Memos Provide Blueprint for Police State

Seven newly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called “torture memos” that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

What does the federal maiming statute prohibit? It makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." It further prohibits individuals from "throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance" with like intent.

The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.

The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush’s Department of Justice, issued two disclaimer memos – on October 6, 2008 and January 15, 2009 – that said the assertions in those seven memos did “not reflect the current views of this Office.” Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.

Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.

In his memos, Yoo justified giving unchecked authority to the President because the United States was in a “state of armed conflict.” Yoo wrote, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.

Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn’t intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Bybee claimed the Torture Convention didn’t apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.

The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee’s torture memos, has not yet been released.

Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI’s leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun – his information was virtually worthless.

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.

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Scalia Cites False Information in Habeas Corpus Dissent

To bolster his argument that the Guantánamo detainees should be denied the right to prove their innocence in federal courts, Justice Antonin Scalia wrote in his dissent in Boumediene v. Bush: "At least 30 of those prisoners hitherto released from Guantánamo have returned to the battlefield." It turns out that statement is false.

According to a new report by Seton Hall Law Center for Policy and Research, "The statistic was endorsed by a Senate Minority Report issued June 26, 2007, which cites a media outlet, CNN. CNN, in turn, named the DoD as its source. The '30' number, however, was corrected in a DoD press release issued in July 2007, and a DoD document submitted to the House Foreign Relations Committee on May 20, 2008 abandons the claim entirely."

The largest possible number of detainees who could have "returned to the fight" is 12; however, the Department of Defense has no system for tracking the whereabouts of released detainees. The only one who has undisputedly taken up arms against the United States or its allies, "ISN 220," was released by political officers of the DoD against the recommendations of military officers.

Scalia bolstered his hysterical claim that the Boumediene decision "will almost certainly cause more Americans to be killed" with stale information that was proven to be false one year ago. Professor Mark Denbeaux, director of the Seton Hall Center, said Scalia "was relying uncritically on information that originated with a party in the case before him."

The Supreme Court decided in a 5-4 decision that the Guantánamo detainees were entitled to file petitions for writ of habeas corpus to challenge their detention. More than 200 men who have been held for up to six years and have never been charged with a crime, will now have their day in court. Many were snatched from their homes, picked up off the street or in airports, or sold to the U.S. military by warlords for bounty.

Scalia, who sits on the highest court in the land, has acted as a loyal foot soldier for the executive branch of government.

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Supreme Court Checks and Balances in Boumediene

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O'Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

"Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe."

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing 'enemy combatant' designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy combatant." These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of confidentiality to his client and often doesn't even advocate on behalf of the detainee; one even argued the government's case. The detainee doesn't have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic" evidence and were set up to rubber-stamp the "enemy combatant" designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force - "found the information presented to lack substance" and noted that statements presented as factual "lacked even the most fundamental earmarks of objectively credible evidence." After they determined there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham's affidavit about the shortcomings of the CSRT's in Boumediene's companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact." The Court then had to determine whether the procedure for judicial review of the CSRTs' "enemy combatant" designations constituted an adequate substitute for habeas corpus review.

"For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context," Kennedy wrote, "the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

But in the Detainee Treatment Act ("DTA"), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Since the DTA's scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as "an unconstitutional suspension of the writ."

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more Americans to be killed." Likewise, the Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result." Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, "Sometimes we just didn't get the right folks," but innocent men remain detained there because "[n]obody wants to be the one to sign the release papers . . . there's no muscle in the system."

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their "enemy combatant" designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. "The ultimate principle," he said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty." Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." Justice Souter cut to the chase in his separate opinion, citing "the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years." None of them has been charged with a crime and none has been brought before a fair and impartial judge.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

"Security subsists, too, in fidelity to freedom's first principles," according to Kennedy. "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

In responding to Laura Ingraham's false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin's admonition: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices - Ginsburg, Stevens, Souter and Breyer - in the majority, and the four conservative justices - Scalia, Thomas, Roberts and Alito - in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has "teed up the Supreme Court issue nicely for the G.O.P."

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, "It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that." By the next day, McCain had changed his tune. "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

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Showdown Looming Over Executive Privilege

George W. Bush's presidential tenure has been marked by one cover-up after another. But the masterful spinning of Karl Rove and a compliant media enabled Bush to get away with it. Now that the Democrat-controlled Congress is investigating administration malfeasance, Bush's cover-ups have come cloaked in the guise of "executive privilege."

Bush has claimed executive privilege in resisting congressional subpoenas in the investigation of the U.S. Attorney firing scandal. U.S. Attorneys who weren't "loyal Bushies" were ousted in a mass purge. Bush instructed former White House political director Sara Taylor and former White House counsel Harriet Miers to refuse to testify about any "White House consideration, deliberations or communications" regarding the firings. He also instructed his chief of staff Joshua Bolten to withhold documents demanded by the House Judiciary Committee. Defying a congressional subpoena is a crime.

Taylor testified before the Senate Judiciary Committee, invoking the privilege selectively. Miers's and Bolten's situation is even more problematic. They refused to show-up at the House committee altogether. A witness must appear, be sworn, and then invoke the privilege. Miers and Bolten committed a crime when they failed to appear. They could be locked up for ignoring the subpoenas. Bush will claim the Executive is supreme and that his order to Miers and Bolten nullifies the subpoenas.

There are already signs that Bush will refuse to allow his Justice Department to enforce congressional contempt charges. Senate Judiciary Committee Chairman Patrick Leahy responded angrily, saying, "By acting above the law, this President and Vice President seek to override the independence of law enforcement and manipulate our valued system of checks and balances," adding, "an independent review is probably in order." It remains to be seen whether Congress will match its rhetoric with its votes.

As it did after the Haditha massacre, the U.S. military covered up the real cause of Pat Tillman's death. After claiming he died in a heroic gun battle with the enemy, the administration was later compelled to admit Tillman died from "friendly-fire." When the House Committee on Oversight and Government Reform subpoenaed "all documents received or generated by any official in the Executive Office of the President" relating to Tillman's death, Bush refused, claiming executive privilege. Again, a showdown is looming, this time over documents.

Chairman Henry Waxman and ranking Committee Republican Tom Davis wrote a letter to White House Counsel Fred Fielding, which said: "The Committee hearing [on Tillman's death]. . . raised questions about whether the administration has been providing accurate information to Congress and the American people about the ongoing war in Iraq and Afghanistan."

Congress has three options. First, if a majority of the judiciary committee and the full chamber agree, they can issue contempt citations and then certify them to the United States Attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action," according to a federal statute. But in spite of that statute, the White House will reportedly forbid the Justice Department from pursuing contempt charges.

Second, Congress could invoke its own "inherent contempt" power, direct the Sergeant-at-Arms to arrest the recalcitrant witness, and imprison her in the Capitol basement. This power was last used in 1934.

Finally, Congress can hire counsel to enforce the subpoenas in civil court.

In the past, when the White House and Congress have clashed over claims of executive privilege, the President generally capitulated before criminal proceedings began. But Bush has consistently defied Congress and the courts with his secret spying program and his signing statements. He will likely hold firm, banking on favorable rulings in the increasingly conservative Supreme Court.

Perhaps Congress should subpoena Dick Cheney to shed light on these matters. Since Cheney denies belonging to the executive branch, he'd be hard pressed to assert executive privilege.

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The Unitary King George

As the nation focused on whether Congress would exercise its constitutional duty to cut funding for the war, Bush quietly issued an unconstitutional bombshell that went virtually unnoticed by the corporate media.

The National Security and Homeland Security Presidential Directive, signed on May 9, 2007, would place all governmental power in the hands of the President and effectively abolish the checks and balances in the Constitution.

If a "catastrophic emergency" - which could include a terrorist attack or a natural disaster - occurs, Bush's new directive says: "The President shall lead the activities of the Federal Government for ensuring constitutional government."

What about the other two co-equal branches of government? The directive throws them a bone by speaking of a "cooperative effort" among the three branches, "coordinated by the President, as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers." The Vice-President would help to implement the plans.

"Comity," however, means courtesy, and the President would decide what kind of respect for the other two branches of government would be "proper." This Presidential Directive is a blatant power grab by Bush to institutionalize "the unitary executive."

A seemingly innocuous phrase, the unitary executive theory actually represents a radical, ultra rightwing interpretation of the powers of the presidency. Championed by the conservative Federalist Society, the unitary executive doctrine gathers all power in the hands of the President and insulates him from any oversight by the congressional or judicial branches.

In a November 2000 speech to the Federalist Society, then Judge Samuel Alito said the Constitution "makes the president the head of the executive branch, but it does more than that. The president has not just some executive powers, but the executive power -- the whole thing."

These "unitarians" claim that all federal agencies, even those constitutionally created by Congress, are beholden to the Chief Executive, that is, the President. This means that Bush could disband agencies like the Federal Communications Commission, the Food and Drug Administration, the Federal Reserve Board, etc., if they weren't to his liking.

Indeed, Bush signed an executive order stating that each federal agency must have a regulatory policy office run by a political appointee. Consumer advocates were concerned that this directive was aimed at weakening the Environmental Protection Agency and the Occupational Safety and Health Administration. The unitary executive dogma represents audacious presidential overreaching into the constitutional province of the other two branches of government.

This doctrine took shape within the Bush administration shortly after 9/11. On September 25, 2001, former deputy assistant attorney general John Yoo used the words "unitary executive" in a memo he wrote for the White House: "The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch." Six weeks later, Bush began using that phrase in his signing statements.

As of December 22, 2006, Bush had used the words "unitary executive" 145 times in his signing statements and executive orders. Yoo, one of the chief architects of Bush's doctrine of unfettered executive power, wrote memoranda advising Bush that because he was commander in chief, he could make war any time he thought there was a threat, and he didn't have to comply with the Geneva Conventions.

In a 2005 debate with Notre Dame professor Doug Cassel, Yoo argued there is no law that could prevent the President from ordering that a young child of a suspect in custody be tortured, even by crushing the child's testicles.

The unitary executive theory has already cropped up in Supreme Court opinions. In his lone dissent in Hamdi v. Rumsfeld, Justice Clarence Thomas cited "the structural advantages of a unitary Executive." He disagreed with the Court that due process demands an American citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. Thomas wrote, "Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive."

Justice Thomas's theory fails to recognize why our Constitution provides for three co-equal branches of government.

In 1926, Justice Louis Brandeis explained the constitutional role of the separation of powers. He wrote, "The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy."

Eighty years later, noted conservative Grover Norquist, describing the unitary executive theory, echoed Brandeis's sentiment. Norquist said, "you don't have a constitution; you have a king."

One wonders what Bush & Co. are setting up with the new Presidential Directive. What if, heaven forbid, some sort of catastrophic event were to occur just before the 2008 election? Bush could use this directive to suspend the election. This administration has gone to great lengths to remain in Iraq. It has built huge permanent military bases and pushed to privatize Iraq's oil. Bush and Cheney may be unwilling to relinquish power to a successor administration.

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What Will it Take?

Recent revelations indicate that the President of the United States continues to flout the law.

In December, we learned that Bush signed a secret order in 2002 authorizing the National Security Agency to violate the Foreign Intelligence Surveillance Act by wiretapping without a warrant. Two weeks ago, the Boston Globe revealed that Bush has claimed authority to disobey more than 750 laws passed by Congress. And last week, USA Today reported that he has been secretly collecting the domestic telephone records of tens of millions of Americans.

This is nothing new.

In 2003, Bush invaded a sovereign country in violation of the United Nations Charter. His administration routinely tortures prisoners, rendering some to countries that have perfected the art of torture. The US laws prohibiting torture are absolute; torture is never permitted, even in time of war.

What will it take for Congress to exercise its Constitutional authority to stop the president when he has gone too far?

Every time another instance of Bush's lawbreaking emerges, a handful of lawmakers express indignation. Senator Arlen Specter (R-Pa.) talked tough when the secret NSA program became public a few months ago. But when Bush mouthpiece Alberto Gonzales appeared before the Senate Judiciary Committee, Specter skillfully threw him softballs to dilute the thrust of the administration's illegal spying.

"Maverick" John McCain (R-Ariz.) is busy defending Bush's Iraqi disaster and pandering to Jerry Falwell at "Liberty University."

The Republicans aren't the only ones in Congress who are asleep at the wheel. When Senator Russell Feingold (D-Wis.) made a motion to censure Bush for his illegal NSA spying, all Democratic senators, with a couple of exceptions, ran for cover.

Edward Kennedy (D-Mass.), Barack Obama (D-Ill.), John Kerry (D-Mass.) and Hillary Clinton (D-NY) sat on their hands.

Clinton, the likely 2008 Democratic presidential candidate, is a major Bush ally when it comes to foreign policy. As our brave soldiers continue to die in his illegal, gratuitous war, Clinton opposes withdrawal any time soon. "Nor do I believe that we can or should pull out of Iraq immediately," she said. Clinton advocates leaving behind "a small contingent in safer areas with greater intelligence and quick strike capabilities" - in other words, the 14 "enduring bases" Bush is building in Iraq.

And as Bush ramps up his dangerous rhetoric against Iran, following the same game plan he used in the run-up to his Iraq war, Clinton eggs him on.

In January, Clinton challenged Bush to get tough with Iran. In a line from Bush's playbook, she told an audience at Princeton University's Woodrow Wilson School, "We cannot take any option off the table in sending a clear message to the current leadership of Iran - that they will not be permitted to acquire nuclear weapons."

Never mind the absence of any evidence that Iran is actually acquiring nukes.

To grease the wheels for his impending attack on Iran, Bush has nominated yes-man General Michael Hayden to head the CIA. Hayden was in charge of the NSA while it was keeping track of our phone calls. A Senate confirmation of Hayden will ensure that Bush receives the intelligence he wants to fit his policy of regime change in Iran.

Where's the accountability?

Since George W. Bush took the reins of government more than five years ago and began to systematically unravel the separation of powers and the rule of law, Congress has opened no investigations with subpoena power to hold the president accountable.

The Justice Department's "inquiry" into Bush's NSA spying program ended abruptly last week when the National Security Agency refused to grant DOJ lawyers necessary security clearances.

Bush justifies his warrantless surveillance programs as essential to keep America safe. Yet, as Frank Rich pointed out in Sunday's New York Times, these programs "may have more to do with monitoring 'traitors' like reporters and leakers than with tracking terrorists."

In an attempt to neuter the press, Team Bush has been tracking the phone numbers reporters at ABC News, the New York Times and the Washington Post call.

"What we have here is a clandestine surveillance program of enormous size, which is being operated by members of the administration who are subject to no limits or scrutiny beyond what they deem to impose on one another," the Times wrote in an editorial last week.

In response to a suit filed by the Electronic Frontier Foundation against AT&T for its alleged participation in the government's electronic surveillance program, the Bush administration filed secret statements in a motion to dismiss. Bush contends that allowing the case to proceed would jeopardize national security.

With Bush's popularity at an all-time low, the Democrats are in a prime position to take back both houses of Congress. But even if the gerrymandering by Delay & Co. doesn't prevent a shift in Congressional power, there is no guarantee that the new power brokers in Congress would stand up to Bush. Indeed, House Democratic leader Nancy Pelosi has ruled out impeachment of the president.

As we witness the deployment of 6,000 precious National Guard troops to the border in a photo-op designed to boost support for Republicans in the November election, we can take solace in a recent suggestion going around:

The members of Congress should resign and undocumented immigrants should take over because they will do jobs that Americans won't do.

What will it take for Congress to do its job?

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Graham Amendment Invokes Constitutional Crisis

The "accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."
--James Madison, Federalist Paper No. 47

In blatant defiance of the Constitution's guarantees of Habeas Corpus and separation of powers, the Senate on Thursday approved the Graham Amendment to the Department of Defense Authorization Act by a vote of 49 to 42. Five Democrats joined all but 4 Republican Senators in giving the President unfettered power to hold prisoners at Guantánamo Bay, Cuba, for the rest of their lives, with no criminal charges, and no right to challenge their confinement by Habeas Corpus.

Last year, the Supreme Court held in Rasul v. Bush that the Guantánamo detainees are entitled to file habeas petitions in US courts to contest their detentions. The high court determined that non-US citizens held at Guantánamo, "no less than American citizens, are entitled to invoke the federal courts' authority" to hear their petitions under 28 USC § 2241, the US Habeas Corpus statute.

The Supreme Court stated firmly in Rasul, "Consistent with the historic purpose of the writ, this Court has recognized the federal courts' power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace."

The Graham Amendment is crafted to render Rasul a nullity by cutting off the rights of Guantánamo prisoners to have their habeas petitions considered by the federal courts. The Amendment limits federal court review to the narrow issue of the validity of decisions rendered by Combatant Status Review Tribunals. These kangaroo courts were set up to determine whether the Guantánamo prisoners are "enemy combatants." They are not independent judicial tribunals, but rather administrative proceedings stacked with military officials who can use secret or even fabricated evidence. The prisoner is not entitled to be represented by an attorney.

Only a handful of prisoners at Guantánamo have been charged with crimes. Their cases will be heard in military commissions that George W. Bush established to impose long sentences and even execute detainees with virtually no judicial oversight. Without habeas access to federal courts, Bush and Donald Rumsfeld will ostensibly serve as prosecutor, judge and executioner in the military commissions. This flies in the face of the constitutional doctrine of separation of powers. Three days before the Graham Amendment was passed, the Supreme Court announced it would review the legality of those military commissions in Hamdan v. Rumsfeld.

Even though the majority of prisoners detained at Guantánamo admittedly pose no threat to the United States, they continue to languish in virtual isolation under torturous conditions. Two hundred of them, who have decided death is preferable to life, are trying to starve themselves in a hunger strike.

Last month, the Senate passed the McCain Amendment, which makes it unlawful for any "individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location [to be] subject to cruel, inhuman, or degrading treatment or punishment." Bush and Cheney have fought this measure tooth-and-nail because it would interfere with their ability to torture prisoners with impunity. The Graham Amendment will undermine the ability of tortured prisoners to enforce the McCain Amendment in federal courts.

By foreclosing judicial review of sentences imposed by the military commissions, the Graham Amendment also violates Common Article 3 of the Geneva Conventions, a ratified treaty and therefore part of US law under the Supremacy Clause of the Constitution. That article prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Unlawful combatants are protected by Common Article 3.

Violations of Common Article 3 constitute war crimes under the federal War Crimes Act. Violators can receive life in prison, or even the death penalty if the victim dies.

Sen. Lindsey Graham's pernicious Amendment was proposed and passed with no debate about its far-ranging implications and without any hearings. The senators who voted for it bought into Bush's "war on terror" mantra, ignoring the basic constitutional principles that inform our system of government.

These senators will have the opportunity to rectify this grave threat to the Constitution. As early as today, Senator Jeff Bingaman (D-NM) will attempt to strike from the Graham Amendment the language barring Guantánamo prisoners from habeas relief. Senator John McCain may support a compromise. He said, "Based on ongoing discussions, it is entirely possible that the current version of the amendment will be modified to address concerns about lawful treatment and the scope of independent appeals."

More than 100 legal scholars, including this writer, have signed a letter urging senators to adopt an amendment of the kind proposed by Senator Bingaman. The Center for Constitutional Rights concurs: "Habeas Corpus is a fundamental right that our entire legal tradition is founded on. Unfettered Executive power jeopardizes our free and democratic society. Creating 'no law zones' of unreviewable Executive power at Guantánamo undermines the moral standing of the United State in the eyes of the world and endangers the lives of US soldiers abroad."

The Graham Amendment has also drawn opposition from Judge John Gibbons, who argued Rasul v. Bush before the Supreme Court; John Hutson, Dean of Franklin Pearce Law Center and former Judge Advocate General of the US Navy; and the National Institute for Military Justice. NIMJ President Eugene R. Fidell wrote, "We disable ourselves from objecting to flagrant lawlessness elsewhere when we shut the doors to our courts, which are the jewel in the crown of our democracy."

Habeas Corpus, known as The Great Writ, is the final bastion of liberty for those unjustly held. There was an attempt to suspend Habeas Corpus during the internment of tens of thousands of Japanese-Americans during World War II. That travesty is now universally recognized as a shameful chapter in our nation's history. To suspend The Great Writ while allegations of systematic torture continue to emerge from US prisons, will threaten our Constitution and render "quaint" our democracy.

The Democrats who voted in favor of the Graham Amendment were Joseph Lieberman (Conn.), Kent Conrad (N.D.), Ben Nelson (Neb), Mary L. Landrieu (La), and Ron Wyden (Or).

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The Roberts Court?

Consider this: John Roberts's nomination for Associate Justice of the Supreme Court is confirmed by the Senate. Chief Justice William Rehnquist steps down. Then, Bush elevates Roberts to Chief.

This scenario would avoid the nasty fight that would surely ensue if Bush elevated his model Supreme Court Justice Antonin Scalia - or chose another rabid right-winger - to be Chief Justice. The Democrats lined up to pose with the smiling Roberts during his expertly choreographed visit to the Senate last week - not a word about a filibuster if Roberts refuses to explain his record as apologist for the Reagan and Bush I administrations and the big corporations he represented. And judging from the giddy reaction of Operation Rescue and the Family Research Council to Roberts's nomination for Associate Justice, Bush's conservative base would be thrilled.

Rehnquist was a radical, far out of the mainstream of the rest of the Court, when Ronald Reagan made him Chief. When he clerked for Justice Robert Jackson, Rehnquist had written a memo called, "A Random Thought on the Segregation Cases," in which he advised Justice Jackson to affirm Plessy v. Ferguson's "separate but equal" doctrine in future segregation cases, including Brown v. Board of Education. The memo stated, "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed." Rehnquist concluded that the Court should uphold segregation and refuse to protect "special claims" simply "because its members individually are 'liberals' and dislike segregation." Plessy was later overturned in Brown v. Board of Education.

A former Rehnquist law clerk, Roberts is Rehnquist Lite - but less controversial than Rehnquist was when he became Chief. While not directly attacking Brown, Roberts, as Associate Counsel to President Reagan, argued in favor of right-wing legislation that would have prohibited judges from ordering busing to desegregate schools. Why? Because, said Roberts, busing "promotes segregation rather than remedying it, by precipitating white flight."

Hale fellow, well met, Roberts is smooth. Since junior high, he has assiduously groomed himself to be on the Supreme Court. In a footnote in his 1994 law review article, Roberts wrote, "In the interest of full disclosure, the author would like to point out that as Deputy Solicitor General for a portion of the 1992-93 term, he was involved in many of the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United States." Roberts, who knew that someday he might have to explain those views to a Senate Judiciary Committee, set out to distance himself from them.

After Roberts's nomination last week, the Washington Post, the Los Angeles Times, USA Today and the Associated Press identified Roberts as a member of the right-wing Federalist Society. But after the White House called the news organizations and informed them that Roberts said he "has no recollection" of ever being a member of the Federalist Society, they printed retractions. Lo and behold, the Washington Post reported today that John G. Roberts Jr. is listed as a member of the steering committee of the Federalist Society in its Lawyers' Division Leadership Directory, 1997-1998.

This could blow up in Bush's face. With Watergate, it was the cover-up that became the blockbuster. The same thing could happen with "Federalistgate" (and "Plamegate," for that matter).

But what if Roberts is confirmed? What would a Roberts Court look like? Roberts, who wrote a brief saying there is no right to an abortion in the Constitution, would work to overturn Roe v. Wade. But even more alarming, Roberts, who spent the lion's share of his government service in the executive branch, would extend the scope of presidential authority in an unprecedented manner.

George W. Bush has pushed the envelope of executive power to a new level - by invading a sovereign country that posed no threat to America, based on his illegal "pre-emptive war" doctrine; by declaring that, as Commander-in-Chief, he has the power to suspend the Geneva Conventions; by planning to covertly influence the "democratic" Iraqi elections; by threatening to veto any bill Congress passes that would encroach on his presidential power; by snooping through the sites we visit on the Internet and the books we read; and by shielding Karl Rove from criminal prosecution (don't be surprised if something untoward happens to the independent prosecutor investigating Rove).

Four days before Bush tapped him for the Supreme Court, Roberts, in Hamdan v. Rumsfeld, granted the President unchecked authority to create kangaroo courts to try suspected terrorists, even though the Constitution gives only Congress the right to establish courts.

In the never-ending war on terrorism, Roberts would likely defer to the President to torture, assassinate, or imprison for life anyone the executive dubbed a "terrorist." He would likely defer to the President by upholding the noxious provisions of the Patriot Act that threaten our civil liberties but make us no safer. And Roberts, always the company man, would likely defer to the President whenever the executive takes a position that favors corporations at the expense of workers and the environment.

The justice Roberts would replace, Sandra Day O'Connor, wrote in Hamdi v. Rumsfeld last year, "A state of war is not a blank check for the President." Judging from his decision in Hamdan, Roberts might well write the executive that blank check.

Our constitutional system is grounded in the symmetry of three co-equal branches of government, each with separate and distinct powers. The 50-year-old Roberts would have the opportunity to shape the Court for decades. By moving the judicial branch to bypass Congress and defer to the executive, Chief Justice John Roberts could preside over a Court that will destroy the separation of powers as we know it.

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Dear Mr. Gonzales

Dear Mr. Gonzales,

You have been rewarded for your unflinching loyalty to George W. Bush with a nomination for Attorney General of the United States. As White House Counsel, you have walked in lockstep with the President. As Attorney General, you will be charged with representing all the people of the United States. Your performance before the Senate Judiciary Committee on Thursday verified that you will continue to be a yes-man for Bush once you are confirmed.

In the face of interrogation by members of the Committee, you waffled, equivocated, lied, feigned lack of memory, and even remained silent, in the face of the most probing questions. Your refusals to answer prompted Senator Patrick Leahy to say, "Mr. Gonzales, I'd almost think that you'd served in the Senate, you've learned how to filibuster so well."

Even though the Department of Justice retracted the August 2002 torture memo, and replaced it with a new one on the eve of your confirmation hearing, you still refuse to denounce the old memo's narrow and illegal definition of torture. You permitted that definition to remain as government policy for 2 1/2 years, which enabled the torture of countless prisoners in U.S. custody.

You continually evaded inquiries about your responsibility for drafting the now-repudiated memo by portraying yourself as a mere conduit for legal opinions from the Justice Department's Office of Legal Counsel. This puzzled Senator Russ Feingold, who said, "If you were my lawyer, I'd sure want to know your opinion about something like that."

Republican Senator Lindsey Graham told you, "I think we've dramatically undermined the war effort by getting on the slippery slope in terms of playing cute with the law, because it's come back to bite us." Indeed, 12 retired professional military leaders of the U.S. Armed Forces wrote to the Judiciary Committee, expressing "deep concern" about your nomination because detention and interrogation operations which you appeared to have "played a significant role in shaping" have "undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world."

When Senator Graham, an Air Force judge advocate, asked you if you agreed with a professional military lawyer's opinion that the August memo may have put our troops in jeopardy, you were tongue tied. You said nothing for several embarrassing seconds, until Senator Graham suggested you think it over and respond later.

When Senator Richard Durbin asked "Do you believe there are circumstances where other legal restrictions, like the War Crimes Act, would not apply to U.S. personnel?" you again sat mute for several seconds, and then asked to respond later.

It is alarming, Mr. Gonzales, that a lawyer with your pedigree would be stumped into silence by these questions.

You have taken the unprecedented step of advising the President that the Geneva Conventions have become "obsolete." You testified that since "we are fighting a new type of enemy and a new type of war," you "think it is appropriate to revisit whether or not Geneva should be revisited." You admitted preliminary discussions are already underway.

The 12 former military leaders wrote, "Repeatedly in our past, the United States has confronted foes that, at the time they emerged, posed threats of a scope or nature unlike any we had previously faced. But we have been far more steadfast in the past in keeping faith with our national commitment to the rule of law."

Mr. Gonzales, you have concurred in, even commissioned, advice that led to the following:

Sodomy with a broomstick, chemical light, metal object
Severe beatings

Water boarding (simulated drowning)

Electric shock

Attaching electrodes to private parts

Forced masturbation

Pulling out fingernails

Pushing lit cigarettes into ears

Chaining hand and foot in fetal position without food or water

Forced standing on one leg in the sun

Feigned suffocation

Gagging with duct tape

Tormenting with loud music and strobe lights

Sleep deprivation

Hooding

Subjecting to freezing/sweltering temperatures

"Dietary manipulation"

Repeated, prolonged rectal exams

Hanging by arms from hooks

Permitting serious dog bites

Bending back fingers

Intense isolation for more than 3 months

Grabbing genitals

Severe burning

Stacking of naked prisoners in pyramids

Injecting with drugs

Leaving bullet in body of wounded prisoner

Taping naked prisoner to board

Shooting into containers with men inside

Keeping prisoners in small, outdoor cages

Pepper spraying in face

Forcing heads into toilets and flushing

Threatening live burial, drowning, electrocution, rape and death

Beating prisoners to death

Killing wounded prisoners

Throwing off bridge into river and drowning

Rape

Murder

Saddam Hussein would be proud of you, Mr. Gonzales.

Perhaps most alarming was your response to Senator Durbin's question, "Can U.S. personnel legally engage in torture under any circumstances?" You answered, "I don't believe so, but I'd want to get back to you on that." You failed to give a categorical "no" answer. You surely know, Mr. Gonzales, that the Convention Against Torture prohibits torture at any time. That treaty, ratified by the United States and therefore part of the Supreme law of the land under the Supremacy Clause of the Constitution, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."

Mr. Gonzales, based on your record and your performance before the Senate Judiciary Committee, I have critical concerns about your appointment as Attorney General. I believe you would stand mute if George W. Bush told you he planned to collapse the three branches of government into one, destroying the Constitutional separation of powers. Even though Article I, Section 8 of the Constitution gives only Congress the authority "to make Rules concerning Captures on Land and Water," you refused to tell the Senate Judiciary Committee that the President is not above the law. You think the President has the power to declare an act of Congress unconstitutional. You would rationalize the torture of prisoners.

Where even the strident John Ashcroft thought prisoners in United States custody are entitled to due process, you designed the military tribunals to deny it to them.

As counsel to Texas Governor George W. Bush, you wrote abbreviated clemency memos in capital cases omitting crucial defenses such as ineffective assistance of counsel, even evidence of factual innocence. Your counsel led Bush to deny pardons in 56 of 57 death penalty cases.

You sat before the Senate Judiciary Committee and the American people for seven hours with a smug grin on your face, lying to us, knowing you will be confirmed.

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

You will have the distinction of being the first Latino Attorney General of the United States. You come from humble roots in Humble, Texas. You should understand the struggles of people of color, yet you have turned your back on them. As overseer of the policies that led to the torture of myriad people of color in Iraq, Afghanistan and Guantánamo Bay, you have betrayed your roots.

Your actions have shamed us in the eyes of the world and endangered our fighting men and women.

You do not deserve to be our country's top prosecutor, head of the Department of Justice, charged with protecting our civil rights.

Mr. Gonzales, you should be ashamed.

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The Torturer-in-Chief

The teflon that has enveloped George W. Bush is chipping off. Arriving in office with the promise of a "humble" foreign policy, Bush was sitting pretty at the beginning of his term. But George’s honeymoon has turned sour.

From the first day of his presidency, the neocons in Bush’s cabal determined to "stabilize" Iraq for U.S. corporate investment. Bush had his own motives to "git" Saddam for his would-be hit on George I. The tragedy of September 11 gave them just the opportunity they’d been waiting for.

Cloaking themselves in the "War on Terror," Bush and his minions methodically wove an intricate web of deception to convince the American people that Saddam was about to launch the "mushroom cloud," ending civilization as we know it.

It was our mission, Bush preached, to save the Iraqis from Saddam-the-torturer. But a telling phrase in Bush’s January 2003 State of the Union Address should have prepared us for the emergence of Bush-the-torturer.

"All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate," Bush said. "Let's put it this way," he clarified, "they are no longer a problem for the United States and our friends and allies."

This was an implicit admission by Bush that he had sanctioned the summary execution of the "many others."

Gradually, it became clear there were no weapons of mass destruction. This week, the 911 Commission reported there is no credible evidence Saddam Hussein and al Qaeda cooperated in the 911 attacks. Yet, this same week, Dick Cheney intoned that Saddam "had long-established ties with al Qaeda." More disinformation.

Americans soon began to tire of Operation "Iraqi Freedom." Most feel there was no good reason to suffer the deaths of nearly 1000 American soldiers and thousands of Iraqis, no need to spend billions of precious taxpayer dollars on the Iraqi quagmire.

In the face of waning support for the war and the impending U.S. election, the Bushies devised a strategy to hand-over "sovereignty" to the Iraqi people on June 30. Notwithstanding the titular end of the occupation, 138,000 American troops will remain on the ground in Iraq. Although the violence in Iraq has intensified, with Iraqis fighting both the occupiers and other Iraqis, the June 30 date stands firm.

Meanwhile, the photographs began to emerge. The world was treated to images of pyramids of naked Iraqis, forced masturbation, unmuzzled dogs snarling at prisoners a few inches away, bleeding and dead Iraqis.

Major General Antonio Taguba’s report was released. It documented sodomy with a chemical light and electric wires attached to the penis of a nude hooded prisoner.

As fingers began to point up the chain-of-command, prisoners were released and commanders reassigned. The cover-up got underway.

Donald Rumsfeld called it "abuse," not "technically" torture. A few bad apples. Nothing too serious.

Seven low-ranking soldiers were quickly charged with crimes under the Uniform Code of Military Justice - the fall guys and gals.

And then "the leaks" began. The photographs and testimonials of torture had empowered those on the inside to contact the media with the bombshells. We learned that Bush’s hired guns had secretly penned two tomes, one for the Defense Department and the other for the Justice Department. Both documents purport to justify the use of torture under the President’s war-making power, notwithstanding the Constitution’s clear mandate that only Congress can make the laws.

The Congressional powers enumerated in the Constitution: "Congress shall have the power - to define and punish - offenses against the law of nations; to declare war - and make rules concerning captures on land and water; - [and] to make rules for the government and regulation of the land and naval forces."

As commander-in-chief, however, the President has a "constitutionally superior position" to Congress, according to the memo written for the Defense Department. It seems the president’s men have now taken on the tripartite Separation of Powers doctrine enshrined in the Constitution.

Their constitutional apostasy flies in the face of the landmark ruling in the Korean War case, Youngstown Sheet & Tube Co. v. Sawyer, where the Supreme Court held, "In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." For, as the Court noted, "The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times."

Try as they might, the lawyers commissioned by Donald Rumsfeld and presidential counsel Alberto R. Gonzales were unable to find a loophole in the Torture Convention’s absolute proscription on torture. "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture," according to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Torture Convention, ratified by the United States, is part of the supreme law of the land under the Constitution. Congress implemented our obligations under this treaty by enacting the Torture Statute, which provides 20 years, life in prison, or even the death penalty if death results from torture committed by a U.S. citizen abroad. The USA PATRIOT Act added the crime of conspiracy to commit torture to the Torture Statute.

Bush’s lawyers used tortured reasoning to opine that the Torture Statute cannot be utilized to prosecute Americans in Guantanamo because it lies within the "territorial jurisdiction of the United States, and accordingly is within the United States."

The Bush administration has hypocritically taken the opposite position in denying the Guantanamo prisoners access to U.S. courts to challenge their indefinite detention.

The Torture Convention prohibits the intentional infliction of severe physical or mental pain or suffering on a person to (a) obtain a confession, (b) punish him, or (c) intimidate or coerce him based on discrimination of any kind. To violate this treaty, the pain or suffering must be inflicted "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Ashcroft’s legal eagles redefined torture, narrowing it to require the infliction of physical pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." For mental pain or suffering, they would require "significant psychological harm of significant duration, e.g., lasting for months or even years."

The Istanbul Protocol of 9 August 1999 is the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It sets forth international guidelines for the United Nations High Commissioner for Human Rights.

Included in the Protocol’s list of torture methods are rape, blunt trauma, forced positioning, asphyxiation, crush injuries, humiliations, death threats, forced engagement in practices violative of religion, and threat of attacks by dogs. The photographs and reports from prisoners in Abu Ghraib include all of these techniques.

Moreover, the Defense Department analysis maintained that a torturer could get off if he acted in "good faith," not thinking his actions would result in severe mental harm. If the torturer based his conduct on the advice in these memos, he would, according to this argument, have acted in good faith.

Who authored the "whorific" rationalizations for the Justice and Defense Departments? A Washington Post editorial called it "a shocking and immoral set of justifications for torture." William J. Haynes II, Bush’s nominee for a lifetime seat on the Fourth Circuit Court of Appeal, oversaw the preparation of the report for the Department of Defense. And another Bush nominee for a federal judgeship, former Assistant Attorney General Jay S. Bybee, now a permanent judge on the Ninth Circuit Court of Appeals, drafted the document for the Department of Justice. How cozy.

Not only has Bush received legal [sic] advice on how to get around our obligations under the Torture Convention and the Torture Statute. His lawyer Alberto Gonzales, opining on whether to apply the Geneva Conventions to Taliban and al Qaeda prisoners, told Bush the "new paradigm" of the war on terror "renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

Evidently the Bush administration thinks prohibitions on torture, and Congress’ lawmaking authority in our own Constitution, are quaint.

Gonzales, who is often mentioned as a prospective Bush nominee for the Supreme Court, went on to assure his boss that "your determination [to bypass the Geneva Conventions] would create a reasonable basis in law that Section 2441 [the War Crimes Statute] does not apply, which would provide a solid defense to any future prosecution." So Bush’s own decision to bypass Geneva gives him a defense to violating Geneva.

One year ago, Bush repudiated torture in a statement on the United Nations International Day in Support of Victims of Torture: "Torture anywhere is an affront to human dignity everywhere," he assured us disingenuously.

Trying to calm the mushrooming public relations disaster occasioned by the leaking of the legal opinions, Bush said flippantly, "The instructions went out to our people to adhere to law. That ought to comfort you." But last week, when Bush was asked whether he had seen the Justice Department memo, he answered, "I don’t remember."

Rumsfeld, who, according to a Defense Department spokesman, approved 24 of 35 interrogation techniques in a classified directive, refuses to state publicly what he sanctioned. Ashcroft defied Congressional requests to release the legal policy memo prepared at his instigation.

"There are some extremely damaging documents around, which link senior figures to the abuses," according to former New York Bar Association chairman Scott Horton, who is advising dissenters at the Pentagon. He maintains, "The biggest bombs in this case have yet to be dropped."

If Bush knew or should have known about the torture, and failed to stop or prevent it, he could be liable for "command responsibility" if prosecuted under the War Crimes Act or the Torture Statute. A federal court in Miami in July 2002 held two retired Salvadoran generals liable for torture, even though neither had perpetrated or ordered it.

On January 21, 2004, a prisoner gave a sworn statement to the Washington Post about his experience in Abu Ghraib. He reported being beaten on his kidneys and ear until he lost consciousness, being tied to the window with his hands behind his back until he lost consciousness, and being sodomized with a stick about 2 centimeters into his anus.

Sgt. Greg Ford, a California National Guardsman, said he repeatedly revived prisoners who had passed out after being choked in an Iraqi police station. Ford saw a soldier stand on the back of a handcuffed detainee’s neck and pull his arms until they popped out of their sockets. "Twice I had to pull burning cigarettes out of detainee’s ears," according to Ford.

Another former National Guardsman was choked and beaten to the point of brain damage, while acting as a detainee being beaten by fellow military policeman during training at Guantanamo.

These accounts do not describe conduct befitting a civilized country.

George W. Bush came into the White House - albeit through the back door - pledging to restore honor to the White House. Instead, he has dishonored America by leading us into an illegal war under false pretenses.

In light of the Defense and Justice Department documents, there is probable cause to believe that the commander-in-chief condoned the methodology of torture to secure information from prisoners.

The Constitution mandates the impeachment of a President for high crimes and misdemeanors. There is no higher crime than a war crime. Willful killing, torture and inhuman treatment constitute grave breaches of the Geneva Convention, which are considered war crimes under The War Crimes Act of 1996. Even if Bush’s lawyers could successfully parse the meaning of torture, they cannot deny that the atrocities we’ve seen constitute inhuman treatment.

Bush impliedly admitted sanctioning willful killing, torture and inhuman treatment in his 2003 State of the Union Address. He would be liable under the doctrine of command responsibility for war crimes committed in Iraq as well. The captain goes down with his ship. It is time to call for the Impeachment of George W. Bush.

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Spain, the EU and the US—War on Terror or War on Liberties?

Once again, the eyes of the world are focused on a brutal and devastating terrorist attack on innocent civilians, this time in Spain. But instead of demanding tougher anti-terrorism laws, the Spaniards on Sunday voted out the center-right government that supported the Iraq war. The Spanish people, who had overwhelmingly opposed the war, were evidently moved by Al Qaeda's statement that the attack was "a response to your collaboration with the criminals Bush and his allies."

As the Spanish national elections approached last week, the center-right government had tried to lay blame for the vicious rail attack on the Basque separatist movement ETA, hoping that the people would respond by voting for the existing government. But when the evidence pointed to Al Qaeda, the Spanish people unseated the old government, and replaced it with the Socialists.

On Sunday, the New York Times analyzed Spain's readiness to sign onto George W. Bush's war on terror: "Spain, like Britain, embraced the American approach, principally in order to place its fight against ETA in the context of a global war on terrorism." The soon-to-be Prime Minister Jose Luis Rodriguez Zapatero recognizes this well. "This [former] government," he told journalists, "doesn't serve Spaniards any more, it only serves the interests of Bush."

Spain was one of the few European countries that stood by Bush in his war on Iraq. After September 11, 2001, under the guise of the "war on terror," the Bush administration had launched a war on civil liberties. Although unable to convince most European countries to participate in its Iraq war, Washington successfully pressured the European Union to enact a framework law on terrorism reminiscent of the repressive anti-terrorist legislation in the United States.

At the end of February, I participated in a colloquium in Brussels on the struggle against terrorism and the protection of fundamental rights. Invited by the Belgian Progress Lawyers Network, I was tasked with explaining the post-September 11 anti-terrorism laws in the United States to a large gathering of European lawyers.

Three days before the colloquium, United States Education Secretary Roderick R. Paige called the largest teachers union in the U.S. a "terrorist organization." This characterization alarmed the lawyers at the colloquium, who fear that their own anti-terrorism laws will be used to suppress labor struggles.

As lawyers and law professors from country after country rose to speak about their anti-terrorism laws, I felt an ominous deja-vu. The geography was different but the themes were familiar: vague laws that criminalize dissent, authorize preventive detention, and blur the separation of powers.

Many of the new anti-terrorism laws in Europe, as in the United States, were in the works before September 11. The 342-page Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or USA Patriot Act, rushed through Congress a month after September 11, contains detailed provisions that had to have been a long time in the drafting. Similarly, my European colleagues explained that their governments, looking for ways to criminalize trade union activity throughout the 1990s, took advantage of the September 11 attacks to pass laws that will facilitate attacks on labor.

In June 2002, the European Union enacted a framework decision on combating terrorism. It establishes a joint definition of "terrorism" that member states are expected to insert in their national legislation. This definition is so broad, it proscribes many social, political and labor movements. It says that committing or threatening to (a) cause extensive damage to a government or public facility, transport system, infrastructure facility, or private property likely to result in major economic loss, which may damage a government or international organization, constitutes a terrorist offense, when committed with the intent either (a) to compel the organization to perform or abstain from any act, or (b) to seriously destabilize or destroy the fundamental political, constitutional, economic or social structure of a country or international organization. A general strike or a large demonstration against the World Trade Organization, where property is damaged and considerable expense is incurred to mobilize a police force, could be punished as terrorism under this definition.

The framework decision contains a clause that aims to protect civil liberties: "Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly, of association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate." But the European lawyers at the colloquium were of the mind that this disclaimer merely provides lip service to the protection of basic civil rights. They pointed out that the Nazi occupiers attached the word "terrorist" to the political prisoners interned at the Breendonk concentration camp near Brussels, and Nelson Mandela was called a terrorist before he was released from prison and elected president of the newly liberated South Africa.

Six European Union member states have enacted specific legislation to comply with the framework decision. All consider the destabilization of political or economic power an element of terrorist crime. Other member states are using their existing laws on criminal conspiracy to punish not just participation in terrorist acts, but also simply being a member of prohibited organizations.

In December 2003, the Belgian Parliament enacted an anti-terrorism law to comply with the framework decision. Under its terms, someone painting graffiti in an urban environment can be considered a terrorist, if the public prosecutor and judge decide that the destruction of property was undertaken with the purpose of "destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country" and it caused "considerable economic damage."

The United Kingdom passed the Anti-Terrorism, Crime and Security Act 2001 in the wake of the September 11 attacks. A person can be indefinitely detained if the Home Secretary issues a certificate stating he has (a) a reasonable belief that a person's presence in the United Kingdom is a risk to national security, and (b) a reasonable suspicion that the person is a terrorist. "Terrorism" in the United Kingdom encompasses the use or threat, "for the purpose of advancing a political, religious or ideological cause," of action "designed to influence a government or to intimidate the public or a section of the public," which involves serious violence against any person or serious damage to property, endangers the life of any person, or "creates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously disrupt an electronic system."

The law professors from the United Kingdom felt that this definition is so broad, it is unworkable, and blurs the line between protest and terrorist groups.

In Italy, the anti-terrorism law provides for five to ten years imprisonment for simply participating in organizations that "aim to commit violent actions with subversive purposes against the democratic order." An Italian lawyer complained that the provision does not define "subversive purpose" or delineate what level of participation is required to run afoul of this statute. He said the Italian law harkens back to the Fascist code on terrorism. Likewise, some pointed out that the Spanish definition of terrorism is the same as the one in effect during Franco's regime.

Two hundred European lawyers, magistrates and jurists signed a statement complaining that the European framework decision threatens democratic rights. Last year, members of the United Nations Human Rights Commission expressed concern at the "broad use of the word terrorism" and the "increasing attack on human rights" in the struggle against terrorism.

Lawyers at the colloquium observed that in Germany, Belgium and the United Kingdom, the executive branch had enacted anti-terrorist laws, which place all power in the executive, blurring the separation of powers.

Many also expressed concern at the absence of guarantees that the privacy of databases shared by European countries with the United States would be protected. A British lawyer observed that providing sophisticated security devices will be quite profitable; he called it the "security-industrial complex."

Some pointed out that whereas the European Union defines terrorism as a crime, the United States sees terrorism as an act of war. International state terrorism, or regime change (such as the United States' war on Iraq), however, is conveniently excluded from the definitions of terrorism.

Most people in Europe opposed the war on Iraq, and they do not see a war on civil liberties as an effective antidote to terrorism. David, a young Spaniard, told the New York Times why he changed his vote to Socialist: "Maybe the Socialists will get our troops out of Iraq, and Al Qaeda will forget about Spain, so we will be less frightened."

During the election campaign, Zapatero vowed to change the government's policy toward ETA, saying, "We have to sell the idea that Spain can be more democratic and that it can understand the needs of the Basque country." He understands that long as poverty, repression and imperialism are the norm, terrorism will be the frightening response.

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