convention, George Mason expressed concern that a president could abuse his pardon power to ‘pardon crimes which were advised by himself’ or, before indictment or conviction, ‘to stop inquiry and prevent detection.’

On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which require humane treatment, did not apply to Al Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high level meetings where waterboarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.

Attorney General Michael Mukasey says there’s no need for Bush to issue blanket pardons since there is no evidence that anyone developed the policies “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” But noble motives are not defenses to the commission of crimes.

Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions.

The bipartisan December 11 report of the Senate Armed Services Committee concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Lawyers who wrote the memos that purported to immunize government officials from war crimes liability include John Yoo, Jay Bybee, William Haynes, David Addington and Alberto Gonzales. There is precedent in our law for holding lawyers criminally liable for participating in a common plan to violate the law.

Committee chairman Senator Carl Levin told Rachel Maddow that you cannot legalize what’s illegal by having a lawyer write an opinion.

The committee’s report also found that “Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.” Those techniques migrated to Iraq and Afghanistan, where prisoners in U.S. custody were also tortured.

Pardons or failures to prosecute the officials who planned and authorized torture would also be immoral. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantánamo.”

During the campaign, Obama promised to promptly review actions by Bush officials to determine whether “genuine crimes” were committed. He said, “If crimes have been committed, they should be investigated,” but “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

Two Obama advisors told the Associated Press that “there’s little-if any – chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.”

When he takes office, Obama should order his new attorney general to appoint an independent prosecutor to investigate and prosecute those who ordered and authorized the commission of war crimes.

Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can’t authorize war crimes and get away with it.

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Guantánamo Justice Delayed Seven Years

Since the Bush administration began transporting men and boys to Guantánamo Bay in January 2002, it has tried to prevent them from presenting their cases before a neutral federal judge. Indeed, the naval base was turned into a prison camp precisely to keep the detainees away from impartial courts. The government argued that federal courts had no jurisdiction over men detained on Cuban soil. Twice, the Supreme Court rejected that argument, finding that the United States exercises complete jurisdiction and control over the Guantánamo Bay base.

Finally, on November 20, in a stunning development, U.S. District Court Judge Richard J. Leon ordered the government to release five Guantánamo Bay detainees “forthwith.” Finding that the government failed to prove the men were “enemy combatants,” the judge, in a rare comment, urged senior government leaders not to appeal his ruling. “Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough,” he said.

The five detainees the judge ordered released are Lakhdar Boumediene, Mustafa Ait Idir, Hadj Boudella, Saber Lahmar and Mohammed Nechla. Judge Leon did, however, find that a sixth detainee, Belkacem Bensayah, was properly classified an enemy combatant.

It was the Supreme Court’s June 12, 2008 decision in Boumediene v. Bush (see Supreme Court Checks and Balances in Boumediene) that allowed Judge Leon to review the enemy combatant classifications. The high court upheld the Guantánamo detainees’ constitutional right to habeas corpus and made clear they were “entitled to a prompt habeas corpus hearing.” Judge Leon adopted the definition of "enemy combatant" used by the Combatant Status Review Tribunals, which is “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

The six detainees in this case are native Algerians who were residing in Bosnia and Herzegovina, over a thousand miles from the battlefield in Afghanistan. All six held Bosnian citizenship or lawful permanent residence as well as native Algerian citizenship. Arrested by Bosnian authorities in October 2001 for alleged involvement in a plot to bomb the U.S. Embassy in Sarajevo, they were ordered released from prison on January 17, 2002 and then turned over to U.S. personnel who transported them to Guantánamo on January 20, 2002. They have been there ever since.

President Bush had withdrawn the alleged bomb plot as a basis for their detention. He argued instead that the men planned to travel to Afghanistan in late 2001 and take up arms against the United States and allied forces. Judge Leon found the government had failed to prove these allegations by a preponderance of evidence in the cases of all but Bensayah.

The judge said the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source. He wrote that “while the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it.” He added, “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court’s obligation under the Supreme Court’s decision in Hamdi to protect petitioners from the risk of erroneous detention.”

The government did, however, present additional evidence which persuaded Judge Leon that Bensayah was “an al-Qaida facilitator” who planned to take up arms against the United States and facilitate the travel of unnamed others to do the same. That, wrote the judge, “constitutes direct support of al-Qaida in furtherance of its objectives” and “this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”

Bosnian authorities have indicated they are willing to take the five detainees once they are released.

In October, another federal district judge in Washington, Ricardo M. Urbina, ordered that 17 Uighur detainees be released from Guantánamo. The judge didn’t hold an evidentiary hearing because the government conceded the men were not enemy combatants. But the 17 men from western China languish in custody because the government has appealed Judge Urbina’s ruling.

President-elect Barack Obama has pledged to close the Guantánamo prison when he takes office. The National Lawyers Guild has urged Obama to ensure that the prisoners are released, repatriated, resettled, or brought to trial (if there is probable cause to believe they have committed a crime) in strict accordance with international human rights and humanitarian law, and the principles of fundamental justice pertaining to criminal proceedings. This includes but is not limited to, the Four Geneva Conventions of 1949, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. The United States has ratified all of these treaties which makes their provisions binding U.S. law under the Supremacy Clause of the Constitution.

The Guild opposes the creation of national security courts to try the detainees. Although Obama said in August, "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” three Obama advisers told the Associated Press that the President-elect is expected to propose a new court system to deal with “sensitive national security cases.”

Concerns have been cited about disclosure of classified information in civilian courts and courts-martial. However, the Classified Information Procedures Act (CIPA) provides an adequate method of protecting classified information in existing U.S. courts. CIPA allows a judge to assess the importance of sensitive evidence before it is disclosed in open court and, if necessary, create a nonclassified substitute for use at trial. Former federal prosecutors Richard B. Zabel and James J. Benjamin, Jr. studied the 107 post-9/11 cases and prepared a 171-page white paper for Human Rights First called In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts. They wrote, “[w]e are not aware of a single terrorism case in which CIPA procedures have failed and a serious security breach has occurred.” National security courts, they write, “would give the government more power and make it easier for the government to secure convictions.”

President-elect Obama should send those prisoners he intends to try to U.S. civilian and military courts, which are well-suited to protect national security concerns. He should eschew the creation of a new system of courts with reduced due process, which will raise many of the same concerns as Bush’s dreaded military commissions.

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National Lawyers Guild Calls for Special Prosecutor, Issues White Paper on Torture Liability

New York. The National Lawyers Guild (NLG) calls on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute high Bush officials and lawyers including John Yoo for their role in the torture of prisoners in U.S. custody.

The NLG has issued a White Paper explaining why the memos, which purported to give objective legal advice, subject all those involved to prosecution under international and U.S. domestic law. This includes people who ordered the torture, approved it or gave advice to justify it.

Guild President Marjorie Cohn testified on May 6 before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee, that some lawyers in the Department of Justice were "part of a common plan to violate U.S. and international laws outlawing torture."

The 14-page White Paper details the ways in which the lawyers, including Yoo, Jay Bybee, David Addington, and William Haynes, counseled the White House on how to get away with war crimes. The lawyers said that the Department of Justice would not enforce federal laws against torture, maiming, assault and stalking. "Just because the statute says," John Yoo explained in a recent Esquire interview, "that doesn't mean you have to do it."

Professor Cohn told the congressmen it was "reasonably foreseeable" the lawyers' advice "would result in great physical and mental harm or death to many detainees"; more than 100 have died, many from torture. Torture, like genocide, slavery and wars of aggression, is absolutely prohibited at all times. No country can ever pass a law that would allow them.

Professor Philippe Sands, a British international litigator and author of the new book, "Torture Team," also testified at the congressional hearing. He said that after his extensive interviews with many Bush officials, including John Yoo, "it became clear to me that the Administration has spun a narrative that is false, claiming that the impetus for the new interrogation techniques came from the bottom-up. That is not true; the abuse was a result of pressure and actions driven from the highest levels of government."

It was recently revealed that Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and personally oversaw and approved the torture by authorizing specific torture techniques including waterboarding. President Bush admitted he knew and approved of their actions.

"They are all liable under the War Crimes Act and the Torture Statute," Professor Cohn testified. "Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander-in-chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers."

The National Lawyers Guild calls on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute the high officials of the Bush administration and the lawyers who advised them, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes.

White Paper can be read at http://nlg.org/news/statements/mcohn_testify2008.php.

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Congressional Testimony of Marjorie Cohn on Torture Policy

Testimony of Marjorie Cohn

"From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules"

Subcommittee on the Constitution, Civil Rights, and Civil Liberties
House Judiciary Committee

May 6, 2008

What does torture have in common with genocide, slavery, and wars of aggression? They are all "jus cogens." That’s Latin for "higher law" or "compelling law." This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a "jus cogens" prohibition.

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 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."

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.

The US War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.

Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

The maiming statute makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb, or any member of another person” or throw or pour upon another person any scalding water, corrosive acid, or caustic substance.

Yoo said, "just because the statute says -- that doesn't mean you have to do it." In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person's child. It depends on the President's motive, Yoo said, notwithstanding the absolute prohibition on torture.

Yoo twisted the law and redefined torture much more narrowly than the Torture Convention and the Torture Statute. Under Yoo's definition, you have to nearly kill the person to constitute torture.

Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances.

After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo’s definition of torture, and admitted that a defendant’s motives to protect national security won’t shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners.

Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently he knew interrogators would take action based on what he advised.

Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding. Bush admitted he knew and approved of their actions.

They are all liable under the War Crimes Act and the Torture Statute. Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander in chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.

The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government, and the lawyers who advised them, should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws.

Click here for the complete testimony.

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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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Reining In an Out-of-Control Executive

Our Founding Fathers created three separate but co-equal branches of government to check and balance each other so no one branch would become all powerful. Indeed, James Madison wrote in the Federalist Papers, "The preservation of liberty requires that the three great departments of power should be separate and distinct." Madison warned, "The accumulation of all powers, legislative, executive, and judiciary in the same hands ... may justly be pronounced the very definition of tyranny." The American colonists were reacting against a police state.

More than 200 years later, we have another King George. In the last six years, George W. Bush has sought to accumulate all governing powers in the same hands - his. In the Declaration of Independence, the framers charged that the King "refused his Assent to Laws, the most wholesome and necessary for the public good." Bush has repeatedly violated the Constitution's command that the President "shall take Care that the Laws be faithfully executed," by breaking some and refusing to enforce others. The Constitution grants Congress the power to make laws; after both houses pass a bill, the President can only sign it or veto it. Bush, however, takes a different tack. He has vetoed just three bills, then quietly attached "signing statements" to more than 1,000 congressional laws, indicating his intent to follow only those parts with which he agrees.

In an end run around Congress and the courts, Bush secretly authorized the Terrorist Surveillance Program to conduct electronic surveillance without a judicial warrant, in violation of the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment. Although two judges on a three-judge panel of the Sixth Circuit Court of Appeals ordered the dismissal of a lawsuit challenging the legality of Bush's spying program for lack of standing, the only two judges ever to rule on the merits declared the program illegal.

The Bush administration lied to Congress to get authority to invade Iraq. Long before the 9/11 terrorist attacks, Bush and his officials were planning to attack Iraq and change its regime. Dick Cheney's secret energy task force drew up maps of Iraq's oil fields to divvy up the black gold once we occupied that country. They then devised an elaborate scheme to convince the American people that Saddam Hussein posed a threat to the United States, notwithstanding overwhelming intelligence to the contrary. Since Bush launched "Operation Iraq Freedom," more than 3,600 American soldiers and tens of thousands of innocent Iraqis have died; many thousands more have been wounded. This invasion is a war of aggression, which violates the UN Charter, because it was neither executed in self-defense nor approved by the Security Council.

During the war, U.S. troops have been acting under rules of engagement - free-fire zones - that have led some to commit war crimes. For instance, the killing, execution-style, of 24 civilians in the Haditha Massacre, the execution of a disabled man, and the shooting of a wounded unarmed Iraqi in a mosque violate the Geneva Conventions which prohibit willful killing of civilians. Commanders, all the way up the chain to the commander-in-chief, could be convicted of war crimes if they should've known their subordinates would commit them and the commanders didn't stop or prevent it.

Bush's legal eagles, particularly David Addington and John Yoo, concocted elaborate "legal" arguments to justify the torture of prisoners. Never mind that international and American law forbid torture under all circumstances. Pursuant to a common plan to violate the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prisoners in U.S. custody are being tortured and abused. Prisoners have been subjected to water-boarding, attacks by dogs, sexual humiliation, and excruciatingly painful force-feeding.

The Bush administration has secretly rendered prisoners to other countries to be tortured. One former CIA agent observed, "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear - never to see them again - you send them to Egypt."

Shortly after 9/11, the Bush gang set up a prison camp in Guantánamo, intending to create a legal black hole where they could hold prisoners for the rest of their lives without any judicial oversight. But the Supreme Court didn't buy the administration's argument that U.S. courts have no jurisdiction over Guantánamo because it's in Cuba. And the Court struck down Bush's original military commissions since they violated the Uniform Code of Military Justice and the Geneva Conventions.

The Supreme Court said in Berger v. United States that a prosecutor's job is to see that justice is done, not to politicize justice. But Bush's Department of Justice, the chief law enforcement agency in the government, has been seriously compromised. Several U.S. attorneys who refused to bring frivolous charges that would further Bush's political agenda, or who brought charges that didn't, were purged.

The White House is resisting congressional subpoenas that call for testimonial and documentary evidence about the U.S. attorney firing scandal. The deadline for Bush, Cheney and the Justice Department to produce documents in response to Senate Judiciary Committee subpoenas about the warrantless surveillance is July 18. In 1974, when the House Judiciary Committee passed three articles of impeachment against Richard Nixon, Article III charged refusal to comply with subpoenas during the Watergate hearings.

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No Unlawful Enemy Combatants at Guantanamo

In 2002, Donald Rumsfeld famously called the detainees at Guantánamo "the worst of the worst." General Richard B. Myers, former chairman of the Joint Chiefs of Staff, warned they were "very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down." These claims were designed to justify locking up hundreds of men and boys for years in small cages like animals.

George W. Bush lost no time establishing military commissions to try the very "worst of the worst" for war crimes. But four and a half years later, the Supreme Court decided in Hamdan v. Rumsfeld that those commissions violated the Uniform Code of Military Justice and the Geneva Conventions. So Bush dusted them off, made a few changes, and rammed his new improved military commissions through the Republican Congress last fall.

Only three detainees have been brought before the new commissions. One would expect the people Bush & Co. singled out for war crimes prosecutions would be high-level al-Qaeda leaders. But they weren't. The first was David Hicks, who was evidently not so dangerous. The U.S. military made a deal that garnered Hicks a misdemeanor sentence and sent him back to Australia.

Salem Ahmed Hamdan, a Yemeni who used to be Osama bin Laden's chauffeur, was the second. Hamdan, whose case had been overturned by the Supreme Court, was finally brought before a military commission June 4 for arraignment on charges of conspiracy and material support for terrorism.

The third defendant was Omar Khadr, a Canadian citizen, who appeared for arraignment the same day as Hamdan. Khadr was 15 years old when he arrived at Guantánamo. He faced charges of conspiracy, murder, attempted murder, spying, and supporting terrorism.

On June 4, much to Bush's dismay, two different military judges dismissed both Hamdan's and Khadr's cases on procedural grounds.

The Military Commissions Act that Congress passed last year says the military commissions have jurisdiction to try offenses committed by alien unlawful enemy combatants. Unlawful enemy combatants are defined as (1) people who have engaged in hostilities or purposefully and materially supported hostilities against the United States or its allies; or (2) people who have been determined to be unlawful enemy combatants by a Combatant Status Review Tribunal (CSRT) or another competent tribunal. The Act says that a determination of unlawful enemy combatant status by a CSRT or another competent tribunal is dispositive.

But there are no "unlawful" enemy combatants at Guantánamo. There are only men who have been determined to be "enemy combatants" by the CSRTs. The Act declares that military commissions "shall not have jurisdiction over lawful enemy combatants." In its haste to launch post-Hamdan military commissions, Bush's legal eagles didn't notice this discrepancy. That is why the charges were dismissed.

The Bush administration may try to fix the procedural problem and retry Khadr and Hamdan. But regardless of whether Guantánamo detainees are lawful or unlawful enemy combatants, the Bush administration's treatment of them violates the Geneva Conventions. Lawful enemy combatants are protected against inhumane treatment by the Third Geneva Convention on prisoners of war. Unlawful enemy combatants are protected against inhumane treatment by Common Article Three.

Omar Khadr was captured in Afghanistan and brought to Guantánamo when he was 15 years old. In both places, he has been repeatedly tortured and subjected to inhumane treatment. At Bagram Air Base, Khadr was denied pain medication for his serious head and eye shrapnel wounds. At Guantánamo, his hands and feet were shackled together, he was bolted to the floor and left there for hours at a time. After he urinated on himself and on the floor, U.S. military guards mopped the floor with his skinny little body. Khadr was beaten in the head, dogs lunged at him, and he was threatened with rape and the removal of his body parts.

Khadr cried frequently. He has nightmares, sweats and hyperventilates, and is hypervigilant, hearing sounds that he can't identify. When Khadr's lawyer saw him for the first time in 2004, he thought, "He's just a little kid."

Why was Khadr treated this way? He comes from a family allegedly active in al-Qaeda. His charges stem from an incident where the U.S. sent Afghans into a compound where Khadr and others were located. The people inside the compound killed the Afghans and began firing at the U.S. soldiers. The Americans dropped two 500-pound bombs on the compound, killing everyone inside except Khadr. After Khadr threw a hand grenade which killed an American, the soldiers shot Khadr, blinding and seriously wounding him. Khadr begged them in English to finish him off. He was then taken to Baghram and later to Guantánamo.

According to Donald Rehkopf, Jr., co-chair of the National Association of Criminal Defense Lawyers Military Law Committee, "The government has steadfastly refused to allow hearings on this alleged [unlawful enemy combatant] status because there are so many prisoners at GTMO that were not even combatants, much less 'unlawful' ones. Khadr is in an unusual situation because he has a viable 'self-defense' claim - we attacked the compound that he and his family were living in, and the fact that he was only 15 at the time."

If Khadr were a U.S. citizen, he would not even be subject to trial by court-martial because of his age. When the Supreme Court ruled in 2005 that children under 18 at the time of their crimes could not be executed, it said that youths display a "lack of maturity and an underdeveloped sense of responsibility" that "often results in impetuous and ill-considered actions and decisions." A juvenile, the Court found, is more vulnerable or susceptible to negative influences and his character is not as well-formed as that of an adult. "From a moral standpoint," Justice Kennedy wrote for the majority, "it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." The Bush administration's treatment of Omar Khadr flies in the face of the Court's reasoning.

The United States may be able to retry Khadr and Hamdan. They have a few days to file an appeal. But the Court of Military Commissions Review hasn't even been established yet, so it's unclear where the appeals would be brought.

The Military Commissions Act, which denies basic due process protections, including the right to habeas corpus, is a disgrace. But an even bigger disgrace is the concentration camp the United States maintains at Guantánamo Bay, Cuba. The Act should be repealed and the Guantánamo prison should be shut down immediately.

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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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Mistrial at Court Martial: Watada Beats the Government

When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada's court martial, he probably didn't realize jeopardy attached. That means that under the Double Jeopardy Clause of the Constitution, the government cannot retry Lt. Watada on the same charges of missing movement and conduct unbecoming an officer.

Lt. Watada is the first commissioned officer to publicly refuse orders to deploy to Iraq. He claimed those orders were unlawful because the war is illegal and he would be an accomplice to war crimes if he followed them.

The judge refused to allow me and others to testify as expert defense witnesses on the illegality of the Iraq war and the war crimes the Bush administration is committing there.

The Uniform Code of Military Justice sets forth the duty of military personnel to obey only lawful commands. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States "

Lt. Watada said at a June 6, 2006 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 did face court martial, and four years in prison, until the judge declared a mistrial.

This is what I would have said had I been allowed to testify at Lt. Watada's court martial:

The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.

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. 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.

Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture and inhuman treatment 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 in Haditha and other Iraqi cities are also 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 subordinates were committing war crimes and failed to stop or prevent them. The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial - for the commission of war crimes.

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.

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."

Lt. Ehren Watada was correct when he said the war is illegal and he would be party to war crimes if he deployed to Iraq. The orders to deploy were unlawful and Lt. Watada had a duty to disobey them. Although he faces the possibility of a dishonorable discharge, the judge's grant of a mistrial precludes retrial on the same criminal charges.

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Bush Fears War Crimes Prosecution, Impeachment

With great fanfare, George W. Bush announced to a group of carefully selected 9/11 families yesterday that he had finally decided to send Khalid Sheikh Mohammed and 13 other alleged terrorists to Guantánamo Bay, where they will be tried in military commissions. After nearly 5 years of interrogating these men, why did Bush choose this moment to bring them to "justice"?

Bush said his administration had "largely completed our questioning of the men" and complained that "the Supreme Court's recent decision has impaired our ability to prosecute terrorists through military commissions and has put in question the future of the CIA program."

He was referring to Hamdan v. Rumsfeld, in which the high court recently held that Bush's military commissions did not comply with the law. Bush sought to try prisoners in commissions they could not attend with evidence they never see, including hearsay and evidence obtained by coercion.

The Court also determined that Common Article 3 of the Geneva Conventions applies to al Qaeda detainees. That provision of Geneva prohibits "outrages upon personal dignity" and "humiliating and degrading treatment."

Bush called on Congress to define these "vague and undefined" terms in Common Article 3 because "our military and intelligence personnel" involved in capture and interrogation "could now be at risk of prosecution under the War Crimes Act."

Congress enacted the War Crimes Act in 1996. That act defines violations of Geneva's Common Article 3 as war crimes. Those convicted face life imprisonment or even the death penalty if the victim dies.

The President is undoubtedly familiar with the doctrine of command responsibility, where commanders, all the way up the chain of command to the commander in chief, can be held liable for war crimes their inferiors commit if the commander knew or should have known they might be committed and did nothing to stop or prevent them.

Bush defensively denied that the United States engages in torture and foreswore authorizing it. But it has been well-documented that policies set at the highest levels of our government have resulted in the torture and cruel, inhuman and degrading treatment of U.S. prisoners in Iraq, Afghanistan and Guantánamo.

Indeed, Congress passed the Detainee Treatment Act in December, which codifies the prohibition in United States law against cruel, inhuman or degrading treatment or punishment of prisoners in U.S. custody. In his speech yesterday, Bush took credit for working with Senator John McCain to pass the DTA.

In fact, Bush fought the McCain "anti-torture" amendment tooth-and-nail, at times threatening to veto the entire appropriations bill to which it was appended. At one point, Bush sent Dick Cheney to convince McCain to exempt the CIA from the prohibition on cruel treatment, but McCain refused.

Bush signed the bill, but attached a "signing statement" where he reserved the right to violate the DTA if, as commander-in-chief, he thought it necessary.

Throughout his speech, Bush carefully denied his administration had violated any laws during its "tough" interrogations of prisoners. Yet, the very same day, the Pentagon released a new interrogation manual that prohibits techniques including "waterboarding," which amounts to torture.

Before the Supreme Court decided the Hamdan case, the Pentagon intended to remove any mention of Common Article 3 from its manual. The manual had been the subject of revision since the Abu Ghraib torture photographs came to light.

But in light of Hamdan, the Pentagon was forced to back down and acknowledge the dictates of Common Article 3.

Bush also seeks Congressional approval for his revised military commissions, which reportedly contain nearly all of the objectionable features of his original ones.

The President's speech was timed to coincide with the beginning of the traditional post-Labor Day period when Congress focuses on the November elections. The Democrats reportedly stand a good chance of taking back one or both houses of Congress. Bush fears impeachment if the Democrats achieve a majority in the House of Representatives.

By challenging Congress to focus on legislation about treatment of terrorists - which he called "urgent" - Bush seeks to divert the election discourse away from his disastrous war on Iraq.

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Willful Blindness

On Friday morning, as I traveled north on Interstate 5, I passed two tractor-trailers heading south toward the 32nd Street Naval Station in downtown San Diego. Each vehicle carried about 10 unmarked bombs; each bomb was approximately 15 feet long. Two military helicopters hovered low above each tractor-trailer, providing overhead escort.

I wondered where these bombs were headed. They must have been in a big hurry because they usually ship their bombs more covertly.

Israel had just put out an S.O.S. to the United States government to rush over several more bombs. "The decision to quickly ship the weapons to Israel was made with relatively little debate within the Bush administration," according to the New York Times. Although always well-equipped with sophisticated US-made weapons, Israel was evidently running out of munitions to drop on the Lebanese people.

Washington loses no opportunity to scold Iran and Syria for providing weapons to Hezbollah.

Yet during the Bush administration, from 2001 to 2005, Israel received $10.5 billion in Foreign Military Financing - the Pentagon's biggest military aid program - and $6.3 billion in US arms deliveries. Israel is the largest recipient of US foreign military assistance.

It is a violation of the US Arms Export Control Act to provide weapons to foreign countries that are not used for defensive purposes or to maintain internal security. During the last major Israeli incursion into Lebanon, in 1981, the Reagan administration cut off US military aid and arms deliveries for 10 weeks while it investigated whether Israel was using weapons for "defensive purposes."

Last week, both houses of Congress, mindful of the importance of retaining Jewish votes and campaign contributions, passed resolutions stating that Israel is acting in self-defense. The vote in the Senate was unanimous; the House vote was 410 to 8.

Walking in lockstep with Bush, neither resolution calls for a ceasefire. The Senate resolution praises Israel for its "restraint" and the House resolution "welcomes Israel's continued efforts to prevent civilian casualties."

US-provided Israeli bombs have killed nearly 400 Lebanese, the overwhelming majority innocent civilians. The bombing has displaced half a million people and caused an estimated $1 billion in damage.

After Israeli orders that people in southern Lebanon evacuate their homes, several vehicles filled with evacuating Lebanese civilians were bombed by the Israeli military.

An Israeli helicopter fired a missile at a white minibus carrying 19 people fleeing Tairi. Three people were killed and several wounded.

A green Mercedes with a family fleeing Mansuri was struck by an Israeli missile. Three lay dead, others severely injured. Eight-year-old Mahmoud Srour's face was burned beyond recognition.

As Zein al-Abdin Zabit evacuated with his wife and four sons, his white Nissan was hit by an Israeli missile. "It's nothing more than revenge, revenge on civilians," Zabit said as he lay in bed with broken ribs.

Human Rights Watch confirmed yesterday that Israel is using artillery-delivered cluster munitions in populated areas of Lebanon. "Cluster munitions are unacceptably inaccurate and unreliable weapons when used around civilians," said Kenneth Roth, executive director of Human Rights Watch. "They should never be used in populated areas."

The use of cluster munitions in populated areas in Iraq caused more civilian casualties than any other factor in the US-led coalition's major military operations in March and April 2003, killing and wounding more than 1,000 Iraqi civilians, HRW reported.

HRW photographed US-produced/US-supplied cluster bombs among the arsenal of Israel Defense Forces artillery teams stationed on the Israeli-Lebanese border during a July 23 research visit.

Independent journalist Dahr Jamail reported that the Lebanese Ministry of Interior has confirmed the Israelis have used the incendiary white phosphorous gas. This is a chemical weapon, much like napalm, that can burn right down to the bone. The US military used white phosphorous in Fallujah, Iraq.

Article 35 of Protocol I to the Geneva Conventions prohibits the use of weapons "of a nature to cause superfluous injury or unnecessary suffering." Cluster bombs and white phosphorous fall into this category.

Bilal Masri, assistant director of the Beirut Government University Hospital, told Jamail, "The Israelis are using new kinds of bombs, and these bombs can penetrate bomb shelters," Masri added. "They are bombing the refugees in the bomb shelters!"

Masri also said that 55 percent of the casualties are children under 15 years of age.

It is a violation of the laws of war to target civilians. "A fundamental rule of international humanitarian law is the obligation to distinguish between civilians and civilian property on one hand and military targets on the other," Nada Doumani, Middle East spokesperson for the International Committee of the Red Cross told Aljazeera.net. "Under no circumstances, can civilians and public and private property be deliberately attacked. All parties in the conflict have to abide by these rules."

Doumani quoted ICRC Director of Operations Pierre Krahenbuhl, who said: "The high number of civilian casualties and the extent of damage to essential public infrastructure raise serious questions regarding respect for the principle of proportionality in the conduct of hostilities."

Nearly every report from the corporate media seeks to find symmetry in this war. When an outlet covers the massive devastation in Lebanon and increasing numbers of Lebanese civilians killed by Israeli bombs, it is careful to juxtapose reports of Hezbollah rockets fired into Israel.

Jan Egeland, the United Nations emergency relief chief, however, called the "disproportionate response" by Israel to Hezbollah's actions "a violation of international humanitarian law." Egeland, who characterized the devastated areas of Lebanon as "horrific," said Israel is denying access to relief operations.

At least 384 people have been killed in Lebanon, including 20 soldiers and 11 Hezbollah fighters. Israel's death toll is at least 40, with 17 people killed by Hezbollah rockets and 23 soldiers killed in the fighting.

On Monday, a high-ranking Israeli Air Force officer told reporters that Israeli Defense Forces Chief of Staff Lt.-Gen. Dan Halutz had ordered the military to destroy 10 buildings in Beirut in retaliation for every Katyusha rocket strike on Haifa by Hezbollah.

Last week, several Jewish organizations and Christian Zionists lobbied the White House to support Israel.

Bush complied, giving Israel at least another week to continue slaughtering the Lebanese people.

While Bush stood by and watched the humanitarian catastrophe Israel is wreaking in Lebanon, Condoleezza Rice traveled there and met with Fuad Siniora, the Lebanese prime minister.

Rice's visit was an "important show of support for the Lebanese public and the Siniora government," a US official said Monday. The official told reporters traveling with Rice, "The fact we are going to go right into Beirut after all that has happened is a pretty dramatic signal to Lebanon and their government."

It would be much more dramatic for Bush-Rice to call a halt to the carnage. When Helen Thomas asked White House spokesman Tony Snow why the President opposed a ceasefire, he rudely thanked her for her "Hezbollah view."

Bush could stop Israel in its tracks with a snap of his fingers. But why would he? Israel is doing Bush's bidding - redrawing the map of the Middle East to facilitate US domination. Bush began that task with Iraq; Israel is following suit with Palestine and Lebanon.

Indeed, Bush is hoping Israel's next stop will be Iran or Syria. A July 21 list of talking points from the White House Office of the Press Secretary referred to a Los Angeles Times op-ed by Max Boot titled, "It's Time to Let The Israelis Take Off the Gloves."

The White House release contained this quote from Boot's piece: "Our best response is exactly what Bush has done so far - reject premature calls for a cease-fire and let Israel finish the job."

That quote was preceded by this language: "Iran may be too far away for much Israeli retaliation beyond a single strike on its nuclear weapons complex. (Now wouldn't be a bad time.) But Syria is weak and next door. To secure its borders, Israel needs to hit the Assad regime. Hard. If it does, it will be doing Washington's dirty work."

We turn a blind eye at our peril.

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