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

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

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

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

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

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

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

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

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

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

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The President and His Vice: Torturer's Puppetmasters

The dots have finally been connected and the picture is not a pretty one. It is the face of the president of vice, Dick Cheney. The policies on the treatment of prisoners emanating from Cheney's office triggered the abuse and torture, according to Lawrence Wilkerson, former Secretary of State Colin Powell's chief of staff.

"It was clear to me that there was a visible audit trail from the Vice President's office through the Secretary of Defense down to the commanders in the field," Wilkerson, a former colonel, said on National Public Radio's "Morning Edition." The interrogation techniques sanctioned by Cheney "were not in accordance with the spirit of the Geneva Conventions and the law of war," Wilkerson declared.

Not coincidentally, Cheney has been lobbying Congress to prevent it from outlawing torture (which is already against the law, by the way). After Republican Senator John McCain secured 90 votes in the Senate to codify the prohibition against cruel, unusual, or degrading treatment or punishment, Cheney began to sweat. With CIA Director Porter Goss in tow, Cheney paid a visit to McCain and tried to convince the senator to allow an exemption for the CIA. McCain refused to legalize the CIA's ongoing illegal torture of prisoners.

Last week, Dana Priest wrote in the Washington Post that the CIA has been surreptitiously interrogating prisoners in a Soviet-era compound in Eastern Europe. Human Rights Watch identified Romania and Poland, two supporters of Bush's wars on Iraq and Afghanistan, as locations for these secret prisons.

Only Bush and a few of his top officials, undoubtedly including Cheney, have known about the existence and situs of these "black sites," as they are called in classified White House, CIA, Justice Department and Congressional documents, according to Priest.

The secret prisons were established pursuant to a presidential "finding" signed by Bush six days after the September 11 attacks. That finding gives the CIA permission to kill, capture and detain members of al Qaeda anywhere in the world. Assassination, or summary execution, violates US and international law.

More than 100 suspected terrorists have been taken to these "black sites." Many are held underground and subjected to torture out of view of the International Committee of the Red Cross.

CIA interrogators use "Enhanced Interrogation Techniques," which violate US law. They include "waterboarding" (mock drowning) and mock suffocation. Another enhancement is a "stress position," in which a prisoner in suspended from the ceiling or wall by his wrists, which are handcuffed behind his back. Iraqi Manadel Jamadi was subjected to this treatment before he died in CIA custody at Abu Ghraib in November 2003. Tony Diaz, an MP who witnessed his torture, said that blood gushed from Jamadi's mouth like "a faucet had turned on" after he was lowered to the ground.

Several current and former intelligence officials are nervous about these "black sites," which were set up in a knee-jerk response to 9/11, Priest reported.

About the same time the "black sites" were established, Cheney undertook a campaign to introduce torture as a standard interrogation technique, according to the Washington Monthly. One of his test cases was Ibn al-Shaykh al-Libi, an al-Qaeda prisoner captured shortly after 9/11. An ex-FBI official reported that "they duct-taped his mouth, cinched him up and sent him to Cairo" for some torturous Egyptian interrogations, in violation of US law prohibiting extraordinary renditions.

A newly declassified memo reveals that al-Libi provided us with false information that suggested Iraq had trained al-Qaeda to use weapons of mass destruction. Even though US intelligence thought the information was false as early as 2002 because it was obtained under torture, al-Libi's information provided the centerpiece of Colin Powell's now thoroughly discredited February 2003 claim before the United Nations that Iraq had developed WMD programs.

Dick Cheney not only ordered the torture; he was willing to use false information obtained through torture to support Bush's pre-determined decision to make war on Iraq.

Now that Cheney has been fingered as complicit in the torture, it is just a matter of time before the official torture dots connect to the President himself. In December 2004, the American Civil Liberties Union released an internal FBI email that the ALCU received pursuant to the Freedom of Information Act. The email, dated May 22, 2004, describes an Executive Order that authorized sleep deprivation, placing hoods over prisoners' heads, the use of loud music for sensory overload, stripping detainees naked, the use of "stress positions," and the use of dogs. The White House, Pentagon and FBI officials denied that Bush had issued such an Executive Order, saying that it was really a Defense Department directive instead.

It is undisputed that Bush determined in a February 7, 2002, order that he had the authority to suspend the Geneva Conventions, a position never before taken by an American president and a clear violation of US law.

Bush wrote in that order, "As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." (Emphasis added.)

In essence, Bush declared, incorrectly, that as commander in chief, he had the power to override the law with his policy. Where did he get that idea? From a January 25, 2002, memo sent by Alberto Gonzales to the President, which described the Geneva Conventions as "obsolete" and "quaint." That memo was inspired by David Addington, just named by Cheney to replace the indicted I. Lewis "Scooter" Libby as the Vice President's chief of staff.

Addington was assistant general counsel to the CIA when Reagan was funding the death squads in El Salvador and the illegal Nicaraguan contras. Cheney's new chief of staff helped draft the infamous August 2002 memo that illegally narrowed the definition of torture, and justified torture in some cases. Now, Addington is trying to prevent the Pentagon from adopting the language of Geneva in its revised rules for handling prisoners. The circle of torture remains unbroken.

Libby is charged with obstruction of justice and lying to the FBI about the outing of a CIA agent. As in the Watergate scandal, a White House official is being prosecuted for the cover-up. There is plenty of evidence that officials in the Bush administration have been trying to cover up their torture since the inception of Bush's "war on terror."

The earliest example of the official cover-up was when John Walker Lindh, captured in Afghanistan shortly after September 11, 2001, was given a plea bargain that required him to keep mum about the mistreatment he suffered while in US custody. Col. Janis Karpinski told me in an August 3, 2005, interview for t r u t h o u t (Abu Ghraib General Lambastes Bush Administration) that after she first learned of the abuse scandal at Abu Ghraib, Gen. Ricardo Sanchez took systematic steps to hush it up. Soldiers reported to Human Rights Watch that US soldiers, called "Murderous Maniacs," broke prisoners' bones every other week at FOB Mercury; then, "those responsible would state that the detainee was injured during the process of capture and the physician assistant would sign off on this."

Most recently, in an effort to smooth over the torture of the hunger strikers by US officials at Guantánamo prison, Donald Rumsfeld said, "There are a number of people who go on a diet where they don't eat for a period and then go off of it at some point. And then they rotate and other people do that." Rumsfeld refuses to allow UN human rights investigators to meet with the prisoners there.

What is Rumsfeld trying to hide at Guantánamo? About 200 prisoners, many of whom have been there nearly four years without criminal charges, have been on a hunger strike for several weeks. Several of them are being force-fed through large tubes inserted into their noses and down into their stomachs, with no sedatives or anesthesia. One prisoner explained to his lawyer, "Now, after four years in captivity, life and death are the same."

The Washington Post reported today that Cheney has waged an intense, largely unpublicized campaign over the past year to prevent Congress, the Pentagon and the State Department from restricting interrogations of terrorist suspects.

Dick Cheney is right in the center of the Bush administration's government of dirty tricks. By replacing Libby with Addington, Cheney has signaled his determination to continue Bush's torturous policies. In a recent editorial, the Washington Post called Dick Cheney "Vice President for Torture." The President and his Vice continue to pull the torturers' puppet strings. Will Bush be deemed complicit in the torture? Or will his deputies cover up for him the way Ronald Reagan's men insulated him from liability in the Iran-Contra scandal?

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Bush Taps "Scalia-Lite" to Replace O'Connor

On the day we honored Rosa Parks, Mother of the Civil Rights Movement, George W. Bush appointed a white male to replace Sandra Day O'Connor on the Supreme Court. Evidently unable to find a woman or Latino sufficiently "qualified" to sit on the high court, Bush reached deep into the trough of right-wing federal judges and pulled out Samuel Alito.

On Friday, at 12:40 p.m., the same hour that Patrick Fitzgerald announced the indictment of I. Lewis "Scooter" Libby, Bush called Alito. Desperate to stop the hemorrhaging from the withdrawal of Harriet Miers, the grim revelation that the 2000th American soldier had died in his unnecessary war in Iraq, and the pending indictment of a principal White House neocon, Bush tapped a judge adored by the right wing.

The conservatives' giddy reaction to the nomination of "Scalito" or "Scalia-Lite," as Alito is frequently called because of his affinity with Antonin Scalia, stands in stark contrast to that of the more moderate Miers. His record tracks the right-wing agenda.

Alito would gut abortion rights if given the chance. As a judge on the Third US Circuit Court of Appeals in Philadelphia, he voted in Planned Parenthood v. Casey in 1991 to uphold a Pennsylvania law that included a provision requiring women seeking abortion to notify their spouses. When the case reached the Supreme Court, the justices used it to reaffirm Roe v. Wade. Justice O'Connor wrote the decision, which struck down the state's spousal notification requirement. In his dissent in Casey, Chief Justice William Rehnquist quoted Alito's dissent from the lower court opinion.

But Alito's right-wing bona fides don't stop there. Alito engages in "judicial restraint" - the right wing's stated litmus test - only when the conservative ends justify the means. He showed little restraint when he voted to scuttle Congress's intent by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, Alito's colleagues on the Third Circuit observed that the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where [Judge Alito] suggests."

Alito voted to invalidate part of the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one. The 2003 Supreme Court decision in Nevada v. Hibbs upheld the FMLA, essentially reversing a 2000 opinion by Alito which found that Congress had exceeded its power in passing the law.

In Erienet v. Velocity Net, Alito dissented from an opinion that makes it easier for consumers to get relief in state courts for violation of the Telephone Consumer Protection Act.

Samuel Alito has also shown hostility to privacy rights by supporting the unauthorized strip searches of women and children who are not named in a search warrant. He voted to uphold the strip search of a mother and her 10-year-old daughter in Doe v. Groody in 2004. That vote drew harsh criticism from Bush's current Homeland Security Director Michael Chertoff, who was on the Third Circuit at the time. Chertoff accused Alito of rubber-stamping police misconduct. Alito's excessive deference to executive power in Groody could signal his willingness to defer to the power of the executive in Bush's wars on Iraq, terror and civil liberties. This is cause for great concern.

In 2001, Alito authored a decision that struck down a public school district's policy that prohibited harassment against students based on their sexual orientation. The policy focused on harassment that might interfere with a student's educational performance or create an intimidating, hostile or offensive environment. But Alito ruled this policy was unconstitutional because it could cover "simple acts of teasing and name-calling."

Alito pandered to the gun lobby when he voted to strike down a federal law prohibiting the possession of machine guns. His position led Alito's colleagues to accuse him of disrespecting the considered decision of Congress by requiring it to "play 'Show and Tell' with the federal courts."

Several progressive organizations, including the National Lawyers Guild (NLG), the AFL-CIO, NARAL-Pro Choice America, the Alliance for Justice, MoveOn.org and the Leadership Conference on Civil Rights are opposing the Alito nomination. NLG President Michael Avery stated, "Judge Alito's record on the Third Circuit Court of Appeals is replete with examples of how his extremely conservative views have led to decisions that ignore the legitimate interests of women, families, people of color, consumers and working people. These decisions run contrary to established Supreme Court precedent and the will of the Congress."

Alliance for Justice President Nan Aron said, "If confirmed to the pivotal O'Connor seat, Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms." Karen Pearl, interim president of Planned Parenthood Federation of America, agreed. Alito's confirmation "would radically transform the Supreme Court and create a direct threat to the health and safety of American women," she said.

Key Democrats immediately stepped up to the plate and challenged the Alito nomination. Senate Democratic Leader Harry Reid said, "Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people." Reid also criticized Bush's selection of another white male: "This appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The President has chosen a man to replace Sandra Day O'Connor, one of only two women on the Court. For the third time, he has declined to make history by nominating the first Hispanic to the Court ... President Bush would leave the Supreme Court looking less like America and more like an old boys club."

Senator Patrick Leahy said, "Judge Alito's record on the bench demonstrates that he would go to great lengths to restrict the authority of Congress to enact legislation to protect civil rights and the rights of workers, consumers and women. Judge Alito has also set unreasonably high standards that ordinary Americans who are the victims of discrimination must meet before being allowed to proceed with their cases."

Other Democrats have reacted similarly. Senator Ted Kennedy said, "If confirmed, Alito could very well fundamentally alter the balance of the court and push it dangerously to the right, placing at risk decades of American progress in safeguarding our fundamental rights and freedoms." Senator Charles Schumer observed, "It's sad that [Bush] felt he had to pick a nominee likely to divide America." Senator John Kerry asked, "Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?" And Senator Barack Obama said, "President Bush has ... made a selection to appease the far right wing of the Republican Party."

The precariously balanced Supreme Court will tip to the right if Alito is confirmed. Larry Lusberg, a former federal prosecutor who has known Alito for 22 years, affirms: "Make no mistake: he will move the court to the right, and this confirmation process is really going to be a question about whether Congress and the country want to move this court to the right."

With his nomination of Samuel Alito, Bush has thrown down the gauntlet. Although many Democrats are vociferous in their displeasure, it is not clear that 41 of them will agree to a filibuster. Several must stand for election next year in red states, and Alito's intellect and credentials - notwithstanding his radical ideology - may sway them in his direction. If the Democrats do filibuster, it will force the Republicans to use the "nuclear option" to override the time-honored filibuster for the first time.

As the Libby indictment continues to put on trial the lies on which the Iraq war was based, Bush's agenda - including the Alito nomination - may be hobbled.

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