Torture Used to Try to Link Saddam with 9/11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Rounding Up U.S. Citizens

The Military Commissions Act of 2006 governing the treatment of detainees is the culmination of relentless fear-mongering by the Bush administration since the September 11 terrorist attacks.

Because the bill was adopted with lightning speed, barely anyone noticed that it empowers Bush to declare not just aliens, but also U.S. citizens, "unlawful enemy combatants."

Bush & Co. has portrayed the bill as a tough way to deal with aliens to protect us against terrorism.

Frightened they might lose their majority in Congress in the November elections, the Republicans rammed the bill through Congress with little substantive debate.

Anyone who donates money to a charity that turns up on Bush's list of "terrorist" organizations, or who speaks out against the government's policies could be declared an "unlawful enemy combatant" and imprisoned indefinitely. That includes American citizens.

The bill also strips habeas corpus rights from detained aliens who have been declared enemy combatants.

Congress has the constitutional power to suspend habeas corpus only in times of rebellion or invasion. The habeas-stripping provision in the new bill is unconstitutional and the Supreme Court will likely say so when the issue comes before it.

Although more insidious, this law follows in the footsteps of other unnecessarily repressive legislation. In times of war and national crisis, the government has targeted immigrants and dissidents.

In 1798, the Federalist-led Congress, capitalizing on the fear of war, passed the four Alien and Sedition Acts to stifle dissent against the Federalist Party's political agenda. The Naturalization Act extended the time necessary for immigrants to reside in the U.S. because most immigrants sympathized with the Republicans.

The Alien Enemies Act provided for the arrest, detention and deportation of male citizens of any foreign nation at war with the United States. Many of the 25,000 French citizens living in the U.S. could have been expelled had France and America gone to war, but this law was never used. The Alien Friends Act authorized the deportation of any non-citizen suspected of endangering the security of the U.S. government; the law lasted only two years and no one was deported under it.

The Sedition Act provided criminal penalties for any person who wrote, printed, published, or spoke anything "false, scandalous and malicious" with the intent to hold the government in "contempt or disrepute." The Federalists argued it was necessary to suppress criticism of the government in time of war. The Republicans objected that the Sedition Act violated the First Amendment, which had become part of the Constitution seven years earlier. Employed exclusively against Republicans, the Sedition Act was used to target congressmen and newspaper editors who criticized President John Adams.

Subsequent examples of laws passed and actions taken as a result of fear-mongering during periods of xenophobia are the Espionage Act of 1917, the Sedition Act of 1918, the Red Scare following World War I, the forcible internment of people of Japanese descent during World War II, and the Alien Registration Act of 1940 (the Smith Act).

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

One month after the terrorist attacks of September 11, 2001, United States Attorney General John Ashcroft rushed the U.S.A. Patriot Act through a timid Congress.

The Patriot Act created a crime of domestic terrorism aimed at political activists who protest government policies, and set forth an ideological test for entry into the United States.

In 1944, the Supreme Court upheld the legality of the internment of Japanese and Japanese-American citizens in Korematsu v. United States. Justice Robert Jackson warned in his dissent that the ruling would "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

That day has come with the Military Commissions Act of 2006. It provides the basis for the President to round- up both aliens and U.S. citizens he determines have given material support to terrorists. Kellogg Brown & Root, a subsidiary of Cheney's Halliburton, is constructing a huge facility at an undisclosed location to hold tens of thousands of undesirables.

In his 1928 dissent in Olmstead v. United States, Justice Louis Brandeis cautioned, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Seventy- three years later, former White House spokesman Ari Fleischer, speaking for a zealous President, warned Americans "they need to watch what they say, watch what they do."

We can expect Bush to continue to exploit 9/11 to strip us of more of our liberties. Our constitutional right to dissent is in serious jeopardy. Benjamin Franklin's prescient warning should give us pause: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

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Scapegoats in Terror War

The Moussaoui jury today enters its fifth day of deliberations on whether to execute the self-avowed conspirator in the September 11 attacks. After hours of graphic testimony and videotapes of the horrors on 9/11, as well as Moussaoui's confession, this should have been an open-and-shut case.

Yet the jury cannot ignore the fact that Zacarias Moussaoui is a paranoid schizophrenic. Moussaoui testified that he and would-be shoe-bomber Richard Reid were slated to fly a fifth airplane into the White House on September 11. But the FBI admitted there was no evidence that Reid had prior knowledge of 9/11, or that al-Qaeda had told him to work with Moussaoui.

Defense psychologist Xavier Amador testified that Moussaoui has firmly held delusional beliefs that George W. Bush will free him from prison and that his attorneys are conspiring to kill him.

In fact, Bush is surely delighted that it is Moussaoui, and not the real culprits responsible for the 9/11 attacks, who is on trial. If Bush's hired gun Alberto Gonzales were to charge Khalid Sheikh Mohammed or Mohammad al-Qahtani, both now in US custody, with crimes for their responsibility for those attacks, their statements would be inadmissible, because they were obtained by torture. Mohammed is the reputed mastermind of 9/11 and al-Qahtani is the alleged "20th hijacker."

So the best the Bush administration can do to seek justice is to prosecute a mentally ill marginal bit player who was in a Minnesota jail on September 11, 2001.

This is not the first time Team Bush has hidden behind a scapegoat.

Even though the prosecution had no direct evidence tying the Lackawanna Six to terrorist crimes, all six defendants pleaded guilty to crimes that brought them 6 1/2 years to 9 years in prison. The attorney general had threatened to charge them with being "enemy combatants" and ship them to Guantánamo, to be held indefinitely, with no trials and no access to lawyers or courts.

Bush & Co. has suffered a string of defeats in the "terror" cases it has attempted to prosecute.

Last year, a Florida jury acquitted a former professor charged with supporting Palestinian groups. The year before, an Idaho jury refused to convict a college student accused of aiding terrorists in Chechnya and Israel.

An Oregon lawyer arrested by the FBI two years ago was released after being held in custody for nearly three weeks. The FBI had linked him to the Madrid train bombings with a faulty fingerprint identification.

And a judge reversed the convictions of two Detroit men arrested the week after September 11, 2001, for planning a terrorist incident. The prosecutor had covered up the fact that its key witness admitted lying to the FBI.

After Jose Padilla had languished in custody with no charges for nearly three years, Bush finally charged him with a conspiracy unrelated to 9/11 or the "dirty bombing" that former Attorney General John Ashcroft had ceremoniously proclaimed shortly after Padilla's arrest. Afraid the Supreme Court would slap down the president for designating US citizens "enemy combatants," the Department of Justice sought to pre-empt an unfavorable ruling by charging Padilla with a crime.

On Friday, a federal judge rejected requests by the Justice Department to further limit the defense's use of the secret evidence the prosecution plans to employ against Padilla.

What about the so-called Bush "victory" in prosecuting Hamid Hayat of Lodi, California? The day after the jury's guilty verdict last week, one of the jurors said she had never believed that Hayat was guilty, and that she was pressured by other jurors into changing her vote. The case against Hayat relied on a paid FBI informant whose credibility was undermined at trial and on statements made by Hayat without his lawyer present. The interrogations were conducted in English, which Hayat does not fully understand. Hayat's lawyers said that detectives used leading questions and his statements were made under duress.

Hayat was prosecuted for providing material support to terrorists by attending a training camp in Pakistan. But the government presented no evidence that Hayat had planned or participated in any terrorist act, or that he had ever been in Pakistan.

Moreover, the material support statute under which Hayat was convicted has twice been declared unconstitutionally vague by the United States Court of Appeals for the Ninth Circuit, because it does not require proof of any overt act.

The federal judge who presided over Hayat's case declared a mistrial in the case of Hayat's father, who had been charged with lying to investigators in order to conceal his son's actions. After eight days of deliberations, jurors were unable to agree on his guilt.

Georgetown University law professor David Cole affirmed, "The government in the war on terrorism has generally swept broadly and put a high premium on convictions at any cost. That puts pressure on prosecutors - to overcharge, to coach witnesses, to fail to disclose exculpatory evidence."

The judge in Moussaoui's trial barred the government from seeking the death penalty after prosecutors refused to give the defense access to detained al Qaeda leaders to exonerate Moussaoui. Judge Leonie Brinkema's decision was overturned by the appeals court. Judge Brinkema nearly dropped the death penalty again after prosecutors improperly coached several witnesses.

Bush frequently declares that his administration is bringing the terrorists to justice. Yet his systematic use of torture on prisoners, a series of botched prosecutions, and pathetic scapegoats hardly inspire confidence in our chief executive.

Indeed, on Friday, the Justice Department admitted for the first time that it issued 9,254 subpoenas to banks, telephone companies and Internet providers last year, seeking information on 3,501 US citizens and legal residents. This should give us all pause. You or I could be next.

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Spinning Fear

The terror’s in the room.
- CBS Journalist Edward R. Murrow, 1954 (Good Night and Good Luck)

The only thing we have to fear is fear itself.
- Pres. Franklin D. Roosevelt, First Inaugural Address, Mar. 4, 1933


During the 1950’s, our government succumbed to the fear of Communism hyped by Senator Joseph McCarthy. People lost their jobs, lives were ruined, and many committed suicide in response to the “red scare.” Fear pervaded every facet of life, leading neighbors to inform on one another. CBS newscaster Edward R. Murrow was one of the few journalists who had the courage to stand up to the fear-mongering and bring the truth to the American people. Describing the omnipresent fear that the government was fostering, Murrow told his colleagues, “The terror’s in the room.”

It’s dejá vu with the Bush administration ensuring that terror is always in the room. Since Sept. 11, 2001, George W. Bush has successfully manipulated the memory of the terrorist attacks to maintain power and mute effective criticism of his dangerous and illegal policies.

Bush continues to exploit 9/11, and the media is complicit in the hype. Cable news stations keep us informed of an “elevated” terror alert level.

The month after the 9/11 attacks, former Attorney General John Ashcroft rammed The USA Patriot Act through a Congress terrified of looking soft on terror. That same Congress had rejected many of the act’s provisions months earlier because they threatened civil liberties.

Ashcroft warned that criticism of the government’s policies “only aids terrorists.” His successor, Alberto Gonzales, told the Senate Judiciary Committee last week, “We remain a nation at war.”

The war is in Iraq, created from whole cloth by George W. Bush. There were no terrorists in Iraq before Bush invaded that country, changed its regime and occupied its land. Now it is a breeding ground for terrorism.

Hundreds of men are being held like animals, tortured and abused in the US military prison at Guantánamo Bay. Only a handful of them have been charged with crimes. The despicable conditions there have caused many to participate in a hunger strike. Rather than suffer the embarrassment of dying prisoners, jailers have been force-feeding them. They tie the prisoners down and insert large, unsterilized tubes down their noses with no anesthesia. Some call it a form of torture.

Reports from Guantánamo and pictures of the torture of Iraqi prisoners by US forces at Abu Ghraib prison have also fanned the flames of anti-American sentiment.

Bush calls his illegal domestic surveillance by the National Security Agency the “Terrorist Surveillance Program.” Dick Cheney told PBS’ Jim Lehrer that “this program has saved thousands of American lives.” Yet there’s no way to prove – or disprove – Cheney’s claim.

The Washington Post reported that, of the thousands of calls Bush’s NSA program has intercepted, almost none relate to anything approximating terrorism.

The hallmark of the Bush administration is secrecy. CIA Director Porter Goss wrote in a recent op-ed in the New York Times, “Disclosure of classified intelligence inhibits our ability to carry out our mission and protect the nation.”

Yet, as whistleblower Sibel Edmonds pointed out recently, the 9/11 Commission concluded that only “publicity” could have prevented the attacks. Had Osama Bin Laden and Khalid Sheikh Mohammed known the so-called 20th hijacker Zacarias Moussaoui had been arrested, they would have called off the attacks. The 9/11 Commission sharply criticized the government for classifying too much information.

In 2003, the Bush administration rescinded Clinton’s rule that information should not be classified “if there is significant doubt” that releasing it would harm national security.

The deputy undersecretary of defense for counterintelligence and security testified at a March 2005 congressional hearing that 50 percent of the Pentagon’s information was over-classified; the head of the Information Security Oversight Office said it was “even beyond 50 percent.”

When whistleblowers and leakers reveal information critical of Bush policies, the administration mounts an attack on the messenger. In response to the New York Times report on the NSA spying program, the government launched an investigation to determine who leaked the information to the Times. When Gonzales tried to turn criticism of the program into an assault on the leakers, Senator Patrick Leahy declared, “Thank god we have press that tell us what you’re doing because you’re not telling us.”

After the Times carried its report of the NSA program, some senators refused to vote to renew provisions of the Patriot Act that were due to expire on December 31, 2005. A last-minute compromise was cobbled together to extend those provisions for five weeks.

Just as the five week period was about to run out, Bush announced with great fanfare that an October 2001 al Qaeda plan to attack the tallest building on the West Coast had been thwarted by an unnamed Southeast Asian country. Once again, we have no corroboration of the accuracy of Bush’s claim. His past lies lead many to question the truthfulness of his report.

Bush gave no credit to the NSA spying program. He most certainly would have if it had foiled the plot. The day after Bush’s “revelation,” Congress announced it had reached an agreement to make the Patriot Act permanent. Once again, the manipulation of fear succeeded in neutering the Congress.

Another example of the Bush administration’s selective revelations of its own secret information is the leaking of former CIA operative Valerie Plame’s name to journalists. The leak was strategically designed to punish Plame’s husband Joseph Wilson for blowing the whistle on Bush’s lies used to bolster support for his impending invasion of Iraq.

The most famous leaker in United States history is Daniel Ellsberg, who released the Pentagon Papers to the New York Times in 1971. Those documents revealed the lies and hypocrisy of US policy in Southeast Asia. In 2003, Ellsberg told Salon.com writer Michelle Goldberg, “We’re now in an aggressive, costly war. The While House had to lie about those policies to make them viable, and when you lie you have to keep the lies secret, you have to intimidate people who might be inclined to tell the truth, all that goes together. Why do they do it?,” he asked rhetorically. “Wilson and I have no trouble knowing why they did it. They don’t want people to act the way we do.”

Franklin D. Roosevelt assumed the mantle of President at the height of the Great Depression. People were broke, out of work, and afraid there might not be a next meal. Roosevelt told them, “The only thing we have to fear is fear itself – nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.” The people jumped on board with his New Deal, and pulled themselves out of the depression. FDR didn’t exploit people’s real fears. He courageously challenged them to face their fears and overcome them.

The Bush administration continues to perfect the art of terrifying. Many in Congress live in fear of losing their seats if they appear soft on terrorism.

But most Americans oppose Bush’s illegal Iraq war and his secret spying program. The power to stop this war and the assault on our civil liberties rests in the hands of the people. Congress is reactive. It reacts to Bush’s tactics of manipulation. But it will not be able to avoid reacting to an overwhelming call by the people to check the imperial executive.

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Bush Game on Padilla May Backfire

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Torture of Prisoners in U.S. Custody

Major General Geoffrey Miller, the American commander in charge of detentions and interrogations at Abu Ghraib prison in Iraq, recently conducted an overnight tour of the facility for journalists.

He proudly displayed "Camp Liberty" and "Camp Redemption," newly renovated in response to the torture scandal unleashed by the release of the disgusting photographs last spring.

Under the new system in place at Abu Ghraib, an interrogation plan is submitted to a lawyer for approval before any interrogation begins. The time required to process prisoners has been reduced from 120 to 50 days. Since July, 60% of the reviews have lead to releases.

Three hundred Iraqi prisoners were released on one day in September. Each walked away with $25 and a 12-page glossy pamphlet on Iraq's interim government.

General Miller, the tour guide, oversaw interrogations at the United States prison at Guantánamo Bay, Cuba. He had been sent to Abu Ghraib last fall to transfer his interrogation system from Cuba to Iraq. It was on his watch that the worst mistreatment, depicted in the publicized photos, occurred.

Several official reports were written with more disturbing revelations. The International Committee of the Red Cross documented 70 - 90 % of those held at Abu Ghraib were there by mistake.

The reaction of the Bush administration to the revelations of torture was to prosecute seven low ranking soldiers.

In spite of calls for investigation of Secretary of Defense Donald Rumsfeld and President George W. Bush for complicity in the mistreatment, the prison torture scandal has been on the back burner in the national discourse.

The September release of Seymour Hersh's book Chain of Command: The Road from 9/11 to Abu Ghraib, however, has put the issue back on the radar screen.

Rumsfeld testified before the Senate Armed Services Committee that his department was alerted to the abuse of prisoners at Abu Ghraib in January 2004. Rumsfeld told Bush in February about an "issue" involving mistreatment of prisoners in Iraq, according to a Senior White House aide.

These claims are disingenuous. The roots of Abu Ghraib, writes Hersh, lie in the creation of the "unacknowledged" special-access program (SAP) established by a top-secret order signed by Bush in late 2001 or early 2002. The presidential order authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world.

Rumsfeld expanded SAP into Iraq in August 2003. It was Rumsfeld who approved the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld and Bush set this system in motion long before January 2004. The mistreatment of prisoners at Abu Ghraib was part of the ongoing operation.

Hersch quotes a CIA analyst who was sent to the U.S. military prison at Guantánamo in late summer of 2002, to find out why so little useful intelligence had been gathered. After interviewing 30 prisoners, "he came back convinced that we were committing war crimes in Guantánamo."

By fall 2002, the analyst's report finally reached General John A. Gordon, the deputy national security adviser for combating terrorism, who reported directly to national security adviser Condoleezza Rice. Gordon was deeply distressed by the report and its implications for the treatment of captured American soldiers. He also thought "that if the actions at Guantánamo ever became public, it'd be damaging to the president."

Gordon passed the report to Rice, who called a high-level meeting in the White House situation room. Rumsfeld, who had been encouraging his soldiers to get tough with prisoners, was present at the meeting. Yet Rice asked Rumsfeld "what the issues were, and he said he hadn't looked into it." Rice urged him to look into it: "Let's get the story right," she declared.

A military consultant with close ties to Special Operations told Hersh that war crimes were committed in Iraq and no action was taken. "People were beaten to death," he said. "What do you call it when people are tortured and going to die and the soldiers know it, but do not treat their injuries?" the consultant asked rhetorically. "Execution," he replied to his own question.

We should have seen it coming. In Bush's January 2003 State of the Union Address, he said: "All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate." He added, "Let's put it this way. They are no longer a problem for the United States and our friends and allies."

Bush was admitting he had sanctioned summary execution, in direct violation of international, and United States, law.

The Bush administration has also admittedly engaged in the illegal practice of rendition, where people are sent to other countries to be tortured. The C.I.A. acknowledged in testimony before Congress that prior to 2001, it had engaged in about seventy "extraordinary renditions."

In December 2001, for example, American operatives kidnapped two Egyptians and flew them to Cairo, where they were subjected to repeated torture by electrical shocks from electrodes attached to their private parts.

Rape, sodomy with foreign objects, the use of unmuzzled dogs to bite and severely injure prisoners, and beating prisoners to death have been documented at Abu Ghraib. Women beg their families to smuggle poison into the prisons so they could kill themselves because of the humiliation they suffered.

Allegations of routine torture have emerged from Mosul and Basra as well. "Some were burnt with fire, others [had] bandaged broken arms," claimed Yasir Rubaii Saeed al-Qutaji. Haitham Saeed al-Mallah reported seeing "a young man of 14 years of age bleeding from his anus and lying on the floor." Al-Mallah heard the soldiers say that "the reason for this bleeding was inserting a metal object in his anus."

The army has charged one Sergeant with assault and other crimes, and is recommending that two dozen other American soldiers face criminal charges, including negligent homicide for mistreatment of prisoners in Afghanistan.

In September, three Americans running a private prison, but reportedly working with the CIA, were convicted of kidnapping and torture and sentenced to 8-10 years in prison by an Afghan court. Afghan police had reportedly found three men hanging from the ceiling, and five others were found beaten and tied in a dark small room.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty ratified by the U.S. and thus part of its binding domestic law, defines torture as follows: the infliction of severe pain or suffering for the purpose of obtaining a confession, discrimination, coercion or intimidation.

Torture, inhuman treatment, and willful killing are grave breaches of the Geneva Conventions, treaties ratified by the United States. Grave breaches of Geneva are considered war crimes under the U.S. War Crimes Act of 1996. American nationals who commit war crimes abroad can receive life in prison, or even the death penalty if the victim dies.

Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to prevent or stop them.

When John Walker Lindh was captured in Afghanistan in December 2001, his American interrogators stripped and gagged him, strapped him to a board, and displayed him to the press. He was writhing in pain from a bullet left in his body. A Navy admiral told the intelligence officer interrogating Lindh that "the secretary of defense's counsel has authorized him to 'take the gloves off' and ask whatever he wanted."

Although initially charged with crimes of terrorism carrying life in prison, Attorney General John Ashcroft permitted Lindh to plead guilty to lesser crimes that garnered him 20 years. The condition: Lindh make a statement that he suffered "no deliberate mistreatment" while in custody. The cover-up was underway.

Lawyers from the Defense Department and Justice Department penned lengthy memos and created a definition of torture much narrower than the one in the Torture Convention. They advised Bush how his people could engage in torture and avoid prosecution under the U.S. Torture Statute.

More than 300 lawyers, retired judges, and law professors (including this writer), a former FBI director, an ex-Attorney General, and seven past presidents of the American Bar Association, signed a statement denouncing the memos, which, we wrote, "ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law." The statement condemns the most senior lawyers in the Department of Justice, Department of Defense, White House, and Vice President Dick Cheney's office, who "have sought to justify actions that violate the most basic rights of all human beings."

Even the conservative American Bar Association (ABA) criticized what it called "a widespread pattern of abusive detention methods." Those abuses, according to the ABA, "feed terrorism by painting the United States as an arrogant nation above the law."

Relying on advice in these memos, Bush issued an unprecedented order that, as commander-in-chief, he has the authority to suspend the Geneva Conventions. In spite of Geneva's requirement that a competent tribunal decide whether someone qualifies for prisoner of war (POW) status, Bush took it upon himself to decide that Al Qaeda and Taliban prisoners in Afghanistan were not protected by the Geneva Convention on the POWs.

This decision was premised on the reasoning of White House Counsel Alberto Gonzalez [Bush's current nominee for Attorney General, ed.], that "the war against terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

A still-secret section of the recently-released U.S. Army's Fay Report says that "policies and practices developed and approved for use on Al Qaeda and Taliban detainees who were not afforded the protection of the Geneva Conventions, now applied to detainees who did fall under the Geneva Conventions' protections."

And Bush didn't take into account that even prisoners who don't are not POWs must still be treated humanely under the Geneva Convention on the Treatment of Civilians In Time of War.

The Schlesinger Report that came out within a day of the Fay Report accused the Pentagon's top civilian and military leadership of failing to exercise sufficient oversight and permitting conditions that led to the abuses. Rumsfeld's reversals of interrogation policy, according to the report, created confusion about which techniques could be used on prisoners in Iraq.

Rumsfeld has admitted ordering an Iraqi prisoner be hidden from the International Committee of the Red Cross. Pentagon investigators believe the CIA has held as many as 100 "ghost" detainees in Iraq. Hiding prisoners from the Red Cross violates Geneva.

The Schlesinger Report confirmed 5 detainee deaths as a result of interrogation, and 23 more deaths are currently under investigation.

The torture of prisoners in U.S. custody did not begin in Iraq, Afghanistan and Guantánamo. "I do not view the sexual abuse, torture and humiliation of Iraqi prisoners by American soldiers as an isolated event," says Terry Kupers, a psychiatrist who testifies about human rights abuses in U.S. prisons. "The plight of prisoners in the USA is strikingly similar to the plight of the Iraqis who were abused by American GIs. Prisoners are maced, raped, beaten, starved, left naked in freezing cold cells and otherwise abused in too many American prisons, as substantiated by findings in many courts that prisoners' constitutional rights to remain free of cruel and unusual punishment are being violated."

Torture techniques used in Iraq, Afghanistan, and Guantánamo are all too familiar in prisons in the U.S. as well. Hooded, robed figures with electrical wiring attached to them have been seen at the city jail in Sacramento, California. Prisoners in Maricopa County jails in Phoenix, Arizona have been forced to wear women's underwear. And guards in the Utah prison system have piled naked bodies in grotesque and uncomfortable positions.

The connection between mistreatment of prisoners here and abroad is even more direct than that. For example, John Armstrong ran Connecticut's Dept. of Corrections from 1995-2003, before being sent to Iraq as a prison adviser in September 2003. On his Connecticut watch, two mentally ill prisoners died while being restrained by guards. Two more inmates died in custody after guards mistreated them. And Armstrong made a remark once that equated the death penalty with euthanasia.

Speaking of the death penalty, the use of the gas chamber was challenged in California as cruel and unusual punishment, before the execution of Robert Alton Harris about 10 years ago. As a result California adopted the use of the lethal injection because it was more "humane" method of killing a person. Lawyers in Kentucky are now challenging the three-chemical cocktail used for lethal injections in many states as cruel and unusual. It took one man in Kentucky 12 minutes to die from the humane lethal injection.

In May 2000, the U.N. Committee Against Torture considered the United States' initial report on implementation of the Convention Against Torture. It expressed concern at torture and ill-treatment by prison guards - much of it racially motivated--and the sexual abuse of female prisoners by male guards. Human Rights Watch reports that sexual misconduct is rarely investigated, much less punished, and that punishments tend to be light.

Eight prison guards were acquitted of charges they subjected prisoners to cruel and unusual punishment by arranging gladiator-style fights among inmates, and setting up the rape of an inmate by a notoriously violent inmate known as the "Booty Bandit" at Corcoran State Prison in California.

Although Bush signed the Prison Rape Elimination Act of 2003, the law provides for no enforcement mechanism or cause of action for rape victims.

But prison guards have been convicted of organizing assaults on inmates in a federal prison in Florence, Colorado, and at Pelican Bay State Prison in California. The Department of Justice concluded that conditions at prisons in Newport, Arkansas are unconstitutional. And New Jersey prison guards reportedly brutalized over 600 prisoners.

A U.S. District Court Judge in California threatened to place the prisons into receivership if the Department of Corrections (DOC) didn't overhaul its internal disciplinary system. In response, the DOC has undertaken an independent Bureau of Review to ensure violations do not occur in the future.

In the wake of the September 11 attacks, more than 1200 Arab, Muslim, and South Asian men were rounded up in one of the most extensive incidents of racial profiling in the U.S. since the Japanese were interned during World War II. A December 2003 report by the Department of Justice's Office of the Inspector General investigated allegations of physical and verbal abuse of non-citizen prisoners by the Federal Bureau of Prisons' (BOP) Metropolitan Detention Center (MDC) in Brooklyn, NY.

BOP policy prohibits staff members from using brutality, physical violence, intimidation toward inmates, or any force beyond that which is reasonably necessary to subdue an inmate.

The report concluded that several MDC staff members slammed and bounced detainees into the walls, twisted or bent their arms, hands, wrists, or fingers, pulled their thumbs back, tripped them, and dragged them on the floor. It also found violations of BOP policy by verbal abuse as well.

In Estelle v. Gamble, the U.S. Supreme Court applied the Eighth Amendment's ban on cruel and unusual punishment to conditions of confinement that are incompatible with the evolving standards of decency that mark the progress of a maturing society.

The United Nations' Economic and Social Council promulgated the Standard Minimum Rules for the Treatment of Prisoners. The Supreme Court in Estelle specified that these rules should be included in the measurement of "evolving standards of decency."

The rules provide that corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman, or degrading punishments shall be completely prohibited as punishments for disciplinary actions.

Fyodor Dostoevsky once said, "The degree of civilization in a society can be judged by entering its prisons."

In May, when the Abu Ghraib scandal was on the front pages, there were demands for Rumsfeld to resign. But Cheney told Rumsfeld there would be no resignations. It was blatantly political. We're going to hunker down and tough it out, Cheney said, so as not to hurt Bush's chances for election in November.

In spite of George W. Bush's renunciation of the International Criminal Court, many people around the world are clamoring for Bush and his deputies to be held accountable for the widespread torture of prisoners in Iraq, Afghanistan, Guantánamo, and the CIA's secret prisons elsewhere. In the words of Yale law professor Bruce Ackerman: "It is one thing to protect the armed forces from politicized justice; quite another, to make it a haven for suspected war criminals."

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First They Came for Lynne Stewart

First they came for the communists, and I did not speak out--
because I was not a communist;
Then they came for the socialists, and I did not speak out--
because I was not a socialist;
Then they came for the trade unionists, and I did not speak out--
because I was not a trade unionist;
Then they came for the Jews, and I did not speak out--
because I was not a Jew;
Then they came for me--
and there was no one left to speak out for me.
-Pastor Martin Niemöller, 1945

Now they're coming for the lawyers, and we must all speak out.

Last Thursday, after 13 days of deliberations, prominent New York civil rights attorney Lynne Stewart was convicted of conspiracy, providing material support to terrorists, and defrauding the United States government. Her 7-month trial was held in the same federal courthouse where the Rosenbergs were tried for conspiracy to commit espionage more than 50 years ago. Stewart faces between 35 and 45 years in prison.

Stewart was indicted in March 2002. The indictment was based on governmental monitoring of conversations between Stewart and her client, Shiek Omar Abdel Rahman, which occurred two and a half years before the terrorist attacks of September 11, 2001.

Rahman is serving a life plus 65-year sentence for conspiring to bomb several New York City landmarks and soliciting crimes of violence against the U.S. military and Egyptian President Hosni Mubarak.

Beginning in 1997, the Bureau of Prisons, at the direction of the Attorney General, imposed special administrative measures (SAMs) on Rahman, limiting his access to the mail, the media, the telephone and visitors.

Stewart was obliged to sign an affirmation agreeing to be bound by the SAMs, before being allowed to see her client. She agreed "only to be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters" and not to "use my meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman."

The government charged that Stewart allowed the Arabic translator to read letters to Rahman regarding Islamic Group matters, and to conduct a discussion with Rahman regarding whether Islamic Group should continue to comply with a cease-fire in Egypt. It also alleged that Stewart concealed those discussions from prison guards, and announced to the media that Rahman had withdrawn his support for the cease-fire, in violation of the SAMs.

Stewart denied these allegations, and testified that she believed in good faith that relaying Rahman's statement calling for more consultation about the Egyptian cease-fire did not violate the SAMs. She said she was trying to have Rahman transferred to Egypt to serve his sentence by keeping him visible. Rahman is old, blind, does not speak English, and has been kept virtually incommunicado in a federal prison in Minnesota.

Her good-faith belief, Stewart tesfitied, was based on actions of former U.S. Attorney General Ramsey Clark, another of Rahman's attorneys. Clark also signed these SAMs, held press conferences, and conveyed Rahman's statements about Egyptian politics to the press. Yet, Clark was never prosecuted.

Clark, who testified for Stewart at her trial, told Amy Goodman of Democracy Now!, "I don't know of anything that Lynne did that I didn't do." He said, "This case would never have been brought except for the fear generated, and the advantage that the Bush administration was taking of it, by the events of September 11, 2001. In ordinary times and circumstances, it would be recognized that everything that Lynne did was exactly what an effective attorney representing a client zealously would be obligated to do."

At a 2002 conference, Stewart noted, "Usually if one breaks a Bureau of Prisons edict, one is told one can't visit the prison again, or one gets some sort of administrative slap on the wrist of some kind. One does not usually get indicted for aiding a terrorist organization."

Why did the government wait so long before indicting Lynne Stewart? According to Heidi Boghosian, executive director of the National Lawyers Guild, Stewart was a "prime target for the Attorney General, who needed desperately to show that the Justice Department was actively fighting terrorism."

When Stewart was indicted, John Ashcroft had arrested only one person since September 11 - John Walker Lindh. "By indicting Stewart," noted Boghosian, "Ashcroft effectively sent the dual message that he could indict other lawyers who represented clients with unpopular beliefs and that such clients do not deserve defense."

The same day Bush signed the USA Patriot Act into law, General Ashcroft announced an interim amendment to the Bureau of Prisons regulation, which took effect five days later, without the usual public comment period. It permits the Department of Justice (DOJ) unlimited and unreviewable discretion to eavesdrop on confidential attorney-client conversations of persons in custody, with no judicial oversight and no meaningful standards. It applies not only to convicted inmates, but to all persons in the custody of the DOJ, including pretrial detainees, material witnesses, and immigration detainees who have not been accused of any crime.

At a 2002 convention of the National Lawyers Guild, Stewart expressed alarm at what her indictment portends for the future of the attorney-client privilege and criminal defense. She said, "This is about protecting the right to defend. Once the attorney-client privilege is lost, there is no right to defend as we know it." Speaking about the government's monitoring of her conversations with her client, Stewart stated, "The question you should be asking is not what I was doing in that room, but what was the government doing in that room?"

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

Since September 11, those who question government policy have been, and will continue to be, branded "terrorist." Even though "terrorism" was not an element of any of the offenses with which Lynne Stewart was charged, and Osama bin Laden was not part of any of the charges, the prosecution was permitted to bring bin Laden's name into the trial.

A written threat from the Jewish Defense Organization was posted on the door to Stewart's home after 10 ½ days of jury deliberations in the trial. It referred to a message purporting "to reach out so the jurors understand what she is. And that's been done." The message gave Stewart's home address and said she "needs to be put out of business legally and effectively." It threatened to "drive her out of her home and out of the state." If this message did reach any jurors who were sitting on the fence, it may have pushed them over to the guilty side.

Stewart told Amy Goodman, "These SAMs said you know, 'If you break these regulations, you may be cut off from your client.' That was our greatest concern, that we would be cut off from the client. The idea of prosecution never entered our minds." Stewart continued, "I believe with my mind and heart that it was the right thing to do."

Lynne Stewart's indictment, and conviction, will also chill attorneys from taking on cases of unpopular clients. "The purpose of this prosecution," said Michael Ratner, president of the Center for Constitutional Rights, "was to send a message to lawyers who represent alleged terrorists that it's dangerous to do so."

Stewart's attorney, Michael Tigar, does not blame the jury for this injustice. "We have all in our lifetimes seen well-meaning juries get caught up in the media-dominated government rhetoric of their time, based mostly on fear," Tigar said after the verdicts were announced. "I do not criticize these jurors. I have every confidence this verdict will be set aside."

Lawyers representing Guantánamo detainees are being asked to sign agreements that their consultations with their clients will not be confidential. Tigar told Amy Goodman, "The only way that we will ever get to the bottom of the American concentration camp abuses at Gitmo and Abu Ghraib is if the lawyers for these prisoners are permitted to tell their stories to the world. If the government can shut off that communication, which they have attempted to do over and over and over again, these activities will continue in secret."

It is essential that people feel safe in these perilous times. But, as Supreme Court Associate Justice Sandra Day O'Connor wrote in a 1995 opinion, "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis." The confidential relationship between attorney and client sits at the heart of our criminal justice system. We must zealously guard it or we will all be at risk.

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Redefining Torture

The election's over, but the Bush spin machine goes on. In anticipation of hard questions Alberto Gonzales will face at his attorney general confirmation hearing in the Senate Judiciary Committee this week, Bush's lawyers are seeking to minimize the damage from the release of the torture memos in which Gonzales concurred.

Gonzales wrote a memo in January 2002 that proposed for the first time, "The war against terrorism is a new kind of war" and "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." Gonzales also designed the military commissions to deny due process to those who will face trials in them. (See my editorial, The Quaint Mr. Gonzales).

An August 2002 memo leaked during 2004 set the stage for the torture of prisoners in Iraq and Guantánamo Bay. It "helped provide an after-the-fact legal basis for harsh procedures used by the CIA on high-level leaders of Al Qaeda," according to the New York Times. In it, Bush's legal eagles defined torture so narrowly, the torturer would have to nearly kill the torturee in order to run afoul of the legal prohibition against torture. It said that to constitute torture, the pain caused by an interrogation must include injury such as death, organ failure, or serious impairment of body functions.

That memo also set forth the opinion that the laws prohibiting torture do "not apply to the President's detention and interrogation of enemy combatants," because he is Commander-in-Chief of the United States. And it posited various defenses to shield the President and his men from prosecution under the federal torture statute. The release of this memo, coupled with the repulsive torture photographs, launched a firestorm of criticism at the Bush administration.

The White House quickly disavowed the memo as the work of a small group of Justice Department lawyers. But the Washington Post reported that "administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel's office and Vice President Cheney's office." According to Newsweek, the memo "was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and [Cheney counsel] David Addington." Haynes is one of Bush's judicial nominees who was not approved by the Senate; Bush, however, has resubmitted Haynes' name to the Senate, hoping Republican senators will engage in the unprecedented destruction of the filibuster.

Now, on the threshold of Senate hearings to confirm Alberto Gonzales as Attorney General, Justice Department lawyers have redefined torture in a new memo meant to supersede the embarrassing August 2002 memo.

The new memo, dated December 30, 2004, begins with the admirable statement: "Torture is abhorrent both to American law and values and to international norms." Although undoubtedly aware of the abhorrent nature of torture back in 2002, the old memo's authors launched right into narrowing the definition of torture in its first paragraph. They didn't bother to mention that it is repulsive to the people.

In the fourth paragraph of the 17-page December memo, its authors say: "This memorandum supersedes the August 2002 Memorandum in its entirety."

When the August 2002 memo came to light, it provoked such an outcry, Gonzales stepped up to the political damage control plate, and dubbed the Commander-in-Chief section "unnecessary." Gonzales' damage control statement has now been codified in the December memo. It says: "Because the discussion in that [August 2002] memorandum concerning the President's Commander-in-Chief power and the potential defenses to liability was - and remains - unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States personnel not engage in torture."

What a relief! But wait. The new memo doesn't actually say the President doesn't have unlimited power to defy our torture laws. It begs the question by saying it's "unnecessary" to deal with the broader legal issue because Bush has commendably declared that U.S. personnel should not commit torture.

The myriad reports, photographs, and testimonials that document widespread torture by U.S. personnel, however, show that Bush's directive has been ignored. So the scope of possible defenses to torture prosecutions would indeed be relevant.

What the new memo does do is modify the definition of torture. "We disagree with statements in the August 2002 Memorandum," writes Daniel Levin, Acting Assistant Attorney General and lead author of the December memo, "limiting 'severe' pain under the [federal torture] statute to 'excruciating and agonizing' pain, or to pain 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'"

The new definition of torture is much broader, making it easier to maintain a criminal prosecution under the torture statute. In fact, it says "great care must be taken to avoid approving as lawful any conduct that might constitute torture."

Acknowledging that "despite extensive efforts to develop objective criteria for measuring pain, there is no clear, objective, consistent measurement," the new memo, contrary to the August 2002 memo, concludes that "severe physical suffering" may sometimes constitute torture even if it does not involve "severe physical pain." But to constitute torture, writes Levin, "'severe physical suffering' would have to be a condition of some extended duration or persistence as well as intensity."

The August 2002 memo, consistent with the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, required that the act actually result in the infliction of severe physical or mental pain or suffering, in order to amount to torture. The new memo, citing the federal torture statute, denies it is necessary to show actual infliction; an act committed with the specific intent to inflict severe pain or suffering is sufficient to sustain a criminal prosecution for torture.

Finally, the new memo admits that a defendant's motive to protect national security will not shield him from a torture prosecution. This directly contradicts the August 2002 memo's analysis of the necessity defense, which, it said, could defeat a torture charge if the defendant's acts constituted a lesser evil than the evil of terrorism.

Michael Ratner, president of the Center for Constitutional Rights, which represents some of the detainees, said the repudiation of the earlier memo confirms that the Gonzales nomination should be withdrawn.

"The first [August 2002] memo took us back to the Middle Ages and so it first makes you say, what are we doing putting this guy in as attorney general of the United States," Ratner said.

John Ashcroft was widely criticized for his attacks on civil liberties. Democratic senators will challenge Alberto Gonzales on his apologies for torture and other repressive policies. One would hope they do not see Gonzales as a lesser evil than the harsh Mr. Ashcroft.

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The Quaint Mr. Gonzales

Most Republicans and many Democrats have hailed Bush's nomination of White House counsel Alberto Gonzales for attorney general as a brilliant choice. Whereas John Ashcroft ruffled feathers with his coarse warnings that opponents of Bush's post-9/11 agenda "only aid terrorists," the soft-spoken Gonzales is much more palatable. And he's Hispanic to boot, so the Bush cabinet diversity quotient won't change when Colin Powell steps aside in the second term. Some Democrats will ask tough questions during Gonzales's confirmation hearing. But it would be unseemly for Democrats to seriously challenge the nomination of the first Latino Attorney General of the United States.

The right-wing Republicans who propelled Bush to a second term are relieved Gonzales was tapped to head the Department of Justice, and not to be a justice of the Supreme Court. Gonzales's views on abortion are too liberal for them, but they don't see him doing damage to their "pro-life" position as the nation's top cop. Tom Minnery, vice president for public policy at the Colorado-based Focus on the Family, confirmed that Gonzales would be objectionable as a judicial nominee because he does not have "strong pro-life beliefs." However, Minnery's group would support Gonzales's appointment as attorney general.

But the New York Times reports that Republicans close to the White House claim the nomination of Gonzales for attorney general is "part of a political strategy to bolster Mr. Gonzales's credentials with conservatives and position him for a possible Supreme Court appointment." One Republican said the nomination hearings on Gonzales would also "get out of the way" the debate over the legal memos Gonzales prepared and supervised as White House counsel.

Notwithstanding his mild-mannered appearance, Gonzales is the iron fist in the velvet glove. Gonzales, whom Bush affectionately calls "mi abogado" ("my lawyer"), wrote one of the most outrageous torture memos. On January 25, 2002, Gonzales advised Bush that "the war on terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva's strict limitation on questioning of enemy prisoners and renders some of its provisions quaint."

Oh really? The "quaint" Geneva Conventions are treaties ratified by the United States, and therefore part of the supreme law of the land under our Constitution.

Gonzales also provided Bush with novel defenses against potential war crimes prosecutions that might result from torturing prisoners captured in Afghanistan. The 1996 War Crimes Act says that grave breaches of the Geneva Conventions are war crimes. Thus, the definition of war crimes includes torture, inhuman treatment, and willful killing, as well as outrages against personal dignity. Gonzales advised Bush that he could avoid allegations of war crimes by simply declaring that Geneva doesn't apply to the war against the Taliban and Al Qaeda in Afghanistan.

When Colin Powell saw Gonzales's memo, he reportedly "hit the roof." Powell wrote a counter-memo to Gonzales and Condoleezza Rice, warning of the immense damage this could do to the United States - legally, politically, militarily, diplomatically, and morally. To declare that the Geneva Conventions did not apply, Powell wrote, "will reverse over a century of U.S. policy and practice in supporting the Geneva conventions, and undermine the protection of the law of war for our troops, both in this specific conflict and in general."

Powell was right. The Geneva Conventions contain no loopholes that would allow the torture and inhuman treatment of prisoners. Even if a captive did not qualify for prisoner-of-war status under the Third Geneva Convention, he would be protected by the Fourth Geneva Convention on the treatment of civilians during wartime. And article 3 of both conventions prohibits torture, and humiliating and degrading treatment against anyone who is no longer fighting. It is well-established that article 3 applies to international, as well as internal, conflicts.

Bush didn't listen to Powell. On February 7, 2002, Bush declared that Geneva would not apply to Al Qaeda. He added that he had "the authority to suspend Geneva as between the United States and Afghanistan," but declined to exercise it at that time. Geneva "will apply to our present conflict with the Taliban," Bush said. But then, in a striking example of double-speak, he determined they were "unlawful combatants," ineligible for hearings to decide whether they were prisoners-of-war under the Third Geneva Convention. (Under the terms of Geneva, only a "competent tribunal" can make that determination). Bush also proclaimed that article 3 of Geneva didn't apply to either Al Qaeda or the Taliban prisoners.

After the pornographic torture photos, and memos justifying torture, leaked out last April, it was Gonzales who was charged with damage control. While being run out of town, Gonzales made it look like a parade by releasing more memos - though not all of them, then admitting to reporters that Team Bush "felt that it was harmful to this country, in terms of the notion that perhaps we may be engaging in torture."

Another controversial memo, dated August 1, 2002, from the Justice Department's Office of Legal Counsel to Gonzales, was one of the leaked documents. It opined that under the president's powers as commander in chief, interrogators who torture Al Qaeda or Taliban prisoners could be exempt from torture prosecutions.

Gonzales, still trying to stem the rising tide of outrage, said the August memo and another one from the Pentagon had only been meant to "explore the limits of the legal landscape." To his knowledge, said Gonzales, they "never made it to the hands of soldiers in the field, nor to the president."

In his January 25, 2002 memo, Gonzales also outlined plans to use military commissions to try prisoners, in order to deny them due process protections afforded by military and civilian courts. In a significant defeat for the Bush administration, a federal district court judge in Washington D.C. ruled earlier this week that the military commissions violate the Geneva Conventions, and were unlawfully constituted because Congress had not authorized them. The military commissions have been suspended indefinitely.

Gonzales's sordid record goes beyond his apologies for torture of prisoners. 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.

Moreover, Gonzales helped write the USA Patriot Act, and managed Bush's selection of judicial nominees, most of whom had to pass a right-wing ideological litmus test. (See my editorial, Bush's Judges: Right-Wing Ideologues.)

When Gonzales was Chief Justice of the Texas Supreme Court, Dick Cheney's Halliburton was the second-largest corporate contributor to Texas Supreme Court races. Over a seven-year period, five Halliburton cases went before that court, and it consistently ruled in favor of Halliburton. And although Gonzales lawfully accepted $14,000 from Enron, he did not recuse himself from the administration's investigation of the Enron scandal when he was White House counsel.

From 2000 to the present, Gonzales led the Bush administration's obstruction of Government Accountability Office access to documents from Cheney's secret energy policy meetings.

Alberto Gonzales has been a loyal foot soldier, walking in lockstep with George W. Bush, for years. As head of the Justice Department, we cannot expect Gonzales to lead independent investigations of the widening probe of Halliburton, or the illegal leak of the identity of a CIA agent by an official of the Bush administration.

In spite of opposition to Gonzales's nomination by public interest groups such as the Center for Constitutional Rights and Human Rights Watch, Democratic Senator Joseph Biden said "I think he's a pretty solid guy."

Unless the Democrats in the Senate show some backbone, and block the nomination of Alberto Gonzales with the only arrow left in their quiver - the filibuster, we will be saddled with another attorney general who mounts vicious assaults on our civil rights.

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Bush Gets 'F' in Civil Rights

While many of our citizens prosper, others doubt the promise, even the justice, of our own country. The ambitions of some Americans are limited by failing schools and hidden prejudice and the circumstances of their birth ... We do not accept this, and we will not allow it ... And this is my solemn pledge: I will work to build a single nation of justice and opportunity...
- President George W. Bush, Inaugural Address, Jan. 20, 2001.

George W. Bush has betrayed this promise, according to a 180-page draft report of the U.S. Commission on Civil Rights, Redefining Rights in America - The Civil Rights Record of the George W. Bush Administration, 2001-2004.

Bush rarely uses the terms "civil rights," "diversity," or "discrimination." When he does, it's usually in reference to a historical celebration or holiday. "The dearth of substantive presidential statements reveals that civil rights is not a priority for this administration," according to the draft report.

Even when Bush does state a commitment to the protection of civil rights, his actions belie his rhetoric. The draft report "finds that President Bush has neither exhibited leadership on pressing civil rights issues, nor taken actions that matched his words." Bush "has not defined a clear agenda nor made civil rights a priority." The net increase in Bush's requests for civil rights enforcement agencies was "less than those of the previous two administrations."

It is not surprising that the Republicans on the Civil Rights Commission have resisted the release of the report until after the November election. They were rebuffed, however, in their attempt to remove the draft report from the website.

The draft report finds: "President Bush does not speak about civil rights initiatives often, but when he does he promotes the faith-based program more than any other. He has presented the initiative as an end to discrimination against religious organizations, using terms such as 'remove barriers,' 'equal access,' and 'equal treatment,' which convey that such programs have civil rights relevance. In reality, the program does not remove barriers to discrimination. On the contrary, it allows religious organizations that receive public funds to discriminate against individuals based on religion in employment."

Whereas the leaders of the Civil Rights Movement in the 1950s and 1960s, and César Chávez with the United Farmworkers Union, used faith to sustain them, Bush uses it as a bludgeon. Bush's faith actually undermines the protection of civil rights. This agenda comes through loud and clear in the draft report: "The faith-based initiative, a so-called civil rights action, actually constitutes a retreat, not an advancement from employment discrimination," especially against gays and lesbians.

Instead of leading him to protect civil rights, Bush's faith has victimized the most vulnerable among us. In nearly every category of civil rights analyzed in the draft report, Bush receives a failing grade. His record is abysmal in education, fair housing, voting, gay and lesbian rights, affirmative action, environmental justice, racial profiling, protection of disadvantaged groups, and judicial nominations.

Equal Educational Opportunity

Bush frequently touts the No Child Left Behind Act (NCLB), which he widely promoted, and which garnered bipartisan support. "Despite its worthy goals, however," the draft report says, "NCLB has flaws that will inhibit equal educational opportunity and limit its ability to close the achievement gap." For example, "NCLB does not sufficiently address unequal education, a major barrier to closing the achievement gap between minority and white students." Furthermore, Bush did not exhibit leadership to make sure NCLB was sufficiently funded, "leaving state and local school boards, teachers, and administrators without the resources to comply with the law."

Fair Housing

"Policies instituted under the Bush administration have diminished housing opportunities for poor, disproportionately minority families," the draft report concludes.

Election Reform

In spite of the national angst over the 2000 presidential election process, and Bush's promise "to unite the nation and improve its election system, the President has failed to act swiftly toward election reform," finds the draft report. "As a result of the President's inaction, little will change before the 2004 elections, and the problems that linger, unless resolved, will most likely disenfranchise some eligible voters." Indeed, evidence has emerged that raises the specter of widespread violation of voter rights. (See truthout's Voter Rights page.)

Christopher Edley, Jr., dean of Boalt Hall School of Law at UC Berkeley, and member of the Civil Rights Commission, documented voter suppression and disenfranchisement "approaching a torrent" in a recent article in Newsday. "The U.S. Commission on Civil Rights, on which I sit," wrote Edley, "has heard many hours of testimony on these abuses, and civic groups are sounding alarms. Dismayingly, Attorney General John Ashcroft has not met the rising flood of examples with high-profile investigations and criminal indictments. Instead," noted Edley, "state and local officials face little more than embarrassment in the media."

Gay and Lesbian Rights

Although Bush appointed some gay rights supporters to Cabinet and administrative positions, he "has stated unequivocal support for a constitutional amendment banning same-sex marriages. If passed," states the draft report, "the amendment would be the first in U.S. history to limit rather than preserve and expand the rights of a group."

Affirmative Action

The draft report concludes that Bush's "stance on affirmative action is equivocal at best ... He has not exhibited strong leadership on this issue where leadership is vital." While celebrating diversity, Bush's administration filed a brief with the Supreme Court opposing university policies that allow race to be considered as one factor to promote diversity in college admissions. "To speak about the importance of diversity without acknowledging the role of affirmative action or the need for comprehensive data is to disregard the remaining vestiges of discrimination," wrote the authors of the draft report.

Environmental Justice

Minority and low-income populations are disproportionately affected by environmental pollutants. Toxic waste dumps are frequently located in neighborhoods populated mostly by people of color. Yet, under the Bush administration, the Environmental Protection Agency "has taken few actions to ensure that minority and low-income persons are not disparately affected by environmental contamination and has failed to develop a standard for assessing how exposure to hazards affects public health," the draft report reads.

Racial Profiling

Early in his term, Bush promised to end racial profiling. He issued guidelines to prohibit racial profiling in federal law enforcement. However, after the September 11 attacks, Bush's attorney general rounded up immigrants of Arab, Muslim and South Asian descent. These men were not suspected of criminal activity, but were targeted solely on the basis of their national origin. "Many detainees alleged mistreatment by prison guards, including being hosed down with cold water, strip searched, forced to sleep upright in freezing conditions, denied food or legal representation, and kept in their cells for long periods."

Immigrants

The draft report examines three Bush administration proposals on immigration. "All lack strong civil rights protections for immigrants," it finds. "President Bush has endorsed policies that allow discrimination against certain groups in the processing of asylum applications," for example, Haitians.

Native Americans

"President Bush has acknowledged the great debt America owes to Native Americans. However, his words have not been matched with action." He has not requested sufficient funding for tribal colleges and universities, Native American health care, or housing programs. "In 2003," according to the draft report, "President Bush terminated funding for critical law enforcement programs, including the Tribal Drug Court Program. Experts agree that problems with the criminal justice system in Indian Country are serious and understated." Bush's "lack of commitment to the nation's trust responsibility to Native Americans ensures that their education, housing, and law enforcement conditions remain substandard."

Women

"President Bush's record on women's issues is mixed. Economic gains for which he has paved the way are overshadowed by other actions that have set back women's rights." His administration launched a program to improve women's access to capital by creating a Web site and conferences, but abolished the Department of Labor's Equal Pay Initiative. Bush "attempted to redirect Title IX enforcement, but ceased his effort after overwhelming public expressions of support for the law." The draft report didn't mention that the Bush administration has resisted the ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, which has been ratified by 177 countries, including more than 90 percent of the member states of the U.N.

Judicial Nominations

"Many of his nominees and appointees do not support civil rights protections. The effect may be eventual weakening of civil rights law," according to the draft report. It cites objections from myriad civil rights organizations to several of Bush's nominees, "claiming that the administration is trying to pack the judiciary with anti-civil rights ideologues."

The Disabled

The Bush administration has implemented some programs to benefit the disabled, including an initiative to integrate disabled persons into the labor force, and proposed funding for it. The draft report finds that although it is "too soon to measure the ultimate impact of the administration's efforts, the disability rights community has embraced them."

Bush Betrayed His Promise of Justice and Opportunity

Bush has excluded civil rights leaders from policy discussions and refrained from soliciting input from anyone other than his own close circles, according to the draft report. When challenged on his civil rights record, Bush simply points to African-Americans Colin Powell and Condoleezza Rice and that ends the discussion.

"Under Attorney General Ashcroft, the Department of Justice's enforcement of civil rights has become less vigorous, indeed almost passive, and the pursuit of civil rights cases has waned significantly," the draft report finds.

It concludes: "The administration's statements frequently do not match its actions. Its civil rights promises often suffer for lack of funding and ineffective implementation." Bush has significantly reduced funding for programs that benefit low-income individuals and minority communities. "Failing to build on common ground, the Bush administration missed opportunities to build consensus on key civil rights issues and has instead adopted policies that divide Americans."

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Bush & Co: War Crimes and Cover-Up

As the election approaches, we are bombarded with stories about swift boats, dereliction of duty, and who's the most macho leader. Missing from the discourse is a critical examination of why George W. Bush failed to heed warnings before September 11, why he sat paralyzed for 7 minutes after being informed of the attacks, how he subsequently turned Iraq into a deadly cauldron, and committed - then covered up - war crimes in Afghanistan, Guantánamo and Iraq.

The central theme of the Republican Convention was Bush's bona fides as a tough president who will save us from another terrorist attack. Instead of examining why we went to war with a country that posed no threat to us, the agenda was replete with rhetoric about fighting the terrorists in Iraq so we wouldn't have to fight them here.

Significantly absent from the patriotic speeches was the "t" word. Not even a brief acknowledgement that prisoners in American custody were mistreated. Torture is on the back burner. Every so often, another official report comes out, with more disturbing revelations, but never directly implicates Bush, Cheney or Rumsfeld.

Even the release of Seymour Hersh's new book, Chain of Command: The Road from 9/11 to Abu Ghraib, has garnered scant attention in the daily fare of television staples, where most Americans get their news. But Rumsfeld noticed. Four days before the book's release, without having read it, the Department of Defense issued a rare but characteristically preemptive attack on the book.

Rumsfeld testified before the Senate Armed Services Committee that his department was alerted to the abuse of prisoners at Abu Ghraib in January 2004. Rumsfeld told Bush in February about an "issue" involving mistreatment of prisoners in Iraq, according to a Senior White House aide.

These claims are disingenuous. The roots of Abu Ghraib, writes Hersh, lie in the creation of the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. The presidential order authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world.

Rumsfeld expanded SAP into Iraq in August 2003. It was Rumsfeld who approved the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld and Bush set this system in motion long before January 2004. The mistreatment of prisoners at Abu Ghraib was part of the ongoing operation.

Hersch quotes a CIA analyst who was sent to the U.S. military prison at Guantánamo in late summer of 2002, to find out why so little useful intelligence had been gathered. After interviewing 30 prisoners, "he came back convinced that we were committing war crimes in Guantánamo."

By fall 2002, the analyst's report finally reached Gen. John A. Gordon, the deputy national security adviser for combating terrorism, who reported directly to national security adviser Condoleezza Rice. Gordon was deeply distressed by the report and its implications for the treatment of captured American soldiers. He also thought "that if the actions at Guantánamo ever became public, it'd be damaging to the president."

Gordon passed the report to Rice, who called a high-level meeting in the White House situation room. Rumsfeld, who had been encouraging his soldiers to get tough with prisoners, was present at the meeting. Yet Rice asked Rumsfeld "what the issues were, and he said he hadn't looked into it." Rice urged him to look into it: "Let's get the story right," she declared.

A military consultant with close ties to Special Operations told Hersh that war crimes were committed in Iraq and no action was taken. "People were beaten to death," he said. "What do you call it when people are tortured and going to die and the soldiers know it, but do not treat their injuries?" the consultant asked rhetorically. "Execution," he replied to his own question.

We should have seen it coming. In Bush's January 2003 State of the Union Address, he said: "All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate." He added, "Let's put it this way. They are no longer a problem for the United States and our friends and allies."

Bush was admitting he had sanctioned summary execution, in direct violation of international, and United States, law.

The Bush administration has also admittedly engaged in the illegal practice of rendition, where people are sent to other countries to be tortured. The C.I.A. acknowledged in testimony before Congress that prior to 2001, it had engaged in about seventy "extraordinary renditions."

In December 2001, American operatives kidnapped two Egyptians and flew them to Cairo, where they were subjected to repeated torture by electrical shocks from electrodes attached to their private parts.

Rapes, sodomy with foreign objects, the use of unmuzzled dogs to bite and severely injure prisoners, and beating prisoners to death have been documented at Abu Ghraib. Women beg their families to smuggle poison into the prisons so they can kill themselves because of the humiliation they suffered.

Allegations of routine torture have emerged from Mosul and Basra as well. "Some were burnt with fire, others [had] bandaged broken arms," claimed Yasir Rubaii Saeed al-Qutaji. Haitham Saeed al-Mallah reported seeing "a young man of 14 years of age bleeding from his anus and lying on the floor." Al-Mallah heard the soldiers say that "the reason for this bleeding was inserting a metal object in his anus."

The army has charged one Sergeant with assault and other crimes, and is recommending that two dozen American soldiers face criminal charges, including negligent homicide for mistreatment of prisoners in Afghanistan.

Last week, three Americans, running a private prison, but reportedly working with the CIA, were convicted of kidnapping and torture and sentenced to 8-10 years in prison by an Afghan court. Afghan police had discovered three men hanging from the ceiling, and five others were found beaten and tied in a dark small room.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty ratified by the U.S. and thus part of our binding domestic law, defines torture as follows: the infliction of severe pain or suffering for the purpose of obtaining a confession, discrimination, coercion or intimidation.

Torture, inhuman treatment, and willful killing are grave breaches of the Geneva Conventions, treaties ratified by the United States. Grave breaches of Geneva are considered war crimes under our federal War Crimes Act of 1996. American nationals who commit war crimes abroad can receive life in prison, or even the death penalty if the victim dies. Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to prevent or stop them.

When John Walker Lindh was captured in Afghanistan in December 2001, his American interrogators stripped and gagged him, strapped him to a board, and displayed him to the press. He was writhing in pain from a bullet left in his body.

Although initially charged with crimes of terrorism carrying life in prison, John Ashcroft permitted Lindh to plead guilty to lesser crimes that garnered him 20 years. The condition: Lindh make a statement that he suffered "no deliberate mistreatment" while in custody. The cover-up was underway.

Lawyers from the Defense and Justice Departments penned lengthy memos and created a definition of torture much narrower than the one in the Torture Convention. They advised Bush how his people could engage in torture and avoid prosecution under the federal Torture Statute.

Relying on advice in these memos, Bush issued an unprecedented order that, as commander-in-chief, he has the authority to suspend the Geneva Conventions. In spite of Geneva's requirement that a competent tribunal decide whether someone qualifies for POW status, Bush took it upon himself to decide that Al Qaeda and Taliban prisoners in Afghanistan were not protected by the Geneva Convention on the POWs.

This decision was premised on the reasoning of White House Counsel Alberto Gonzalez, that "the war against terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." Quaint!

A still-secret section of the recently-released Fay Report says that "policies and practices developed and approved for use on Al Qaeda and Taliban detainees who were not afforded the protection of the Geneva Conventions, now applied to detainees who did fall under the Geneva Conventions' protections."

The Schlesinger Report that came out a few weeks ago accused the Pentagon's top civilian and military leadership of failing to exercise sufficient oversight and permitting conditions that led to the abuses. Rumsfeld's reversals of interrogation policy, according to the report, created confusion about which techniques could be used on prisoners in Iraq.

Rumsfeld has admitted ordering an Iraqi prisoner be hidden from the International Committee of the Red Cross. Pentagon investigators believe the CIA has held as many as 100 "ghost" detainees in Iraq. Hiding prisoners from the Red Cross violates Geneva.

The Schlesinger Report confirmed 5 detainee deaths as a result of interrogation, and 23 more deaths are currently under investigation.

In May, when the Abu Ghraib scandal was on the front pages, there were demands for Rumsfeld to resign. But Cheney told Rumsfeld there would be no resignations. It was blatantly political. We're going to hunker down and tough it out, Cheney said, so as not to hurt Bush's chances for election in November.

Maj. Gen. Geoffrey Miller, the American commander in charge of detentions and interrogations at Abu Ghraib prison, was sent from Guantánamo to Iraq last fall to transplant his harsh interrogation techniques. Miller recently conducted an overnight tour of Abu Ghraib for journalists.

He proudly displayed "Camp Liberty" and "Camp Redemption," newly renovated in response to the torture scandal.

Under the new system in place at Abu Ghraib, an interrogation plan is submitted to a lawyer for approval before any interrogation begins. The time required to process prisoners has been reduced from 120 to 50 days. Since July, 60% of the reviews have led to releases.

Three hundred Iraqi prisoners were released Wednesday. Each walked away with $25 and a 12-page glossy pamphlet on Iraq's interim government.

But evidence of war crimes by the Bush administration - notably Rumsfeld, Cheney and Bush - continues to emerge. And in spite of Bush's renunciation of the International Criminal Court, many people around the world are clamoring for Bush and his deputies to be held accountable. In the words of Yale law professor Bruce Ackerman: "It is one thing to protect the armed forces from politicized justice; quite another, to make it a haven for suspected war criminals."

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