The Torture Tape Cover-up: How High Does It Go?

When the hideous photographs of torture and abuse emerged from Abu Ghraib in the spring of 2004, they created a public relations disaster for the Bush administration. The White House had painstakingly worked to capitalize on the 9/11 attacks by creating a "war on terror." Never mind the absurdity of declaring war on a tactic. Central to Bush's new "war" was the portrayal of us as the good guys and al Qaeda, the Taliban, and Saddam Hussein as the bad guys.

But the Abu Ghraib photos of naked Iraqis piled on top of one another, forced to masturbate, led around on leashes like dogs shined the light on U.S. hypocrisy.

After the Abu Ghraib revelations, the Bush administration could not tolerate more bad publicity. So in 2005, the CIA destroyed several hundred hours of videotapes depicting torturous interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri, probably including water boarding. The former U.S. official involved in discussions about the tapes reported widespread concern that "something as explosive as this would probably get out," according to the Los Angeles Times. This destruction of evidence may violate several laws. And it remains to be seen how high up the chain of command the criminality goes.

Now that the videotape scandal has come to light, Bush and his men are back in damage control mode. CIA Director Michael Hayden minimized the significance of the destruction, claiming the tapes were destroyed "only after it was determined they were no longer of intelligence value and not relevant to any internal, legislative or judicial inquiries." These claims are disingenuous.

The tapes likely portray U.S. officials engaged in torture, which violates three U.S.-ratified treaties as well as the U.S. Torture Statute and the War Crimes Act.

Bush justifies his administration's "harsh interrogation techniques" by maintaining that Zubaydah, under interrogation, fingered Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. But according to investigative journalist Ron Suskind in his 2006 book One Percent Doctrine, it was a "walk-in" who led the CIA to Mohammed in return for a $25 million reward.

Zubaydah evidently wasn’t a top al Qaeda leader. Dan Coleman, one of the FBI's leading experts on al Qaeda, said Zubaydah "knew very little about real operations, or strategy." Moreover, Zubaydah was schizophrenic, according to Coleman. “This guy is insane, certifiable split personality." Coleman's views were echoed at the top levels of the CIA and were communicated to Bush and Cheney. But Bush scolded CIA director George Tenet, saying, "I said [Zubaydah] was important. You're not going to let me lose face on this, are you?" Zubaydah's minor role in al Qaeda and his apparent insanity were kept secret.

In response to the torture, Zubaydah told his interrogators about myriad terrorist targets al Qaeda had in its sights: the Brooklyn Bridge, the Statute of Liberty, shopping malls, banks, supermarkets, water systems, nuclear plants, and apartment buildings. Al Qaeda was close to building a crude nuclear bomb, Zubaydah reported. None of this was corroborated but the Bush gang reacted to each report zealously.

The Supreme Court has repeatedly affirmed the government's duty to provide criminal defendants with any evidence in the government's possession that might tend to exonerate the defendant or impeach the prosecutor's case. Zacarias Moussaoui tried to subpoena Zubaydah to testify at his trial. On May 9, 2003, Assistant U.S. Attorneys David Novak and David Raskin lied to U.S. District Court Judge Leonie Brinkema, who presided over Moussaoui's trial. When the judge asked "whether the interrogations are being recorded in any format", the U.S. Attorneys said no, evidently relying on information from the CIA. This is obstruction of justice.

When Zubaydah and al-Nashiri go before the military commissions, they will undoubtedly raise their torture as a defense to whatever crimes they face. Yet the evidence of that torture has been destroyed by the government.

There was no way of knowing whether these tapes could have intelligence value in the future. Indeed, the government defied the 2003 and 2004 demands of the 9/11 Commission by failing to turn over the videotaped interrogations. Now the CIA is parsing words by claiming the commission never directly asked for videotapes. "We asked for every single thing they had," commission co-chairman Thomas Kean said. "And then my vice chairman, Lee Hamilton, looked the director of the CIA in the face, and said, 'Look, even if we haven't asked for something, if it's pertinent to our investigation, make it available to us.'" Hamilton said the CIA "clearly obstructed" the commission's investigation.

At the same time the 9/11 Commission was denied the tapes, the ACLU filed Freedom of Information Act requests seeking records of the treatment of all detainees held in U.S. custody abroad since 9/11. When the government refused to comply with the FOIA requests, the ACLU sued in federal court in New York. On September 15, 2004, U.S. District Court Judge Alvin Hellerstein ordered the CIA and other government agencies to "produce or identify" all requested documents within one month. They are still not forthcoming. The ACLU has filed a motion to hold the CIA in contempt of court for refusing to comply with Judge Hellerstein's order.

When the destruction of the tapes became public, both the House and Senate intelligence committees opened investigations, and subpoenaed witnesses and documents to shed light on the matter. Attorney General Michael Mukasey refused to cooperate and tried to put the kabosh on the congressional probes, asking them to wait until he had finished his own internal investigation. But after criticism in the media, the CIA relented and agreed to produce documents and the testimony of acting CIA general counsel John Rizzo.

The decision to destroy the tapes was allegedly made by Jose A. Rodriguez Jr., who was chief of the Directorate of Operations, the CIA's clandestine service. Although the House intelligence committee has subpoenaed Rodriguez, there is no indication his bosses will allow him to testify.

The Sunday Times (London) reported that Rodriguez may seek immunity from prosecution in exchange for testifying before the House intelligence committee. Rodriguez's testimony could be explosive.

At least four top White House lawyers participated in discussions with the CIA between 2003 and 2005 about whether to destroy the videotapes. They included Alberto Gonzales, David Addington (Cheney's former counsel, now his chief of staff), Harriet Miers, and John Bellinger (former senior attorney at the National Security Council). The New York Times quoted a former senior intelligence official as saying there was "vigorous sentiment" among some high White House officials to destroy the tapes.

Two former CIA officials, Vincent Cannistrano and Larry Johnson, think it highly unlikely Rodriguez made the decision to destroy the tapes on his own. George W. Bush "has no recollection" of hearing about the existence or destruction of the tapes before Hayden briefed him on December 13. Yet given Bush's keen interest in Zubaydah's interrogation, it seems more likely the President was involved with the decision to destroy the tapes.

During his Senate confirmation hearing, Michael Mukasey refused to opine about whether water boarding constitutes torture. Mukasey knew the Bush administration had admitted water boarding prisoners, and that torture is a war crime under the U.S. War Crimes Act. Mukasey was shielding his future bosses from criminal liability as war criminals. Now the Department of Justice, under Mukasey, is investigating the destruction of the tapes.

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

When he was a federal judge, Michael Mukasey issued the material witness warrant for Jose Padilla. The warrant was based partly on information from Abu Zubaydah. It is not clear whether Mukasey knew Zubaydah's statements were obtained by torture. But since he issued the warrant, Mukasey has a real or apparent conflict of interest. He has said it is premature to appoint an outside special counsel. But like the Nixon administration, the Department of Justice cannot be trusted to investigate itself. Congress should be pressured to pass a new independent counsel statute.

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Michael Mukasey: Another Loyal Bushie

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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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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Supreme Court: War No Blank Check for Bush

In a direct repudiation of the Bush administration’s position that the President is answerable to no one, the Supreme Court held the Guantánamo prisoners and U.S. citizen Yaser Hamdi are entitled to contest their detention in federal courts. The Court, however, punted in Jose Padilla’s case, holding that he filed his case against the wrong person in the wrong court.

For more than two years, the government has held 600 foreign-born men and boys prisoner at Guantánamo Bay, Cuba. No charges have been filed and they have not been allowed access to any court to challenge their confinement. Bush has maintained that, under his war-making power, he could hold prisoners captured in the "war on terror" incommunicado indefinitely if he decided they were "enemy combatants."

Bush ruled in 2002 that he could suspend the protections of the Geneva Conventions. His order likely led to the torture that has recently come to light at Guantánamo, as well as in Afghanistan and Iraq. (See my editorial, "Bush’s 'Humane' Torture Policy Hits a Speed Bump.")

Prisoners released from Guantánamo report being tortured. They describe assaults, prolonged shackling in uncomfortable positions, sexual abuse and threats with dogs. There are reports of prisoners being pepper sprayed in the face until they vomited, fingers being poked into their eyes, and their heads being forced into the toilet pan and flushed. Dozens of videotapes of American guards brutally attacking prisoners are reportedly catalogued and stored at the Guantánamo prison. Thirty-two suicides took place in an 18-month period.

As evidence of torture leaked out of Abu Ghraib prison during the last few months, a Guantánamo-Iraq torture connection was revealed. General Geoffrey Miller, implicated in setting torture policies in Iraq, had been transferred from Guantánamo to Abu Ghraib last fall specifically to institute the same harsh interrogation procedures he had put in place at Guantánamo.

Bush’s torturers had plied their trade in secret, accountable to no court or public scrutiny. Guantánamo was, according to a Red Cross spokeswoman, "a legal black hole."

The Bush administration denied these men their day in court, saying that Guantánamo Bay is not a U.S. territory, and thus, U.S. courts are not available to them. This position was premised on the absurd notion that Cuba is actually sovereign over Guantánamo Bay, even though the United States exercises exclusive jurisdiction over it.

Amnesty International noted: "It is deeply ironic that the USA is violating fundamental rights on Cuban soil, and relying on the fact that it is on Cuban soil to keep the US courts from examining its conduct."

The government’s lawyer asserted during oral argument in a Ninth Circuit case that the Guantánamo prisoners would have no judicial recourse even if they were claiming the government subjected them to torture or summary execution. The court was deeply disturbed by this notion.

When the first 20 shackled prisoners arrived at Guantánamo on Jan. 11, 2002, Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, warned: "These are people who would gnaw through hydraulic lines at the back of a C-17 to bring it down." But last week, The New York Times reported that the value of the information possessed by the alleged terrorists was greatly exaggerated.

Nevertheless, these men have languished in tiny cells under inhuman conditions. With no judicial accountability, military interrogators could torture them with impunity. They could all be held until the "war on terror" ends - that is, for the rest of their lives, solely on Bush’s say-so.

Fortunately, the Supreme Court’s ruling in Rasul v. Bush has changed that. It held that the Guantánamo prisoners have the right to go to federal court to challenge their confinement. The United States exercises "complete jurisdiction and control" over the Guantánamo Bay base, wrote Justice Stevens. "Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority" under the habeas corpus statute.

The Court’s opinion, however, is a bittersweet ruling. Although it provides the Guantánamo prisoners access to the courts, it implies that courts could uphold the President’s "enemy combatant" designation in certain cases, resulting in lifetime confinement even without a criminal conviction. The Court tragically ignores the explicit prohibition on indefinite detention enshrined in international law.

In Hamdi v. Rumsfeld, the Supreme Court ruled that due process demands a U.S. citizen held in the United States as an enemy combatant is entitled to a meaningful opportunity to contest the factual basis for his detention before a neutral decision maker. That includes the right to counsel. Yaser Hamdi’s detention might be lawful, however, if a court determined that the government correctly classified him as an "enemy combatant."

Hamdi’s father, who filed the lawsuit on his son’s behalf, said the 20-year-old was traveling on his own for the first time, and because of his lack of experience, he was trapped in Afghanistan once the U.S. military campaign began. Hamdi, who went to Afghanistan to do relief work, was there less than two months before September 11, 2001. The government filed a document filled with vague generalities to support Bush’s designation of Hamdi as an enemy combatant.

Justice 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." In a direct slap at Bush, O’Connor noted, "even the war power [of the President] does not remove constitutional limitations safeguarding essential liberties." O’ Connor echoed a theme she has raised in prior Court decisions, which is particularly relevant today: "It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

But, instead of holding that a President cannot hold an American citizen indefinitely, the Court set forth a balancing test for determining whether the President’s designation of a U.S. citizen as an enemy combatant will be upheld. Henceforth, a court reviewing a claim will weigh the private interest of the detained citizen against the governmental interest in determining whether to sustain an enemy combatant classification.

O’Connor did, however, make clear that detentions of U.S. citizens must be limited to the Afghanistan context; they are not authorized for the broader "war on terrorism." She acknowledged, "history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not pose that sort of threat."

Justice Souter wrote a concurring opinion, noting that the USA Patriot Act authorizes the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings. Congress, therefore, would require the government to clearly justify its detention of an American citizen held on home soil incommunicado.

Curiously, the right-wing Justice Scalia, in his separate opinion joined by the most liberal Justice Stevens, would not permit the indefinite detention of an American citizen in Hamdi’s present situation. They would require the government to prefer criminal charges or release the individual, unless Congress were to suspend the writ of habeas corpus.

"The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal," according to Scalia.

Only Justice Thomas held out for blind deference to the President: "This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision."

That the Rasul and Hamdi decisions are a mixed blessing is illustrated by the reactions to them. Hamdi’s lawyer said he was "delighted" by the decision. The American Civil Liberties Union called the rulings "a huge defeat for the government." Likewise, the American-Arab Anti-Discrimination Committee said the decisions represent "a major victory in upholding due process rights … a great victory in protecting our core values as Americans." In striking contrast, the conservative Wall Street Journal called them "a modest but important victory for the Presidency." Its editorial celebrated the Court’s affirmation of "the authority of the Commander-in-Chief to detain enemy combatants, including U.S. citizens."

Finally, the Supreme Court, in a 5-4 nod to the Bush administration, elevated procedure over substantial rights, and declined to rule on Jose Padilla’s case. Ironically, whereas the Guantánamo prisoners can now file habeas corpus petitions in any federal court, U.S. citizen Jose Padilla’s petition was thrown out because it was filed in New York rather than South Carolina.

After he was arrested in Chicago, Padilla was taken to New York to answer a grand jury material witness warrant. While Padilla was in New York, Bush ordered Donald Rumsfeld to designate Padilla an "enemy combatant."

Rumsfeld transferred Padilla to military custody and sent him to a naval brig in South Carolina. Meanwhile, Padilla filed a habeas corpus petition in the New York Court, naming Rumsfeld as a defendant. Five of the nine justices ruled that Padilla had to re-file his petition in South Carolina and name the commander of the military brig as a defendant.

The four dissenters decried Padilla’s "secret transfer" to South Carolina, which prevented his lawyer from filing in South Carolina. Once he was transferred, Padilla was denied access to his attorney until February 11, 2004. The dissent’s author, Justice Stevens, wrote: "At stake in this case is nothing less than the essence of a free society." Accusing the majority of using a procedural technicality to deny Padilla fundamental rights, Stevens concluded his opinion with reference to torture:

"Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."
Tragically, Jose Padilla remains incarcerated in limbo indefinitely until the lengthy procedure to secure the rights guaranteed him by the Constitution works its way once again through the judicial system.

George W. Bush has used the crimes against humanity committed on September 11, 2001, to launch a "war on terrorism." Under the guise of his new "war," Bush rounded up more than 1000 men in the United States solely for being Arab or Muslim. At Guantánamo, Bush has kept 600 men and boys locked up, with the intention of keeping them there incommunicado until his "war on terror" is over. In Iraq, Bush invaded a sovereign country that posed no threat to the United States, killed thousands of its people and allowed nearly 1000 of our people to be killed. In spite of the absence of any evidence linking Saddam Hussein to the September 11 attacks, Bush claims his war on Iraq is a centerpiece of his "war on terror."

The Supreme Court has bought into Bush’s claim that we are fighting a "war on terror." It has declined to tell Bush he cannot hold "enemy combatants" indefinitely. But, most significantly, the Court has told Bush his power is not absolute. The 600 prisoners at Guantánamo and Yaser Hamdi finally have the right to go into court and claim their innocence.

This is indeed a victory for the rule of law.

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