August 30, 2004

Command Responsibility: Playing Politics With Torture

As George W. Bush prepares to take center stage at Madison Square Garden, two reports released in tandem purport to represent thorough investigations of the ‘abuses’ at Abu Ghraib prison in Iraq.

The near-simultaneous publication of the Schlesinger Report and the Fay Report is not coincidental. Following Senator John McCain’s admonition when the Abu Ghraib scandal broke back in April, the Bush administration wants to get all the bad news out now, so it will be overshadowed by the Grand Ol’ Party in New York next week.

The ‘Independent’ Panel to Review Department of Defense Operations, aka the Schelsinger Report, was prepared by a team Donald Rumsfeld selected from his own Defense Policy Board. Not surprisingly, it stops short of pointing the finger at the Secretary of Defense, or the President.

An Army panel headed by Maj. Gen. George R. Fay likewise accepts at face value Rumsfeld’s denial that he had any knowledge of the atrocities perpetrated by Americans against Iraqis.

After all, as Rumsfeld claimed Thursday,”if you are in Washington, D.C., you can’t know what’s going on in the midnight shift in one of those many prisons around the world.” The Secretary evidently hasn’t heard of telephones, faxes or email.

Rumsfeld hadn’t even read the reports – or even the executive summaries – when he denied in a radio interview in Phoenix that abuses took place during interrogations at Abu Ghraib: “I have not seen anything thus far that says that the people abused were abused in the process of interrogating them or for interrogation purposes.”

In fact, the Fay report found that 13 of the 44 instances of abuse took place during interrogations. And Rumsfeld would only have had to read the first paragraph of the Schlesinger report, which says: “We do know that some of the egregious abuses at Abu Ghraib which were not photographed did occur during interrogation sessions and that abuses during interrogation sessions occurred elsewhere.”

Nevertheless, the reports read like an apologia for the mistreatment: the prison was understaffed, personnel were not well-trained and lacked discipline, and they were under pressure to get information in the Global War on Terror. Yet only one-third of the documented atrocities took place during interrogations. And they don’t remind us that, according to the Red Cross, 70 to 90 percent of those held at Abu Ghraib were there by mistake.

Neither report discusses the well-established doctrine of “command responsibility.” Where a commander, even a commander-in-chief, knew or should have known about misbehavior committed by his inferiors, and the commander fails to stop or prevent it, he is just as liable as the soldier who committed the offense.

So the question is whether Rumsfeld or Bush should have known about the unleashing of dogs on two juveniles to see if they would defecate on themselves, the rape of a young screaming prisoner, or the man the CIA killed and left dead in the shower for others to smuggle out on ice as if he were still alive. Should the Secretary and the President have known that forced nudity around Abu Ghraib was commonplace?

The Schlesinger report adopts the well-worn adage that good news travels up the chain of command, but bad news does not. The suggested fix: Rummie needs a better pipeline.

Newly leaked secret portions of the Fay report confirm that Lt.Gen. Ricardo S. Sanchez “approved the use in Iraq of some severe interrogation practices intended to be limited to captives held in Guantanamo Bay, Cuba, and Afghanistan.”

The Schlesinger report uncritically agrees with Bush’s decision that the Geneva Conventions don’t apply to al Qaeda and Taliban prisoners; therefore, severe treatment was permissible in Gitmo and Afghanistan.

But unfortunately, according to the report, the Gitmo and Afghanistan practices somehow “migrated” with the interrogators to Iraq, where prisoners should have been protected by Geneva.

Missing from the analysis is a reminder that Geneva requires a competent tribunal – not George W. Bush – to decide whether a prisoner falls under the Geneva Convention on the protection of prisoners of war. Even if the prisoners at Gitmo and Afghanistan are not POW’s, they are still entitled to humane treatment under Geneva.

Even more forceful interrogation practices conducted by the CIA provided a role model for soldiers and civilians at Abu Ghraib. Although alluded to in the Fay report, the CIA insists on keeping secret the document that served as a template for unauthorized interrogation practices.

Although 44 allegations of brutality are chronicled in the Fay report, there is no thorough discussion of why many of them may actually amount to torture, not simply “abuse.” In fact, the executive summary classifies rape as “abuse,” even though it is well-accepted that rape constitutes torture. Yet Fay used the ‘t’ word at a Pentagon news conference. He admitted to reporters: ‘there were a few instances when torture was being used.”

The Schlesinger report, again walking in lockstep with the Bush administration, slams the venerable International Committee of the Red Cross for saying Bush’s classification of prisoners as ‘unlawful combatants’ violates the Geneva conventions.

While concluding the Secretary of Defense had no knowledge of the abuses, the Schlesinger report accuses the Pentagon’s top civilian and military leadership of failing to exercise sufficient oversight and permitting conditions that led to the abuses. Rumsfeld’s reversals of interrogation policy, according to the report, created confusion about which techniques could be used on prisoners in Iraq.

A major omission in the reports is mention of the effect of the ‘legal’ memos prepared by the Defense and Justice Departments that justify the use of torture during interrogations. Under U.S. law, torture is never permitted, even in wartime. Yet the memos advise Bush and Rumsfeld how they can avoid prosecution under the federal torture statute. This advice should surely figure in to a discussion of whether our leaders should have known what was happening on their watch.

Indeed, more than 300 lawyers, retired judges, and law professors, including a former FBI director and an ex-Attorney General, seven past presidents of the American Bar Association, and this writer, signed a statement denouncing the memos, which, we wrote,”ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law.” The statement condemns the most senior lawyers in the DOJ, DOD, White House, and Cheney’s office, who “have sought to justify actions that violate the most basic rights of all human beings.”

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

In July, Brig. Gen. Janis Karpinski, part of the command structure at Abu Ghraib, alleged that Rumsfeld personally approved the transfer of harsher interrogation methods from Guantanamo to Iraq, a charge the Defense Secretary denied.

Karpinski also told the BBC she met an Israeli who worked at a secret intelligence center in Baghdad. The Israeli government has denied that charge, as well as FBI allegations yesterday that Larry Franklin, an Israeli spy in Undersecretary of Defense for Policy Douglas Feith’s office, supplied Israel with classified documents including secret White House policy deliberations on Iran. Before the war, Feith set up a special intelligence unit to link Iraq with Al Qaeda. Franklin also has ties with Deputy Defense Secretary Paul Wolfowitz, architect of Bush’s Iraq policy. The FBI’s new bombshell may lead to evidence of Israel’s undue influence on Bush’s Iraq – and Iran – policy.

It’s secrecy as usual in the Bush administration.

A recent editorial in The New York Times about the Schlesinger and Fay reports found it “pretty obvious that Mr. Rumsfeld’s panel – two former secretaries of defense, a retired general and a former Republican congresswoman – was not going to produce a clear-eyed assessment of responsibility.” But the Times went on to say: ‘the two reports do make it starkly evident that President Bush’s political decision to declare the war over far too prematurely and Mr. Rumsfeld’s subsequent bungling of the occupation set the stage for the prison abuses.”

John Kerry has called on Donald Rumsfeld to resign, but added,”The buck doesn’t stop at the Pentagon.” James R. Schlesinger, a former defense secretary in two Republican administrations, had his marching orders, however. Rumsfeld’s resignation, Schlesinger told the media, would only help our enemies. Remember that when the photographs came to light last spring, Bush declared Rumsfeld was ‘the best secretary of defense the United States has ever had.”

The dots are all there to connect up the chain of command to the top. Next week, we will see more smoke and mirrors as the GOP launches its Texas sweetheart toward the White House once again. There will be additional studies of the “abuses” at Abu Ghraib. What is less certain is whether the Commander-in-Chief and his Secretary of Defense will be held accountable for a war that never should have been, and a policy that led to the torture of so many prisoners.

August 20, 2004

Chavez Victory: Defeat for Bush Policy

The Bush administration is gritting its collective teeth at the outcome of Sunday’s recall election in Venezuela, which overwhelmingly affirmed President Hugo Chavez’s tenure. If President Jimmy Carter had not lent his enormous credibility to the election results, Bush and his minions would surely be crying foul in unison with the opposition.

Chavez was popularly elected by his countrymen and women in 1998 and 2000. Yet in spite of Bush’s claims to support democracy around the world, his administration has given succor those trying to overthrow Chavez’s government before, during and since the aborted coup in April 2002.

Officials at the Organization of American States affirmed that the Bush administration had sanctioned the coup. Bush’s then-Assistant Secretary of State for the Western Hemisphere, Otto Reich, met with leaders of the coup for months before it was executed. Elliot Abrams, one of the neoconservative policymakers in Bush’s inner circle, approved the coup, according to the London Observer. And John Negroponte, now our ambassador to Iraq, was in on it, too.

Reich, Abrams and Negroponte comprised the troika that administered the “Reagan doctrine” in the 1980s, which supported vicious dictatorships in Central America, including those in El Salvador, Honduras and Guatemala.

As documented in the film, “The Revolution Will Not Be Televised,” Chavez was forcibly removed from the presidential palace on April 11, 2002 by forces acting on behalf of Venezuela’s propertied class. Pedro Carmona, head of Venezuela’s confederation of business and industry, declared himself president. Within hours, Carmona purported to repeal laws enacted under Chavez that the executives of foreign oil companies opposed.

Forty-eight hours later, after thousands of workers and peasants stormed the palace demanding Chavez’s return to power, the military did an about-face and brought him back. The filmmakers, fortuitously present at the scene, were caught inside the palace and filmed the class struggle that played out with Chavez’s ouster and reinstatement.

Former U.S. Navy intelligence officer Wayne Madsen told the Guardian that our navy helped with communications jamming support to the Venezuelan military during the would-be coup. An American plane was present on the island to which Chavez was whisked away. The Bush administration provided financial backing to key participants in the coup attempt, which resulted in the deaths of 19 people.

Chavez incurred the wrath of Team Bush by championing the interests of the working class over the oil-igarchy in Venezuela. The fifth largest oil supplier in the world, Venezuela is a key provider of U.S. petroleum. By using oil profits to help his people instead of the multinational corporations, Chavez created an alternative model to Bush-backed neoliberal globalization.

Hugo Chavez’s plan of Bolivarianism – named after Simon Bolivar, father of Venezuelan independence – focused on a redistribution of the massive wealth generated by his country’s rich oil profits. He passed a law that doubled royalty taxes paid by ExxonMobil and other oil companies on new finds.

Chavez enacted the Ley De Tierras, which provided for unused land to be given to the landless; he instituted free health care and public education to all; he backed a new Constitution that enshrines rights for women and indigenous peoples; and he lowered the inflation rate.

Unlike the U.S.-backed Iraqi interim government, which shut down Al Jazeera for its broadcasts critical of the occupation, Chavez never shut down or censored private media controlled by tycoons trying to unseat him in the months leading up to Sunday’s election.

Nearly 95 percent of the electorate voted in the election, the largest percentage Jimmy Carter has ever seen. Carter and the Organization of American States have independently verified the validity of Sunday’s election results, and have even supported an audit, which Carter calls “infallible,” according to The New York Times. Nevertheless, the opposition refuses to sanction the results of the election or the audit.

Opposition exit polls, which Carter has dismissed as inaccurate and “deliberately distributed … in order to build up, not only the expectation of victory, but also to influence the people still standing in line,” were funded by the National Endowment for Democracy.

NED, a U.S. government organization purporting to promote democracy, was set up in the early 1980s by Reagan to counter negative revelations about the CIA’s covert operations in the late 1970s. NED successfully manipulated the Nicaraguan elections in 1990 and worked with right-wing groups in the late 1990s to oust Haitian President Jean-Bertrand Aristide.

Just last February, the Bush administration engineered a coup d’etat in Haiti, as I described in my editorial, Coup d’Etat – This Time in Haiti. The U.S. Marines put democratically elected President Jean-Bertrand Aristide on a plane out of Haiti after officials from the United States threatened him into signing a purported resignation letter. Aristide, like Chavez, fell out of favor with Bush by resisting neoliberalism.

Hugo Chavez is, according to The Wall Street Journal, “Washington’s biggest Latin American headache after the old standby, Cuba.” Indeed, Venezuela is Cuba’s top trading partner, selling it discounted oil, while Cuba has sent thousands of doctors, teachers and engineers to work in Venezuela.

Speaking of Cuba, NED donated a quarter-million dollars in the early 1990s to the Cuban-American National Fund, the terrorist anti-Castro group in Miami. CANF financed Luis Posada Carriles, notorious for his involvement in the blowing up of a Cuba airplane in 1976, which killed 73 people.

Chavez, now trying to reunify his country in the wake of a contentious election, says: “Violence can only be ended if actions are taken so that all human beings have access to the fundamental human rights, including education, housing, work and health.” In a déjà vu from a hot-button issue facing us in the United States, Chavez told journalist Greg Palast: “Our upper classes don’t even like paying taxes. That’s one reason they hate me. We said, ‘You must pay your taxes.’”

Critical of the Bush administration’s covert activity against him and Fidel Castro, Chavez maintains: “They are also manipulating the U.S. people because there is a dictatorship in the United States.”

One would hope our election results in November are as reliable as Venezuela’s. If Bush is elected, we can expect him to go after Chavez again, and Castro as well. This would likely destabilize Latin America in much the same way Bush has destabilized the Middle East with his war on Iraq.

Leaders of countries throughout Latin America congratulated Hugo Chavez on his victory Sunday. Yet the Bush government, although grudgingly accepting the results, did not hail the exercise of democracy in Venezuela.

Bush’s agenda was roundly defeated with Chavez’s triumph. Chavez has opposed U.S. policy in Latin America, including military aid to Colombia and efforts to spread free trade agreements throughout the region. Voters who supported him understood that a vote to recall Hugo Chavez would be a vote for U.S. imperialism.

August 13, 2004

Lawful Resistance to Occupation in Najaf

Anyone who tunes in to the cable news channels these days would hardly realize our Commander-in-Chief is presiding over a new campaign of aerial terror against the Iraqi people in the holy city of Najaf. In his nightly prayers, George W. Bush should remember those prosecuting Scott Peterson’s murder trial, which is wall-to-wall fare on television this week.

For nearly a week, American troops and Iraqis under U.S. command have been battling the resistance led by the “radical” cleric Muqtada Sadr in Najaf. Hundreds have been killed. The U.S. forces are poised to strike the Imam Ali shrine. Such an attack on one of the holiest sites in Shia Islam could unleash a volcanic reaction among Shia Muslims throughout the Middle East.

Bush, however, continues to proclaim victory in Iraq, while the number of dead U.S. soldiers rapidly approaches the 1,000 mark. Our troops who haven’t yet been killed are sweltering in 130-degree Iraqi temperatures, with no end in sight.

Kais Alazawi, Editor-in-Chief of the Iraqi daily Al-Jareda, and General Secretary of the secular Arab Nationalist Movement, fears a civil war threatens Iraq.

“In Najaf, we’re witnessing the failure of the transfer of sovereignty process begun in June,” according to Alazawi. He calls the U.S.-chosen interim Iraqi Prime Minister Iyad Allawi “an American pawn who has revealed his true face” by capitulating to the United States’ military campaign against the resistance forces in Najaf.

“This offensive will not diminish the level of violence in the country, much to the contrary,” says Alazawi. “You cannot resolve a fundamental political problem by force. The main problem in Iraq remains the occupation, and when there’s an occupation, there’s resistance. The solution must be political,” in Alazawi’s opinion.

Deputy Governor of Basra, Salam Uda al-Maliki, plans to announce the secession of Basra, Misan and Dhi Qar from the central government in Baghdad, and the effective cessation of oil exports. The separation of these three southern provinces would likely encourage the Kurds in the north to seek greater autonomy, enhancing the possibility of civil war.

“This reaction comes in response to the crimes committed against Iraqis by an illegal and unelected government, and occupation forces who claimed they came to liberate Iraq, but it turned out that they have come to kill Iraqis,” Ali Hamud al-Musawi, head of the Misan governing council, told Al Jazeera Tuesday.

Even the U.S.-installed interim Iraqi government seems to be at odds with itself. In a broadcast on Al Jazeera television yesterday, Interim Vice President Ibrahim Jaafari said: “I call for multinational forces to leave Najaf and for only Iraqi forces to remain there.” Last week, Jaafari said there was “no justification” for the U.S. assault on Najaf. The Financial Times reports Jaafari is Iraq’s most popular politician, according to opinion polls.

The situation in Iraq is deteriorating because the Bush administration has permitted the country to lapse into chaos.

Under the Geneva Conventions, an occupying power has an obligation to protect civilians and enable humanitarian assistance. Thousands of civilians were killed – and continue to die – at the hands of the American military. Cluster bombs and depleted uranium, which indiscriminately target civilians, were used, in violation of Geneva. And the U.S. government’s insistence on hegemony over the provision of humanitarian aid prevented relief organizations from bringing crucial assistance to the suffering Iraqi people.

The Hague Regulations mandate that an occupying power restore and maintain public order and safety in the occupied territory. Yet the occupiers succeeded only in destabilizing the country and destroying its infrastructure. Many Iraqis are forced to drink contaminated water, resulting in epidemics of typhoid and hepatitis E.

When the media does mention the fighting in Iraq, we hear about the Iraqi “insurgents.” There are certainly terrorists operating in Iraq, thanks to Bush’s war, which has drawn them there like a magnet. Those who target civilians – be they suicide bombers, or cluster bombers – are terrorists.

Journalist and writer Paul-Marie de La Gorce said in an interview in Le Nouvel Observateur this week that the al-Qaeda forces, which have come to Iraq just to confront the United States, do not enjoy popular support among the Iraqi people.

But much of the opposition to the occupation appears to be legal under international law. People have a right to resist illegal occupation. In her report, “Terrorism and Human Rights,” United Nations Rapporteur Kalliopi Koufa cited with approval the 1999 Convention of the Organisation of the Islamic Conference on Combating International Terrorism:

“People’s struggles including armed struggle against foreign occupation, aggression, colonialism, and hegemony, aimed at liberation and self-determination in accordance with the principles of international law shall not be considered a terrorist crime.”

The Iraqi resistance goes beyond the followers of Sadr, standard bearer for Shi’ite resisters. De La Gorce says “the Iraqi resistance has won popular support, but is not unified, which is its weakness.”

Contrary to Bush’s claim that his regime change in Iraq has produced a more stable Middle East, his actions have opened a hornet’s nest of death and destruction.

August 6, 2004

Modern Ballot Box Stuffing: Can We Trust Team Bush?

Democracy requires consent of the governed. Consent is measured by the results of fair and free elections. The midwives of our democracy were the founders who made the Revolution, and the leaders of the Civil Rights Movement that gave birth to The Voting Rights Act of 1964.

As we approach the November presidential election, the media treats us to daily updates on the razor-thin margin between the candidates as measured by the polls. The issues that divide Bush from Kerry are parsed in print and on television. We debate the state of the economy, the growing deficit, job loss, terrorism, and the War on Iraq.

Our conversations assume that voters, guided by the differences between the candidates on the issues, will go to the polls and cast their votes freely and fairly.

Casting a pall over that assumption, however, is the memory of Florida 2000, where 537 votes separated Bush from Gore. A confluence of factors led to the anointing of Bush as President.

A black vote in Florida was 50 percent more likely to be “spoiled”- and thus not counted – than a white vote, according to the U.S. Civil Rights Commission.

“Florida’s 2000 felon purge program resulted in over 50,000 legal voters being disenfranchised,” said Ion Sancho, Supervisor of Elections for Leon County in Florida.

And then there were the five members of the Supreme Court who diverged from their traditional deference to “states’ rights” by second-guessing the Florida courts. The conservative justices who handed the election to Bush became one-time champions of “equal protection of the laws” when they stopped the recounting of ballots.

The horrors of hanging and dimpled chads led many to sing the praises of electronic balloting. One of the corporations that manufactures touch-screen voting machines is Diebold Election Systems. Its chief executive, Walden O’Dell, told Republicans in an August 14, 2003 fundraising letter that he is “committed to helping Ohio deliver its electoral votes to the president next year.” As the state of Ohio will be pivotal in the upcoming election, O’Dell’s statement galvanized Democrats to demand a “paper trail” for all votes.

Thanks to the efforts of organizations such as MoveOn.Org, TrueMajority,, and ACT, all votes cast in Ohio in November will now have a paper trail.

But Election Data Services estimates that nearly 30 percent of voters in the presidential election will not vote in systems that produce paper to be used if a recount becomes necessary.

David Dill, Professor of Computer Science at Stanford University and founder of, has no evidence of a conspiracy to fix the election. But, he told me, “We know people would steal elections if they get the chance, and it wouldn’t be hard to steal.” The easiest way to commit fraud, according to Dill, would be by an insider at the company, a programmer who makes a hidden change to the software. With the current procedures, he said, there’s “not a ghost of a chance” the culprit would be caught.

Nearly 100 million of the 115 million votes cast in November will be tabulated by computers owned by four private corporations. Besides O’Dell’s Diebold, Election Systems and Software, Sequoia Voting Systems, and Hart InterCivic will count 5 out of 6 of the votes. Tom Hicks, one of Hart’s principal investors, has close financial ties with Bush.

Dill says, “It is not sufficient for an election to be accurate – the public has to know it’s accurate.” After Senator Max Cleland, the odds-on favorite to win reelection in Georgia in 2002, was defeated, 1 in 8 voters were “not very confident” or “not at all confident” that touch-screen voting machines had produced accurate results. Thirty-two percent were only “somewhat confident.”

Professor Dill advocates transparency in the process. People should watch, and audit trails must exist. With electronic voting, we can’t see inside the machine. Dill admits that paper ballots result in fraud as well, but we can see them; they’re transparent. He’s worried about a system that’s vulnerable to theft. Professor Dill endorses the optical scan system, which electronically scans the vote, and creates a paper backup.

In both the 2002 general election and the March 2004 presidential primary in Florida, there was a higher percentage of undervotes in counties that used touch-screen machines than in those using optical scanners. Undervotes occur when a voter apparently fails to make any choice at all. Moreover, nearly all the electronic records – 8 percent of the vote – from the 2002 primary in Miami-Dade County have been lost, leaving no audit trail. Voters using the touch-screen machines were 6 times as likely to record no votes as those in counties using optical scan machines. This suggests the possibility that intended votes were not recorded for some reason.

There is a bill pending in the House of Representatives that would require a voter-verified permanent record or hardcopy of every vote cast. H.R. 2239 has 150 co-sponsors. Dill maintains it is possible to provide paper backup for all votes cast in November, but thinks it “extremely unlikely,” as the bill is bottled up in committee. He does predict it might pass with an amendment requiring compliance by 2006. A similar bill by Bob Graham and Hillary Clinton, and co-sponsored by seven Democrats and one Independent, is pending in the Senate.

A June editorial in The New York Times decried the foibles of electronic voting machines, which, it claimed, are less secure than slot machines: “Voting machine standards are out of date and inadequate. Machines are still tested with standards from 2002 that have gaping security holes. Nevertheless, election officials have rushed to spend hundreds of millions of dollars to buy them.”

An additional cause for concern is the wrongful disenfranchisement of ex-felons. Republicans planning another mass purge in Florida were caught with their pants down when a judge forced them to reveal that Hispanics – who notoriously vote Republican there – were excluded from the purge. (With Bush’s latest anti-Cuba travel ban alienating many Florida Cubans, however, all bets are off on their votes).

Ion Sancho is alarmed at the lack of data to support the accuracy of Florida’s new felon purge list database for 2004: “As the Supervisor of Elections for Leon County,” Sancho said, “I will not be party to any effort, program or activity which may deny the voting rights of our citizens. I am outraged that our State officials, in an apparent pursuit of some imaginary voting fraud problem, are once again pursuing an ill-conceived program which may once again lead to the disenfranchisement of thousands of Floridians.”

In 2000, Florida denied the vote to 6 percent of its voting age citizens, 16 percent of its black voting age citizens, and 31 percent of its black citizen voting age men.

California attorney John R. Cosgrove argues in a new article in the Thomas Jefferson Law Review that the disenfranchisement of ex-felons in many states violates the Constitution. The Fourteenth Amendment carves out an exception to the Equal Protection Clause – intended to promote black male suffrage – for men who have committed a crime. Cosgrove maintains that this provision only excludes from voting those men who have committed crimes that were felonies at common law. Drug crimes, for example, are not common law crimes. He also notes there is no legal basis to disenfranchise female ex-felons.

The “Protect American Voters Act of 2004, “with 29 co-sponsors, is pending in the House of Representatives. It would require States to provide notice and an opportunity for review prior to removing any individual from the official list of eligible voters by reason of criminal conviction or mental incapacity.

It all boils down to trust. When Bush told us he was a “compassionate conservative,” he said: trust me. When he assured us he would pursue a “humble foreign policy” with no “nation-building,” he said: trust me. When Bush said Iraq was an imminent threat to us, he said: trust me. When he reassured us that the torture of prisoners was the work of but a few bad apples, he said: trust me. And most recently, when he raised the terror alert based on years-old intelligence data, he said: trust me.

Can we really trust this man, who has consistently lied to us about the most important matters of national security, not to engage in dirty tricks in the November election?

With many still smarting from the 2000 election stolen by George W. Bush, some have taken to quoting Joseph Stalin, who said: “Those who cast the votes decide nothing. Those who count the votes decide everything.” But Professor Dill, the voting rights champion, cautions against pessimism that would lead people to sit out the election. Even if the only option is touch screen voting without a paper trail, says Dill, “don’t stay away from the polls.” Our lives depend on it.

July 30, 2004

Bush Jumps on the 9/11 Band-Aid Wagon

The families of the people killed in the September 11 attacks had to fight tooth and nail for a commission to investigate why their loved ones died. George W. Bush opposed an investigation, but finally relented in the face of public pressure. He then dragged his feet when asked to provide information to the commission.

Four days before the start of the Democratic National Convention, the 9/11 Commission released its 567-page report, replete with recommendations for reform of a government that allowed the deaths of 3000 people. The chairman and vice chairman of the commission then appeared on myriad media outlets warning of the possibility of an imminent terrorist attack.

As his opponents took center stage this week, Bush secluded himself at his ranch in Crawford, Texas. But in a classic example of “when you’re being run out of town, get in the front of the crowd and make it look like a parade,” he’s taking a break from chopping wood to sign executive orders implementing some of the recommended reforms. “The president said he wants this on a fast track,” a Bush aide told reporters down at the Crawford ranch.

Bush “cannot be serious – and rest assured he is not,” Richard Cohen wrote in the Washington Post on Tuesday. “The many months of inactivity in this area offer eloquent testimony to Bush’s firm belief that little needs to be fixed. In the same way he could not answer earlier this year what mistakes he had made as president, he cannot even say what mistakes his government made that might have led to Sept. 11 and the debacle in Iraq.”

In my editorial, The 9/11 Report Misses the Point, I asked why the report omits any analysis of how the Iraq war has made us less safe since September 11. Lee Hamilton, vice chair of the commission, gave a revealing answer to that question in an interview by CNN’s Wolf Blitzer. Hamilton first explained that dealing with the Iraq issue “would have been highly divisive” for the bipartisan commission, but then caught himself and said it would’ve exceeded the commission’s mandate.

I also criticized the commission for failing to analyze the political reasons behind the 9/11 attacks. In an interview with The American Conservative, a former CIA agent charged with analyzing Osama bin Laden, identified by the Boston Phoenix as Michael Scheuer, said, “al-Qaeda itself has said that it could not wish for a better government than the one that is now governing the U.S. because, on the policies of issue to Muslims, al-Qaeda believes this government is wrong on every one and thus allows their insurgency to grow larger to incite other groups to attack Americans.”

Scheuer listed 6 U.S. policies Osama bin Laden has identified that appeal to the anger of Muslims: our unqualified support for Israel; our ability to keep oil prices down; our support for people who oppress Muslims; our presence in the Arabian peninsula; our military presence in Iraq and Afghanistan; and our support for Muslim tyrannies.

Yet Team Bush is in denial. Dick Cheney, touring the country while his boss chops wood, persists in defending the decision to attack Iraq, even though no weapons of mass destruction were ever found: “Sixteen months ago,” he told marines and sailors at Camp Pendleton, California Tuesday, “Iraq was a gathering threat to the United States and the civilized world. Now it is a rising democracy, an ally in the war on terror, and the American people are safer for it.”

Has Cheney adopted Bush’s habit of not reading the newspapers? The vice president didn’t mention the daily attacks on our troops in Iraq, nearly 1000 of whom have been killed. He doesn’t explain that the war on Iraq has brought terrorists out of the woodwork both there and around the world, where resentment against America is growing.

How would John Kerry deal with the quagmire in Iraq? In my opinion, much more effectively than Team Bush. While we don’t know the details of Kerry’s plans for Iraq, we do know there are major differences between Bush and Kerry as men.

When asked by Larry King how her husband would’ve reacted if he were president on September 11, 2001, Teresa Heinz Kerry would not fault Bush for his failure to react decisively. But John Kerry, she said, would’ve gone to the scene immediately. He would’ve wanted to be with his men.

Mindful that Bush is running on his claim that he’ll keep America safer, the Democrats have made national security the centerpiece of their convention. They are understandably taking advantage of John Kerry’s heroism in Vietnam. In the words of the Reverend Jesse Jackson, Kerry truly “left no one behind” when he turned his swift boat around and sped back into enemy fire to rescue a fallen comrade.

Contrast Kerry’s resolute and courageous actions during the Vietnam War with Bush’s reaction on September 11, 2001, when told the nation was under attack. Bush sat frozen in a kindergarten classroom for 7 minutes before rising from his chair. There can be no question which of these men is better suited to be commander-in-chief.

Rest assured the Republicans will mount vicious attacks on Kerry at their convention in late August. The Democrats should not hesitate to challenge head-on the current commander-in-chief whose leadership has proved disastrous.

July 24, 2004

The 9/11 Report Misses the Point

After vigorously resisting the establishment of the National Commission on Terrorist Attacks Upon the United States, known as the 9/11 Commission, George W. Bush is now celebrating its findings. “Constructive,” said the commander-in-chief, who plans to study the report. Bottom line: Bush is mightily relieved that the collective finger of the Commission doesn’t point too much in his direction.

No person or agency is singled out to take serious responsibility for the attacks that killed 3000 people on September 11, 2001. A list of missed opportunities is carefully divided 60-40, six occurring during the Bush II administration and four on Clinton’s watch. The report recommends the creation of a new intelligence czar, increased congressional oversight, and transparency in funding for intelligence. But the Commissioners were unanimous in refusing to conclude that 9/11 could have been prevented.

The events of September 11 are recited in chilling detail in the much-anticipated 500-page tome. Although the Commission concludes that the attacks “were a shock,” it says, “they should not have come as a surprise.” The report provides an itemized list of structural shortcomings, and improvements that could better prepare us for the next terrorist attack.

“Because of offensive actions against al Qaeda since 9/11, and defense actions to improve homeland security,” the Commissioners wrote, “we believe we are safer today.” They go on to say: “But we are not safe.” The centerpiece of Bush’s election campaign is his mantra that the world has become a safer place on his watch. Earlier this week, however, U.N. Secretary-General Kofi Annan said, “I cannot say the world is safer today than it was two, three years ago.”

Indeed, many feel Bush’s misguided war on Iraq has actually made us less safe. But the 9/11 report does not address Operation “Iraqi Freedom” critically. A 23-year veteran of the CIA, identified in the Boston Phoenix as Michael Scheuer, maintains in his soon-to-be-released book, “Imperial Hubris: Why the West is Losing the War on Terror,” that “Iraq was a gift of epic proportions to Osama bin Laden and those who think like him.”

The former CIA agent advocates a genuine debate within the United States about its policies in the Middle East, including its relationship with Saudi Arabia and its unqualified support for Israel. “I think before you draft a policy to defeat bin Laden,” says Sheuer, “you have to understand that our policies are what drives him and those who follow him.”

Scheuer is not alone in his admonition. Earlier this month, Senator Ernest F. Hollings (D-S.C.) penned in the Charleston Post and Courier: “Osama bin Laden hit us because of our presence in Saudi Arabia and policy in Israel/Palestine.” Hollings wrote: “Imagine 37 years’ occupation of Palestine … Palestine is left with the hopeless and embittered … But embittered refugees from without lead with terrorism.” The senator urges the building of a Palestinian state. “It can’t be built,” however, “while homes are bulldozed, settlements extended and walls are constructed.”

Both Hollings and Brandeis Professor Robert B. Reich, Secretary of Labor in the Clinton administration, dismiss the notion that we are fighting a “War on Terrorism.” Hollings says, “Terrorism is not a war, but a weapon.” Reich agrees: “Terrorism is a tactic. It is not itself our enemy.”

Challenging Bush’s claim that the terrorists hate us because of our values, Hollings retorts: “It’s not our values or people, but our Mideast policy they oppose.” Reich argues for restarting the Middle East peace process, which Bush has “run away from.”

Many in the Arab and Muslim world see U.S. policies as terrorist. They witnessed the deaths of one million innocent Iraqis as a result of Western sanctions during the 1990s. The tens of thousands of Iraqi civilians killed by Bush’s “coalition” in Iraq have not escaped their notice. And they see the photographs and hear the accounts of torture and humiliation of their brothers emerging from the prisons in Iraq, Afghanistan and Guantanamo Bay.

Yet the 9/11 report glosses over the atrocities, calling them “allegations that the United States abused prisoners in its custody.” The photographs belie this characterization as mere “allegations.” And the Commissioners have bought into Donald Rumsfeld’s moniker of “abuse,” when it is clear that rape, murder and sodomy with foreign objects constitute torture.

Conspicuously absent from the report is a political analysis of why the tragedy occurred. Missing from the report is a comprehensive strategy to overhaul U.S. foreign policy to inoculate us from the wrath of those who resent American imperialism.

The report does not undertake a serious criticism of Bush’s misadventure in Iraq, the lies under girding it, and the tragedy it has wrought in that country. It fails to analyze why this war that Bush created has opened a Pandora’s Box of terrorism where none existed before. Notably, there is a categorical statement that no evidence linked Iraq with the September 11 attacks.

However, the report focuses on Iran, noting that some of the hijackers easily passed through Iran in the months before 9/11. Yet it finds no evidence that Iran knew of the impending attacks.

Bush’s response to the report’s Iran reference is reminiscent of his reaction after the September 11 attacks. When Richard Clarke caught Bush alone in the Situation Room the next day, Bush “testily” ordered Clarke to investigate whether Iraq was involved in the attacks. Even though Bush admitted this week that the CIA had found “no direct connection between Iran and the attacks of Sept. 11,” he promised that “we will continue to look and see if the Iranians were involved.”

The Likud lobby in Washington, which drives much of our foreign policy, seeks the overthrow of the Iranian government partly because it stands in the way of the Israeli annexation of southern Lebanon and its prized Litani River. Bush’s base – the fundamentalist Christians – walks in lockstep with Ariel Sharon, driven by their determination that Jerusalem be in Jewish hands when Christ returns.

Whether Bush will make Iran the next test of his new illegal “preemptive” war doctrine if elected in November remains to be seen. His blustering about Iran may be designed to pander to his hawkish supporters as the election approaches. At the least, we can expect Bush, if given a second term, to covertly undermine Iran’s government, much as we did in 1953. The CIA led a coup to overthrow the democratically elected Mohammad Mossaddeq, and replaced him with the tyrannical but U.S.-friendly Shah, ushering in 25 years of torture and murder against the people of Iran.

Iran’s membership in Bush’s “axis of evil” was in the works two years before its formal inauguration in his state of the union address. In its September 2000 document, “Rebuilding America’s Defenses, Strategy, Forces and Resources For a New Century,” the neocon’s Project for the New American Century identified Iran, Iraq and North Korea as strategic targets.

We should not be surprised that countries like Iran and North Korea seek to develop nuclear weapons. While the United States rattles its sabers at these “rogue states,” it continues to develop new and more efficient nukes and pledges to use them “preemptively,” in violation of its commitments under the Nuclear Nonproliferation Treaty. The Bush administration has also exempted itself from a treaty prohibiting biological weapons to avoid being subject to international inspections.

Short shrift is given in the 9/11 report to the reverberations from U.S. policy in Iraq and Israel: “Right or wrong, it is simply a fact that American policy regarding the Israeli-Palestinian conflict and American actions in Iraq are dominant staples of popular commentary across the Arab and Muslim world.” Period. No analysis of the content or consequences of that commentary.

The Commissioners conclude: “Across the government, there were failures of imagination, policy, capabilities and management.” The consequences of U.S. foreign policy, which the CIA dubbed “blowback,” need not be left to the imagination of our leaders. The anger of millions of people in the Middle East does not stem from resentment at our democratic way of life. It is the understandable result of our policies that torture and kill their brethren.

The title of one chapter in the report quotes George Tenet: “The system was blinking red.” Indeed, we must heed the blinking red light of bitterness against U.S. imperialism throughout the Middle East.

Finally, the Commission writes, “we should offer an example of moral leadership in the world.” Unprovoked attacks on other countries, uncritical support for repression against an occupied people, and the killing and torture of prisoners are not examples of moral leadership.

We can reorganize, restructure and revamp our institutions. But until the American government undertakes a radical rethinking and remaking of our role in the world, we will never be safe from terrorist attacks.

July 13, 2004

Bush’s Judges: Right-Wing Ideologues

In 1988, while trying to convince skeptical conservative activists of his father’s Christian bona fides, George W. Bush reassured them that George I was with them on judicial nominations, as well as abortion and other issues dear to their hearts. Then he punctuated his declarations with the six words that would ensure their support for him 12 years later: “Jesus Christ is my personal savior.”

Bush’s brand of religiosity permeates his national policies. When Bob Woodward asked him whether he consulted his dad before invading Iraq, Bush said, “He is the wrong father to appeal to for advice, the wrong father to go to, to appeal to in terms of strength. There’s a higher Father that I appeal to.”

George W. Bush’s sort of Christianity also guides his judicial nominations. Bush’s nominees for lifetime appointments to our federal courts are judges who would eviscerate civil rights, workers’ rights, and the environment. Their agendas are anti-choice and pro-corporate.

Many people think the two most important things at stake in November’s presidential election are the war on Iraq and the economy. True, but perhaps the most far-reaching impact of this election is who will appoint the nation’s judges beginning January 2005.

The political balance on the Supreme Court hangs by a slender thread. Seventeen cases were decided on a 5-4 vote. Associate Justice Sandra Day O’Connor provided the swing vote in many of them. O’Connor and Chief Justice William Rehnquist have reportedly considered stepping down from the Court.

Associate Justice John Paul Stevens, lamenting the Court’s interference in the 2000 presidential election, said, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Although a one-vote margin of the Supreme Court anointed George W. Bush president in 2000, the Court has not voted in lockstep this term. In the Guantánamo and U.S. citizen detention cases, the Court made clear that the President’s power is not absolute. It upheld the rights of the disabled, and non-citizens to recover for human rights violations.

But the next President of the United States may have the opportunity to appoint four new justices to the Supreme Court. That power could radically change the complexion of the precariously divided Court that pronounces the law of the land.

Rehnquist, who has been on the Court for 32 years, is 79 years old. Stevens, a member of the Court for 29 years, is 84. And O’Connor, on the Court for 23 years, is 74 years old. Associate Justice Ruth Bader Ginsburg, 71 years old, is a cancer survivor in frail health.

It is common for a Supreme Court justice to serve for at least 20 or 30 years. That means that the man elected in November will likely determine the fabric of the law in America for the next 40 years. Ralph Neas, executive director of People for the American Way, says “more than 100 Supreme Court precedents would be overturned with one or two more right-wing justices like Thomas and Scalia.”

If Bush is elected, we can expect his Supreme Court picks to mirror his choices for our nation’s lower federal courts. Two of his nominees have made news lately for their advice on how Bush’s interrogators can torture prisoners without risking criminal prosecution.

Former Assistant Attorney General Jay S. Bybee prepared a 50-page document that defied U.S. statutory and treaty law by defining torture so narrowly, it would permit horrific treatment as long it wasn’t life-threatening. Bush rewarded Bybee for his legal creativity with an appointment-for-life to the Ninth Circuit Court of Appeals, the federal court with the largest caseload in the country.

Pentagon General Counsel William Haynes II is a career military lawyer with almost no courtroom experience that would qualify him for a lifetime seat on the Fourth Circuit Court of Appeals. Yet after Haynes supervised the preparation of a report advising that the President’s Commander-in-Chief authority would trump the prohibition against torture, Bush nominated him for a coveted spot on the Fourth Circuit.

This “federal appeals court in Richmond, Va., is emerging as a cutting-edge testing ground for conservative legal theories that only a few years ago seemed radical and almost unthinkable to liberal legal analysts,” Warren Richey wrote in the Christian Science Monitor two years ago. “Today, many of them are the law of the land. Instead of being overturned, these legal theories – involving limits to federal power and defendants’ rights – are being embraced and upheld by a slim majority of conservative justices on the US Supreme Court,” according to Richey. It’s no surprise that John Ashcroft decided to file the cases against John Walker Lindh and Zacarias Moussaoui in the Virginia district court. Ashcroft knew he would get more favorable appellate treatment from the Fourth Circuit, widely heralded as the most conservative circuit in the country.

The revelations of Haynes’ apologies for torture may not sit well when U.S. Senators, who must give their advice and consent to Bush’s nominees, consider Haynes’ nomination. Pictures and accounts of torture at Abu Ghraib prison, Guantánamo Bay and Afghanistan may have poisoned the well for William Haynes.

The Senate has confirmed 198 of Bush’s judicial nominees, bringing the vacancy rate to its lowest level in years. Nevertheless, in a campaign trip to Senator John Edwards’ home state of North Carolina and to Michigan, Bush claimed that Democrats were unfairly obstructing his judicial nominations.

Edwards’ tough questioning of Charles Pickering, Bush’s nominee to the Fifth Circuit Court of Appeals, was instrumental in the defeat of Pickering’s nomination. Bush, however, circumvented the Senate’s constitutional role in the selection of judges by appointing Pickering anyway during a Congressional recess.

Pickering’s checkered past includes his article explaining how to strengthen Mississippi’s statute criminalizing interracial marriages. He also cast several votes as a state senator impeding the full extension of electoral opportunities to African-Americans. Pickering voted for a constitutional convention to overturn Roe v. Wade. Perhaps his most controversial action as a federal district court judge involved his threats and unethical communications to force prosecutors to drop a charge against a man convicted of burning a cross on the lawn of an interracial couple with a small child.

Bush also ran an end run around the Senate by appointing Bill Pryor to the Eleventh Circuit Court of Appeals. Pryor has expressed extreme hostility to a woman’s constitutional right to reproductive choice. He called Roe v. Wade “the worst abomination of constitutional law in our history.”

But Pryor’s contempt isn’t limited to women. When he went to federal court to try to overturn a consent decree protecting abused and neglected Alabama children, he told reporters: “It matters not to me whether or not [my actions protect children]. My job is to make sure the state of Alabama isn’t run by [a] federal court. My job isn’t to come here and help children.”

Pryor fits nicely into Bush’s mold for right-wing Christian ideologues. Judge Pryor said that the challenge of this millennium will be to “preserve the American experiment by restoring its Christian perspective.”

Bush’s recess appointments of Pickering and Pryor so incensed Democratic senators that they held up several of Bush’s other pending judicial nominations. In May, Bush struck a deal with the Democrats. He agreed not to make recess appointments; the Democrats consented to allowing the votes to proceed on the 25 mostly “noncontroversial” pending nominees.

By a vote of 51-46, however, the Senate last week confirmed James Leon Holmes for a seat on the Eastern District of Arkansas, a federal district court. Holmes’ anti-woman and anti-choice views were so extreme that Republican Senators Hutchison, Chafee, Snowe, Collins, and Warner crossed party lines and voted against him.

Bush’s nomination of Holmes became a lightning rod due to his views on the subservience of women. In a 1997 article in a Catholic newspaper, Holmes wrote: “The wife is to subordinate herself to her husband” and “the woman is to place herself under the authority of the man.”

Holmes has compared legalized abortion to the Holocaust, and said: “I think the abortion issue is the simplest issue this country has faced since slavery was made unconstitutional. And it deserves the same response.” He has even dismissed the rape and incest exception by inventing the preposterous claim that “the concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami.”

In fact, studies estimate that between 25,000 and 32,000 women each year become pregnant as a result of rape in the United States, but only about 50 percent of these pregnancies end in abortion. And it has only snowed once in Miami in the last century.

Holmes blames the feminist movement for what he considers a whole host of immoralities: “It is not coincidental that the feminist movement brought with it artificial contraception and abortion on demand, with recognition of homosexual liaisons to follow. No matter how often we condemn abortion, to the extent we adopt the feminist principle that the distinction between the sexes is of no consequence and should be disregarded in the organization of society and the Church, we are contributing to the culture of death.”

Bush’s pending judicial nominees for federal circuit court appointments include Texas Supreme Court Justice Priscilla Owen, who voted to benefit Halliburton and Enron after taking campaign contributions from them. He has also nominated California Supreme Court Justice Janice Rogers Brown, whose decisions have shown great hostility to affirmative action, the rights of workers, gays, senior citizens and the disabled, to protecting children from lead poisoning, and to the right of choice. Two hundred-fifty law professors, including this writer, signed a letter to the Senate Judiciary Committee urging rejection of Brown’s nomination.

The Alliance for Justice, which monitors Bush’s nominations for federal judgeships, has set forth alternative criteria for evaluating the record of a judicial nominee: He or she should have demonstrated a commitment to protecting the rights of ordinary Americans, rather than placing the interests of the powerful over those of individual citizens. The nominee must have fulfilled his or her professional obligation to work on behalf of the disadvantaged. His or her record should show a commitment to the progress made on civil rights, reproductive freedom, and individual liberties. Or the nominee should have manifested a respect for the constitutional role Congress plays in promoting civil rights and health and safety protections and ensuring recourse when these rights are breached.

Many of George W. Bush’s nominees fail to satisfy any of these requirements. He has sought out ideologues who meet a litmus test for pleasing his right-wing religious backers. If Bush is elected president in November, we can expect him to mold the federal judiciary – and probably the Supreme Court – in his own image. A frightening thought.

July 4, 2004

The Reincarnation of Saddam Hussein

“I am Saddam Hussein, president of the Republic of Iraq.” So began the surreal public appearance of Saddam Hussein, his first since being dragged out of a spider hole by the “coalition forces” six months ago.

The proud, defiant Saddam who ruled Iraq with an iron hand for nearly 25 years was back with a vengeance.

Describing himself as always in the third person, he said Saddam “respected the will of the people that decided to choose Saddam Hussein as the leader of the revolution. Therefore, when I say president of the Republic of Iraq, it’s not a formality or a holding fast to a position, but rather to reiterate to the Iraqi people that I respect its will.”

Reminiscent of the staged assassination followed by an immediate swearing in of Woody Allen as the new president of a mythical Latin American country in “Bananas,” we were missing only Howard Cosell to narrate the charade.

According to the Los Angeles Times, “U.S. and Iraqi authorities took pains to make the court proceedings appear to be solely an Iraqi undertaking.”

In spite of the Statute of the Iraqi Special Tribunal’s mandate of public hearings, no one save the two dozen or so people present in the courtroom were supposed to hear Saddam’s words. But an audiotape of the proceedings was smuggled out to the media and listeners throughout the world.

A team of U.S. military officers censored the media coverage of the proceeding. They destroyed the videotapes of Saddam in chains and deleted the legal record of the statements of the 11 senior members of Saddam’s regime who appeared at the same hearing.

One journalist present in the courtroom revealed: “We learned later that the judge didn’t order us to turn off our sound. The Americans lied – it was they who wanted no sound. The judge wanted sound and pictures.”

The 26-minute colloquy gave us a roadmap of how Saddam will defend himself. Showing utter contempt for the judge whom he identified as a tool of the occupiers, Saddam sneered: “So you are an Iraqi representing the coalition forces?” Indeed, the judge was appointed by Saddam’s successor, L. Paul Bremer.

Saddam added: “You know that this is all a theater by Bush the criminal, to help him win his election.”

He was adamant that he had the right to invade Kuwait. Saddam declared that he “defended Iraq’s honor and revived its historical rights over those dogs,” whom, he claimed, “said it will reduce Iraqi women to 10-dinar prostitutes.”

The sight of Saddam standing up to his accusers played well throughout Iraq. Even many who had endured atrocities under Saddam’s regime saw him as the embodiment of their Arab land, shattered by bombs and occupied by Western infidels.

Yes, they suffered under Saddam. But Operation “Iraqi Freedom” has brought mostly misery to the people of Iraq. Tens of thousands of them have died in this illegal war. Almost 20 million of Iraq’s 26 million people have less available electricity than before the war began, according to the General Accounting Office. The Iraqi security forces are suffering from mass desertion. And the judicial system is more clogged than before the war; assassination attempts against judges are rampant.

The timing of Thursday’s court appearance corroborates Saddam’s assertion that the whole thing was theater. The ink was hardly dry on the “sovereignty” transfer papers when Saddam was rushed into a televised court appearance to create the illusion that Iraqis are running the show.

Truthfully, however, American fingerprints are all over these proceedings. Bremer was responsible for drafting The Statute of the Iraqi Special Tribunal before which Saddam appeared. This “neutral” tribunal is financed by the United States. The FBI is leading the investigation. Also on the team are the Bureau of Alcohol, Tobacco and Firearms and the Department of Justice. And although Iraqis have been given legal custody of Saddam, he remains in the physical custody of the Americans.

Emmanuel Ludot, one of 22 lawyers designated by Saddam’s wife to defend him, told the French newspaper Liberation: “All our effort will consist of paralyzing the operation of the Iraqi special tribunal, the legality of which we contest. This tribunal has no basis in law, since Iraq has no National Assembly today to create a special jurisdiction.” He called the trial preparations “a masquerade of justice.”

Ludot said: “The tribunal being put in place by the Americans is a disguised execution squad … These judges are still under the shock of emotion and pain.” Saddam, he warned, “will either be judged in fear or in vengeance.”

“The first thing Saddam will say is that he is and remains the Iraqi President,” according to Ludot. “Two countries, the United States and Great Britain, have invaded Iraq without a mandate and in violation of international law. Legally, that’s an aggression and everything that has happened since this invasion is tinged with irregularity.”

Asked where Saddam should be tried if this court is not competent, Ludot answered: “Since the United States did not want the International Criminal Court, there is a complete legal vacuum.”

But not one of Saddam’s 22 lawyers was with him in court Thursday. The tribunal’s statute provides for the right to counsel. The judge told Saddam: “I’m investigating, interrogating you.” Saddam asked for his lawyer before he signed the document the judge instructed him to sign. But when Saddam refused, the judge signed it for him.

Ludot said: “Clearly, we are not welcome in Iraq. The new authorities would prefer Iraqi lawyers easy to intimidate and a quick trial.” British attorney Tim Hughes said he and his colleagues were “kept in the dark” about the proceedings.

Another member of the legal defense team received threats from someone claiming to be from the Iraqi Justice Ministry. Anyone who tried to defend Saddam, the caller said, would be “chopped to pieces.”

Many Iraqis sympathize with Saddam. “It’s a humiliation, not just for Iraqis but for all Arab peoples,” Aamer Eliisa, a Shiite, told the Los Angeles Times. Eliisa said Saddam has become “a symbol for all Iraqis.”

Saddam’s harsh words about Kuwait hit a chord with Iraqis. Akram Adil said: “He’s right. Kuwait is a part of Iraq. He was defending our national rights … Kuwait was stealing oil from Iraq and trying to destroy our national economy.”

Kuwaitis have earned a reputation for “arrogant, drunken, lecherous and vulgar behavior,” according to the Los Angeles Times. And they have been implicated in the looting of the Iraqi National Museum that followed the march of the foreign forces into Baghdad last April.

Former president of Yugoslavia Slobodan Milosevic has defended himself against the same heinous charges Saddam will face. Like Milosevic, who was removed from his presidency by U.S.-led forces engaged in illegal regime change, Saddam will put America on trial.

This will be interesting in light of the support the United States furnished to Saddam in the 1980s, including the provision of chemical weapons. That support is embodied in the photograph of Donald Rumsfeld’s warm handshake with Saddam even with the knowledge that Saddam was gassing the Kurds.

June 30, 2004

Supreme Court: War No Blank Check for Bush

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is indeed a victory for the rule of law.

June 28, 2004

Bush’s “Humane” Torture Policy Hits a Speed Bump

On February 7, 2002, George W. Bush declared in an executive order that he could suspend the Geneva Conventions, which require that war prisoners receive humane treatment. Myriad news reports during the past month suggest that government interrogators took full advantage of that order to extract information from prisoners held at Abu Ghraib prison in Baghdad.

To read the headlines in The New York Times, though, you would think that order qualified Mr. Bush for a Nobel Peace Prize. The Times credited Bush with setting a “humane tone” in his order. The Times places too much emphasis on self-serving language in the order stating “[a]s 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.” When one reads the full text of the order, however, there can be no doubt that Bush intended to authorize U.S. interrogators to use torture to elicit information from its prisoners in Afghanistan, Guantánamo Bay and elsewhere. The Times overlooked Bush’s qualifier that “military necessity” trumps humane treatment.

You would hardly recognize the men implicated in the apparent conspiracy to torture prisoners in U.S. custody. Former Assistant Attorney General – now federal court Judge – Jay S. Bybee, is characterized as a “gentle” soul in another New York Times article. Yet he advised Alberto R. Gonzales, Bush’s White House lawyer, that “certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity” to constitute unlawful torture. In an August 1, 2002 memo, Bybee took 50 pages to methodically explain how U.S. military interrogators could circumvent our laws prohibiting torture. A human being, according to the gentle Bybee, could torture another human being as long as the torturer relied in good faith on legal advice in Bybee’s memo.

Bybee’s thesis, of course, is preposterous. Following the hue and cry heard ’round the world after release of his legal memo, the Bush administration quickly distanced itself from it. White House spokesmen inform us that the “humane” Mr. Bush never saw it. They now declare it “irrelevant,” although it remained in force for two years, and was cited in numerous subsequent memos. We are told that it will be completely rewritten. The slate will be wiped clean.

Bush’s spinmeisters first maintained that the heinous torture methods justified in memos recently released by the government were never employed. Those hundreds of pages of carefully worded legalese, according to Gonzales, were merely “exploring the boundaries as an abstract matter” of what was permissible.

But now they contend that the Bybee memo was not intended for use at Guantánamo Bay, only to guide CIA interrogators who question top al-Qaeda leaders. “Current and former government officials” quoted in today’s New York Times admit, however, that the memo was used as an after-the-fact legal basis for harsh procedures already in use by the CIA. First the sentence, then the verdict.

Bush’s deputies, desperate to quell the firestorm surrounding the burgeoning torture exposé, deny that the commander-in-chief saw many of the memos. “I don’t believe the president had access to any legal opinions from the Department of Justice,” said his lawyer Gonzales.

We do know, however, that Bush had “extensive discussions” involving the “complex legal questions” of whether the Geneva Conventions apply to the al-Qaeda and Taliban fighters captured by U.S. forces, because his February 7, 2002 order stated precisely that.

In his order, Bush “accept[s] the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva.” Gonzales would have us believe Bush accepted the Ashcroft/Justice Department conclusion without even reading any memos.

We are being asked to take it on faith that even though Bush had extensive discussions with lawyers from the Defense and Justice Departments before issuing his February 7, 2002 order, he conveniently wasn’t privy to later memos that justified torture. Most significantly, we don’t know whether Bush signed any directives on prisoner interrogation after February 7, 2002.

After some of the memos leaked out last month, the administration decided to release more of them in the face of intense public outrage. The original intent was to keep them secret. Bush’s Feb. 7, 2002 order was not scheduled for declassification until 2012. Donald Rumsfeld’s April 16, 2003 memo, which authorized the use of aggressive interrogation methods at Guantánamo Bay, was to remain classified until 2013.

Senator Patrick Leahy [D-Vt] spearheaded a subpoena for a gaggle of other government memos advising how to torture without risking criminal prosecution. (Last week, on the Senate floor, the genteel Vice President Dick Cheney rewarded Leahy for his efforts to shine light on Halliburton’s activities by suggesting to Leahy: “Go fuck yourself.”) In a characteristic move to limit transparency – and political damage to Bush – the Republican-dominated Senate Judiciary Committee scuttled Leahy’s subpoena. Senator Edward Kennedy thereafter accused the White House of orchestrating “a cover-up.”

Of the memos recently made public, The New York Times editorialized: “About the only thing in them worth keeping secret was the degree to which the administration had decided to exempt itself from the Geneva Conventions and then spent months debating whether there was a legalistic way to justify what ordinary people would consider torture of prisoners.”

The discussions within the administration about interrogation policy did not occur without dissent, although the communications from the dissenters were conspicuously absent from the documents the government released last week.

A 2002 letter from William H. Taft, the State Department’s legal advisor to the Justice Department’s deputy assistant attorney general, called the Justice Department’s approach to handling detainees “seriously flawed,” and said its reasoning was “incorrect as well as incomplete.”

Senior military leaders concurred. They maintained that the Geneva Conventions should apply to the Taliban militia. Also, pursuant to a requirement of Geneva, flouted by Bush, military lawyers favored holding military tribunals to determine which Geneva provisions would protect individual detainees.

Additional pressure on the Bush administration is coming from the attorneys defending the soldiers charged with criminal conduct at Abu Ghraib. Harvey Volzer, counsel for Army Spc. Megan Ambuhl, said: “Isn’t it amazing that hooding, nudity and physical contact short of death and organ failure all are mentioned as techniques, and yet the administration would have us believe that they were not employed when Bush was getting no results from interrogations”?

At the same time Bush’s A-team was engaged in damage control on the torture front, his UN-team was scrambling to ram a resolution through the Security Council that would give him and his men immunity from war crimes prosecutions in the International Criminal Court. Similar strong-arm tactics had earned him immunity resolutions in the previous two years. But the revelations of torture were too much for U.N. Secretary General Kofi Annan to bear. Annan urged the Security Council to resist the resolution “given the prisoner abuse in Iraq.” He warned, “It would discredit the Council and the United Nations that stands for the rule of law and the primacy of the rule of law.”

As a result, Bush was dealt a severe political blow when he was unable to muster enough votes for the resolution. “It also marked the most concrete evidence of a diplomatic backlash against the scandal over abuses of U.S. detainees in Afghanistan and Iraq,” according to the Washington Post. The Financial Times called it a “major diplomatic defeat.”

No big deal. U.S. Deputy Representative to the U.N., James Cunningham, said we still have the bilateral immunity agreements. The Bush administration secured them by blackmailing 90, primarily small, nations or fragile democracies with weak economies. These countries have pledged not to hand over U.S. nationals to the International Criminal Court, which Bush has denounced. But the three-dozen countries that resisted Bush’s bullying suffered the cutoff of military assistance for their obstinacy.

Not to worry. Coalition dictator Paul Bremer extended his order that U.S. military personnel would be immune from prosecution for killing or torturing Iraqis. The only glitch is the handover of “sovereignty” to the Iraqis on June 30. Bremer’s decree will be null and void once the occupation ends.

The new Iraqi government would be hard pressed to agree to give Americans immunity for killing and torturing Iraqis. When the Iranian government granted immunity to U.S. troops in the 1960s, Ayatollah Ruhollah Khomeini used it to galvanize opposition to the Shah. In a 1964 speech, Khomeini said, “Our honor has been trampled underfoot; the dignity of Iran has been destroyed.” The immunity, according to Khomeini, “reduced the Iranian people to a level lower than that of an American dog.”

In another blast from the past, the gentle soul John D. Negroponte was quietly sworn in as U.S. ambassador to Iraq. Negroponte, who was U.S. ambassador to Honduras in the 80s, was instrumental in covering up the torture and summary executions carried out by the Honduran government.

Also sworn in under the radar was the kindly John Danforth as U.S. ambassador to the United Nations. As described in my column, “John Danforth – Bad Choice for U.N. Ambassador,” Danforth knows almost nothing about the United Nations. He voted against sanctions on apartheid South Africa and for cutting funds for U.N. peacekeeping. But his vote to limit U.S. support for international family planning and his fanatical, albeit dishonest, engineering of Clarence Thomas’ Supreme Court nomination landed him the plum nomination for U.N. ambassador.

Bush has compassionately appointed individuals with torturous pasts to high positions in government. The Good Judge Bybee, expert on how to torture without leaving illegal marks, will regularly be called upon to interpret laws against torture which are frequently cited by applicants for political asylum.

Last week, in response to the growing torture scandal, Bush attempted to put us at ease by saying: “Let me make very clear the position of my government, and our country. We do not condone torture. I have never ordered torture. I will never order torture.”

Bill Clinton was unsuccessful in putting many at ease when he said, “I am going to say this again: I did not have sexual relations with that woman, Ms. Lewinsky.” Clinton was subsequently impeached for lying to a grand jury about the Monica Lewinsky affair.

It remains to be seen whether the “humane” Mr. Bush’s torture denials will hold up. Time will also tell whether Bush, who hired a trial lawyer and was questioned by federal prosecutors for 70 minutes, can escape a felony grand jury indictment for the Valerie Plame affair.