Stanford Anti-War Alumni, Students Call for Condi War Crimes Probe

During the Vietnam War, Stanford students succeeded in banning secret military research from campus. Last weekend, 150 activist alumni and present Stanford students targeted Condoleezza Rice for authorizing torture and misleading Americans into the illegal Iraq War.

Veterans of the Stanford anti-Vietnam War movement had gathered for a 40th anniversary reunion during the weekend. The gathering featured panels on foreign policy, the economy, political and social movements, science and technology, media, energy and the environment, and strategies for aging activists.

On Sunday, surrounded by alumni and students, Lenny Siegel and I nailed a petition to the University President’s office door. The petition, circulated by Stanford Says No to War, reads:

“We the undersigned students, faculty, staff, alumni, and other concerned members of the Stanford community, believe that high officials of the U.S. Government, including our former Provost, current Political Science Professor, and Hoover Institution Senior Fellow, Condoleezza Rice, should be held accountable for any serious violations of the Law (included ratified treaties, statutes, and/or the U.S. Constitution) through investigation and, if the facts warrant, prosecution, by appropriate legal authorities.”

I stated, “By nailing this petition to the door of the President’s office, we are telling Stanford that the university should not have war criminals on its faculty. There is prima facie evidence that Rice approved torture and misled the country into the Iraq War. Stanford has an obligation to investigate those charges.”

After the petition nailing, I cited the law and evidence of Condoleezza Rice’s responsibility for war crimes - including torture - and for selling the illegal Iraq War:



As National Security Advisor, Rice authorized waterboarding in July 2002, according to a newly released report of the Senate Intelligence Committee. Less than two months later, she hyped the impending U.S. invasion of Iraq, saying, “We don’t want the smoking gun to be a mushroom cloud.” Her ominous warning was part of the Bush administration’s campaign to sell the Iraq war, in spite of the UN International Atomic Energy Agency’s assurances that Saddam Hussein did not possess nuclear weapons.

A week before the nailing of the petition, Rice made some Nixonian admissions in response to questions from Stanford students during a campus dinner designed to burnish Rice’s image on campus.

In October 1968, Stanford anti-war activists had nailed a document to the door of the trustees’ office which demanded that Stanford “halt all military and economic projects concerned with Southeast Asia.”

If you have had any affiliation with Stanford, please sign the petition at http://www.stanford.edu/group/antiwar/crpetition.html.

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Condi Channels Nixon: If the President Says So, It’s Not Illegal

On April 27, Condoleezza Rice had a brief Q & A with some Stanford students:


Condi was extremely uncomfortable, defensive and nervous. She was rude to the first student, interrupted him and yelled at him.

When asked by another student about a recent report that she authorized waterboarding, Condi said, “I didn't authorize anything. I conveyed the authorization of the administration to the agency [CIA] that they had policy authorization subject to the Justice Department’s clearance.”

The kicker was when she was asked whether waterboarding is torture. She replied, "By definition, if it was authorized by the President, it didn't violate our obligations under the Convention against Torture."

Richard Nixon: “If the president does it, it's not illegal.”

John Yoo, in a 2005 debate with Notre Dame professor Doug Cassel: 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.

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Torture Used to Try to Link Saddam with 9/11

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

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

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

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

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Bush Memos Reveal Policy of Cruelty; Obama Refuses to Enforce the Law

In response to a Freedom of Information Act request by the ACLU, President Obama released four Bush-era memos that describe unimaginably brutal techniques and provide “legal” justification for clearly illegal acts of torture and cruel, inhuman or degrading treatment. In the face of monumental pressure from the CIA to keep them secret, Obama demonstrated great courage in deciding to make the grotesque memos public. At the same time, however, in an attempt to pacify the intelligence establishment, Obama said, “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He guaranteed free legal representation for CIA employees investigated by Congress or international tribunals, and indemnification for any financial judgments rendered against them.

Obama’s intent to immunize those who violated our laws banning torture and cruel treatment violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

The memos

The memo dated August 1, 2002 was signed by Jay Bybee, and the other three memos, dated May 10, 2005, were signed by Stephen Bradbury.

In startlingly clinical and dispassionate terms, the authors of the newly-released torture memos describe and then rationalize why the devastating techniques the CIA sought to employ on human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques, including banging heads into walls 30 times in a row, prolonged nudity, repeated facial and abdominal slapping, dietary manipulation, and dousing with cold water as low as 41 degrees. They allow shackling in a standing position for 180 hours, sleep deprivation for 11 days, confinement of people in small dark boxes with insects for hours, and waterboarding to create the perception they are drowning. Moreover, the memos permit many of these techniques to be used in combination for a 30-day period. They find that none of these techniques constitute torture or cruel, inhuman or degrading treatment.

Waterboarding, admittedly the most serious of the methods, is designed, according to Bybee, to induce the perception of “suffocation and incipient panic, i.e. the perception of drowning.” But although Bybee finds that “the use of the waterboard constitutes a threat of imminent death,” he accepts the CIA’s claim that it does “not anticipate that any prolonged mental harm would result from the use of the waterboard.” As psychologist Jeffrey Kaye points out, the CIA and the Justice Department “ignored a wealth of other published information” that indicates dissociative symptoms, changes greater than those in patients undergoing heart surgery, and drops in testosterone to castration levels after acute stress associated with techniques that the memos sanction.

The Torture Statute punishes conduct, or conspiracy to engage in conduct, specifically intended to inflict severe physical or mental pain or suffering. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from either the intentional infliction or threatened infliction of severe physical pain or suffering, or from the threat of imminent death.

Bybee asserts that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” He makes the novel claim that the presence of personnel with medical training who can stop the interrogation if medically necessary “indicates that it is not your intent to cause severe physical pain.”

Now a federal judge with lifetime appointment, Bybee concludes that waterboarding does not constitute torture under the Torture Statute. However, he writes, “we cannot predict with confidence whether a court would agree with this conclusion.”

The Bush administration claimed it only used waterboarding three times. But a footnote in one of Bradbury’s memos says waterboarding was utilized “with far greater frequency than initially indicated” with “large volumes of water” rather than small quantities as required by the CIA’s rules.

Bybee’s memo explains why the 10 techniques could be used on Abu Zubaydah, who was considered to be a top Al Qaeda operative. “Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from [the CIA’s] proposed interrogation methods,” the CIA told Bybee. But Zubaydah was a low-ranking Al Qaeda operative, according to leading FBI counter-terrorism expert Dan Coleman, who advised a top FBI official, “This guy is insane, certifiable, split personality.” This was reported by Ron Suskind in his book, The One Percent Doctrine.

The CIA’s request to confine Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA it could place a harmless insect in the box and tell Zubaydah that it will sting him but it won’t kill him. Even though the CIA knew that Zubaydah had an irrational fear of insects, Bybee found there would be no threat of severe physical pain or suffering if it followed this procedure.

Another noxious aspect of these memos is the use of medical professionals to enable the torture and cruel treatment. They are on hand to monitor the victims to make sure they come close to death, but don’t actually die. But the medical personnel may well allow the abuse to cause severe physical pain and do nothing to stop it until the victim reaches the point of impending death. One of Bradbury’s memos requires that a physician be on duty during waterboarding to perform a tracheotomy in case the victim doesn’t recover after being returned to an upright position.

Employing a standard used to measure due process violations, Bradbury concluded that “the CIA interrogation techniques, with their careful screening procedures and medical monitoring, do not ‘shock the conscience,’” and thus were not cruel, inhuman or degrading. It is difficult to imagine how the techniques described above would fail to shock the conscience of any human being.

Obama’s refusal to faithfully execute the law

The Constitution requires the President to enforce the law against both the petty thief who stole salmon from the market, and the CIA agent who tortured or abused a prisoner.

Our law prohibits torture and cruel, inhuman or degrading treatment, and requires that those who subject people to such treatment be prosecuted. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation. The Geneva Conventions proclaim an “obligation” to bring those who have committed torture and cruel treatment before our “own courts.” The Torture Convention and the Geneva Conventions are both part of U.S. law under the Supremacy Clause of the Constitution, which says, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Two federal statutes – the Torture Statute and the War Crimes Act (torture is a war crime) - provide for life imprisonment and even the death penalty if the victim dies from torture.

Obama has made a political calculation to seek amnesty for the CIA torturers. He expressed his “intention” to protect people who relied in good faith on Justice Department advice. However, good faith reliance on superior orders was rejected as a defense at Nuremberg and in Lt. Calley’s Vietnam-era trial for the My Lai Massacre. The Torture Convention provides unequivocally, “An order from a superior officer or a public authority may not be invoked as a justification for torture.”

There is evidence that the CIA was using the illegal techniques as early as April 2002, three to four months before the August memo was written. That would eliminate “good faith” reliance on Justice Department advice as a “defense” to prosecution. And Obama did not say he favored amnesty for those who set the policy – which would include Cheney, Rumsfeld, Rice, Powell, Ashcroft and Gonzales who comprised the Principals Committee that authorized the torture and Bush who approved of it. Nor did Obama include in his intended amnesty the lawyers – like Yoo, Bybee, Bradbury, Addington and Haynes - whose opinions under girded the policy.

When ABC’s George Stephanopoulos asked Rahm Emanuel on Sunday, “What about the people who designed the policies?", Emmanuel said the President doesn’t support their prosecution either.

But the decision about whether and who to prosecute is up to the Attorney General, Eric Holder. If Holder continues to carry out Obama’s political agenda by resisting investigations and prosecution, Congress can, and should, authorize the appointment of a special independent prosecutor to do what the law requires.

The Watergate scandal led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President Carter asked Congress to pass a law authorizing the appointment of a special prosecutor to investigate and prosecute unlawful acts by high government officials. The bill empowered the attorney general to conduct a preliminary 90-day investigation when serious allegations arose involving a high government official.

Under the act, the attorney general could drop the investigation if he determined it was unsupported by the evidence. But if he found some merit to the charges, he was required to apply to a three-judge panel of federal court judges who would appoint a special prosecutor to investigate, prosecute, and issue a report. This procedure was used to appoint Kenneth Starr, whose witch hunt led to Bill Clinton's impeachment. In reaction, Congress allowed the independent counsel statute to expire by its own terms in 1999. It’s time for the people to demand that Congress enact an independent counsel statute.

Universal jurisdiction

What happens if the United States government refuses to prosecute those who ordered, justified and carried out the torture and abuse? Other countries will launch criminal investigations of U.S. nationals under universal jurisdiction. See Spain Investigates What America Should [http://marjoriecohn.com/2009/04/spain-investigates-what-america-should.html].

Indeed prosecutors in Spain decided to file criminal charges against Yoo, Bybee, Gonzales, Haynes, Addington and Feith for torture. But in a rare move, Candido Conde-Pumpido, Spain’s attorney general, overruled the prosecutors’ decision, saying the case had “no merit” because the six men were not present when the abuse took place and it was up to the United States to prosecute.

Universal jurisdiction is used to prosecute foreign nationals when their own country refuses to prosecute. Adoph Eichmann, often called “the architect of the Holocaust,” was tried, convicted and executed by Israel for crimes unconnected to Israel. He orchestrated the deportations but was not necessarily present at the gas chambers when millions were murdered.

Curiously, Conde-Pumpido’s decision followed discussions between the U.S. and Spanish governments in which the Obama administration strongly suggested that charges against the six would be “inconvenient,” according to Scott Horton of Harpers. Apparently and unfortunately, Obama is following the same tack Bush took by pressuring countries to back down on universal jurisdiction prosecutions.

The Spanish case is not dead, however. Judge Baltasar Garzon, who issued the arrest warrant for Augusto Pinochet in 1998, still has the power to determine whether the case will proceed.

Ultimately, it is up to Obama to fulfill his constitutional duty to ensure that the laws are faithfully executed. As he seems inclined to shirk that duty, it is up to us to pressure him, and Congress to hold accountable, those who violate our laws. Obama said that “nothing will be gained by spending our time and energy laying blame for the past.” He is wrong. There is more to gain from upholding the rule of law. It will make future leaders think twice before they authorize the cruel, illegal treatment of other human beings.

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Spain Investigates What America Should

A Spanish court has initiated criminal proceedings against six former officials of the Bush administration. John Yoo, Jay Bybee, David Addington, Alberto Gonzales, William Haynes and Douglas Feith may face charges in Spain for authorizing torture at Guantánamo Bay.

If arrest warrants are issued, Spain and any of the other 24 countries that are parties to European extradition conventions could arrest these six men when they travel abroad.

Does Spain have the authority to prosecute Americans for crimes that didn't take place on Spanish soil?

The answer is yes. It's called "universal jurisdiction." Universal jurisdiction is a well-established theory that countries, including the United States, have used for many years to investigate and prosecute foreign nationals for crimes that shock the conscience of the global community. It provides a critical legal tool to hold accountable those who commit crimes against the law of nations, including war crimes and crimes against humanity. Without universal jurisdiction, many of the most notorious criminals would go free. Countries that have used this as a basis to prosecute the most serious of crimes should be commended for their courage. They help to create a just world in which we all seek to live.

Israel used universal jurisdiction to prosecute, convict and execute Adolph Eichmann for his crimes during the Holocaust, even they had no direct relationship with Israel.

A federal court in Miami recently convicted Chuckie Taylor, son of the former Liberian president, of torture that occurred in Liberia. A U.S. court sentenced Taylor to 97 years in prison in January.

Universal jurisdiction complements, but doesn't supersede, national prosecutions. So if the United States were investigating the Bush officials, other countries would refrain from doing so.

When the United States ratified the Convention Against Torture, it promised to extradite or prosecute those who commit, or are complicit in, the commission of torture.

President Obama, when asked whether he favored criminal investigations of Bush officials, replied, "My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen."

"But," he added, "generally speaking, I'm more interested in looking forward than I am in looking backward." Preoccupied with the economy and two wars, Obama reportedly wants to wait before considering prosecutions that would invariably anger the GOP.

Evidence that Bush officials set a policy that led to the torture of prisoners at Guantánamo continues to emerge.

According to ABC News, Gonzales met with other officials in the White House and authorized torture, including waterboarding.

The Office of Professional Responsibility, which reports to the U.S. attorney general, drafted a report that excoriates Yoo and Bybee for writing the infamous torture memos. Haynes, Addington and Feith participated in decisions that led to torture. The release of additional graphic torture memos by the U.S. Department of Justice is imminent.

It is the responsibility of the United States to investigate allegations of torture. Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 support criminal investigations.

Former Navy General Counsel Alberto Mora told Congress, "There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq - as judged by their effectiveness in recruiting insurgent fighters into combat - are, respectively the symbols of Abu Ghraib and Guantánamo." Providing impunity to those who ordered the torture will be the third recruiting tool.

If the United States refuses to investigate now, it will be more likely that some future administration will repeat this scenario. The use of torture should be purged from our system, much like we eradicated slavery.

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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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War Criminals, Including Their Lawyers, Must Be Prosecuted

Since he took office, President Obama has instituted many changes that break with the policies of the Bush administration. The new president has ordered that no government agency will be allowed to torture, that the U.S. prison at Guantánamo will be shuttered, and that the CIA’s secret black sites will be closed down. But Obama is non-committal when asked whether he will seek investigation and prosecution of Bush officials who broke the law. “My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen,” Obama said. “But,” he added, “generally speaking, I'm more interested in looking forward than I am in looking backwards.” Obama fears that holding Team Bush to account will risk alienating Republicans whom he still seeks to win over.

Obama may be off the hook, at least with respect to investigating the lawyers who advised the White House on how to torture and get away with it. The Office of Professional Responsibility (OPR) has written a draft report that apparently excoriates former Justice Department lawyers John Yoo, Jay Bybee and Stephen Bradbury, authors of the infamous torture memos, according to Newsweek’s Michael Isikoff. OPR can report these lawyers to their state bar associations for possible discipline, or even refer them for criminal investigation. Obama doesn’t have to initiate investigations; the OPR has already launched them, on Bush’s watch.

The smoking gun that may incriminate George W. Bush, Dick Cheney, et al., is the email traffic that passed between the lawyers and the White House. Isikoff revealed the existence of these emails on The Rachel Maddow Show. Some maintain that Bush officials are innocent because they relied in good faith on legal advice from their lawyers. But if the president and vice president told the lawyers to manipulate the law to allow them to commit torture, then that defense won’t fly.

A bipartisan report of the Senate Armed Services Committee found that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Cheney recently admitted to authorizing waterboarding, which has long been considered torture under U.S. law. Donald Rumsfeld, Condoleezza Rice, George Tenet, Colin Powell, and John Ashcroft met with Cheney in the White House basement and authorized harsh interrogation techniques, including waterboarding, according to an ABC News report. When asked, Bush said he knew about it and approved.

John Yoo wrote in a Wall Street Journal oped that Bush “could even authorize waterboarding, which he did three times in the years after 9/11.”

A representative of the Justice Department promised that OPR’s report would be released sometime last November. But Bush's attorney general Michael Mukasey objected to the draft. A final version will be presented to Attorney General Eric Holder. The administration will then have to decide whether to make it, and the emails, public and then how to proceed.

When the United States ratified the Convention Against Torture, we promised to extradite or prosecute those who commit, or are complicit in the commission, of torture. We have two federal criminal statutes for torture prosecutions – the Torture Statute and the War Crimes Act (torture is considered a war crime under U.S. law). The Torture Convention is unequivocal: nothing, including a state of war, can be invoked as a justification for torture.

Yoo redefined torture much more narrowly than U.S. law provides, and counseled the White House that it could evade prosecution under the War Crimes Act by claiming self-defense or necessity. Yoo knew or should have known of the Torture Convention’s absolute prohibition of torture.

There is precedent for holding lawyers criminally liable for giving legally erroneous advice that resulted in great physical or mental harm or death. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to “legally” disappear political suspects to special detention camps.

Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 favor criminal investigations. Cong. John Conyers has introduced legislation to establish a National Commission on Presidential War Powers and Civil Liberties. Sen. Patrick Leahy advocates for a Truth and Reconciliation Commission; but this is insufficient. TRC’s are used for nascent democracies in transition. By giving immunity to those who testify before them, it would ensure that those responsible for torture, abuse and illegal spying will never be brought to justice.

Attorney General Eric Holder should appoint a Special Prosecutor to investigate and prosecute high Bush officials including lawyers like John Yoo who gave them “legal” cover. Obama is correct when he said that no one is above the law. Accountability is critical to ensuring that our leaders never again torture and abuse people.

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A Call to End All Renditions

Binyam Mohamed, an Ethiopian residing in Britain, said he was tortured after being sent to Morocco and Afghanistan in 2002 by the U.S. government. Mohamed was transferred to Guantánamo in 2004 and all terrorism charges against him were dismissed last year. Mohamed was a victim of extraordinary rendition, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured.

Mohamed and four other plaintiffs are accusing Boeing subsidiary Jeppesen Dataplan, Inc. of flying them to other countries and secret CIA camps where they were tortured. In Mohamed’s case, two British justices accused the Bush administration of pressuring the British government to block the release of evidence that was “relevant to allegations of torture” of Mohamed.

Twenty-five lines edited out of the court documents included details about how Mohamed’s genitals were sliced with a scalpel as well as other torture methods so extreme that waterboarding “is very far down the list of things they did,” according to a British official quoted by the Telegraph (UK).

The plaintiffs’ complaint quotes a former Jeppesen employee as saying, “We do all of the extraordinary rendition flights – you know, the torture flights.” A senior company official also apparently admitted the company transported people to countries where they would be tortured.

Obama’s Justice Department appeared before a three-judge panel of the Ninth U.S. Circuit Court of Appeals Monday in the Jeppesen lawsuit. But instead of making a clean break with the dark policies of the Bush years, the Obama administration claimed the same “state secrets” privilege that Bush used to block inquiry into his policies of torture and illegal surveillance. Claiming that the extraordinary rendition program is a state secret is disingenuous since it is has been extensively documented in the media.

“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.

If the judges accept Obama's state secrets claim, these men will be denied their day in court and precluded from any recovery for the damages they suffered as a result of extraordinary rendition.

Two and a half weeks before Obama’s representative appeared in the Jeppesen case, the new President had signed Executive Order 13491. It established a special task force “to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.”

This order prohibits extraordinary rendition. It also ensures humane treatment of persons in U.S. custody or control. But it doesn’t specifically guarantee that prisoners the United States renders to other countries will be free from cruel, inhuman or degrading treatment that doesn’t amount to torture. It does, however, aim to ensure that our government’s practices of transferring people to other countries complies with U.S. laws and policies, including our obligations under international law.

One of those laws is the International Covenant on Civil Political Rights (ICCPR), a treaty the United States ratified in 1992. Article 7 of the ICCPR prohibits the States Parties from subjecting persons “to torture or to cruel, inhuman, or degrading treatment or punishment.” The Human Rights Committee, which is the body that monitors the ICCPR, has interpreted that prohibition to forbid States Parties from exposing “individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”

Order 13491 also mandates, “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” The order does not define “expeditiously” and the definitional section of the order says that the terms ‘detention facilities’ and ‘detention facility’ “do not refer to facilities used only to hold people on a short-term, transitory basis.” Once again, “short term” and “transitory” are not defined.

In his confirmation hearing, Attorney General Eric Holder categorically stated that the United States should not turn over an individual to a country where we have reason to believe he will be tortured. Leon Panetta, nominee for CIA director, went further and interpreted Order 13491 as forbidding “that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values.”

But alarmingly, Panetta appeared to champion the same standard used by the Bush administration, which reportedly engaged in extraordinary rendition 100 to 150 times as of March 2005. After September 11, 2001, President Bush issued a classified directive that expanded the CIA’s authority to render terrorist suspects to other States. Former Attorney General Alberto Gonzales said the CIA and the State Department received assurances that prisoners will be treated humanely. “I will seek the same kinds of assurances that they will not be treated inhumanely,” Panetta told the senators.

Gonzales had admitted, however, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us . . . If you’re asking me, ‘Does a country always comply?’ I don’t have an answer to that.”

The answer is no. Binyam Mohamed’s case is apparently the tip of the iceberg. Maher Arar, a Canadian born in Syria, was apprehended by U.S. authorities in New York on September 26, 2002, and transported to Syria, where he was brutally tortured for months. Arar used an Arabic expression to describe the pain he experienced: “you forget the milk that you have been fed from the breast of your mother.” The Canadian government later exonerated Arar of any terrorist ties. Thirteen CIA operatives were arrested in Italy for kidnapping an Egyptian, Abu Omar, in Milan and transporting him to Cairo where he was tortured.

Panetta made clear that the CIA will continue to engage in rendition to detain and interrogate terrorism suspects and transfer them to other countries. “If we capture a high-value prisoner,” he said, “I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” No clarification of how long is “temporarily” or what “debrief” would mean.

When Sen. Christopher Bond (R-Mo.) asked about the Clinton administration’s use of the CIA to transfer prisoners to countries where they were later executed, Panetta replied, “I think that is an appropriate use of rendition.” Jane Mayer, columnist for the New Yorker, has documented numerous instances of extraordinary rendition during the Clinton administration, including cases in which suspects were executed in the country to which the United States had rendered them. Once when Richard Clarke, President Clinton’s chief counter-terrorism adviser on the National Security Council, “proposed a snatch,” Vice-President Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”

There is a slippery slope between ordinary rendition and extraordinary rendition. “Rendition has to end,” Michael Ratner, president of the Center for Constitutional Rights, told Amy Goodman on Democracy Now! “Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence.” Ratner queried whether Cuba could enter the United States and take Luis Posada, the man responsible for blowing up a commercial Cuban airline in 1976 and killing 73 people. Or whether the United States could go down to Cuba and kidnap Assata Shakur, who escaped a murder charge in New Jersey.

Moreover, “renditions for the most part weren’t very productive,” a former CIA official told the Los Angeles Times. After a prisoner was turned over to authorities in Egypt, Jordan or another country, the CIA had very little influence over how prisoners were treated and whether they were ultimately released.

The U.S. government should disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001. Those who ordered renditions should be prosecuted. And the special task force should recommend, and Obama should agree to, an end to all renditions.

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Cheney Throws Down Gauntlet, Defies Prosecution for War Crimes

Dick Cheney has publicly confessed to ordering war crimes. Asked about waterboarding in an ABC News interview, Cheney replied, “I was aware of the program, certainly, and involved in helping get the process cleared.” He also said he still believes waterboarding was an appropriate method to use on terrorism suspects. CIA Director Michael Hayden confirmed that the agency waterboarded three Al Qaeda suspects in 2002 and 2003.

U.S. courts have long held that waterboarding, where water is poured into someone’s nose and mouth until he nearly drowns, constitutes torture. Our federal War Crimes Act defines torture as a war crime punishable by life imprisonment or even the death penalty if the victim dies.

Under the doctrine of command responsibility, enshrined in U.S. law, commanders all the way up the chain of command to the commander-in-chief can be held liable for war crimes if they knew or should have known their subordinates would commit them and they did nothing to stop or prevent it.

Why is Cheney so sanguine about admitting he is a war criminal? Because he’s confident that either President Bush will preemptively pardon him or President-elect Obama won’t prosecute him.

Both of those courses of action could be illegal.

First, it is not clear that a president can immunize himself or his subordinates from prosecution for committing crimes that he himself authorized. During the Constitutional convention, George Mason expressed concern that a president could abuse his pardon power to ‘pardon crimes which were advised by himself’ or, before indictment or conviction, ‘to stop inquiry and prevent detection.’

On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which require humane treatment, did not apply to Al Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high level meetings where waterboarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.

Attorney General Michael Mukasey says there’s no need for Bush to issue blanket pardons since there is no evidence that anyone developed the policies “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” But noble motives are not defenses to the commission of crimes.

Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions.

The bipartisan December 11 report of the Senate Armed Services Committee concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”

Lawyers who wrote the memos that purported to immunize government officials from war crimes liability include John Yoo, Jay Bybee, William Haynes, David Addington and Alberto Gonzales. There is precedent in our law for holding lawyers criminally liable for participating in a common plan to violate the law.

Committee chairman Senator Carl Levin told Rachel Maddow that you cannot legalize what’s illegal by having a lawyer write an opinion.

The committee’s report also found that “Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.” Those techniques migrated to Iraq and Afghanistan, where prisoners in U.S. custody were also tortured.

Pardons or failures to prosecute the officials who planned and authorized torture would also be immoral. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantánamo.”

During the campaign, Obama promised to promptly review actions by Bush officials to determine whether “genuine crimes” were committed. He said, “If crimes have been committed, they should be investigated,” but “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

Two Obama advisors told the Associated Press that “there’s little-if any – chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.”

When he takes office, Obama should order his new attorney general to appoint an independent prosecutor to investigate and prosecute those who ordered and authorized the commission of war crimes.

Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can’t authorize war crimes and get away with it.

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John Yoo, David Addington Stonewall Congress

JOHN YOO, DAVID ADDINGTON STONEWALL CONGRESS; NATIONAL LAWYERS GUILD URGES SPECIAL PROSECUTOR, CONGRESSIONAL WAR CRIMES COMMISSION

Today the House Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Civil Liberties continued its investigation into the role played by key administration lawyers in the development of aggressive interrogation techniques. This was the third hearing of this subcommittee on this topic. The witnesses who testified were former Department of Justice lawyer John Yoo; Cheney's former legal counsel and now chief of staff, David Addington; and Christopher Schroeder, professor at Duke Law School.

NLG President Marjorie Cohn had testified at the first subcommittee hearing on May 6, articulating the law of torture, and stating that torture is never allowed under U.S. law. Today’s hearing was attended by Jeanne Mirer, co-chair of the NLG’s International Committee.

Yoo's testimony revealed that the guiding principle of his work at the Justice Department was his belief in the overriding power of the President to order anything he thinks necessary in the "war on terror." When specifically asked, "Is there anything that the President cannot order?" Yoo answered "I believe there are things an American President WOULD not order." He was asked again, "Are there things the President COULD not order?" Yoo replied that he would "have to know the context." Dan Mayfield from the NLG Military Law Task Force stated, "This is consistent with Yoo's previous statement that the President could order torture of a person up to and including the crushing of the testicles of a person's son in order to make the person talk." When asked whether a President could order that someone be buried alive, Yoo's answer was non-responsive: "No American president would ever have to order that," he said.

While Yoo claimed there was little in the law which helped to define torture, Shroeder pointed out the wealth of guidance that exists in the areas of asylum and immigration law. Yoo admitted that the Convention Against Torture and the U.S. Torture Statute both define torture. Yet he wrote his memos to re-define torture so that those following his re-definition could state, "We do not torture." Marjorie Cohn said, "Yoo's memos so vastly narrowed the definition of torture, the interrogator would nearly have to kill someone for it to constitute torture."

Yoo and Addington were evasive, repeatedly stonewalling members of the subcommittee. The Justice Department evidently placed limitations on what Yoo was allowed to discuss, but he invoked privileges where it did not appear privilege was authorized. This led to Yoo's refusal to answer several direct questions. Jeanne Mirer stated, “The evasiveness of Yoo and Addington did not earn them credibility with the subcommittee, and frustrated many of the questioners. These tactics prevented the subcommittee from getting answers to the many important questions about the source of legal authority for the positions espoused in the 'torture memos' regarding aggressive interrogation techniques.”

The NLG has decried the use of torture techniques as well as efforts by lawyers to try to justify them. The NLG has called for holding accountable those who violated the law. While these hearings have helped to establish the record, there is a need for a full blown investigation which could lead to a call for criminal prosecution. The NLG calls for the appointment of an independent special prosecutor, and the establishment of a congressionally appointed commission to investigate potential wrongdoing, including the commission of war crimes, by high officials and lawyers of the Bush administration.

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National Lawyers Guild Calls for Special Prosecutor, Issues White Paper on Torture Liability

New York. The National Lawyers Guild (NLG) calls on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute high Bush officials and lawyers including John Yoo for their role in the torture of prisoners in U.S. custody.

The NLG has issued a White Paper explaining why the memos, which purported to give objective legal advice, subject all those involved to prosecution under international and U.S. domestic law. This includes people who ordered the torture, approved it or gave advice to justify it.

Guild President Marjorie Cohn testified on May 6 before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee, that some lawyers in the Department of Justice were "part of a common plan to violate U.S. and international laws outlawing torture."

The 14-page White Paper details the ways in which the lawyers, including Yoo, Jay Bybee, David Addington, and William Haynes, counseled the White House on how to get away with war crimes. The lawyers said that the Department of Justice would not enforce federal laws against torture, maiming, assault and stalking. "Just because the statute says," John Yoo explained in a recent Esquire interview, "that doesn't mean you have to do it."

Professor Cohn told the congressmen it was "reasonably foreseeable" the lawyers' advice "would result in great physical and mental harm or death to many detainees"; more than 100 have died, many from torture. Torture, like genocide, slavery and wars of aggression, is absolutely prohibited at all times. No country can ever pass a law that would allow them.

Professor Philippe Sands, a British international litigator and author of the new book, "Torture Team," also testified at the congressional hearing. He said that after his extensive interviews with many Bush officials, including John Yoo, "it became clear to me that the Administration has spun a narrative that is false, claiming that the impetus for the new interrogation techniques came from the bottom-up. That is not true; the abuse was a result of pressure and actions driven from the highest levels of government."

It was recently revealed that Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and personally oversaw and approved the torture by authorizing specific torture techniques including waterboarding. President Bush admitted he knew and approved of their actions.

"They are all liable under the War Crimes Act and the Torture Statute," Professor Cohn testified. "Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander-in-chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers."

The National Lawyers Guild calls on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute the high officials of the Bush administration and the lawyers who advised them, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes.

White Paper can be read at http://nlg.org/news/statements/mcohn_testify2008.php.

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Congressional Testimony of Marjorie Cohn on Torture Policy

Testimony of Marjorie Cohn

"From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules"

Subcommittee on the Constitution, Civil Rights, and Civil Liberties
House Judiciary Committee

May 6, 2008

What does torture have in common with genocide, slavery, and wars of aggression? They are all "jus cogens." That’s Latin for "higher law" or "compelling law." This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a "jus cogens" prohibition.

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 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."

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.

The US War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.

Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

The maiming statute 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” or throw or pour upon another person any scalding water, corrosive acid, or caustic substance.

Yoo said, "just because the statute says -- that doesn't mean you have to do it." In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person's child. It depends on the President's motive, Yoo said, notwithstanding the absolute prohibition on torture.

Yoo twisted the law and redefined torture much more narrowly than the Torture Convention and the Torture Statute. Under Yoo's definition, you have to nearly kill the person to constitute torture.

Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances.

After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo’s definition of torture, and admitted that a defendant’s motives to protect national security won’t shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners.

Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently he knew interrogators would take action based on what he advised.

Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding. Bush admitted he knew and approved of their actions.

They are all liable under the War Crimes Act and the Torture Statute. Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander in chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.

The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government, and the lawyers who advised them, should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws.

Click here for the complete testimony.

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National Lawyers Guild President toTestify on Torture Liability Before House Subcommittee on Constitution, Civil Rights and Civil Liberties

On Tuesday, May 6, 2008, National Lawyers Guild President Marjorie Cohn will provide testimony at a hearing titled “From the Department of Justice to Guantánamo Bay: Administration Lawyers and Administration Interrogation Rules,” before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Judiciary Committee. The hearing will begin at 10:00 a.m. at 2141 Rayburn House Office Building in Washington DC.

Cohn is a Professor of Law at Thomas Jefferson School of Law and the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, in which she documents the illegal policy of torture established by high officials of the Bush administration and lawyers in the Department of Justice's Office of Legal Counsel, including former Deputy Assistant Attorney General John Yoo.

Yoo was also invited to testify at Tuesday's hearing but declined the invitation.

Testimony will also be provided by Philippe Sands, Professor of Law and Director of the Centre on International Courts and Tribunals at the University College London. Sands authored the book, Lawless World, in which he accuses George W. Bush and Tony Blair of conspiring to invade Iraq in violation of international law.

On April 9, 2008 the National Lawyers Guild called for John Yoo to be tried as a war criminal and for the University of California Berkeley's Boalt Hall School of Law to dismiss him for conspiring to facilitate the commission of war crimes. The Guild also called on Congress to repeal the provision of the Military Commissions Act that would give Yoo immunity from prosecution for torture committed from September 11, 2001 to December 30, 2005.

Cohn said, "John Yoo's complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the U.S. War Crimes Act." See Cohn's article at http://marjoriecohn.com/2008/04/center- ... ghts.html.

The National Lawyers Guild was founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

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National Lawyers Guild Calls on Boalt Hall to Dismiss Law Professor John Yoo, Whose Torture Memos Led to Commission of War Crimes

New York. In a memorandum written the same month George W. Bush invaded Iraq, Boalt Hall law professor John Yoo said the Department of Justice would construe US criminal laws not to apply to the President's detention and interrogation of enemy combatants. According to Yoo, the federal statutes against torture, assault, maiming and stalking do not apply to the military in the conduct of the war.

The federal maiming statute, for example, 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.

Yoo also narrowed the definition of torture so the victim must experience intense pain or suffering equivalent to pain associated with serious physical injury so severe that death, organ failure or permanent damage resulting in loss of significant body functions will likely result; Yoo's definition contravenes the definition in the Convention Against Torture, a treaty the US has ratified which is thus part of the US law under the Constitution's Supremacy Clause.

Yoo said self-defense or necessity could be used as a defense to war crimes prosecutions for torture, notwithstanding the Torture Convention's absolute prohibition against torture in all circumstances, even in wartime. This memo and another Yoo wrote with Jay Bybee in August 2002 provided the basis for the Administration's torture of prisoners.

"John Yoo's complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act," said National Lawyers Guild President Marjorie Cohn.

Congress should repeal the provision of the Military Commissions Act that would give Yoo immunity from prosecution for torture committed from September 11, 2001 to December 30, 2005. John Yoo should be disbarred and he should not be retained as a professor of law at one of the country's premier law schools. John Yoo should be dismissed from Boalt Hall and tried as a war criminal.

The National Lawyers Guild was founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

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National Lawyers Guild Calls on Congress to Override Bush Veto of Intelligence Authorization Bill

New York. The National Lawyers Guild calls on Congress to override George W. Bush’s veto—in direct contravention of the advice of military commanders—of the Intelligence Authorization Bill that contained a provision limiting the Central Intelligence Agency’s ability to engage in the torture technique known as waterboarding. The practice is currently prohibited by both military and law enforcement agencies. The bill would have limited U.S. interrogators to techniques permitted in the Army Field Manual on Interrogation. Senator John McCain voted against the bill, reversing his previous position on torture.

Torture is illegal under domestic and international law. The U.S. Constitution forbids cruel and unusual punishment, and the United States is a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which makes it part of U.S. law under the Supremacy Clause of the Constitution. That convention prohibits torture even in wartime. Torture is also unlawful under the U.S. Torture Statute (18 USC 2340) and the U.S. War Crimes Act (18 USC 2441).

The Guild calls Congress to override Bush’s veto, and to submit reports detailing the extent to which the United States is engaging in the practice of torture. Eight years ago, in his June 26, 2003 statement on UN International Day in Support of Victims of Torture, George Bush said that the United States is leading by example in prohibiting torture: “The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. I call on all nations to speak out against torture in all its forms and to make ending torture an essential part of their diplomacy.”

Under the Convention Against Torture, all State parties are obliged to submit regular reports on their compliance with the treaty mandates. "The Committee Against Torture has criticized the United States for failing to comply with its legal obligations under the convention. By vetoing the anti-torture bill, Bush is signaling his clear intent to continue violating the law," said Guild President Marjorie Cohn.

Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

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National Lawyers Guild Calls on Justice Antonin Scalia to Recuse Himself From Interrogation-related Cases

The National Lawyers Guild calls on Supreme Court Justice Antonin Scalia to recuse himself from any case coming before the Supreme Court involving the constitutionality of torture as an interrogation technique. In a BBC interview that aired on Tuesday, Scalia defended the use of torture to extract information from persons in custody by law enforcement officials in some cases. Although no case involving the use of torture is currently before the Court, recent events suggest that such a case may be forthcoming.

Guild President Marjorie Cohn said: “The Guild is appalled that a sitting Justice of the United States Supreme Court has ventured in a public forum his belief that it is justifiable to attempt to extract information from persons in custody by the use of torture. A justice of the highest court in the land, sworn to uphold the Constitution, whose views so undermine the fundamental right of security of the person guaranteed by the Bill of Rights, is unfit to sit on that Court.”

The thrust of Scalia’s recent remarks is that he does not believe it is clear that the government is precluded from using coercive interrogation to prevent an imminent terrorist attack. He says that the Constitution forbids cruel and unusual punishment, but if torture is not meant as punishment, it may not be unconstitutional. Surely Justice Scalia knows that torture is unlawful under the U.S. Torture Statute (18 USC 2340) and the U.S. War Crimes Act (18 USC 2441).

Two years ago, five retired U.S. military officers who had entered a case before the Supreme Court for Salim Ahmed Hamdan sought Scalia’s recusal after he publicly voiced skepticism abut the rights of Guantanamo detainees. Scalia declined to recuse himself.

Heidi Boghosian, Executive Director of the Guild said: “Justice Scalia’s remarks inevitably pre-judge the issues in every case in which the Constitution might dictate suppression of evidence because of illegal police interrogation techniques, or the right to compensation of a person subjected to a violation of civil rights. We therefore call upon Justice Scalia to recuse himself from any case which comes before the Court in which such issues are at stake.”

Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

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Injustice at Guantanamo: Torture Evidence and the Military Commissions Act

The Bush administration has announced its intention to try six alleged al Qaeda members at Guantánamo under the Military Commissions Act. That Act forbids the admission of evidence extracted by torture, although it permits evidence obtained by cruel, inhuman or degrading treatment if it was secured before December 30, 2005. Thus, the administration would be forbidden from relying on evidence obtained by waterboarding, if waterboarding constitutes torture.

That's one reason Attorney General Michael Mukasey refuses to admit waterboarding is torture. The other is that torture is considered a war crime under the U.S. War Crimes Act. Mukasey would be calling Dick Cheney a war criminal if the former admitted waterboarding is torture. Lawrence Wilkerson, Colin Powell's former chief of staff, has said on National Public Radio that the policies that led to the torture and abuse of prisoners emanated from the Vice President's office.

The federal government is working overtime to try and clean up the legal mess made by the use of illegal interrogation methods. In a thinly-veiled attempt to sanitize the Guantánamo trials, the Department of Justice and the Pentagon instituted an extensive program to re-interview the prisoners who have undergone abusive interrogations, this time with "clean teams." For example, if a prisoner implicated one of the defendants during an interrogation using waterboarding, the government will now re-interrogate that prisoner without waterboarding and get the same information. Then they will say the information was secured humanely. This attempt to wipe the slate clean is a farce and a sham.

In Brady v. Maryland, the US Supreme Court held that a prosecutor has a duty to give criminal defendants all evidence that might tend to exonerate them. Yet the CIA admitted destroying several hundred hours of videotapes depicting interrogations of Abu Zubaydah and Abd al-Ramin al-Nashiri, which likely included waterboarding. The administration claims Abu Zubaydah led them to Khalid Sheikh Mohammed, one of the defendants facing trial in the military commissions. So the government has destroyed potentially exonerating evidence. Moreover, the CIA's "enhanced interrogation techniques" are classified so they can be kept secret from the defendants, and CIA agents cannot be compelled to testify or produce evidence of torture.

A report just released by Seton Hall Law Center for Policy and Research reveals more than 24,000 interrogations have been conducted at Guantánamo since 2002 and every interrogation was videotaped. Many of these interrogations were abusive. "One Government document, for instance, reports detainee treatment so violent as to 'shake the camera in the interrogation room' and 'cause severe internal injury,'" the report says.

The Military Commissions Act contains other provisions that deny the defendants basic due process. It allows a trial to continue in the absence of the accused, places the power to appoint judges in the hands of the Secretary of Defense, permits the introduction of hearsay and evidence obtained without a warrant, and denies the accused the right to see all of the evidence against him. Defense attorneys are not allowed to meet their clients without governmental monitoring, and all of their notes and mail must be handed over to the military.

Will the U.S. Supreme Court be able to rectify the situation of abusive interrogations if and when a case comes before it? Not if Justice Antonin Scalia has his way. Once again, Scalia is acting as a loyal foot soldier in the President's "war on terror." In a BBC interview that aired this week, Scalia defended the use of torture to extract information from prisoners in some cases.

Scalia's remarks mean he has prejudged the issues in future cases in which the Constitution might dictate the suppression of evidence because of illegal police interrogation techniques, or the right to compensation of a person whose civil rights have been violated. Justice Scalia should recuse himself from any case that presents these issues.

Bush is meanwhile threatening to veto a bill Congress passed that would forbid the CIA from subjecting prisoners to interrogation techniques banned by the U.S. Army Field Manual. John McCain, the tortured POW who led the charge in 2005 against cruel treatment, has now hitched his wagon to Bush's star. Presidential candidate McCain voted to allow the CIA to continue to ply its cruelty.

When Bush vetoes the bill, Congress should stand firm for the rule of law and basic standards of human decency and override his veto. Dick Cheney and other officials who participated in formulating the abusive interrogation policies should be investigated under the U.S. War Crimes Act. And the Democratic-controlled Congress should repeal the Military Commissions Act that Bush rammed through the Republican-controlled Congress.

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Cheney Impeachment Gains Traction in House Judiciary Committee

Nine out of 23 Democratic members of the House Judiciary Committee favor starting impeachment hearings against Vice-President Dick Cheney. Six of the nine are co-sponsors of H.R. 799, which contains three articles of impeachment.

Articles I and II of H.R. 799 accuse Cheney of purposely manipulating intelligence to deceive Congress and the American people about a fabricated threat of Iraqi weapons of mass destruction, and about an alleged relationship between Iraq and al Qaeda, respectively. Article III charges Cheney with openly threatening aggression against Iran absent any real threat to the United States. All three articles say Cheney's actions have damaged our national security interests.

Three of the nine Judiciary Committee Democrats who advocate launching impeachment hearings against Cheney, Reps. Robert Wexler (D., Fla.), Luis Gutierrez (D., Ill.) and Tammy Baldwin (D., Wis.), co-authored an op-ed that appeared on December 27 in the Philadelphia Inquirer.

They wrote, "The issues at hand are too serious to ignore, including credible allegations of abuse of power that, if proven, may well constitute high crimes and misdemeanors under the Constitution. The allegations against Cheney relate to his deceptive actions leading up to the Iraq war, the revelation of the identity of a covert agent for political retaliation, and the illegal wiretapping of American citizens."

There is also credible evidence that policies set in Cheney's office authorized the torture of prisoners in U.S. custody, in violation of three treaties the United States has ratified, as well as the U.S. Torture Statute and War Crimes Act. The policies on the treatment of prisoners emanating from Cheney's office triggered the abuse and torture, according to Lawrence Wilkerson, former Secretary of State Colin Powell's chief of staff.

"It was clear to me that there was a visible audit trail from the Vice President's office through the Secretary of Defense down to the commanders in the field," Wilkerson, a former colonel, said on National Public Radio's "Morning Edition."

In November, the House of Representatives sent the impeachment resolution to the House Judiciary Committee for further proceedings. However many Democrats oppose impeachment, citing the year and a half of testimony about Bill Clinton's personal relations. They think impeachment will detract from Congress's other pressing business.

Yet, the three congresspersons noted, the Clinton impeachment "must not be the model for impeachment inquiries. A Democratic Congress can show that it takes its constitutional authority seriously and hold a sober investigation, which will stand in stark contrast to the kangaroo court convened by Republicans for Clinton."

And, they argue, the hearings would "involve the possible impeachment of the vice president - not of our commander in chief - and the resulting impact on the nation's business and attention would be significantly less than the Clinton presidential impeachment hearings."

Seventy percent of American voters think Cheney has abused his powers and 43 percent say he should be removed from office, according to a Nov. 13 poll by the American Research Group. Organizations, including the National Lawyers Guild, have called for the impeachment of Dick Cheney.

Impeachment hearings against Cheney would not only fulfill the Constitution's command that high officials who commit high crimes and misdemeanors be brought to justice. It would also deter the vice president from committing additional crimes that threaten the national security of the United States.

Any impeachment proceeding would have to start in the House Judiciary Committee. The nine Democrats on the House Judiciary Committee who favor impeachment hearings are: Robert Wexler, Fla.; Luis Gutierrez, Ill.; Anthony Weiner, N.Y.; Tammy Baldwin, Wisc.; Sheila Jackson Lee, Texas; Steve Cohen, Tenn.; Keith Ellison, Minn.; Maxine Waters, Calif.; and Hank Johnson, Ga.

Here is a list of the entire House Judiciary Committee: http://judiciary.house.gov/CommitteeMembership.aspx.

For information about the campaign to impeach Dick Cheney, see http://impeachcheney.org.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Michael Mukasey: Another Loyal Bushie

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Unrepentant, Bush Denies Torture

The April 2004 publication of grotesque photographs of naked Iraqis piled on top of each other, forced to masturbate, and led around on leashes like dogs, sent shock waves around the world. George W. Bush declared, “I shared a deep disgust that those prisoners were treated the way they were treated.” Yet less than a year later, his Justice Department issued a secret opinion endorsing the harshest interrogation techniques the CIA has ever used, according to an October 4, 2007 report in the New York Times. These include head slapping, frigid temperatures, and water boarding, in which the subject is made to feel he is drowning. Water boarding is widely considered a torture technique. Once again, Bush is compelled to issue a denial. He insists, “This government does not torture people."

This was not the first time the Bush administration had officially endorsed torture, however. John Yoo, writing for the Justice Department’s Office of Legal Counsel, penned an August 2002 memorandum that rewrote the legal definition of torture to require the equivalent of organ failure. This memo violated the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty the United States ratified, and therefore part of U.S. law under the Supremacy Clause of the Constitution.

In December 2002, former Secretary of Defense Donald Rumsfeld approved interrogation methods that included the use of dogs, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, deprivation of light and sound, and water boarding. U.S. Navy General Counsel Alberto Mora told William Haynes, the Pentagon’s general counsel, that Rumsfeld’s “authorized interrogation techniques could rise to the level of torture.” As a result, Rumsfeld rescinded some methods but reserved the right to approve others, including water boarding, on a case-by-case basis.

When Bush maintained earlier this week that his government doesn’t torture prisoners, he stressed the need for interrogation to “protect the American people.” Notwithstanding the myth perpetuated by shows like “24,” however, torture doesn’t work. Experts agree that people who are tortured will say anything to make the torture stop.

One of the first victims of the Bush administration’s 2002 torture policy was Abu Zubaydah, whom they called “chief of operations” for al Qaeda and bin Laden’s “number three man.” He was repeatedly tortured at the secret CIA “black sites.” They water boarded him, withheld his medication, threatened him with impending death, and bombarded him with continuous deafening noise and harsh lights.

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

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

Likewise, Khalid Sheikh Mohammed, considered the mastermind of the September 11 attacks, was tortured so severely – including by water boarding – that the information he provided is virtually worthless. A potentially rich source of intelligence was lost as a result of the torture.

Bush’s insistence that his administration doesn't torture rings hollow. He lied about weapons of mass destruction and a Saddam-al Qaeda connection in Iraq. He lied when he assured us his officials would not wiretap without warrants. As evidence of secret memos detailing harsh interrogation policies continues to emerge, we can't believe Bush's denials about torture.

Democrats in Congress have demanded they be allowed to see the memos, but Bush said the interrogation methods have been "fully disclosed to appropriate members of Congress." Senator John D. Rockefeller IV was unmoved. "I'm tired of these games," he said. "They can't say that Congress has been fully briefed while refusing to turn over key documents used to justify the legality of the program."

It is incumbent upon the Senate Judiciary Committee to vigorously interrogate Michael Mukasey during his attorney general confirmation hearing. As AG, Mukasey would oversee the department that writes interrogation policy. Mukasey should know the Convention Against Torture prohibits torture in all circumstances, even in times of war.

Torture is a war crime. Those who commit or order torture can be convicted under the U.S. War Crimes Statute. Techniques that don't rise to the level of torture but constitute cruel, inhuman or degrading treatment or punishment also violate U.S. law. Congress should provide for the appointment of a special independent counsel to fully investigate and prosecute all who are complicit in the torture and mistreatment of prisoners in U.S. custody.

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No Unlawful Enemy Combatants at Guantanamo

In 2002, Donald Rumsfeld famously called the detainees at Guantánamo "the worst of the worst." General Richard B. Myers, former chairman of the Joint Chiefs of Staff, warned they were "very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down." These claims were designed to justify locking up hundreds of men and boys for years in small cages like animals.

George W. Bush lost no time establishing military commissions to try the very "worst of the worst" for war crimes. But four and a half years later, the Supreme Court decided in Hamdan v. Rumsfeld that those commissions violated the Uniform Code of Military Justice and the Geneva Conventions. So Bush dusted them off, made a few changes, and rammed his new improved military commissions through the Republican Congress last fall.

Only three detainees have been brought before the new commissions. One would expect the people Bush & Co. singled out for war crimes prosecutions would be high-level al-Qaeda leaders. But they weren't. The first was David Hicks, who was evidently not so dangerous. The U.S. military made a deal that garnered Hicks a misdemeanor sentence and sent him back to Australia.

Salem Ahmed Hamdan, a Yemeni who used to be Osama bin Laden's chauffeur, was the second. Hamdan, whose case had been overturned by the Supreme Court, was finally brought before a military commission June 4 for arraignment on charges of conspiracy and material support for terrorism.

The third defendant was Omar Khadr, a Canadian citizen, who appeared for arraignment the same day as Hamdan. Khadr was 15 years old when he arrived at Guantánamo. He faced charges of conspiracy, murder, attempted murder, spying, and supporting terrorism.

On June 4, much to Bush's dismay, two different military judges dismissed both Hamdan's and Khadr's cases on procedural grounds.

The Military Commissions Act that Congress passed last year says the military commissions have jurisdiction to try offenses committed by alien unlawful enemy combatants. Unlawful enemy combatants are defined as (1) people who have engaged in hostilities or purposefully and materially supported hostilities against the United States or its allies; or (2) people who have been determined to be unlawful enemy combatants by a Combatant Status Review Tribunal (CSRT) or another competent tribunal. The Act says that a determination of unlawful enemy combatant status by a CSRT or another competent tribunal is dispositive.

But there are no "unlawful" enemy combatants at Guantánamo. There are only men who have been determined to be "enemy combatants" by the CSRTs. The Act declares that military commissions "shall not have jurisdiction over lawful enemy combatants." In its haste to launch post-Hamdan military commissions, Bush's legal eagles didn't notice this discrepancy. That is why the charges were dismissed.

The Bush administration may try to fix the procedural problem and retry Khadr and Hamdan. But regardless of whether Guantánamo detainees are lawful or unlawful enemy combatants, the Bush administration's treatment of them violates the Geneva Conventions. Lawful enemy combatants are protected against inhumane treatment by the Third Geneva Convention on prisoners of war. Unlawful enemy combatants are protected against inhumane treatment by Common Article Three.

Omar Khadr was captured in Afghanistan and brought to Guantánamo when he was 15 years old. In both places, he has been repeatedly tortured and subjected to inhumane treatment. At Bagram Air Base, Khadr was denied pain medication for his serious head and eye shrapnel wounds. At Guantánamo, his hands and feet were shackled together, he was bolted to the floor and left there for hours at a time. After he urinated on himself and on the floor, U.S. military guards mopped the floor with his skinny little body. Khadr was beaten in the head, dogs lunged at him, and he was threatened with rape and the removal of his body parts.

Khadr cried frequently. He has nightmares, sweats and hyperventilates, and is hypervigilant, hearing sounds that he can't identify. When Khadr's lawyer saw him for the first time in 2004, he thought, "He's just a little kid."

Why was Khadr treated this way? He comes from a family allegedly active in al-Qaeda. His charges stem from an incident where the U.S. sent Afghans into a compound where Khadr and others were located. The people inside the compound killed the Afghans and began firing at the U.S. soldiers. The Americans dropped two 500-pound bombs on the compound, killing everyone inside except Khadr. After Khadr threw a hand grenade which killed an American, the soldiers shot Khadr, blinding and seriously wounding him. Khadr begged them in English to finish him off. He was then taken to Baghram and later to Guantánamo.

According to Donald Rehkopf, Jr., co-chair of the National Association of Criminal Defense Lawyers Military Law Committee, "The government has steadfastly refused to allow hearings on this alleged [unlawful enemy combatant] status because there are so many prisoners at GTMO that were not even combatants, much less 'unlawful' ones. Khadr is in an unusual situation because he has a viable 'self-defense' claim - we attacked the compound that he and his family were living in, and the fact that he was only 15 at the time."

If Khadr were a U.S. citizen, he would not even be subject to trial by court-martial because of his age. When the Supreme Court ruled in 2005 that children under 18 at the time of their crimes could not be executed, it said that youths display a "lack of maturity and an underdeveloped sense of responsibility" that "often results in impetuous and ill-considered actions and decisions." A juvenile, the Court found, is more vulnerable or susceptible to negative influences and his character is not as well-formed as that of an adult. "From a moral standpoint," Justice Kennedy wrote for the majority, "it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." The Bush administration's treatment of Omar Khadr flies in the face of the Court's reasoning.

The United States may be able to retry Khadr and Hamdan. They have a few days to file an appeal. But the Court of Military Commissions Review hasn't even been established yet, so it's unclear where the appeals would be brought.

The Military Commissions Act, which denies basic due process protections, including the right to habeas corpus, is a disgrace. But an even bigger disgrace is the concentration camp the United States maintains at Guantánamo Bay, Cuba. The Act should be repealed and the Guantánamo prison should be shut down immediately.

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Alberto Gonzales: Tip of the Iceberg

As Democratic and Republican leaders alike pile on to demand Alberto Gonzales' resignation, only George W. Bush is singing his praises. Deputy press secretary Dana Perino said Bush was happy with Gonzales' testimony. "The attorney general continues to have the president's full confidence," she said.

It's not surprising that Bush would be pleased. Like a good soldier, Gonzales, who claimed a faulty memory 70 times, was careful not to incriminate his bosses.

Bush and Cheney hired Gonzales as attorney general to carry out their plan to amass governmental power in the hands of the Executive. They knew they could count on him.

Gonzales' bona fides were well-known to his bosses. When he was counsel to Texas Governor George W. Bush from 1995 to 1997, Gonzales provided his boss with "scant summaries" on capital punishment cases that "repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence," according to the Atlantic Monthly.

Gonzales prepared 57 such summaries, including one regarding the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about his mental condition. Gonzales's three-page summary of the case for Bush mentioned only that Washington's defense counsel's 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush refused to stay executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

The attorney general was central to the Bush-Cheney-Yoo illegal domestic surveillance program. When he testified before the Senate Judiciary Committee after the New York Times uncovered the secret spying program, attorney general Gonzales walked in lockstep with his bosses. Gonzales would not tell the senators whether Bush had authorized other secret programs. He refused to say whether the government could wiretap purely domestic calls without a warrant, or whether he had the authority to search the first class mail of American citizens or to examine people's medical records. When Republican Senator John Cornyn asked him whether law enforcement could shoot down a plane with drugs, Gonzales said, "I'd have to think about that."

At Gonzales' confirmation hearing for attorney general, he said he wasn't sure whether torturing prisoners could be lawful. The former Texas Supreme Court justice surely knew the terms of the Convention Against Torture, a treaty ratified by the United States and therefore part of the supreme law of the land under the Supremacy Clause of the Constitution. The convention 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."

Yet, as White House counsel, Gonzales had advised Bush that the Geneva Conventions, which mandate humane treatment for all captives, were "quant" and "obsolete." Gonzales' advice facilitated the torture of prisoners in Afghanistan, Iraq, Guantánamo and secret CIA prisons around the world. Gonzales had evidently done his homework. The Nazi lawyers at Nuremberg also advised their clients that the Geneva Conventions were "quaint" and "obsolete."

Gonzales' confirmation 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 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."

In 2005, Bush said, "Al Gonzales is a great friend of mine. I'm the kind of person, when a friend gets attacked, I don't like it." Eventually, however, Bush will have to unload Gonzales the way he unloaded his friend Donald Rumsfeld. Loyal Republican senators trying to paint Gonzales as incompetent don't want the finger to point higher to the real culprits - Karl Rove, George W. Bush and Dick Cheney.

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Cover-up of Women Soldiers' Deaths

The scandal at Walter Reed Army Medical Center has called into question the Bush administration's "support" for our troops. But it doesn't stop there. On March 8, Amy Goodman of Democracy Now! broadcast the testimony of former Abu Ghraib commander Col. Janis Karpinski as she responded to my questioning at a January 2006 war crimes commission in New York. Karpinski said American women soldiers in Iraq who had to go outside to use the latrine at night were raped by male soldiers. They stopped drinking water after 4:00 in the afternoon to avoid having to urinate. But in the 120-degree heat, some died of dehydration. Then, Lt. Gen. Ricardo Sanchez ordered that dehydration not be listed as the cause of death. See my article, "Military Hides Cause of Women Soldiers' Deaths,"... for more details on this shocking cover-up.

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Patriot Act Unbound: Political Purging and Spying on Americans

Last year, Republican Senator Arlen Specter slipped a clause into the reauthorized USA Patriot Act that allows Attorney General Alberto Gonzales to appoint U.S. Attorneys without Senate confirmation.

Gonzales took advantage of that crafty little provision to fire eight U.S. Attorneys who weren't goose-stepping to the Bush agenda and replace them with Bush loyalists. Denying any impropriety, Gonzales dismissed the significance of the mass ouster (seven federal prosecutors were asked to resign on the same day last December), calling it an "overblown personnel matter."

The Attorney General swore to the Senate Judiciary Committee in January that he "would never, ever make a change in a United States attorney for political reasons." But the evidence belies Gonzales' protestations.

Why did these prosecutors run afoul of the Bush gang?

David Iglesias from Albuquerque received an evaluation that said he was "respected by the judiciary, agencies and staff." But he didn't file a corruption case involving New Mexico Democrats before the 2006 election which would've embarrassed the Democrats. New Mexico Republican Senator Pete Domenici called Iglesias and asked whether charges were "going to be filed before the election." Iglesias said he felt "sick" after Domenici called him. "I felt leaned on, I felt pressured to get these matters moving." Iglesias also received a call from Republican Representative Heather Wilson, who was running neck-in-neck with a Democrat in a race where the corruption investigation was a campaign issue. Justice Department spokesman Brian Roehrkasse admitted Domenici's complaint to Gonzales about Iglesias was a factor in the prosecutor's removal.

Carol Lam, "an effective manager and respected leader" from San Diego, conducted an investigation of Republican Representative Randy "Duke" Cunningham for taking over $2 million in bribes from defense contractors. It resulted in a guilty plea and an eight-plus year sentence. In February, Lam indicted Kyle Dustin Foggo, formerly the number 3 man at the CIA. If Lam were permitted to continue, she might have uncovered more official wrongdoing in defense-contracting. Lam was replaced by a member of the Federalist Society with almost no criminal law experience.

Bud Cummins, a "very competent and highly regarded" U.S. Attorney from Little Rock, Arkansas, was removed and replaced with J. Timothy Griffin, one of Karl Rove's key researchers. Deputy Attorney General Paul McNulty testified that Cummins had done nothing wrong to justify his removal. "I'm not aware of anything negative," he said. Cummins said a senior Justice Department official warned him that the fired U.S. Attorneys should keep quiet about "their" firings.

Daniel Bogden, a "highly regarded" and "capable leader" from Las Vegas, had opened an investigation into allegations that Nevada's Republican governor had accepted inappropriate gifts.

Paul Charlton, from Phoenix was "well respected" for his "integrity, professionalism and competence." He had undertaken an investigation of two Republican Arizona Representatives.

John McKay, "an effective, well-regarded and capable leader" from Seattle was called by a well-placed Republican, who inquired about whether McKay intended to convene a grand jury to examine claims of voter fraud in a close gubernatorial election, which was won by a Democrat. McKay also favored a computerized law enforcement information-sharing system that the Justice Department opposed.

These prosecutors were punished for doing their jobs too well. In the Bush administration, justice has become politicized. Democrats have been investigated by the Department of Justice seven times more frequently than Republicans.

On the defensive as a result of the U.S. Attorney firing scandal, the administration has engaged in damage control. It has agreed not to oppose legislation overriding the Specter Patriot Act loophole.

Another Patriot Act provision that has been misused by the Gonzales Justice Department authorizes the use of "national security letters." These are administrative subpoenas that enable the FBI to obtain our e-mails and telephone records, and travel and financial information without approval from a judge. An audit by the Inspector General concluded last week that the FBI has used this provision to illegally force businesses to turn over customer data, then lied to Congress about it.

The Bush gang has engaged in a pattern and practice of misconduct, including a war of aggression, torture and war crimes, and spying on Americans without warrants. Congress has begun to hold hearings and conduct investigations. As increasing evidence of high crimes and misdemeanors emerges, it is high time for the House of Representatives to undertake its constitutional duty to initiate impeachment proceedings.

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Why Boumediene Was Wrongly Decided

Last week, in Boumediene v. Bush, two judges on a three-judge panel of the D.C. Circuit Court of Appeals upheld the provision of the Military Commissions Act of 2006 that strips the rights of all Guantánamo detainees to have their habeas corpus petitions heard by U.S. federal courts. If that decision is left to stand, the men and boys detained at Guantánamo can be held there for the rest of their lives without ever having a federal judge determine the legality of their detention. In my opinion, this appellate decision will likely be overturned by the Supreme Court next term.

A little background:

In November 2001, President Bush established Military Commissions to try non-citizens accused of war crimes.

In June 2004, the Supreme Court decided Rasul v. Bush, which upheld the right of those detained at Guantánamo to have their petitions for habeas corpus heard by U.S. courts, under the federal habeas statute.

The ink was barely dry on Rasul when Bush created the Combatant Status Review Tribunals, ostensibly to comply with the Rasul ruling. But, as I will explain, setting up these tribunals was really an end-run around Rasul. They were established to determine whether a detainee is an enemy combatant. They are not criminal courts, like the military commissions.

On December 31, 2005, Congress passed the Detainee Treatment Act, which included the famous McCain "anti-torture" amendment. But it also stripped habeas corpus rights from Guantánamo detainees who had not already filed habeas petitions before December 31, 2005. Some 200 detainees had pending petitions.

At the end of last term, the Supreme Court struck down Bush's military commissions in Hamdan v. Rumsfeld because they did not comply with due process guarantees in the Uniform Code of Military Justice and the Geneva Conventions.

Then, in October of last year, in another end run, this time around Hamdan, Bush rammed the Military Commissions Act of 2006 through a Congress terrified of appearing soft on terror in the upcoming midterm elections. The Act does many things, but it notably strips statutory habeas corpus rights from all Guantánamo detainees, even those whose petitions were pending on December 31, 2005.

The two-judge majority in Boumediene upheld the Military Commissions Act's stripping of statutory habeas jurisdiction that the Supreme Court had recognized in Rasul. (Congress had passed the original habeas statute, and amended it in the Military Commissions Act). The Boumediene decision found the Act's elimination of habeas to be constitutional.

Art. I of the Constitution contains the Suspension Clause, which says that Congress can suspend the right of habeas corpus only in times of rebellion or invasion when the public safety may require it. As the dissenter in Boumediene pointed out, Congress has only suspended habeas corpus four times before, and made findings of rebellion or invasion in each case. We are not now in a state of invasion or rebellion, and Congress did not make such a finding.

The two-judge majority in Boumediene said: (1) in the absence of a statutory habeas right (which Congress had eliminated in the Military Commissions Act), the Constitution only protects the right of habeas corpus that was recognized at common law in 1789; (2) the law in 1789 did not provide the right of habeas corpus to aliens held by the government outside of the sovereign's territory; and (3) Guantánamo is outside U.S territory for constitutional purposes, even though the U.S. has complete control over it.

This reasoning is erroneous for three reasons:

First, the Supreme Court held in INS v. St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." The Supreme Court in Rasul cited St. Cyr.

Second, although the Boumediene majority relies on the treaty that says Cuba, not the U.S., has sovereignty over Guantánamo, the Supreme Court rejected that argument in Rasul, when it said: "By the express terms of its agreements with Cuba, the United States exercises 'complete jurisdiction and control' over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. . . Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts' authority under §2241."

Third, although the Rasul Court was analyzing the pre-Military Commissions Act habeas statute, it also cited Johnson v. Eisentrager, which construed the constitutional right of habeas corpus. The Supreme Court in Eisentrager denied habeas jurisdiction to German citizens who had been captured by U.S. forces in China, and then tried and convicted of war crimes by an American military commission in Nanking.

The Eisentrager court cited six factors to determine whether an alien is entitled to constitutional habeas jurisdiction in U.S. courts. These factors were cited in Rasul, which said:
In reversing that determination, this Court [in Eisentrager] summarized the six critical facts in the case:

“We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”

On this set of facts, the [Eisentrager] Court concluded, “no right to the writ of habeas corpus appears.”
The Rasul court said:
Petitioners in these [Guantánamo] cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas corpus.
Congress can suspend habeas corpus if there is an adequate substitute for it. In Boumediene, the Bush administration asked the Court of Appeals to review the Combatant Status Review Tribunals. But the court declined, saying it had an inadequate record before it.

The Combatant Status Review Tribunals do not provide a meaningful opportunity to challenge detention. The prisoner is not entitled to an attorney, only a "personal representative," and anything the detainee tells his personal representative can be used against him. After reviewing the cases of 393 detainees, a Seton Hall legal team found that in 96 percent of the cases, the government had not produced any witnesses or presented any documentary evidence to the detainee before the hearing. Detainees were allowed to see only summaries of the classified evidence offered against them, and that evidence was always presumed to be reliable and valid. Requests by detainees for witnesses were rarely granted.

In addition, the personal representatives said nothing in 14 percent of the hearings and made no substantive comments 30 percent of the time. Some personal representatives even advocated for the government's position. In three cases, the detainee was found to be "no longer an enemy combatant," but the military continued to convene tribunals until they were found to be enemy combatants. These detainees were never told of the favorable ruling and there was no indication they were informed or participated in the second or third hearings.

As the dissenter in Boumediene pointed out, the procedure set up in the Detainee Treatment Act for reviewing decisions of the Combatant Status Review Tribunals "is not designed to cure these inadequacies. The court may review only the record developed by the CSRT to assess whether the CSRT has complied with its own standards. Because the detainee still has no means to present evidence rebutting the government's case - even assuming the detainee could learn of it contents - assessing whether the government has more evidence in its favor than the detainee is hardly the proper antidote."

The suspension of habeas corpus will certainly have profound effects on non-citizen detainees. Consider the case of Abu Bakker Qassim, an Uighur from China who was held at Guantánamo for four years. He wrote in the New York Times: "I was locked up and mistreated for being in the wrong place at the wrong time during America's war in Afghanistan. Like hundreds of Guantánamo detainees, I was never a terrorist or a soldier. I was never even on a battlefield. Pakistani bounty hunters sold me and 17 other Uighurs to the United States military like animals for $5,000 a head. The Americans made a terrible mistake."

How did Qassim obtain his release from Guantánamo? "It was only the country's centuries-old commitment to allowing habeas corpus challenges that put that mistake right—or began to. In May, on the eve of a court hearing in my case, the military relented, and I was sent to Albania along with four other Uighurs," Qassim said. He added:
Without my American lawyers and habeas corpus, my situation and that of the other Uighurs would still be a secret. I would be sitting in a metal cage today. Habeas corpus helped me to tell the world that Uighurs are not a threat to the United States or the West, but an ally. Habeas corpus cleared my name—and most important, it let my family know that I was still alive.
Rasul v. Bush was a 6-3 decision. Justices Stevens, Souter, Ginsburg, Breyer, O'Connor and Kennedy voted with the majority. The dissenters were Justices Scalia, Thomas and Rehnquist.

I predict the Supreme Court will reverse the Court of Appeals decision in Boumediene, probably in a 5-4 vote with Chief Justice Roberts and Justice Alito voting with the dissent. I doubt whether the Court will decide that Bush has succeeded in placing the detainees beyond the reach of our federal courts by sending them to Guantánamo. It will likely decide that the judicial review of the decisions of Combatant Status Review Tribunals does not provide an adequate substitute for constitutional habeas corpus.

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Mistrial at Court Martial: Watada Beats the Government

When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada's court martial, he probably didn't realize jeopardy attached. That means that under the Double Jeopardy Clause of the Constitution, the government cannot retry Lt. Watada on the same charges of missing movement and conduct unbecoming an officer.

Lt. Watada is the first commissioned officer to publicly refuse orders to deploy to Iraq. He claimed those orders were unlawful because the war is illegal and he would be an accomplice to war crimes if he followed them.

The judge refused to allow me and others to testify as expert defense witnesses on the illegality of the Iraq war and the war crimes the Bush administration is committing there.

The Uniform Code of Military Justice sets forth the duty of military personnel to obey only lawful commands. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States "

Lt. Watada said at a June 6, 2006 press conference in Tacoma, Washington, "The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war." He stated, "An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq."

Citing "deception and manipulation and willful misconduct by the highest levels of my chain of command," Lt. Watada declared there is "no greater betrayal to the American people" than the Iraq war.

The "turning point" for Lt. Watada came when he "saw the pain and suffering of so many soldiers and their families, and innocent Iraqis." He said, "I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable." Lt. Watada felt he "had the obligation to step up and do whatever it takes," even if that means facing court martial and imprisonment.

Lt. Watada did face court martial, and four years in prison, until the judge declared a mistrial.

This is what I would have said had I been allowed to testify at Lt. Watada's court martial:

The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.

A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.

Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US or any other country for 12 years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones."

Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.

Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture and inhuman treatment are grave breaches.

The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians in Haditha and other Iraqi cities are also war crimes.

Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their subordinates were committing war crimes and failed to stop or prevent them. The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial - for the commission of war crimes.

Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.

The dropping of 2,000-pound bombs in residential areas of Baghdad during "Shock and Awe" were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a "weapons-free" zone, with orders to shoot anything that moved, was a crime against humanity.

Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote:

"No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

Lt. Ehren Watada was correct when he said the war is illegal and he would be party to war crimes if he deployed to Iraq. The orders to deploy were unlawful and Lt. Watada had a duty to disobey them. Although he faces the possibility of a dishonorable discharge, the judge's grant of a mistrial precludes retrial on the same criminal charges.

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Bush Fears War Crimes Prosecution, Impeachment

With great fanfare, George W. Bush announced to a group of carefully selected 9/11 families yesterday that he had finally decided to send Khalid Sheikh Mohammed and 13 other alleged terrorists to Guantánamo Bay, where they will be tried in military commissions. After nearly 5 years of interrogating these men, why did Bush choose this moment to bring them to "justice"?

Bush said his administration had "largely completed our questioning of the men" and complained that "the Supreme Court's recent decision has impaired our ability to prosecute terrorists through military commissions and has put in question the future of the CIA program."

He was referring to Hamdan v. Rumsfeld, in which the high court recently held that Bush's military commissions did not comply with the law. Bush sought to try prisoners in commissions they could not attend with evidence they never see, including hearsay and evidence obtained by coercion.

The Court also determined that Common Article 3 of the Geneva Conventions applies to al Qaeda detainees. That provision of Geneva prohibits "outrages upon personal dignity" and "humiliating and degrading treatment."

Bush called on Congress to define these "vague and undefined" terms in Common Article 3 because "our military and intelligence personnel" involved in capture and interrogation "could now be at risk of prosecution under the War Crimes Act."

Congress enacted the War Crimes Act in 1996. That act defines violations of Geneva's Common Article 3 as war crimes. Those convicted face life imprisonment or even the death penalty if the victim dies.

The President is undoubtedly familiar with the doctrine of command responsibility, where commanders, all the way up the chain of command to the commander in chief, can be held liable for war crimes their inferiors commit if the commander knew or should have known they might be committed and did nothing to stop or prevent them.

Bush defensively denied that the United States engages in torture and foreswore authorizing it. But it has been well-documented that policies set at the highest levels of our government have resulted in the torture and cruel, inhuman and degrading treatment of U.S. prisoners in Iraq, Afghanistan and Guantánamo.

Indeed, Congress passed the Detainee Treatment Act in December, which codifies the prohibition in United States law against cruel, inhuman or degrading treatment or punishment of prisoners in U.S. custody. In his speech yesterday, Bush took credit for working with Senator John McCain to pass the DTA.

In fact, Bush fought the McCain "anti-torture" amendment tooth-and-nail, at times threatening to veto the entire appropriations bill to which it was appended. At one point, Bush sent Dick Cheney to convince McCain to exempt the CIA from the prohibition on cruel treatment, but McCain refused.

Bush signed the bill, but attached a "signing statement" where he reserved the right to violate the DTA if, as commander-in-chief, he thought it necessary.

Throughout his speech, Bush carefully denied his administration had violated any laws during its "tough" interrogations of prisoners. Yet, the very same day, the Pentagon released a new interrogation manual that prohibits techniques including "waterboarding," which amounts to torture.

Before the Supreme Court decided the Hamdan case, the Pentagon intended to remove any mention of Common Article 3 from its manual. The manual had been the subject of revision since the Abu Ghraib torture photographs came to light.

But in light of Hamdan, the Pentagon was forced to back down and acknowledge the dictates of Common Article 3.

Bush also seeks Congressional approval for his revised military commissions, which reportedly contain nearly all of the objectionable features of his original ones.

The President's speech was timed to coincide with the beginning of the traditional post-Labor Day period when Congress focuses on the November elections. The Democrats reportedly stand a good chance of taking back one or both houses of Congress. Bush fears impeachment if the Democrats achieve a majority in the House of Representatives.

By challenging Congress to focus on legislation about treatment of terrorists - which he called "urgent" - Bush seeks to divert the election discourse away from his disastrous war on Iraq.

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Spinning Suicide

They are smart, they are creative, they are committed. They have no regard for life, neither ours nor their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.
Rear Adm. Harry B. Harris Jr., commander of Guantánamo prison camp

Three men being held in the United States military prison camp at Guantánamo Bay, Cuba, killed themselves by hanging in their cells on Saturday. The Team Bush spin machine immediately swept into high gear.

Military officials characterized their deaths as a coordinated protest. The commander of the prison, Rear Adm. Harry B. Harris Jr., called it "asymmetrical warfare."

Colleen Graffy, the deputy assistant secretary of state for public diplomacy, said taking their lives "certainly is a good PR move."

Meanwhile, George W. Bush expressed "serious concern" about the deaths. "He stressed the importance of treating the bodies in a humane and culturally sensitive manner," said Christie Parell, a White House spokeswoman.

How nice that Bush wants their bodies treated humanely, after treating them like animals for four years while they were alive. Bush has defied the Geneva Conventions' command that all prisoners be treated humanely. He decided that "unlawful combatants" are not entitled to humane treatment because they are not prisoners of war.

Article 3 Common to the Geneva Conventions requires that no prisoners, even "unlawful combatants," may be subjected to humiliating and degrading treatment. Incidentally, the Pentagon has decided to omit the mandates of Article 3 Common from its new detainee policies.

Bush resisted the McCain anti-torture amendment to a spending bill at the end of last year, sending Dick Cheney to prevail upon John McCain to exempt the CIA from its prohibition on cruel, inhuman and degrading treatment of prisoners. When McCain refused to alter his amendment, Bush signed the bill, quietly adding one of his "signing statements," saying that he feels free to ignore the prohibition if he wants to.

Bush & Co. are fighting in the Supreme Court to deny the Guantánamo prisoners access to US courts to challenge their confinement. The Court will announce its decision in Hamdan v. Rumsfeld by the end of this month.

This hardly sounds like a man who believes in humane treatment for live human beings.

The three men who committed suicide, Mani bin Shaman bin Turki al-Habradi,Yasser Talal Abdulah Yahya al-Zahrani, and Ali Abdullah Ahmed, were being held indefinitely at Guantánamo. None had been charged with any crime. All had participated in hunger strikes and been force-fed, a procedure the United Nations Human Rights Commission called
"torture."

"A stench of despair hangs over Guantánamo. Everyone is shutting down and quitting," said Mark Denbeaux, a lawyer for two of the prisoners there. His client, Mohammed Abdul Rahman, "is trying to kill himself" in a hunger strike. "He told us he would rather die than stay in Guantánamo," Denbeaux added.

While the Bush administration is attempting to characterize the three suicides as political acts of martrydom, Shafiq Rasul, a former Guantánamo prisoner who himself participated in a hunger strike while there, disagrees. "Killing yourself is not something that is looked at lightly in Islam, but if you're told day after day by the Americans that you're never going to go home or you're put into isolation, these acts are committed simply out of desperation and loss of hope," he said. "This was not done as an act of martyrdom, warfare or anything else."

"The total, intractable unwillingness of the Bush administration to provide any meaningful justice for these men is what is at the heart of these tragedies," according to Bill Goodman, the legal director of the Center for Constitutional Rights, which represents many of the Guantánamo prisoners.

Last year, at least 131 Guantánamo inmates engaged in hunger strikes, and 89 have participated this year. US military guards, with assistance from physicians, are tying them into restraint chairs and forcing large plastic tubes down their noses and into their stomachs to keep them alive. Lawyers for the prisoners have reported the pain is excruciating.

The suicides came three weeks after two other prisoners tried to kill themselves by overdosing on antidepressant drugs.

Bush is well aware that more dead US prisoners would be embarrassing for his administration, especially in light of the documented torture of prisoners at Abu Ghraib and the execution of civilians in Haditha.

More than a year ago, the National Lawyers Guild and the American Association of Jurists called for the US government to shut down its "concentration camp" at Guantánamo. The UN Human Rights Commission, the UN Committee against Torture, UN Secretary General Kofi Annan, and the Council of Europe, have also advocated the closure of Guantánamo prison.

Bush says he would like to close the prison, but is awaiting the Supreme Court's decision. At the same time, however, his administration is spending $30 million to construct permanent cells at Guantánamo.

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UN to US: Close Guantánamo

For the second time this year, a United Nations body has chastised the United States for its torture of prisoners and told it to close its prison camp at Guantánamo Bay, Cuba. In February, the UN Human Rights Commission criticized the US government for force-feeding hunger strikers there - calling it torture - and urged the United States to "close the Guantánamo Bay detention facilities without further delay."

Yesterday, the Committee Against Torture said that the United States "should cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured."

When the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it became part of US law under the Supremacy Clause of the Constitution. All parties to the Convention are required to file reports documenting their progress in implementing their obligations under the Convention.

The Committee Against Torture is charged with evaluating those compliance reports. In an 11-page document released yesterday, the committee evaluated the United States' report, which was filed three and one-half years late.

In its evaluation, the committee stated it was "concerned by reliable reports of acts of torture or cruel, inhuman and degrading treatment or punishment committed by certain members of the [United States'] military or civilian personnel in Afghanistan and Iraq," some of which resulted in death.

The committee called on the US to rescind any interrogation technique - including sexual humiliation, water boarding, short shackling and using dogs to induce fear - that constitutes torture or cruel, inhuman or degrading treatment or punishment.

Detaining persons indefinitely without charge, as the United States has done with most of the 500 or so prisoners at Guantánamo, constitutes a per se violation of the Convention, the committee noted.

The committee was particularly concerned that the Detainee Treatment Act of 2005, which Congress passed last December, aims to strip US federal courts of jurisdiction to hear habeas corpus petitions filed by or on behalf of Guantánamo detainees. This issue is pending in the Supreme Court in Hamdan v. Rumsfeld, which will be decided by the end of June.

Other concerns included forced disappearances, which are considered to be torture; the practice of rendition of prisoners to countries where they face a real risk of torture; and the establishment of secret detention facilities which are not accessible to the International Committee of the Red Cross.

The United States "should promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to acts of torture committed by their subordinates," the committee declared.

It noted with disapproval that there have been no prosecutions initiated under the federal torture statute.

Last week, a district court judge in Virginia dismissed an "extraordinary rendition" lawsuit brought by the American Civil Liberties Union on behalf of a German citizen against former CIA director George Tenet and 10 other CIA employees. Khaled el-Masri alleged that he was beaten and injected with drugs after being seized near the Macedonian border with Albania, then taken to Afghanistan and held for five months.

In dismissing the suit, Judge T.S. Ellis said Mr. el-Masri's "private interests must give way to the national interest in preserving state secrets."

On Thursday, three or four Guantánamo prisoners attempted suicide. Early reports indicated that when the guard force tried to intervene and save the life of one prisoner, other prisoners attempted to prevent them from rescuing the suicidal prisoner.

By the end of the day, the story provided by the US military had changed. In the later report, the military claimed that a group of prisoners had lured guards into the compound by staging a suicide attempt and then attacked the guards.

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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?

Read on >>

US Force-feeding Prisoners in Torture Camp

Last week, the United Nations Human Rights Commission reported that the violent force-feeding of detainees by the US military at its Guantánamo prison camp amounts to torture.

More than a third of the prisoners held there have refused food to protest being held incommunicado for years with no hope of release. They have concluded that death could not be worse than the living hell they are enduring. Attorney Julia Tarver's client Abdul-Rahman told her "of his determination to die and said that, 'now, after four years in captivity, life and death are the same,'" Tarver wrote in a sworn declaration filed in federal district court.

Yousef Al Shehri, another of Tarver's clients, was taken prisoner by the US military while he was still a juvenile. Both clients described being force-fed by the guards. Tarver wrote in her declaration: "Yousef was the second detainee to have an NG [nasal gastric] tube inserted into his nose and pushed all the way down his throat and into his stomach, a procedure which caused him great pain. Yousef was given no anesthesia or sedative for the procedure; instead, two soldiers restrained him - one holding his chin while the other held him back by his hair, and a medical staff member forcefully inserted the tube in his nose and down his throat. Much blood came out of his nose. Yousef said he could not speak for two days after the procedure; he said he felt like a piece of metal was inside of him. He said he could not sleep because of the severe pain."

When Yousef and others "vomited up blood, the soldiers mocked and cursed at them, and taunted them with statements like 'look what your religion has brought you,'" Tarver wrote.

After two weeks of this treatment, the forced feeding stopped for five days. Then, guards began to insert larger, thicker tubes into the detainees' noses. "These large tubes," Tarver wrote, "the thickness of a finger, [Yousef] estimated - were viewed by the detainees as objects of torture. They were forcibly shoved up the detainees' noses and down into their stomachs. Again, no anesthesia or sedative was provided to alleviate the obvious trauma of the procedure. When the tube was removed, it was even more painful, and blood came gushing out of him. He fainted, and several of the other detainees also lost consciousness . They were told that this tube would be inserted and removed twice a day every day until the hunger strike ended. Yousef described the pain as 'unbearable.'"

Both of Tarver's clients independently identified physicians as participants in this procedure. "The guards took NG tubes from one detainee, and with no sanitization whatsoever, re-inserted it into the nose of a different detainee. When these tubes were re-inserted, the detainees could see the blood and stomach bile from other detainees remaining on the tubes," Tarver wrote in her declaration.

The UN commission confirmed that "doctors and other health professionals are participating in force-feeding detainees." It cites the Declarations of Tokyo and Malta, the World Medical Association, and the American Medical Association, which prohibit doctors from participating in force-feeding a detainee, provided the detainee is capable of understanding the consequences of refusing food.

International Committee of the Red Cross guidelines state: "Doctors should never be party to actual coercive feeding. Such actions can be considered a form of torture and under no circumstances should doctors participate in them on the pretext of saving the hunger striker's life."

The Bush administration is force-feeding the hunger strikers for political reasons. If any of the Guantánamo prisoners dies as a result of the hunger strike, it would be embarrassing to the Bush administration, which claims it treats the detainees "humanely."

The Human Rights Commission called on the US government to ensure that the authorities at Guantánamo Bay do not force-feed any detainee who is capable of forming a rational judgement and is aware of the consequences of refusing food. "The United States Government should invite independent health professionals to monitor hunger strikers, in a manner consistent with international ethical standards, throughout the hunger strike," the commission recommended.

In its report, the commission also recommended that the US government "close the Guantánamo Bay detention facilities without further delay. Until the closure, and possible transfer of detainees to pre-trial detention facilities on United States territory, the Government should refrain from any practice amounting to torture or cruel, inhuman or degrading treatment or punishment ."

The commission further said that "the United States Government should ensure that all allegations of torture or cruel, inhuman or degrading treatment or punishment are thoroughly investigated by an independent authority, and that all persons found to have perpetrated, ordered, tolerated or condoned such practices, up to the highest level of military and political command, are brought to justice."

Not surprisingly, the Bush administration rejected the commission's report, saying that the rapporteurs who prepared it did not interview people at the prison camp. The commission relied on interviews with former detainees, public documents, media repots, lawyers and questions answered by the US government. The Bush administration invited the rapporteurs to visit the Guantánamo camp, but refused to allow them to speak with the prisoners.

The overwhelming majority of the prisoners our government is holding at Guantánamo are not terrorists or jihadists. Many were picked up in Afghanistan and other countries and sold to the US military by bounty hunters. Of the roughly 500 men there, only 9 have been designated for trial on criminal charges.

The US government's treatment of prisoners at Guantánamo is an international travesty and a national disgrace.

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The President and His Vice: Torturer's Puppetmasters

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read on >>

Continuing in His Defiance of the Law

Republicans and Democrats have finally found something they can agree on. They have bipartisan support to stop Bush's inhuman and degrading treatment of prisoners in United States custody: It's bad for our image in the Arab and Muslim world. It breeds more resentment against the US, making us more vulnerable to terrorism. And it's just plain un-American.

Last month, an Army captain and two sergeants from the 82nd Airborne Division contacted Senator John McCain (R-Ariz) and Human Rights Watch with allegations that members of the unit routinely beat, tortured and abused detainees in 2003 and early 2004. Capt. Ian Fishback, a Westpoint graduate, said he was frustrated that his reports to superiors went unheeded.

They reported seeing soldiers break prisoners' legs, and strike blows to the heads, chests, and stomachs of prisoners - on a daily basis. They described witnessing soldiers pour chemical substances on prisoners' skin and into their eyes. They said the mistreatment at a base near Fallujah was "just like" what happened at Abu Ghraib.

Capt. Fishback told Human Rights Watch that he believes the abuses he witnessed in Iraq and Afghanistan were caused in part by Bush's 2002 decision not to apply the Geneva Conventions protections to detainees captured in Afghanistan. Fishback said:

[In Afghanistan,] I thought that the chain of command all the way up to the National Command Authority [President Bush and Secretary of Defense Donald Rumsfeld] had made it a policy that we were going to interrogate these guys harshly ... We knew where the Geneva Conventions drew the line, but then you get that confusion when the Sec Def [Secretary of Defense] and the President make that statement [that Geneva did not apply to detainees].
Two weeks ago, 90 percent of the Senate voted to ban "cruel, inhuman, or degrading treatment or punishment" of prisoners held in US military custody. Although the vote merely reflects prohibitions already existing in several treaties the United States has ratified - making them binding domestic law under the Constitution - the Bush administration has refused to follow the law.

The measure introduced by McCain and other Republican senators was an amendment to a $440 billion Defense Appropriations bill. It was adopted by the votes of 46 Republicans, 43 Democrats and one Independent. The amendment also prohibits the use of any interrogation treatment or technique not authorized by and listed in the US Army Field Manual on Intelligence Information.

Notwithstanding the universal prohibition on cruel, inhuman, or degrading treatment or punishment in the laws that bind the United States, the Bush administration has taken the position that they apply only within US territory, and only within limits recognized in the US War Crimes Act with respect to US nationals abroad.

For that reason, the McCain amendment specifies there will be no "geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment."

McCain, a POW in Vietnam for nearly six years, said, "Many of my comrades were subjected to very cruel, very inhumane and degrading treatment, a few of them even unto death. But every one of us - every single one of us - knew and took great strength from the belief that we were different from our enemies."

More than two dozen retired senior military officers, including Colin Powell and John Shalikashvili, both former chairmen of the Joint Chiefs of Staff, support the McCain amendment.

Bush sent Dick Cheney to pressure McCain to withdraw his amendment, without success. Now that the amendment has been adopted by the Senate, Bush threatens to veto the appropriations bill if the McCain amendment is appended to it. The White House says the measure would "restrict the president's authority to protect Americans effectively from terrorist attack and bringing terrorists to justice."

A presidential veto can be overturned by a two-thirds majority in both houses. But some House Republicans plan to push for the McCain amendment to be dropped from the spending bill in a joint House-Senate conference committee.
An editorial in the Washington Post said: "Let's be clear: Mr. Bush is proposing to use the first veto of his presidency on a defense bill needed to fund military operations in Iraq and Afghanistan so that he can preserve the prerogative to subject detainees to cruel, inhuman and degrading treatment. In effect, he threatens to declare to the world his administration's moral bankruptcy."

It's a pity that Congress continues to finance the failed US wars in Iraq and Afghanistan. If the Democrats recapture the House and Senate in the mid-term elections, and if, as Bob Herbert wrote in yesterday's New York Times, the Democrats "get over their timidity, look deep into their own souls, discover what they truly believe and then tell it like it is," they could push Congress to stop funding those wars and we could withdraw our troops. That is how US involvement in Vietnam ended. But don't hold your breath.

The Bush administration persists in blocking any independent investigation of the torture, murder and inhuman treatment of prisoners in US custody, and Congress has thus far failed to demand one.

Bush is probably taking solace from a statement by Professor John Yoo, one of the principal authors of the Bush administration's torture memos, who wrote in the Washington Post: Harriet Miers "may be one of the key supporters in the Bush administration of staying the course on legal issues arising from the war on terrorism." When legal challenges to Bush's policies come before the Supreme Court, Miers may well salute and march to the orders of her former boss.

Read on >>

Abu Ghraib General Lambastes Bush Administration

I had been hesitant to speak out before because this Administration is so vindictive. But now I will ... Anybody who confronts this Administration or Rumsfeld or the Pentagon with a true assessment, they find themselves either out of a job, out of their positions, fired, relieved or chastised. Their career comes to an end.
-- Janis Karpinski, interview with Marjorie Cohn, August 3, 2005

Army Reserve Brigadier General Janis Karpinski was in charge of the infamous Abu Ghraib prison in Iraq when the now famous torture photographs were taken in fall of 2003. She was reprimanded and demoted to Colonel for her failure to properly supervise the prison guards. Karpinski is the highest ranking officer to be sanctioned for the mistreatment of prisoners. On August 3, 2005, I interviewed Janis Karpinski. In the most comprehensive public statement she has made to date, Karpinski deconstructs the entire United States military operation in Iraq with some astonishing revelations.

When Karpinski got to Abu Ghraib, "there was a completely different story than what we were being told in the United States. It was out of control. There weren't enough soldiers. Nobody had the right equipment. They were driving around in unarmored vehicles, some of them without doors ... So, knowing that they were ill-equipped and ill-prepared, they pushed them out anyway, because those two three-stars wanted their fifteen minutes of fame, I suppose."

Karpinski said that General Shinseki briefed Rumsfeld that "he can't win this war, if they insist on invading Iraq, he can't win this war with less than 300,000 soldiers." Rumsfeld reportedly ordered Shinseki to go back and find a way to do this with 125,000 to 130,000, but Shinseki came back and said they couldn't do the job with that number. "What did Rumsfeld do?" Karpinski asked rhetorically. "If you can't agree with me, I'm going to find somebody who can. He made Shinseki a lame duck, for all practical purposes, and brought in Schoomaker. And Schoomaker got it. He said, 'Oh yes sir, we can do this with 125,000.'"

Karpinski says she did not know about the torture occurring in Cellblocks 1-A and 1-B at Abu Ghraib because it took place at night. She didn't live at Abu Ghraib, and nobody was permitted to travel at night due to the dangerous road conditions. The first she heard about the torture was on January 12, 2004. She was never allowed to speak to the people who had worked on the night shift. She "was told by Colonel Warren, the JAG officer for General Sanchez, that they weren't assigned to me, that they were not under my control, and I really had no right to see them."

When Karpinski inquired, "What's this about photographs?" the sergeant replied, "Ma'am, we've heard something about photographs, but I have no idea. Nobody has any details, and Ma'am, if anybody knows, nobody is talking." When Karpinski asked to see the log books, the sergeant told her that the Criminal Investigation Division had taken everything except for something on a pole outside the little office they were using.

"It was a memorandum signed by Secretary of Defense Rumsfeld, authorizing a short list, maybe 6 or 8 techniques: use of dogs; stress positions; loud music; deprivation of food; keeping the lights on, those kinds of things," Karpinski said. "And then a handwritten message over to the side that appeared to be the same handwriting as the signature, and that signature was Secretary Rumsfeld's. And it said, 'Make sure this happens' with two exclamation points. And that was the only thing they had. Everything else had been confiscated."

Karpinski tried to get information, but "nobody knew anything, nobody - at least, that's what they were claiming. The Company Commander, Captain Reese, was tearful in my office and repeatedly told me he knew nothing about it, knew nothing about it," Karpinski said. But in a later plea bargain he entered into after the Taguba Report came out, "Captain Reese said that not only did he know about it, but he was told not to report it to his chain of command, and he was told that by Colonel Pappas. And he claimed that he saw General Sanchez out there on several occasions witnessing the torture of some of the security detainees."

The first time Karpinski got any clarification about the photographs was January 23, 2004. The criminal investigator, Colonel Marcelo, came into Karpinski's office and showed her the pictures. "When I saw the pictures I was floored," Karpinski said. "Really, the world was spinning out of control when I saw those pictures, because it was so far beyond and outside of what I imagined. I thought that maybe some soldiers had taken some pictures of prisoners behind barbed wire or in their cell or something like that. I couldn't imagine anything like what I saw in those photographs."

Marcelo told her, "Ma'am, I'm supposed to tell you after you see the photographs that General Sanchez wants to see you in his office." So Karpinski went over to see Sanchez. She said that "before I even saw the photographs, I was preparing words to say in a press conference - to be up front, to be honest about this, that an investigation is ongoing and there are some allegations of detainee abuse."

But Sanchez told Karpinski, "'No, absolutely not. You are not to discuss this with anyone.' And I should have known then," she said, "and I know that Sanchez was hopeful for a four-star promotion even then, in January of 2004. And I thought it had probably most to do with the election coming up in November 2004, and that this could really move the Administration out of the White House if it was exploited. So naively, I just thought, you know, they're going to let this investigation go and they're going to handle it the way it should be handled."

Karpinski said, however, "The truth has been uncovered, but it's been suffocated and it has not been released with the results of the investigation." She added, "McClellan and Rumsfeld can get up on their high horse and say that there've been no fewer than 15 investigations that were conducted. But every one of those investigations is under the control of the Secretary of Defense. And every one of those investigations is run and led by a person who can lose their job under Rumsfeld's fist."

"We're never going to know the truth until they do an independent commission or look into this independently," Karpinski maintains. "This is about instructions delivered with full authority and knowledge of the Secretary of Defense and probably Cheney. I don't know if the President was involved or not. I don't care. All I know is, those instructions were communicated from the Secretary of Defense's office, from the Pentagon, through Cambone, through Miller, to Abu Ghraib."

Karpinski describes what happened when General Geoffrey Miller arrived at Abu Ghraib: "The most pronounced difference was when Miller came to visit. He came right after Rumsfeld's visit ... And he said that he was going to use a template from Guantánamo Bay to 'Gitmo-ize' the operations out at Abu Ghraib."

"These torture techniques were being implemented and used down at Guantánamo Bay and, of course, now we have lots of statements that say they were used in Afghanistan as well," Karpinski said. Although Miller has sworn he was just an "advisor," Miller told Karpinski he wanted Abu Ghraib. Karpinski replied, "Abu Ghraib is not mine to give to you. It belongs to Ambassador Bremer. It is going to be turned over to the Iraqis." Miller replied, "No it is not. I want that facility and Rick Sanchez said I can have any facility I want." Karpinski said, "Miller obviously had the full authority of somebody, you know, likely Cambone or Rumsfeld in Washington, DC."

Miller's representative, General Fast, turned the prison over to the Military Intelligence brigade for complete command and control, Karpinski said. "There was no coordination with me or Colonel Pappas. There was no discussion about chain of command."

Abu Ghraib housed primarily Iraqi criminals. Although many of the "security detainees" were kept at Abu Ghraib, most of the interrogations took place at a higher-value detention facility in Baghdad, according to Karpinski.

The Army discriminates against the reservists in general, and female officers in particular, Karpinski said. "It's really a good old boys' network," she said. "Come hell or high water, they're going to maintain the status quo." While she was made the scapegoat for the torture at Abu Ghraib, Karpinski said, no one above her in the chain of command has been reprimanded.

Karpinski reveals that there was "no sustainment plan" because "there were a lot of contractors - US contractors exclusively - who realized they could make a lot of money in Iraq." At the Coalition Provisional Authority, Karpinski "saw corruption like I've never seen before - millions of dollars just being pocketed by contractors. Everything was on a cash basis at that time," she said. "You take a request down - literally, you take a request to the Finance Office. If the Pay Officer recognized your face and you were asking for $450,000 to pay a contractor for work, they would pay you in cash: $450,000. Out of control."

Speaking about the war, Karpinski said, "Iraq was a huge country, and when you have people largely saying now, 'He may have been a dictator, but we were better under Saddam,' this Administration needs to take notice. And at some point you have to say, 'Stop the train, because it's completely derailed. How do we fix it?' But in an effort to do that, you have to admit that you made a few mistakes, and this Administration is not willing to admit any mistakes whatsoever."

Janis Karpinski is no longer in the military. She is writing a book that will be published by Miramax in November. In April, she received a form letter from the Chief of the Army Reserves, "warning me - warning me - about speaking about Abu Ghraib, and that everything was still under investigation." She then got "a letter saying that he understands that I'm writing a book and I should submit the transcript for review."

"And my lawyer responded simply by telling him that I was a private citizen and I don't fall under the same requirements, which he had to acknowledge, because that's true. I'm not ignorant, and I'm not going to reveal any classified information in anything I write," Karpinski said, "but I don't need to, because the truth is the truth, and it doesn't have to be classified. It is definitely staggering, but the truth is the truth."



Janis Karpinski: Exclusive Interview
By Marjorie Cohn
t r u t h o u t | Interview

Wednesday 03 August 2005

Army Reserve Brigadier General Janis Karpinski was in charge of Abu Ghraib prison in Iraq when the infamous torture photographs were taken. She was reprimanded and demoted to Colonel for her failure to properly supervise the prison guards. Karpinski is the highest ranking officer to be sanctioned for the mistreatment of prisoners. This exclusive interview by t r u t h o u t writer Marjorie Cohn is the most comprehensive public statement Karpinski has made to date.
MC: General Karpinski, thank you for agreeing to talk to me today.

JK: I had been hesitant to speak out before because this Administration is so vindictive. But now I will.

Despite years of this pronouncement that it's an "army of one," we reservists were absolutely discriminated against. The people at the senior levels of the reserve components, the Chief of the Army Reserve, for example, a three-star, never made so much as one phone call, never exchanged one word with me in all of this. Twice, my lawyer requested a meeting with him face-to-face in Washington, DC, and he declined. He denied both of those requests.

It's really a good old boys' network. Come hell or high water, they're going to maintain the status quo. They all live by each other in Fort Myers, or near Fort Myers. I'm sure that they have these cigar-smoking sessions where they're all patting each other on the back that they got another female out of the way, before I was able to get higher up in the senior levels. But I always expected that reservists would find support from their own component, and not be tagged as bad apples. For myself, there was not any support whatsoever.

I just find it incredible that the system - the Pentagon and the Judicial System - can continue to keep those soldiers in jail when there are simply volumes of documents and information that is emerging, and continues to emerge, that says exactly what one, in particular, Graner, was saying all along: that he was ordered to do these things by the Military Intelligence people and the interrogators, the contract interrogators. And there's more and more information to support that. The recommendation was that General Miller from Gitmo be reprimanded and his four-star commander from SOUTHCOM said no, I don't agree with that.

MC: And General Geoffrey Miller was the one who was supposed to transplant those interrogation and torture techniques from Guantánamo to Abu Ghraib?

JK: That's correct. There are sworn statements, not only from the interrogators and the FBI personnel down at Guantánamo Bay prior to even a thought of using Abu Ghraib for a prison location. These torture techniques were being implemented and used down at Guantánamo Bay and, of course, now we have lots of statements that say they were used in Afghanistan as well.

In late August and September of 2003, Miller comes to visit, then everything starts to change, to include transferring the responsibility for Abu Ghraib over to the Military Intelligence people altogether. And it's been substantiated through an investigation that these torture practices were developed and implemented down in Guantánamo Bay and then they were imported to Abu Ghraib.

They're holding these soldiers responsible for one time on the night shift coming up with these pranks. Give me a break! It's so unfair to continue to blame those soldiers. You know, I would be the first one to say to anybody that Graner and Fredericks, as noncommissioned officers - they crossed the line. Graner punched a prisoner in the chest so hard, to get him under control, the guy passed out. Fredericks stepped on feet and hands and everything else. And they didn't report what they knew were violations of the Geneva Conventions. They didn't report those things to the chain of command.

Now I've been held accountable for that, but never once, Marjorie, never once have I had an opportunity to speak to any of those soldiers, because before I was even aware that there was an investigation going on or that there were photographs or anything else, those soldiers were removed from their positions at Abu Ghraib and taken away to Sanchez's headquarters. And I was never allowed to speak to them. Never once.

MC: Why do you think you're the highest officer who's been punished?

JK: Well, I don't know how else to say it, but I think I check a lot of blocks. Before the war got underway, before 9/11, Rumsfeld's plan was to downsize the military - fewer, faster, more trained in Special Operations, never have to fight on two fronts again. He wanted to downsize the overall military. He wanted to return control of the military to the civilian sector. And the division commanders, at least in the Army, were opposed to that. And there were very selfish reasons for their opposition. If you were a division commander, you could pay back favors that were done for you, perhaps, to get you promoted or to put you into positions. You repay other graduates of the military academy - those kinds of things - by appointing them to command positions in your own division. So the more toys you have to play with, the bigger your division and the more likely that you're going to be at the front of the pack when your promotion comes up. So that's history.

Rumsfeld wanted to downsize the military, and the component chiefs were opposed to it. He sent them all back to their offices, and said, "Find a way to do this." The only component that came up with a solution was the Marine Corps. Then he sent the Air Force, the Navy and the Army back to the drawing board, and then 9/11 happened. So they got a reprieve. And it was up to them to prove how important it was that they still needed big divisions and lots of equipment and all that other stuff.

Here's Shinseki briefing Rumsfeld that he can't win this war, if they insist on invading Iraq, he can't win this war with less than 300,000 soldiers. I wasn't there to hear it, but allegedly Rumsfeld said to Shinseki: go back and find a way to do this with 125,000 to 150,000. Well, Shinseki came back again and said: Mr. Secretary we can't do it with that number. You need 300,000.

What did Rumsfeld do? If you can't agree with me, I'm going to find somebody who can. He made Shinseki a lame duck, for all practical purposes, and brought in Schoomaker. And Schoomaker got it. He said, "Oh yes sir, we can do this with 125,000."

Well, none of them had to go fight the war. None of them had to deploy and manage this small number. And everybody was under the impression that this war was going to be over very quickly. So there was no sustainment plan. And I'm selected for Brigadier General. I had a choice: I could either wait for my unit to come back to the United States and join the men, or I could deploy. I wanted to be with my unit in the field. I thought it would be a great opportunity to see how they would operate under field conditions in a theater of war.

When I got there, there was a completely different story than what we were being told in the United States. It was out of control. There weren't enough soldiers. Nobody had the right equipment. They were driving around in unarmored vehicles, some of them without doors. Some of the soldiers didn't even have protective vests. And I kept hearing the same excuse for reservists, for National Guard units: the active component was taking the equipment as a priority. We can't get it over here.

And then layer on top of that, there was no personnel replacement system for the Reserves and the National Guard. So if I lost a soldier to an illness, a nervous breakdown, a battle injury, whatever it might be, I operated one short, or ten short, or thirty short, or sixty short. I didn't mobilize these units. I didn't deploy these units. I joined them in theater. The responsibility for how those units were deployed and how they were ill-prepared rests with the senior level of leadership in the military.

MC: And when you say "senior level," who do you mean?

JK: I mean the Chief of the Army Reserves, the Chief of the National Guard here, who is the only general officer in all of this who has admitted that they had no idea. I think it was General Bloom, he's a three-star. I don't even know if he still is Chief of the National Guard. But he admitted that they had no idea that the units were going to be deployed for anything, the length of time that it started to appear that they were going to be deployed. So they pushed them out of the mobilization stations, because they knew that the units would somehow manage once they got into Iraq. So, knowing that they were ill-equipped and ill-prepared, they pushed them out anyway, because those two three-stars wanted their fifteen minutes of fame, I suppose.

But Bloom, at least, stepped up to the plate and took responsibility. Helmsley, who allowed these units to deploy, who came up with this harebrained scheme about cross-welling soldiers and serving with complete strangers - he has never taken responsibility for anything. And neither has the Pentagon.

More than a year ago, that brave soldier stood up and said to Rumsfeld, "Why don't we have the right equipment? Why are we still going out with unarmored vehicles?" Rumsfeld made that infamous comment that was: you go to war with the units that you have, not necessarily the ones you want. Well, how about a slap in the face? But he's never been held accountable for that.

And the man, the officer who stopped requests for armored vehicles and stopped requests for protective vests to be prioritized is now the Chief of Staff of the Army, General Cody. He's a four-star. He was a three-star. He was in charge of logistics, and he disapproved any additional requests for vehicles or protective equipment for our soldiers. He was promoted. He is a four-star, and he is the Chief of Staff of the Army today.

That's how Rumsfeld and the Pentagon reward people who are in agreement with them. I don't know how else to say it. Shinseki, who was telling Rumsfeld the truth - he was retired.

Anybody who confronts this Administration or Rumsfeld or the Pentagon with a true assessment, they find themselves either out of a job, out of their positions, fired, relieved or chastised. Their career comes to an end.

MC: What is your current status?

JK: I am retired from the military.

MC: You wrote in an e-mail: "The techniques are a clear departure from what soldiers are taught and understand, the techniques that were directed by the highest level of this Administration." By that, you mean all the way up to the Oval Office?

JK: I mean all the way up to Cheney. I don't know the workings of how it gets up there. But I would think that, very similar to any other big corporation or the military, that if you have a deputy - or a Vice President, in this case - and he is making decisions or approvals, then maybe by default you will say, "If I didn't know, I should have known," or "I did know." Because he's your Vice President. Or he is the Vice President. Or he is the Secretary of Defense. I don't know what they are telling the President. And I don't care. He's the President, and he's supposed to know what's going on in this Administration, and honestly, sometimes it doesn't seem like he does.

MC: How are the techniques a clear departure from what soldiers are taught and understand?

JK: Well, I can tell you that Military Police soldiers (I don't care what component they're from: National Guard, Reserve or active duty) - in fact, when it comes to the Geneva Conventions and fair and humane treatment of prisoners, Reserve and National Guard units are better, because it is a mission. A prisoner of war operation and internment resettlement and refugee operations - it was never a mission that the active component wanted to embrace. They wanted the National Guard and the Reserve Units to take those missions. They thought it was an insult to them to have to do those kinds of missions. So in my opinion, the reservists and the National Guard Units were better equipped, better trained, and fully aware of the Geneva Conventions and the requirements of how to treat prisoners of war fairly and humanely.

They changed the mission. They assigned a new detention mission to the 800th MP brigade and relocated most of the units from the prisoner of war camp, which was winding down from May onwards, and moved them, pushed them up into Iraq, to perform this new mission of detention operations. We were told - I was told - that it was going to be assisting Bremer's headquarters, the Coalition Provisional Authority, with restoring prisons and jails and getting the Iraqi prisoners back under lock and key because they were disrupting operations, etc. etc.

So despite the fact that Iraqi criminals - detention operations - are different from prisoner of war operations (they have a different mind set of a criminal, if you will), the MPs were assigned this mission. There was absolutely no discussion whatsoever to see if the units were properly equipped, if they had appropriate training. Twice I approached the two-star, a guy by the name of Cruser [sp?], he's a Major General Reservist. Twice I went to him and I said, "This is not our mission." And he said to me, as almost to dismiss me out of his office, he said, "Yes, I know Janis, but you're the closest we've got from detention MP, so you guys have the mission." Not, you know, we don't have the right equipment; not, we don't have the right training, we don't have the right background. He didn't care.

MC: You said that Iraqi detention is different than POWs, that there's a criminal mind set. Could you explain it a little bit more?

JK: Well, when you have prisoner of war operations or refugee resettlement operations, and there's a war going on, prisoners of war know and understand, and they see it exhibited by the military police soldiers, that they are going to be treated fairly and humanely, and that the enemy - the people detaining them - are not going to be living in high-rise hotels while they're in these prison camps. Everybody they see - the MPs and the soldiers who are guarding them - are living at the same level that they are. So if there's a ration of water of two liters a day, the prisoners get the same ration that the soldiers get. If they're living in outside tents, the soldiers are likewise living in outside tents and cow towns. There's no air conditioning. There is no laundry service. There are no rental cars. And prisoners of war understand that. They know that they are only going to be held as combatants until the war is over, so their mind set is different. They are generally under control.

Nobody likes to be held against their will. But enemy combatants understand that, in the course of war, if they're captured, then they're held in a prisoner of war camp and will be treated humanely until the war is over and then they can go home. That's how prisoner of war operations work, and that's the mind set, I would say, of an average soldier, pretty much, and 75 percent of the free world.

Iraqi criminals, on the other hand, if they're violent criminals - whether it was under Saddam or now under US forces control - they might remain in jail for the rest of their lives. So they have 24 hours a day, 7 days a week to plot and to plan and to design ways to escape, ways to harass their keepers, ways to make life miserable for the MPs or the individuals who are detaining them.

The only reason we had any kind of control - I will tell you this flat out, up front - the only reason we had any kind of control in any of our prison facilities, Abu Ghraib aside, was because the MPs were taking the initiative and finding ways to accommodate the prisoners. It wasn't because of the fine security of the prison facility. It was because the prisoners knew that the MPs were doing everything they could, everything in their power, to make life more acceptable for them while they were spending their days and nights incarcerated.

We had civilian so-called experts - contractors - under the Coalition Provisional Authority, who worked under the Ministry of Justice. Now these prison experts all had experience as wardens or as directors for prisons in the United States.

MC: Were some of them former US Special Forces?

JK: No, they were not. They were all civilians. There was only one of them who was retired from the military, and he was actually retired as a Military Police officer. But it's just incredible that these three contractors that they brought over were hired by the Justice Department in Washington, and it was the same Justice Department - there aren't two separate entities - it was the same Justice Department that, between 30 and 60 days before hiring these people to come to Baghdad, the same Justice Department had fired them from their positions in the Utah Corrections Facility for prisoner abuse.

And I didn't know that when we were there. Nobody bothered to tell us that. But we were told that we were going to go up to Baghdad, we were going to relocate the headquarters up to Baghdad to assist the Prisons Department, under the Ministry of Justice, with this restoration of jails and prisons. Well, we got up there and there were three of them and one director. And they were looking at 121 different jails for us to run and operate. And I told them I don't have that many MPs! I couldn't put 3 MPs in each one of those facilities and run them. We have to find the biggest facilities, and that's what they did. They eventually identified, I think they identified, 15 or 18 and we settled on 15 or 16.

MC: Why did they bring these civilian contractors? Why do you think they brought them over?

JK: Well, at that time, everybody was under the impression that the Coalition Provisional Authority was being run under the auspices of the State Department, and that the Iraqi Detention Operation was a function that would eventually be turned over to the Iraqis.

Well, that may have been true in some back room plan, that people had an idea that was going to be in place. But there was no plan. Because normally, prison operations and jail operations come with the restoration of peace and security. And that comes with a sustainment operation that follows combat operations. So on a backward timeline, when the war was declared over on the aircraft carrier, then sustainment operations - engineers, civilian contractors, military police, military police organizations - all those organizations kind of kick into high gear to get things moving down the same road. Well there was no sustainment plan. And I can tell you, Marjorie, my opinion is that there was no sustainment plan because, by that time, there were a lot of contractors - US contractors exclusively - who realized they could make a lot of money in Iraq.

MC: How did the enlisted soldiers feel about the contractors getting these fat paychecks?

JK: My soldiers were saying, I heard this often: "Ma'am, I want to get out of the Army and come back over here. I could be making five times the money that I'm making as a soldier. And these guys never go out and do anything. We're doing all the work, and they're drawing all the pay!" I heard it a dozen times a week from every level of soldier, every rank, in every one of my units. They could see it. They knew what was going on. Here's these three contractors who are supposed to restore the prison system with the help of the military, and they never - I don't want to say never - they hardly leave the confines of the Coalition Provisional Authority.

MC: Now did they play a role in the interrogations?

JK: No, they did not. The interrogations were separate and apart from Iraqi detention operations. The only role they played was, they were restoring Abu Ghraib. They were using funds from the Coalition Provisional Authority to restore the cells out at Abu Ghraib.

MC: So who was in charge of the interrogations at Abu Ghraib?

JK:The Military Intelligence.

MC: And you were reprimanded and demoted for failing to supervise the staff at Abu Ghraib, and you've said you were a scapegoat?

JK: Right.

MC: What do you mean by that?

JK: Well, I have to refer to a timeline. Miller comes, we have Abu Ghraib, and Abu Ghraib was a pile of rubble the first time I saw it. The only advantage of Abu Ghraib, the only advantage, was this 20-foot high retaining wall around the ground, acres and acres of the grounds of Abu Ghraib. So we had that as a security, first line of defense. But everything inside the prison at that time had been looted. Electrical systems, water systems, infrastructure, doors were gone. Blocks of concrete were removed from the interior section, the interior cells.

But I had a Company Commander who was commanding an MP unit out there, and he told me in July, "Ma'am, if you get us the resources we can at least hold prisoners here until the other facilities are restored." So there was great opposition to that, because of the history of Abu Ghraib. But we proceeded with the encouragement and the support, to a limited extent, from Ambassador Bremer. Because we needed some place to put these Iraqi criminals that the divisions were policing in the course of their operations and attempted to get sustainment operations underway, throughout Iraq. So in August, the divisions were directed to undertake these - let me back up. At Abu Ghraib during July and the beginning of August 2003, we were holding several hundred prisoners.

MC: Were these prisoners of war?

JK: No, these were Iraqi criminals, because the war was over. So when the President declared the war over, there are no more prisoners of war. What we were policing then were Iraqi criminals.

MC: Had they all been arrested for crimes?

JK: Yes, they were. But some of them, most of them, the vast majority of them were minor crimes. They were missing curfew. They were subjected to a random inspection and a weapon was found in their trunks, they were looting, dealing gasoline, whatever. But they were minor crimes, nonviolent crimes, the majority of them.

In October and November, 2002, Saddam and his sons opened all of the jails and all of the prisons and released all of the prisoners to cause chaos as the Coalition advanced to Baghdad. And they did. These criminals, these criminal elements, did wreak havoc. So it was not unusual, when the divisions were out doing their operations or manning a checkpoint, that they would find a minor crime, minor criminals. And then, when they were turned over, sometimes the prisoners would even admit that they had been held under Saddam. In all the thousands of prisoners that were turned over to our control, we only had one who came in with a prison record folded neatly in his wallet. Because they're smart enough to not say, "Oh, I was a prisoner, I was a murderer, and I was being held for life under Saddam, so you got me." You know, they were all, every prisoner was innocent.

MC: So the prisoners who were being tortured or abused at Abu Ghraib - were they all convicted criminals?

JK: No, because up until the mid part of August or the third week of August, 2003, I would say 95 percent of our prisoner population were Iraqi criminals, and the majority of them were nonviolent criminals. Then, directed by the CJTF-7, the divisions undertook these aggressive raids and these operations targeting specific individuals who were either terrorists, suspected terrorists, or known associates of terrorists. And they were called "security detainees." This is a new category of prisoner. So they were bringing them into Abu Ghraib, and again, no coordination with the commander (me) or my battalion commander out at Abu Ghraib. They were just flooding Abu Ghraib every night from the end of August onward with 15 prisoners, 30 prisoners, 8 prisoners, 60 prisoners, whatever it would be. So the population exploded from what it was, about 1200 at the end of August. In September and October we took in at least equal that number. So by the end of September, we had more than 3,000 prisoners. And by the end of October, we had over 6,000 prisoners. And the CJTF-7 headquarters did not care if we had food for the prisoners, if we had accommodations for the prisoners, if we had jumpsuits for the prisoners or anything.

But the most pronounced difference was when Miller came to visit. He came right after Rumsfeld's visit. Miller was there the next day. And he stayed for about ten days to work with the Military Intelligence commander, the Military Intelligence staff officer, General Fast, and the commander of the Military Intelligence committee, Colonel Pappas.

And he said that he was going to use a template from Guantánamo Bay to "Gitmo-ize" the operations out at Abu Ghraib. He didn't spend much time with me, but he wanted to see me before he went down to brief General Sanchez when he was getting ready to leave. And that was when he was using these strong-arm techniques with me. He said, "Look, we can do this my way or we can do this the hard way." I mean, first of all, we're on the same side! And he knew, and I said to him, "Sir, I don't know who told you I was going to be difficult. What I'm doing is telling you Abu Ghraib is not mine to give to you. It belongs to Ambassador Bremer. It is going to be turned over to the Iraqis." He said, "No, it is not. I want that facility and Rick Sanchez said I can have any facility I want."

So, I mean, I was telling him the truth. Miller obviously had the full authority of somebody, you know, likely Cambone or Rumsfeld in Washington, DC. And right after, during Miller's visit, Colonel Pappas, the MI Brigade Commander, asked me if he could have full control of Cellblock 1-A because all of the people being held in there were really these security detainees.

The prisons experts down at Coalition Provisional Authority objected because it had been the CPA money that had restored those jail cells. I explained that these were higher-value guys and that they needed to be segregated. So they said okay. And we turned the Cellblock 1-A over to Colonel Pappas. And then shortly after that, within a week, they asked for Cellblock 1-B. And Miller probably coached ... I don't know. I do know that Miller had this harebrained idea that he was going to bring in these milvans - you know what milvans are?

MC: No.

JK: Milvans are all metal and they're picked up at a port. Usually, they're either put on the back of a big tractor or trailer truck. Sometimes you'll see these heavy trains at the port lifting up these metal boxes. Those are the equivalent of milvans. You can ship them and then they're picked up with a moving device, wherever they're going to.

So Miller had this idea that they could import hundreds, if not thousands, of these milvans, modify them with bars and such, and make them individual prison cells, similar to what they had done down at Guantánamo Bay, apparently.

So I said to General Miller - just on that point alone - I said, "Look sir, we can't even get building materials up here, basically or efficiently. Where do you think they're going to import all these milvans and get them down here to Abu Ghraib?" He said, "It's no problem. We'll use Turkey, we'll use Jordan. We have the answer." Okay. Well, there's not one milvan that's been shipped to Abu Ghraib even to this day.

Nonetheless, he wasn't there, and he didn't have, like so many of these people ... General Cody can sit in Washington, DC now, as the Chief of Staff of the Army and can pontificate about how it should be. But he wasn't there. He was not in the middle of this disaster and this chaos. And the efforts of the Military Police soldiers, they were just so incredible, because every one of our facilities was undermanned, ill-protected, and managed by the seat of their pants.

MC: Taguba suggested that you didn't pay sufficient attention to what was going on under your command. But you said you were waved off by Military Intelligence and the CIA. Who waved you off?

JK: General Miller did first, and then General Fast, as his representative, even though General Miller has claimed repeatedly and under sworn testimony before the Senate Armed Services Committee that he was simply an advisor in Iraq; he had no authority to direct anybody to make changes or to do anything differently.

However, when he left, Colonel Pappas, General Sanchez and the Provo Marshall for General Sanchez, I think - a guy by the name of, he was a Colonel, his name was Sanwalt [sp?] - they were copying, cc-ing, General Miller on all the reports of anything to do with interrogation or detention operations. So if he was just an advisor, why were they keeping him so much in the loop? And then when I went to General Fast, after I heard that the prison had been turned over to the Military Intelligence brigade for complete command and control ---

MC: Who turned it over to the Military Intelligence?

JK: General Fast went to the Operations Section of the headquarters, CJTF-7, and told them to cut an order transferring control of the prisons from the Military Police to the Military Intelligence. There was no coordination with me or Colonel Pappas. There was no discussion about chain of command or anything else. General Fast, who was not a commander, ordered them to do it in the Operations Section at Sanchez's headquarters, and they did it. And they cut an order and transferred the prison.

MC: And now, who waved you off? When were you waved off?

JK: When I found out, I wasn't even in Iraq at the time. And when I came back they told me that the prison was transferred under the control of the Military Intelligence. So I went to Sanchez first, and his deputy went in to tell General Sanchez that I was there and I needed to see him, and the subject was the transfer of the prison. General Sanchez would not see me, but he told his deputy or his - I think it was his SGS or his executive officer - he was a full colonel - he told me to go see General Fast, that she had the details. So I went to General Fast, and General Fast pointed to the order. Pointed to the order! Held it up, pointed to the order and said it's a done deal.

MC: So then you were not allowed to go to that cellblock?

JK: No, there was never a restriction on me going to that cellblock or anywhere else at Abu Ghraib, ever. I was not allowed to go to Abu Ghraib or anywhere else during the hours of darkness. Nobody was allowed to; the roads were too dangerous. We were just starting to see the beginnings of these roadside bombs and IEDs and everything. So the headquarters said unless it was life-threatening and they gave permission, there was no travel during the hours or darkness.

MC: And that's when the torture went on?

JK: And that's when the torture was taking place, right.

MC: So if you had wanted to go at night, you couldn't have done it?

JK: Right. That's correct.

MC: When did you find out that this torture was going on?

JK: Well, I really didn't find out - I found out that there was an investigation, and I found out about that, not from General Sanchez, not from General Fast, not from anybody at the headquarters. I found out from the Commander of the Criminal Investigation Division - a guy by the name of Marcelo. He was a full Colonel. And he sent me an e-mail. We had another mission that was close to the Iranian border and I was up there. It was about an hour and forty-five minutes outside Baghdad, two hours outside of Baghdad. So I opened my e-mail when I came back from a meeting with the leadership element of this group up there, and it was close to midnight. I opened the e-mail and I said, "What is this all about?" And the e-mail said, "Ma'am, just want to let you know I'm about to go in and brief the CG on the progress of the investigation out at Abu Ghraib. This is the one involving allegations of abuse and the pictures." That was it.

MC: That was the first you heard?

JK: That was the first I heard, and that was on the twelfth of January of 2004. That was the first I heard. I left the next morning, I didn't know anything about it. I asked my aide, I asked my Operations Officer, and nobody knew anything about it, and everybody was equally shocked, stunned. So we left at daybreak the next morning and drove back into Baghdad and went right out to Abu Ghraib. And we tried to talk to some of the people out there who would have known.

Well, all of the people who worked the night shift were already removed from their positions out there and were taken over to the headquarters, the CJTF-7 headquarters. I was never allowed to speak to them. I never exchanged a word with them, because I was told by Colonel Warren, the JAG officer for General Sanchez, that they weren't assigned to me, that they were not under my control, and I really had no right to see them.

The people who were working in Cellblock 1-A at the time that I went out to Abu Ghraib didn't know anything about it. They were completely in the dark about anything. I said, "What's this about photographs?" And the sergeant said to me, "Ma'am, we've heard something about photographs, but I have no idea. Nobody has any details, and Ma'am, if anybody knows, nobody is talking." I said, "Okay, let me see the logs. Let me see the books." He said, "They took everything. The Criminal Investigation division took everything." I said, "Well, what do you have?" and he pointed to this pole right outside the little office that they were using, and he said, "Well, they left this."

It was a memorandum signed by Secretary of Defense Rumsfeld, authorizing a short list, maybe 6 or 8 techniques: use of dogs; stress positions; loud music; deprivation of food; keeping the lights on, those kinds of things. And then a handwritten message over to the side that appeared to be the same handwriting as the signature, and that signature was Secretary Rumsfeld's. And it said, "Make sure this happens," with two exclamation points. And that was the only thing that they had. Everything else had been confiscated.

So I tried to get information. I talked to Colonel Pappas. I talked to the Battalion Commander. I talked to the chain of command, the Military Police chain of command. Nobody knew anything, nobody - at least, that's what they were claiming. The Company Commander, Captain Reese, was tearful in my office and repeatedly told me he knew nothing about it, knew nothing about it.

But in a plea bargain, later on, after Taguba, Captain Reese said that not only did he know about it, but he was told not to report it to his chain of command, and he was told that by Colonel Pappas. And he claimed that he saw General Sanchez out there on several occasions witnessing the torture of some of the security detainees.

So, the first time I even got any kind of clarification on what these photographs were was the 23rd of January. The criminal investigator, Colonel Marcelo, came into my office. It was about eight o'clock at night, nine o'clock at night. And he called me and he was asking if I was there, would I be there, and I said yes. He said, I have some photographs I want to show you.

So when I saw the pictures I was floored. Really, the world was spinning out of control when I saw those pictures, because it was so far beyond and outside of what I imagined. I thought that maybe some soldiers had taken some pictures of prisoners behind barbed wire or in their cell or something like that. I couldn't imagine anything like what I saw in those photographs.

So then Colonel Marcelo said me, "Ma'am, I'm supposed to tell you after you see the photographs that General Sanchez wants to see you in his office." So I went over to see him, and he, I told him, you know, before I even saw the photographs, I was preparing words to say in a press conference - to be up front, to be honest about this, that an investigation is ongoing and there are some allegations of detainee abuse.

Well, he said, "No, absolutely not. You are not to discuss this with anyone." And I should have known then, and I know that Sanchez was hopeful for a four-star promotion even then, in January of 2004. And I thought that it had probably most to do with the election coming up in November of 2004, and that this could really move the Administration out of the White House if it was exploited. So naively, I just thought, you know, they're going to let this investigation go and they're going to handle it the way it should be handled.

MC: Do you think the investigations that have taken place so far have uncovered the truth about this torture and who is responsible?

JK: Absolutely not. The truth has been uncovered, but it's been suffocated and it has not been released with the results of the investigation. You know, they can say that, McClellan and Rumsfeld can get up on their high horse and say that there've been no fewer than 15 investigations that were conducted. But every one of those investigations is under the control of the Secretary of Defense. And every one of those investigations is run and led by a person who can lose their job under Rumsfeld's fist.

We're never going to know the truth until they do an independent commission or look into this independently. I don't know if this has to be a commission. I don't know what the term is. But I do know that we never would have known the truth about 9/11 if they didn't appoint an independent commission. And this thing, this thing is not about what happened in Cellblock 1-A on a night shift. And it is certainly not about seven reservists who went crazy one night. This is about instructions delivered with full authority and knowledge of the Secretary of Defense and probably Cheney. I don't know if the President was involved or not. I don't care. All I know is, those instructions were communicated from the Secretary of Defense's office, from the Pentagon, through Cambone, through Miller, to Abu Ghraib.

And those civilian contractors who were imported were not subjected to the same Uniform Code of Military Justice discipline as the soldiers. They were cleared, removed from the face of the earth, and seven soldiers are being held responsible. It was grossly unfair.

MC: Now why do you think the Administration is resisting an independent investigation if it has nothing to hide?

JK: Well, for the same reason that when they started to make noise a couple of weeks ago - McCain, I think, recommended developing a bill or was recommending a bill that would define the limits of how to interview prisoners, would require an international database so family members would know where their loved ones or relatives were being held. And Cheney said he would recommend to the President that any bill that would limit his ability to extract information from terrorists, he would recommend disapproval. And the President has said that he would disapprove any such bill. And it's consistent with this Administration's reluctance to get to the truth, because it will reveal that they knew that this was designed at their level and started from the memo under Gonzales and Haynes, I think, is it Haynes?

MC: Yes, Haynes.

JK: And Cambone and all of these people have literally taken control of the inner workings of this Administration. It's just insane that - does anybody think that Lynndie England came to Iraq with a dog collar and a dog leash, with the idea of putting one around the prisoner's neck, and having a photograph taken? They were using these photographs to get - to cut to the chase, for lack of a better expression. The plan was to use these photographs to show newly-arriving prisoners: hey, start to talk or tomorrow you're on the bottom of the pile.

This is wrong to say that this was torture and abuse going on in Cellblock 1-A. It was certainly humiliating to be photographed in such a manner; I don't disagree with that at all. I'm not trying to justify it. But there were interrogation facilities outside of Cellblock 1-A and B - separate facilities, where the actual interrogations took place. And this Administration surely does not want the details of what went on in those interrogation facilities to be known by the rest of the world.

MC: Do you think the CIA is involved? Did you have any contact with the CIA at all, in terms of their involvement with the interrogations?

JK: Marjorie, I have to tell you that from July onward, even up until December, I wouldn't say regularly, but it was often, that I encountered somebody from the Task Force, from the CIA, from Special Operations, and by and large, they were professionals. They were absolutely the consummate professionals.

Now I don't know if they ran separate facilities, and I don't know what techniques they use. I do know that when they determined that somebody they were holding in one of their facilities no longer had any value and they wanted to turn them over to us, at Abu Ghraib, most likely, they turned them over with full medical records. They turned them over with a whole file of interviews and interrogations, and they turned them over in relatively good health, particularly given the situation. So I think that - this is only my conclusion - but I think that techniques in the right and responsible hands are used appropriately. I mean, I never saw anybody under the control of the Task Force or under the control of the CIA who came in bruised, bloody, beaten, and, you know, stitched together. Occasionally we did see the aftermath of a gunshot wound, but these were higher-value detainees, if there was cross-fire or if there was a bullet, but they treated those kind of wounds. That would be my impression.

However, these same techniques or suggestions of aggressive techniques that were designed, in my opinion - again, I don't know this first-hand - but all of these reports now would indicate that these techniques were designed and tested and implemented down at Guantánamo Bay and in Afghanistan. And when you take those same techniques and put them in the hands of irresponsible and non-accountable people, like these civilian contractors were, you are combining lethal ingredients. And what happens? You get civilian contractors who have a playground, and they get out of control. And unfortunately, at Abu Ghraib they suck the military into that same playground. There's no doubt in my mind that they ordered these things to be done.

MC: Who is "they?"

JK: They being the civilian contractors - Titan, CACI. The majority of those contractors were either in Guantánamo Bay or Afghanistan prior to being sent to Abu Ghraib. There were a lot of translators who were working for Titan. Some of them were locally hired, some of them were brought in from the United States. And they were given an opportunity to upgrade their positions to be interrogators - without any kind of formal training whatsoever. So now you have a deadly mix. You have people who have been exposed and who have used these techniques first-hand in other locations. They know that there is no supervision or control. They have been directed, using whatever words, to get Saddam, get the information and get these prisoners to start talking, use more aggressive techniques. So you have allowed people who have no responsibility whatsoever to use techniques that were originally, perhaps originally designed and used by very experienced hands. And it got out of control. It clearly got out of control.

And the reason I didn't know about it at all is because Sanchez and Fast and that whole operation under Miller - whether he was there or not, he was directing it from Guantánamo Bay and Cambone was directing it from Washington, DC - they didn't want Janis Karpinski anywhere near those operations. Because they knew from people talking about me, from my record, from my past performances, that I would not have tolerated anything like what was going on in Cellblock 1-A or B. I would not have.

If I had known, if I had heard from a prisoner, if I had heard from an MP, if I had heard from a soldier, if anybody had suggested such a thing, I would have raised the issue. I would have screamed at the top of my lungs until I got somebody to pay attention that this was going on out there. Likely I would have still been held accountable, because they were looking for a scapegoat all along. And I think they found one in me because they could very easily say, "Well, this is a reservist who had Reserve soldiers, and they were just out of control."

You know, let's tell the truth here. I'm at least as capable a leader as anybody else in the Army. And I have worked harder and taken the toughest assignments and proved my capabilities in those assignments throughout my career. But Miller wanted to make it appear that I didn't have the same qualifications because I was a reservist - that these seven soldiers were, you know, out of control on the night shift - because they were reservists.

No, despite the failures of the Administration and the Pentagon to deploy these soldiers with the right equipment and the right training and assign the right mission, these soldiers were doing a great job. In 17 facilities, more than 40,000 prisoners throughout the time, the only photographs and allegations of abuse were in two cellblocks under the control of the Military Intelligence command and designed and incorporated by General Miller during and following his visit to Iraq.

Now how did he cover all that up? Well, guess where he got assigned after he left Guantánamo Bay? He went back to Iraq to be in charge of not only the detention operations but in charge of the interrogation operations as well, at Abu Ghraib and at the high-value detention facility. As far as I know, they were the only two facilities where there higher-value detainees are being held.

MC: Where was that facility, that higher-value detention facility?

JK: It was in Baghdad.

MC: And is he still there?

JK: No, Miller left. He was there from July of 2004 until December, or January of 2005, and then he went to the Pentagon. I think he went in March, actually. Maybe it was March of 2004 through March of 2005. And then when he left Iraq, he was assigned to the Pentagon. And that's where he is today. He's the only one who hasn't been promoted in all of this. But Colonel Warren was fully aware of all this, and in a sworn statement to one of the soldier's defense counsel, he said that General Karpinski was not aware of any of this because there were measures put in place to prevent her from knowing about any of this.

MC: Who said that?

JK: That was Colonel Warren, the JAG Officer CJ Task Force. He has been recommended for promotion to one-star.

MC: And Sanchez is being recommended for promotion too, right?

JK: I'm not aware of that. But that doesn't surprise me. I know Rumsfeld has said all along that he thinks that Sanchez is an exceptional officer and should be recommended.

MC: And even though this high-level military investigation recommended that Miller be reprimanded, the Army General rejected the recommendation, is that right?

JK: The Commander of SOUTHCOM rejected the recommendation. Miller has never been reprimanded, not for anything down in Guantánamo Bay.

There was a Captain who was in Afghanistan. She was a Lieutenant at the time, Carolyn Woods. And she was brought over specifically by Fast. Fast recommended her to Miller. Miller brought her over to Iraq specifically to run the interrogation operation. She was linked to those deaths in Afghanistan, where the interrogators were under her control, and she was promoted to Captain. Where is she? She is at the MI school, under General Fast.

I mean there's a ton of information, and there's extenuating, not circumstances, but these units were deployed - the Reserve and National Guard units were deployed - with the full understanding, they had orders for 179 days. They were briefed at the mobilization station and deployed with the full understanding that they would be home before the 179 days even expired.

So without any notification whatsoever, without any warning from the Chief of the Army Reserves or anybody else in the Reserve component, they were extended 365 days, just like everybody else in the theater.

However, when you extend an active-component soldier past six months - whether that was their expectation or not - when you extend them, their families are not at risk, because their ID cards are still current, their medical and dental benefits stay current, their housing remains with them, their pay continues.

Reserves and National Guard soldiers rely completely on the orders that they are carrying in their pocket. So they had orders for a 179-day deployment. And when they were extended ... it's not like it is now; the Internet was not available. They didn't have opportunities to call home. Nobody had a cell phone, of course, that worked from over there or anything. So their first concern was for their families. You know, our orders are going to expire and okay, they're telling us that we're going to get an extension eventually but our families will not have ID cards, they will not have medical benefits, they will not have dental benefits. They're going to be kicked out of their housing, for those who are living on base. They were concerned about the welfare of their families. And there was no way to get notification to them.

So it's different. There is a different standard. Somebody waved the magic wand and said, "Let's extend everybody for 365 days because this war is going to go on a lot longer than we thought."

And in my little corner of the world and my exposure down at the Coalition Provisional Authority, I saw corruption like I've never seen before - millions of dollars just being pocketed by contractors. Everything was on a cash basis at the time. You take a request down - literally, you take a request to the Finance Office. If the Pay Officer recognized your face and you were asking for $450,000 to pay a contractor for work, they would pay you in cash: $450,000. Out of control.

And then, Marjorie, in March or May of this year, when Admiral Church presented his investigation findings, he concluded that the Taguba Report was sound. And McCain - Senator Levin said, "Did you interview these individuals? Did you interview Colonel Pappas? Did you interview General Karpinski?" And of course he said no. He took the Taguba Report and relied heavily on that. And McCain said that the Taguba Report has been proven to be flawed and to be incomplete. Did you interview Ambassador Bremer? And Admiral Church said well, no, because I was directed to do this investigation by the Secretary of Defense and it was limited to the Department of Defense units. And the Coalition Provisional Authority and Ambassador Bremer all work for the State Department. And Senator McCain said, "Excuse me, Admiral, but you're wrong. The Coalition Provisional Authority and Ambassador Bremer worked for the Secretary of Defense."

MC: He didn't know that?

JK: He didn't know that. And neither did we when we were there. Everybody believed that there was a balance between the military and the State Department, and that Ambassador Bremer was working for Colin Powell. And that is untrue.

So now today, 2005, I understand why Bremer fired the whole Iraqi army - because he was working for the Secretary of Defense. There was no State Department influence. There was no balance. It was exclusively under the control of Rumsfeld. And there were contractors who were coming in there, hired. It's an excellent question, how the soldiers felt about these contractors. The security guys, the bodyguards, and the security firms that were hired to provide security for visiting dignitaries or Congressional delegations - they were all making a minimum of $300 a day. $300 a day. And never left the Green Zone. They escorted the convoys to the front gate, and then the Military Police or the military units would pick up the responsibility from the gate of the Green Zone out. And here you have soldiers who are now responsible for the lives of these delegations, and some of them are making $3,000 a month.

MC: Do you think that the media is really bringing the truth to the people?

JK: You have to search for the truth. And it shouldn't be that way. It should be reported as truth and not exploited to the advantage of whatever the direction that that outlet is going.

I know those reporters John Barry and Isikoff from Newsweek, and I was shocked when they withdrew that report about the Koran at Guantánamo Bay. I was sure it was true, and I thought, "Who got to them?" They never would have been, you know, half-assed reporting, excuse my expression. You know, I thought, "My gosh, there is no truthful outlet any more."

And why are the American people turning a deaf ear to this? We had 17 Marines killed over the course of the last three days, less than 72 hours. And there's still people in Washington that get on, especially Sunday mornings, and they get on these news or these debate programs and they say, "Well it's only 1800 lives so far" - Only! Only! You know, how dare you say that!

I don't know what the solution is. I'm not an elected official, but I was there. And it was better when we were there than it is now, because they have, whether consciously or unconsciously or just out of ineptness, they have approached this insurgency with the wrong idea.

General Casey, you know, getting on the news and saying, "Well, if everything continues on track we'll be able to start a troop draw-down next March." What exactly are these people smoking?

MC: You don't think that's a public relations ploy to get the Republicans in the midterm elections? And how are they going to maintain their 14 permanent bases in Iraq if they pull troops out? They just can't do that.

JK: Right. And how is that being proven? Well, the insurgents are now responding, as they did right after Cheney's comment that the insurgency was in its last throes of effectiveness. Okay? And then they responded by killing a whole bunch of people.

So now they come back and Casey says, "Well, if everything continues on track, we should be able to start the troop draw-down by next Spring, early next Spring and into the Summer." And how is the insurgency responding? It's like setting up an explosive device and blowing 14 Marines off the face of the earth.

It's just unbelievable, and was, unfortunately, predictable, on the very elementary level of planning sustainment operations. And I don't know if it was just absolute ignorance or wishful thinking. And there is a vast difference between them, but either one of them, something was incorporated by the Pentagon, the Secretary of Defense, of what they thought that, as soon as they got to Baghdad and pulled those statues down, that everybody was going to be coming out waving American flags and throwing flowers? What kind of ignorance is this?

Iraq was a huge country, and when you have people largely saying, now, "He may have been a dictator, but we were better under Saddam," this Administration needs to take notice. And at some point you have to say, "Stop the train, because it's completely derailed. How do we fix it?" But in an effort to do that, you have to admit that you made a few mistakes, and this Administration is not willing to admit any mistakes whatsoever.

MC: You're writing a book. Do you have a publisher?

JK: Yeah, Miramax. It's going to be published in November. I didn't get any kind of correspondence except to chastise me. When I was going out to San Francisco to speak to the University of San Francisco, the law school out there, that was in April, I got a form letter from the Chief of the Army Reserves warning me - warning me - about speaking about Abu Ghraib, and that everything was still under investigation. Well, shortly after I got back, I get a letter saying that he understands that I'm writing a book and I should submit the transcript for review.

And my lawyer responded simply by telling him that I was a private citizen and I don't fall under the same requirements, which he had to acknowledge, because that's true. I'm not ignorant, and I'm not going to reveal any classified information in anything I write, but I don't need to, because the truth is the truth, and it doesn't have to be classified. It is definitely staggering, but the truth is the truth.

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Bush Defies Military, Congress on Torture

After the grotesque torture photographs emerged from Abu Ghraib prison in April 2004, Bush said, “I shared a deep disgust that those prisoners were treated they way they were treated.” He vowed the incidents would be investigated and the perpetrators “will be taken care of.”

Bush seemed shocked to learn of torture committed by US forces. But then someone leaked an explosive Department of Justice memorandum that had been written in August 2002. The memo presented a blueprint explaining how interrogators could torture prisoners and everyone in the chain of command could escape criminal liability for war crimes. It said the President was above the law. That memo set the stage for the torture of prisoners in US custody.

Now we learn that, in early 2003, several senior uniformed military lawyers from each of the services voiced vigorous dissents to the policies outlined in the Justice Department’s 2002 memo.

Maj. Gen. Jack L. Rives, the Air Force deputy judge advocate general, wrote that several of the “more extreme interrogation techniques, on their face, amount to violations of domestic criminal law” as well as military law. In fact, Rives added, use of many of these techniques “puts the interrogators and the chain of command at risk of criminal accusations abroad.” Rives was talking about the well-established concept of universal jurisdiction, where any nation has the authority to prosecute any person for the commission of war crimes.

The tactics proposed in the 2002 memorandum also troubled Rives because he felt the new interrogation policies threatened to undo progress the military had achieved since the Vietnam War. Accusations of war crimes committed by US forces during Vietnam damaged the military “culture and self-image,” Rives wrote. Post-Vietnam military programs that emphasize compliance with the laws of war have “greatly restored the culture and self-image of US armed forces,” according to Rives.

Moreover, Brig. Gen. Kevin M. Sandkuhler, a senior Marine lawyer, wrote that military lawyers believed the harsh interrogation system could have adverse consequences for American service members. These might include diminished “public support and respect of US armed forces, [as well as loss of] pride, discipline, and self-respect within the US armed forces.” The interrogation regime could also jeopardize military intelligence-gathering and efforts to obtain support from allied countries.

The Justice Department “does not represent the services; thus,” said Sandkuhler, “understandably, concern for service members is not reflected in their opinion.”

But allegations of torture have persisted, even after these concerns were expressed. The continuing allegations have led influential members of Congress to propose amendments to a $491 billion defense bill that would prevent the mistreatment of prisoners.

Republican Senator Lindsey Graham has proposed an amendment to define who is an “enemy combatant” for purposes of detention and military trials of detainees at Guantánamo Bay, Cuba. At present, Bush claims total discretion to make that determination.

Republican Senator John McCain, a prisoner of war for six years during the Vietnam War, proposes an amendment to set uniform standards for anyone detained by the Defense Department. It would limit interrogation techniques to those contained in the Army field manual, which is currently being revised.

McCain also proposes that all foreign nationals held by the US military be registered with the International Committee of the Red Cross, as required by the Geneva Conventions. This would prevent the holding of “ghost detainees.”

The most si

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Close Guantánamo Prison

Last month, in a little-noticed vote, the Senate rejected Democratic Senator Robert Byrd's proposal to delete funding for the US prison at Guantánamo Bay, Cuba. The amendment to the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 would have stripped HR 1268 of $36 million earmarked for construction of a permanent, 220-person military prison at Guantánamo. Opponents of the amendment said a new prison would keep detainees from being transferred to the United States, where terrorists might seek to free them.

These folks may well see the US federal courts, which now hear the Guantánamo inmates' habeas corpus petitions, as "terrorist." Before the Supreme Court instructed the Bush administration it must give prisoners access to our courts to challenge their detentions (see Supreme Court: War No Blank Check for Bush), the International Committee of the Red Cross called the Guantánamo prison a "legal black hole." Between 500 and 600 men and boys have been detained there for more than three years with no criminal charges against them, in violation of US and international law.

Many Republican opponents of Byrd's amendment are those who strive to destroy the time-honored filibuster in order to appease their right-wing Christian base. Some, such as Pat Robertson, would put independent judges in the same category as terrorists. In an interview with George Stephanopoulos, Robertson affirmed that judges who don't share his Christian values are a more serious threat to us than Al Qaeda.

It is not just Republican senators who voted against de-funding a permanent prison at Guantánamo Bay. Seventeen Democrats, including John Kerry, Hillary Clinton, and Barack Obama, joined all Republicans senators except Arlen Specter in supporting the new prison construction.

Although Democratic senators are currently waging a valiant battle to preserve the independence of the judiciary, many have wilted in the face of Bush's conflating of the war in Iraq with his "war on terror." They are afraid to stand up to him, demand that we save thousands of lives by pulling out of Iraq, and vote to bring a halt to the disgrace that is, in the words of the National Lawyers Guild and the American Association of Jurists, a veritable "concentration camp" at Guantánamo Bay.

Desecration of the Koran

Last week, the Bush administration forced Newsweek to back off a story about the desecration of Korans at Guantánamo after it provoked demonstrations, riots and more than a dozen deaths in Afghanistan. The Pentagon refuses to release the Southern Command's report, on which Newsweek based its article. Publicizing its content could disprove the magazine's allegations, if they are indeed false, as the Pentagon claims. The Red Cross documented "credible information" that supports "multiple" instances of disrespecting or mishandling the Koran there. Yesterday's Los Angeles Times reported that court records and transcripts contain "dozens of accusations involving the Koran." Allegations include having a guard dog carry the Koran in its mouth, guards scrawling obscenities inside Korans, kicking Korans across the floor, urinating on the Koran, ridiculing the Koran, walking on the Koran, and tearing off the cover and throwing the Koran into trash or dirty water.

Hunger strikes erupted in 2002 at Guantánamo after word got around that Korans were being desecrated. On Friday, 500 British Muslims chanted "Desecrate today, die tomorrow," in front of the United States Embassy in London.

Illegal US Occupation of Guantánamo

The real question the media should be asking is why our government continues to illegally operate its prison at Guantánamo Bay, scene of widespread of torture and abuse. The occupation of Guantánamo by the US military violates the 1903 and 1934 treaties concluded between the United States and Cuba.

Guantánamo Bay came under United States control in 1903 when Cuba was occupied by the US army after its intervention in Cuba's war of independence against Spain. The Platt Amendment, which granted the US the right to intervene in Cuba, was incorporated into the Cuban Constitution as a prerequisite for the withdrawal of US troops from Cuba. That provision provided the basis for a treaty granting jurisdiction over Guantánamo Bay to the United States.

The 1903 Agreement on Coaling and Naval Stations gave the United States the right to use Guantánamo Bay "exclusively as coaling or naval stations, and for no other purpose." Twenty-one years later, President Franklin D. Roosevelt signed a new treaty with the Republic of Cuba, which abrogated the Platt Amendment and the 1903 treaty.

But this 1934 treaty, in the spirit of Roosevelt's "Good Neighbor" policy, maintained US control over Guantánamo Bay in perpetuity until the United States abandons it or until both Cuba and the U.S. agree to modify it. The new treaty, however, specified that "the stipulations of [the 1903] agreement with regard to the naval station of Guantánamo shall continue in effect." That is, Guantánamo Bay can be used only for coaling or naval stations. Additionally, article III of the 1934 treaty provides that the Republic of Cuba leases Guantánamo Bay to the United States "for coaling and naval stations." Nowhere in either treaty did Cuba give the United States the right to utilize Guantánamo Bay as a prison camp.

Torture at Guantánamo Prison

US forces have used the Guantánamo prison to engage in torture and inhuman treatment of prisoners, in violation of the Geneva Conventions and the US War Crimes Statute.

A high-level military investigation concluded last month that several prisoners at Guantánamo were mistreated or humiliated. The findings were based on FBI agents' accounts that were never meant to be made public. The agents saw female interrogators forcibly squeeze male prisoners' genitals, and witnessed detainees stripped and shackled low to the floor for many hours.

Psychological torture has also been documented at the Guantánamo prison. "At least since 2002," according to Physicians for Human Rights, "the United States has been engaged in systematic psychological torture" of Guantánamo prisoners.

Several detainees released from Guantánamo last month allege they were tortured by US military guards. Seventeen Afghans said they had been victims of "indescribable tortures." Nasser Nijer Naser Al-Mutairi was picked up on an Afghan battlefield in 2001. His lungs and right leg were severely injured. After he was shipped to Guantánamo, he underwent several chest operations and an interrogation session that almost killed him, he said.

Mustafa Ait Idr, an Algerian citizen living in Bosnia, has been detained at Guantánamo Bay for three years. He filed a lawsuit alleging that US military guards jumped on his head, resulting in a stroke that paralyzed his face, broke several of his fingers, and nearly drowned him in a toilet.

Guantánamo: Symbol of US Hypocrisy

Instead of furthering the war on terror, the torture and abuse of prisoners at Guantánamo Bay has had the opposite effect. "For many Muslims, Guantánamo stands as a confirmation of the low regard in which they believe the United States holds them," according to the New York Times. "For many non-Muslims, regardless of their feelings toward the United States, it has emerged as a symbol of American hypocrisy."

Testimonials and photographs of atrocities emerging from Guantánamo feed anti-American sentiment. "Guantánamo provides rhetorical fodder for politicians seeking to bring down United States-allied rulers in their own countries," the New York Times reported. "It offers a ready rallying point against American dominance, even in countries whose own police and military have been known for severe violations of human rights."

As in US-run prisons in Afghanistan and Iraq, high-ranking military and civilian officials remain unaccountable for their torturous policies at Guantánamo. (See Team Bush Goes Unpunished for Torture). The State Department disclosed that 11 soldiers have been punished for abusing detainees at Guantánamo Bay. Yet only one was court-martialed, and he was acquitted.

Human Rights Watch says the United States should allow UN human rights monitors, including the special rapporteur on torture, to visit detainees held at Guantánamo Bay. If it had nothing to hide, the US would welcome the monitors.

The National Lawyers Guild and the American Association of Jurists have called on the United States to close its concentration camp at Guantánamo, release the prisoners there or hold trials in accordance with international legal norms, and return Guantánamo Bay to Cuba.

As a January editorial in the French daily, Le Monde, said, "The simple truth is that America's leaders have constructed at Guantánamo Bay a legal monster."

Democrats in the Senate must find their voice, not just on the filibuster, but also to oppose the perpetuation of one of the most disgraceful situations the United States has ever created.

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Navy Judge Finds War Protest Reasonable

"I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
-- Lt. Cmdr. Robert Klant, presiding at Pablo Paredes' court-martial

In a stunning blow to the Bush administration, a Navy judge gave Petty Officer 3rd Class Pablo Paredes no jail time for refusing orders to board the amphibious assault ship Bonhomme Richard before it left San Diego with 3,000 sailors and Marines bound for the Persian Gulf on December 6th. Lt. Cmdr. Robert Klant found Pablo guilty of missing his ship's movement by design, but dismissed the charge of unauthorized absence. Although Pablo faced one year in the brig, the judge sentenced him to two months' restriction and three months of hard labor, and reduced his rank to seaman recruit.

"This is a huge victory," said Jeremy Warren, Pablo's lawyer. "A sailor can show up on a Navy base, refuse in good conscience to board a ship bound for Iraq, and receive no time in jail," Warren added. Although Pablo is delighted he will not to go jail, he still regrets that he was convicted of a crime. He told the judge at sentencing: "I am guilty of believing this war is illegal. I am guilty of believing war in all forms is immoral and useless, and I am guilty of believing that as a service member I have a duty to refuse to participate in this War because it is illegal."

Pablo maintained that transporting Marines to fight in an illegal war, and possibly to commit war crimes, would make him complicit in those crimes. He told the judge, "I believe as a member of the armed forces, beyond having a duty to my chain of command and my President, I have a higher duty to my conscience and to the supreme law of the land. Both of these higher duties dictate that I must not participate in any way, hands-on or indirect, in the current aggression that has been unleashed on Iraq."

Pablo said he formed his views about the illegality of the war by reading truthout.org, listening to Democracy Now!, and reading articles by Noam Chomsky, Chalmers Johnson, Naomi Klein, Stephen Zunes, and Marjorie Cohn, as well as Kofi Annan's statements that the war is illegal under the UN Charter, and material on the Nuremberg and Tokyo tribunals.

I testified during the sentencing hearing at Pablo's court-martial as a defense expert on the legality of the war in Iraq, and the commission of war crimes by US forces. My testimony corroborated the reasonableness of Pablo's beliefs. I told the judge that the war violates the United Nations Charter, which forbids the use of force, unless carried out in self-defense or with the approval of the Security Council, neither of which obtained before Bush invaded Iraq. I also said that torture and inhuman treatment, which have been documented in Iraqi prisons, constitute grave breaches of the Geneva Conventions, and are considered war crimes under the US War Crimes Statute. The United States has ratified both the UN Charter and the Geneva Conventions, making them part of the supreme law of the land under the Supremacy Clause of the Constitution.

I noted that the Uniform Code of Military Justice requires that all military personnel obey lawful orders. Article 92 of the UCMJ says, "A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States...." Both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders. Article 509 of Field Manual 27-10, codifying another Nuremberg Principle, specifies that "following superior orders" is not a defense to the commission of war crimes, unless the accused "did not know and could not reasonably have been expected to know that the act ordered was unlawful."

I concluded that the Iraq war is illegal. US troops who participate in the war are put in a position to commit war crimes. By boarding that ship and delivering Marines to Iraq - to fight in an illegal war, and possibly to commit war crimes - Pablo would have been complicit in those crimes. Therefore, orders to board that ship were illegal, and Pablo had a duty to disobey them.

On cross-examination, Navy prosecutor Lt. Jonathan Freeman elicited testimony from me that the US wars in Yugoslavia and Afghanistan also violated the UN Charter, as neither was conducted in self-defense or with the blessing of the Security Council. Upon the conclusion of my testimony, the judge said, "I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."

The Navy prosecutors asked the judge to sentence Pablo to nine months in the brig, forfeiture of pay and benefits, and a bad conduct discharge. Lt. Brandon Hale argued that Pablo's conduct was "egregious," that Pablo could have "slinked away with his privately-held beliefs quietly." The public nature of Pablo's protest made it more serious, according to the chief prosecuting officer.

But Pablo's lawyer urged the judge not to punish Pablo more harshly for exercising his right of free speech. Pablo refused to board the ship not, as many others, for selfish reasons, but rather as an act of conscience, Warren said.

"Pablo's victory is an incredible boon to the anti-war movement," according to Warren. Since December 6th, Pablo has had a strong support network. Camilo Mejia, a former Army infantryman who spent nine months in the brig at Fort Sill, Oklahoma, for refusing to return to Iraq after a military leave, was present throughout Pablo's court-martial. Tim Goodrich, co-founder of Iraq Veterans against the War, also attended the court-martial. "We have all been to Iraq, and we support anyone who stands in nonviolent opposition," he said. Fernando Suárez del Solar and Cindy Sheehan, both of whom lost sons in Iraq, came to defend Pablo.

The night before his sentencing, many spoke at a program in support of Pablo. Mejia thanked Pablo for bringing back the humanity and doubts about the war into people's hearts. Sheehan, whose son, K.C., died two weeks after he arrived in Iraq, said, "I was told my son was killed in the war on terror. He was killed by George Bush's war of terror on the world."

Aidan Delgado, who received conscientious objector status after spending nine months in Iraq, worked in the battalion headquarters at the Abu Ghraib prison. Confirming the Red Cross's conclusion that 70 to 90 percent of the prisoners were there by mistake, Delgado said that most were suspected only of petty theft, public drunkenness, forging documents and impersonating officials. "At Abu Ghraib, we shot prisoners for protesting their conditions; four were killed," Delgado maintained. He has photographs of troops "scooping their brains out."

Pablo's application for conscientious objector status is pending. He has one year of Navy service left. If his C.O. application is granted, he could be released. Or he could receive an administrative discharge. Worst case scenario, he could be sent back to Iraq. But it is unlikely the Navy will choose to go through this again.

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Team Bush Goes Unpunished for Torture

When the torture photographs began to emerge from Iraq's Abu Ghraib prison one year ago, Bush said, "Those mistakes will be investigated, and people will be brought to justice." As fingers began to point up the chain-of-command, some prisoners were released and commanders were reassigned. Congress held hearings, investigations were undertaken, and some low-ranking soldiers were prosecuted. But those responsible for setting the policy that led to widespread and systemic torture of prisoners in United States custody remain uninvestigated and un-indicted.

Last week, the Army inspector general cleared four of the five top Army officers who oversaw prison policies and operations in Iraq. Lt. Gen. Ricardo Sanchez, who authorized the use of vicious dogs to exploit "Arab fear of dogs," was exonerated, as was his deputy, Maj. Gen. Walter Wojdakowki. Col. Marc Warren, the command's top legal officer who failed to report abuses witnessed by the Red Cross to his boss for more than one month, escaped unscathed. And the report cleared Maj. Gen. Barbara Fast, former chief intelligence officer in charge of the Abu Ghraib intelligence center, who failed to properly advise Sanchez about the management of interrogations.

Only Brig. Gen. Janis Karpinski was reprimanded. Although she was in charge of the prison, Karpinski was discouraged from visiting the cellblock where most of the torture occurred.

In his State of the Union address, Bush said, "Torture is never acceptable, nor do we hand over people to countries that do torture." Yet former CIA Director George Tenet, who approved the illegal renditions of prisoners to Egypt and Syria where they were formally tortured, has not been charged with any crime.

Secretary of Defense Donald Rumsfeld, the man who, according to Seymour Hersh, personally approved physical coercion and sexual humiliation of prisoners, has not been prosecuted. And Alberto Gonzales, responsible for some of the most egregious torture memos, remains the chief law enforcement officer of the United States. When asked by Senator Richard Durbin at the confirmation hearing in the Senate Judiciary Committee, "Can US personnel legally engage in torture under any circumstances?", Gonzales refused to give a categorical "no" answer. He waffled, "I don't believe so, but I'd want to get back to you on that." The would-be attorney general surely knew that the Convention against Torture prohibits torture at any time, including wartime.

In fact, even if the United States had not ratified the torture treaty, which, under the Supremacy Clause of the Constitution, is part of the supreme law of the land, US personnel would still be legally forbidden from torturing prisoners. The international prohibition against torture is on par with slavery and genocide. It is considered a preemptory norm of international law, which means that torture can never be justified in any circumstances. The first Congress of the United States decided that the law of nations could be directly enforced in US courts. It enacted the Alien Tort Claims Act in 1789, which provides victims the right to sue for a violation of the law of nations. In its recent case of Sosa v. Alvarez-Machain, the Supreme Court upheld the preemptory nature of the ban on torture.

On Thursday, the one-year anniversary of the release of the Abu Ghraib photos, the New York Times reported that the Army is preparing to issue a new interrogations manual that bans interrogation practices that weren't even in the old manual. Tom Malinowski, Washington advocacy director of Human Rights Watch, said, "The existing manual was clear. It was the exceptions that caused problems."

Indeed, most of the torture did not occur during interrogations. Sodomy with foreign objects, forced masturbation, stacking of naked prisoners in pyramids, threatening prisoners with dogs, and leading crouching prisoners around with leashes like dogs were not carried out to secure information. They were designed to humiliate the Arabs in captivity.

Just as US soldiers who fought in Vietnam were trained to think of the Viet Cong as "gooks," making it more palatable to kill and abuse them, so did the US forces objectify their Iraqi prisoners when they sexually abused and sadistically humiliated them. One US official told the Los Angeles Times, "There was a mentality that the people we're in charge of are not humans."

When the Abu Ghraib photos first emerged, there was a sense of outrage. But even though allegations of torture, not just in Iraq, but also in Afghanistan, in Guantánamo Bay, and in secret CIA prisons, continue to surface, the indignation has died down. When the subject of torture comes up, Bush's war on terror is often cited to deflect attention from the disgusting images. Yet a recent Gallup Poll found 60 percent of Americans would not support torture, even against a terrorist who had information about an impending attack.

So why has the revulsion disappeared? If we were confronted with pictures of US personnel torturing Swedes, would demands that the perpetrators be brought to justice have evaporated so easily?

All three branches of our government must take responsibility for addressing these atrocities. The executive should appoint a special independent prosecutor to thoroughly investigate and prosecute those responsible, no matter how high up in the chain-of-command. Because of his role in the preparation of the torture memos, Alberto Gonzales has a conflict of interest and is thus incapable of fairly performing this function.

Congress must convene an independent commission to launch an investigation similar to that of the 9/11 commission. The military has shown it cannot impartially investigate itself.

And human rights and civil liberties organizations will continue to file litigation to bring the perpetrators to justice in the courts. The American Civil Liberties Union and Human Rights First filed a lawsuit on behalf of eight men allegedly tortured by US forces in Iraq and Afghanistan. The defendants are Donald Rumsfeld, Janis Karpinski, Ricardo Sanchez, and Col. Thomas Pappas, head of military intelligence at Abu Ghraib. The suit is based on both the Alien Tort Claims Act and the US Constitution, which guarantees due process prohibits cruel and unusual punishment.

"Brutalization doesn't work," said Dan Coleman, a former FBI agent who retired last year. "Besides that," he added, "you lose your soul." If we stand by and permit our high government officials to maintain impunity in the face of their torture, we, too, will have lost our soul.

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Torture of Prisoners in U.S. Custody

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Gonzales Indictment

Alberto Gonzales should not be the Attorney General of the United States. He should be considered a war criminal and indicted by the Attorney General. This is a suggested indictment of Alberto Gonzales for war crimes under Title 18 U.S.C. section 2441, the War Crimes Act.

COUNT I: Application of Geneva Conventions; Definition of Torture

On or about January 25, 2002 through January 16, 2005, Defendant ALBERTO GONZALES, Counsel to George W. Bush, the President of the United States of America, did write, commission and concur in memoranda that advocated conduct by United States military forces, amounting to war crimes under Title 18 U.S.C. section 2441 (The War Crimes Act ).

The War Crimes Act defines as war crimes: grave breaches of the Geneva Conventions, and violations of Article 3 common to the Geneva Conventions.

Section 130 of the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) defines as grave breaches of that Convention: "willful killing, torture or inhuman treatment," and "willfully causing great suffering or serious injury to body or health."

It is well-established that Article 3 common applies to international as well as internal armed conflicts. Article 3 common provides that "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms...shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."

The following acts constitute violations of Article 3 common: "Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture"; "outrages upon personal dignity, in particular, humiliating and degrading treatment"; and "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."

Article 5 of the Third Geneva Convention provides: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy [are prisoners of war under this Convention], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Defendant ALBERTO GONZALES wrote, in a memorandum to President George W. Bush dated January 25, 2002, that the war against terrorism is a "new paradigm" that "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

Defendant GONZALES wrote that the Third Geneva Convention should not apply to members of the Taliban and Al Qaeda who were captured after the United States invaded Afghanistan in October 2001. Defendant GONZALES also advised President Bush in that memorandum that he could avoid allegations of war crimes under The War Crimes Act by simply declaring that the Geneva Convention does not apply to members of the Taliban and Al Qaeda. Defendant GONZALES wrote that a determination of the inapplicability of the Third Geneva Convention would insulate against prosecution by future "prosecutors and independent counsels."

In apparent reliance on the advice in Defendant GONZALES' memorandum, and notwithstanding the requirement of Article 5 of the Third Geneva Convention that a "competent tribunal" determine the status of prisoners, President George W. Bush issued an order on February 7, 2002, specifying that the United States would not apply the Third Geneva Convention to members of Al Qaeda, and that as commander-in-chief of the United States, he had the power to suspend the Geneva Conventions regarding the conflict in Afghanistan, although he declined to suspend them at that time.

Defendant ALBERTO GONZALES commissioned the Office of Legal Counsel of the Department of Justice's memorandum dated August 1, 2002, which required that, in order to constitute "torture," the pain caused by an interrogation must include "injury such as death, organ failure, or serious impairment of body functions." This definition is contrary to The War Crimes Act and the Convention Against Torture and Other Cruel, Unusual or Degrading Treatment or Punishment, a treaty ratified by the United States.

Before the August 1, 2002 memorandum was issued, Colin Powell, Secretary of State, had counseled against its conclusions that the Geneva Conventions did not apply; he wrote that this "will reverse over a century of U.S. policy and practice in supporting the Geneva conventions, and undermine the protection of the law of war for our troops, both in this specific conflict and in general."

Although the August 1, 2002 memorandum was retracted on December 30, 2004, the provisions of the August 1, 2002 memorandum remained in effect for 2 ½ years, notwithstanding the warnings of Secretary Powell.

The January 25, 2002 and August 1, 2002 memoranda, and the February 7, 2002 order set forth policies that led to the willful killing, torture or inhuman treatment; and great suffering or serious injury to body or health, of DOES 1 through 1,000, prisoners in United States custody in Afghanistan, Iraq, Guantánamo Bay, Cuba, as listed in EXHIBIT A (Dear Mr. Gonzales).

Defendant ALBERTO GONZALES knew or should have known that, pursuant to memoranda written by, commissioned or concurred in by him, prisoners in United States custody would be subjected to willful killing, torture or inhuman treatment; and great suffering or serious injury to body or health, in violation of The War Crimes Act.

COUNT II: Military Commissions

Between September 11, 2001 and November 13, 2001, Defendant ALBERTO GONZALES did participate in the drafting of the Military Order establishing the Military Commissions, which order was signed by President George W. Bush on November 13, 2001. Said order mandated conduct by members of United States military forces which constitute war crimes under The War Crimes Act.

The War Crimes Act defines war crimes as grave breaches of the Geneva Conventions. Section 130 of the Third Geneva Convention defines as a grave breach of that Convention: "willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."

Article 84 of the Third Geneva Convention provides that prisoners of war shall be tried in the same types of courts (military or civilian) as members of the armed forces of the Detaining Power. It also provides: "In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized."

Article 3 common to the Geneva Conventions 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."

Unlike courts convened pursuant to the Uniform Code of Military Justice, and civilian courts of the United States, the Military Order provides for no judicial review by federal courts of the United States. The final level of review in the Military Commissions is to the President or the Secretary of Defense.

Military Commission Order No. 1(6)(B)(3) allows the use of evidence that the accused is not permitted to see, and provides for the exclusion of the accused from the proceedings. These provisions violate the rights of the accused to be confronted with the evidence against him, and to confront and cross-examine adverse witnesses. These rights are guaranteed to the accused in courts convened under the Uniform Code of Military Justice and civilian courts in the United States.

Section 4(c)(3) of the Military Order provides for the "admission of such evidence as would, in the opinion of the presiding officer of the military commission...have probative value to a reasonable person." Such evidence would be inadmissible under the rules of evidence in courts convened under the Uniform Code of Military Justice and civilian courts in the United States.

Defendant ALBERTO GONZALES knew or should have known that the Military Commissions, in whose creation he participated, will deprive prisoners in United States custody who will be tried before them, of the rights of fair and regular trial prescribed in the Third Geneva Convention and Article 3 common to the Geneva Conventions.

Penalties Under the War Crimes Act

Title 18 U.S.C. sec. 2441 provides that any national of the United States who commits a war crime "shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."

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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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Redefining Torture

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Emperor-in-Chief

Rumor has it that George W. Bush's tailor is busily stitching a royal blue cloak to go with the gold crown that will adorn the president as he takes the oath of office on January 20. Now that Bush has secured a second term, it is no longer necessary to hide behind the subtle flight suit that bedecked him on the deck of the aircraft carrier declaring "Mission Accomplished" in May 2003. He can now come out of the closet as full-fledged Emperor of the World.

Notwithstanding the United States Constitution and the United Nations Charter, Bush nicely qualifies as "the male sovereign or supreme ruler of an empire," as required by Webster's New Universal Unabridged Dictionary.

Bush wasn't always riding high. Shortly before 9/11, his ratings were falling. It was a mere two weeks after the September 11 attacks that a secret memo prepared for Alberto Gonzales's office concluded Bush had the power to use military force "preemptively" against any terrorist organizations or countries that supported them. Any link to the attacks on the World Trade Center or the Pentagon was unnecessary, said the memo, even though Congress had so limited its license for the president to use force.

Treaties ratified by the United States, such as the Charter of the United Nations, are the Supreme law of the land under our Constitution. The U.N. Charter forbids the use of armed force against another State unless undertaken in self-defense or authorized by the Security Council. The necessity for self-defense must be "instant, overwhelming, leaving no choice of means, and no moment for deliberation," according to the leading Caroline Case of 1841.

The Charter's prohibition on the use of force has not prevented prior presidents from acting unilaterally. Ronald Reagan invaded Grenada, George H.W. Bush invaded Panama, and Bill Clinton bombed Yugoslavia in 1999, the year after he bombed Afghanistan and the Sudan. Before invading Iraq, George W. Bush made war on Afghanistan to retaliate against the Taliban for harboring Osama bin Laden. None of these interventions was an exercise of self-defense; none was approved by the Council. All were illegal.

George W. Bush, however, has taken chutzpah to a higher level with his new doctrine of "preemptive war." It was first elaborated in the secret September 25, 2001 memo from Justice Department lawyer John Yoo to Tim Flanigan, Gonzales's chief deputy. Near the top of the 15-page memo is the following language:

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

Nowhere does the U.N. Charter permit the use of force to "retaliate" against anyone or any State. Nowhere does the Charter allow military force to be used "preemptively" against any organization. Yet nowhere did John Yoo mention the United Nations Charter.

Nevertheless, George W. Bush adopted the Yoo theory as his own, publicly proclaiming in a June 2002 speech at the West Point Military Academy graduation, "If we wait for threats to fully materialize we will have waited too long." He added, "Our security will require all Americans to be forward looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives."

The new Bush Doctrine was again set forth three months later in the "National Security Strategy of the United States." It said: "America will act against such emerging threats before they are fully formed." This does not meet the Caroline test.

And in his March 17, 2003 speech that launched Operation "Iraqi Freedom" Bush maintained, "We choose to meet that threat now where it arises, before it can appear suddenly in our skies and cities," in spite of the fact that Iraq had not attacked any country for 12 years, and posed no threat to any other country.

When Bush's lawyers tried to defend the indefinite detentions of 600 men held incommunicado at the U.S. prison at Guantánamo Bay, Cuba, and of U.S. citizen Yasser Hamdi in the United States, the Supreme Court scolded them, saying war in not a "blank check" for the president. The due process the Court required the Bush administration to provide these men has been slow in coming, however; six months after the Court's ruling in the Guantánamo case, very few have been afforded hearings.

Flush from their election "victory," Bush's men are hunkering down to remake the country in their own image. In the last Congress, the Senate Democrats worked with Bush to approve 204 judicial nominees, "rejecting only 10 of the most extreme," according to incoming Senate Minority Leader Harry Reid (D-Nev.).

Nonetheless, Bush has re-nominated several candidates who failed to win Senate approval during his first term. He is hoping the Republicans will destroy the filibuster, a time-honored procedure that keeps the majority from tyrannizing the minority.

Many of the names Bush is resubmitting to the Senate are right-wing ideologues, who oppose abortion. (See my editorial, Bush's Judges: Right-Wing Ideologues). Bush, empowered by the "mandate" he has secured, is gunning for Roe v. Wade. With the illness of Chief Justice William Rehnquist, it is likely Bush will have one to four Supreme Court appointments in his second term. We can expect to see abortion opponents nominated to the Court.

One of Bush's re-nominees is William J. Haynes II, who, as general counsel to the Defense Department, oversaw the preparation of a memo that argued Bush may not be bound by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention, a treaty ratified by the United States, specifies that torture is never permitted, even in time of war. This memo is regarded as having set the tone for the widespread torture in Afghanistan, Iraq and Guantánamo Bay.

Although the torture was revealed with the pornographic photographs in April, no high level officials have been brought to justice. Even the conservative Washington Post said in an editorial Thursday, "The record of the past few months suggests that the administration will neither hold any senior official accountable nor change the policies that have produced this shameful record."

Emperor George W. Bush will continue to consolidate his empire. For the people of Iraq, our soldiers who are there, and our sons and daughters who will likely be drafted into that quagmire, the price is dear.

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Chickens Come Home to Roost

Twenty-four days after the September 11 attacks, I wrote in an article called Hoist on Our Own Petard: "The hatred that fueled 19 people to blow themselves up and take thousands with them has its genesis in a history of the United States government’s exploitation of people in oil-rich nations around the world. President George W. Bush accuses the terrorists of targeting our freedom and democracy. But it was not the Statue of Liberty that was destroyed. It was the World Trade Center - symbol of the U.S.-led global economic system, and the Pentagon - heart of the United States military, that took the hits."

Throughout the last three years, Bush has continued to disingenuously claim that the terrorists hate us for our freedom, instead of providing an honest analysis of why were attacked on September 11.

The day before Thanksgiving, the Defense Department released a report by the Defense Science Board that, for the first time, critically examines Bush’s "war on terror." The report candidly admits: "Muslims do not hate our freedom, but rather they hate our policies."

Almost three months ago, the report was delivered to the White House, but its conclusions have been ignored. It was made public only after it was leaked to the New York Times.

What does the report identify as the objectionable American policies? "The overwhelming majority voice their objections to what they see as one-sided support in favor of Israel and against Palestinian rights, and the long-standing, even increasing, support for what Muslims collectively see as tyrannies, most notably Egypt, Saudi Arabia, Jordan, Pakistan and the Gulf states. Thus, when American public diplomacy talks about bringing democracy to Islamic societies, this is seen as no more than self-serving hypocrisy." This is not an excerpt from an Osama bin Laden tape. It appears in a U.S. Defense Science Board policy report.

The United States supports those Arab dictatorships because they enable us to maintain myriad U.S. military bases in their countries. Many Muslims see those bases as an insult to Islam, especially in Saudi Arabia, home to two of Islam’s holiest sites. Yesterday, the U.S. consulate in Saudi Arabia was attacked; four Saudi guards were killed and 18 local staff were taken hostage.

Mindful of the instability in Saudi Arabia, Bush changed Iraq’s regime so he could transfer his Saudi bases to Iraq. Indeed, the construction of 14 permanent U.S. bases in Iraq is well underway. When Bush’s specious weapons-of-mass destruction rationale evaporated, he quickly began talking about "bringing democracy to the Iraqi people." But, according to the report, people throughout the Muslim and Arab world don’t buy it.

Has Bush’s "war on terror" made us safer since September 11?

His wars on the people of Afghanistan and Iraq, rather than furthering the "war on terror," have united Muslim extremists and raised the stature of terrorist organizations like Al Qaeda, according to the report.

How do Muslims and Arabs see those wars?

They see photographs of naked Iraqis piled on top of each other, terrified Iraqis cringing in the face of snarling dogs, leashed Iraqis on all fours being led like dogs.

They see, most recently, a bloodied Iraqi with a gun held to his head by a U.S. Navy SEAL, and another Iraqi with a SEAL’s boot planted firmly on his chest.

They hear about a report written by Alberto Gonzales that makes excuses for the use of torture in America’s "war on terror."

They hear about 550 men locked up in the U.S. prison at Guantánamo Bay, Cuba, many of whom have been tortured, some of whom will face kangaroo courts designed by Gonzales.

Then they hear Bush has nominated Gonzales to be America’s chief law enforcement officer.

They see a videotape of a U.S. Marine shooting an unarmed, wounded Iraqi in a mosque.

They see images of scores of dead Iraqis splayed on the ground in Fallujah.

They see Iraqi children whose limbs have been blown off by American bombs.

"I feel hatred. I hurt," said Ismail Ibrahim, one of 200 displaced Fallujans living in a Baghdad school since the latest fighting drove them out. "This is my city and it has been destroyed." Ibrahim warned, "The people of Fallujah are people of revenge. If they don’t get their revenge now, they will next year or even after 50 years."

"The Americans just don’t get it," according to Ibrahim. "They think that they can use their muscles to subdue the resistance. On the contrary, it will increase."

Matloob Abbas, another Fallujan living in the school, said, "We will teach our children to be fedayeen [warriors] so they can sacrifice their lives for Islam if elections bring us another Allawi [interim prime minister chosen by the U.S.]."

Although Bush has succeeded in duping many Americans about the reasons scores of our young men and women are dying and being wounded in Iraq, few in the Muslim and Arab world are fooled.

"The two scandals [Abu Ghraib and the new Navy SEAL photos] confirm the image about the Americans known in the Middle East: that the Americans are not a charity or a humanitarian organization that is leading an experiment of democracy," said Sateh Noureddine, managing editor of the Lebanese leftist newspaper As-Safir. "Rather, [the U.S. government] is leading a retaliatory operation following the Sept. 11 attacks."

Anti-American sentiment is not limited to the Middle East. Luis Felipe Lampreia, a former Brazilian foreign minister, maintains, "Anti-Americanism is generalized and growing. The whole Iraq situation has brought back memories of the big stick - American power as used in Nicaragua or Chile during the Cold War. The problem is the perception that Bush uses immense power in an egotistical way." Indeed, Bush was met with angry crowds during his recent visit to Chile.

Most of the countries in what used to be called the Third World are now home to United States military bases. This "arc of instability," as defined by U.S. defense officials, extends from Colombia to North Africa and across the Middle East to the Philippines and Indonesia. Not by accident, it covers the world’s key oil reserves.

Hatred against Bush’s policies is growing as rapidly as news of the war crimes perpetrated by his administration travels around the world.

Bush was elected because many see him as a strong man who will protect us against the terrorists. Ironically, it is Bush’s imperialist policies that invite increased terror upon us. In the words of Malcolm X, "The chickens have come home to roost."

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Setting the Conditions for War Crimes

I was drafted in 1967 and I served in Vietnam for 1 year ... So this area was mostly all free-fire zones. So it was with this understanding that it was a free-fire zone that everything was fair game. If at any time you saw people in any way trying to avoid you or run away or make suspicious movements, that was free game. You could go ahead and shoot them and kill them. - Testimony of Guadalupe G. Villarreal, Dellums (House of Representatives) War Crimes Hearings, Apr. 28, 1971, Washington D.C.

Thirty-six years later, NBC war correspondent Kevin Sites, embedded with the U.S. Marines in Fallujah, wrote in his November 10 blog: "The Marines are operating with liberal rules of engagement." Sites heard Staff Sgt. Sam Mortimer radio that "everything to the west is weapons free." Weapons Free, explained Sites, "means the Marines can shoot whatever they see - it's all considered hostile." On November 13, Sites videotaped a U.S. Marine killing an unarmed, wounded Iraqi in a Fallujah mosque.

During the U.S. attack on Fallujah, dubbed "Operation Phantom Fury," Associated Press photographer Bilal Hussein saw U.S. soldiers "open fire on the houses." Hussein also reported seeing U.S. helicopters fire on and kill people, including a family of five, who tried to cross the river.

"A large number of people including children were killed by American snipers," according to the Independent (U.K.). Civilians who remained in Fallujah "appeared to have been seen as complicit in the insurgency," the Independent reported. "Men of military age were particularly vulnerable. But there are accounts of children as young as four, and women and old men being killed."

Free fire zones, and indiscriminate killing of civilians, which constitute willful killing, are grave breaches of the Geneva Conventions. The U.S. War Crimes Act considers grave breaches of Geneva to be war crimes, which can result in the death penalty for those convicted.

Criminal liability for war crimes extends beyond the perpetrator. Under the doctrine of command responsibility, higher-ups can be just as liable if they knew or should have known their underlings were committing war crimes, but they failed to stop or prevent it. Commanders have a responsibility to make sure civilians are not indiscriminately hurt and that prisoners are not summarily executed.

The rules of engagement are set at the top. The Marines are being told they can fire at anything that moves. Before entering Fallujah, the Marines had been pumped up by tough talking superiors.

Fighting in Fallujah was grueling urban warfare. Sites wrote that the Marine who killed the wounded Iraqi in the mosque had reportedly been shot in the face himself the day before.

When Sites saw the Marine shoot the unarmed, wounded man, Sites reported, "I feel the deep pit of my stomach." He told the lieutenant "that this man - all of these wounded men - were the same ones from yesterday. That they had been disarmed, treated and left here. At that point the Marine who fired the shot became aware that I was in the room. He came up to me and said, 'I didn't know sir - I didn't know.' The anger that seemed present just moments before turned to fear and dread." By speaking up, Sites prevented other injured Iraqis from meeting a similar fate in that mosque.

After Sites's report became public, there was a great outcry. Interim Iraqi prime minister Ayad Allawi said he was "very concerned" about the fatal shooting. United Nations High Commissioner for Human Rights Louise Arbour called for an investigation of allegations of the disproportionate use of force and the targeting of civilians in Fallujah. Clips from Sites's videotape were seen around the world, and aired repeatedly on Al-Jazeera televison. Many who saw the shooting are convinced the soldier committed a willful killing, a war crime.

The Headquarters of the United States Central Command announced that the First Marine Division had initiated an investigation "to determine whether the Marine acted in self-defense, violated military law or failed to comply with the Law of Armed Conflict [Geneva Convention]."

In order to mount a successful self-defense, the Marine would have to demonstrate he had an honest and reasonable belief in the need to defend himself or his fellow Marines against imminent death or great bodily injury, just before he fired the fatal shot.

His lawyer might argue that when he shot the Iraqi in the mosque, the Marine was suffering from post-traumatic stress disorder (PTSD), which afflicted 30 percent of Vietnam veterans. PTSD can occur following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury during military combat. The person can experience a dissociative state lasting from a few seconds to several hours or days. "Psychic numbing" or "emotional anesthesia" usually begins soon after the traumatic event. An "exaggerated startle response" may occur.

One in six soldiers returning from Iraq are suffering from PTSD, according to mental health experts. A study by the Walter Reed Army Institute found that 15.6 percent of Marines and 17.1 percent of soldiers surveyed may suffer from PTSD.

Seymour Hersh uncovered the cover-up of the My Lai Massacre during the Vietnam War, where U.S. soldiers killed up to 500 unarmed old men, women and children. Hersh, in interviews on MSNBC, PBS and Fox News, is now talking about what happens when we send young kids off to war. He does not deny that these kids can do bad things. But, "the Army is in loco parentis," he says. "They're your mother and father. And they have an obligation to protect you from yourself, almost, from some of your instincts."

A senior Pentagon consultant told Hersh that George W. Bush, Donald Rumsfeld and Steven Cambone, undersecretary of defense for intelligence, "created the conditions that allowed transgressions to take place." The consultant was referring to torture at Abu Ghraib prison in Iraq. He could just as well have been talking about Operation Phantom Fury.

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Crimes of Fallujah and the Continuation of Aggressive War

US Supreme Court Justice Robert Jackson was chief prosecutor at the Nuremberg Tribunal. In his report to the State Department, Justice Jackson wrote: "No political or economic situation can justify" the crime of aggression. He also said: "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”

Between 10,000 and 15,000 U.S. troops with warplanes and artillery have invaded Fallujah. To “soften up” the rebels, American forces dropped five 500-pound bombs on “insurgent targets.” The Americans destroyed the Nazzal Emergency Hospital in the center of town. They stormed and occupied the Fallujah General Hospital, handcuffing doctors and patients, in violation of the Geneva Conventions.

Before Bush attacked Fallujah, Haji Mahmood Allawi, a former colonel in the Iraqi army said, “We are just a helpless and feeble town; a town like an old man! Still, the U.S. is accumulating its armies and troops against Fallouja … as if Fallouja is a superpower that stands in the face of America … If you look at what is arrayed against Fallouja, you would think World War III was going to take place.”

The battle of Fallujah is more shocking and aweful than the bombardment of Baghdad that kicked off Operation “Iraqi Freedom” in April 2003. A senior Marine Corps surgeon warned that casualties will surpass any level seen since the Vietnam War.

A reporter working for the London Times reported that on his first night in Fallujah, the U.S. Air Force attacked in waves from just after midnight to just after 5 a.m. “I began to count out loud,” he wrote, “as the bombs tumbled to the ground with increasingly monotonous regularity. There were 38 in the first half-hour alone.” The perimeter of the town is “already largely in ruins. The crumbling remains of houses and shell-pocked walls reminded me of my home town Beirut in the 1980s at the height of Lebanon’s civil war.”

There have already been 100,000 “excess” Iraqi deaths since Bush launched his first strike on Iraq 18 months ago – that is, above and beyond those killed by Saddam Hussein, sanctions, U.S. bombings, and disease, all put together, in the 15 months prior to the invasion.

A study published by the British medical journal The Lancet found that the risk of death by violence for Iraqi civilians is now 58 times higher than before Bush began to liberate them in April 2003.

“We had to stop some operations until the [U.S.] elections were over,” said a senior Iraqi Defense Ministry official, speaking on condition of anonymity. “The Iraqi government requested support from the American side in the past, but the Americans were reluctant to launch military operations because they were worried about American public opinion. Now, their hands are free.”

The Iraqi people, known in the media as "the insurgents," are engaged in lawful resistance to the illegal invasion, regime change, and occupation of their country by U.S. and U.K. forces. Bush’s war in Iraq is a war of aggression. "Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition,” according to General Assembly Resolution 3314, passed in the wake of Vietnam.

The only two situations where the UN Charter permits the use of armed force against another state is in self-defense, or when authorized by the Security Council. Iraq had not invaded the U.S., or any other country, Iraq did not constitute an imminent threat to any country, and the Security Council never sanctioned Bush’s war. Bush and the officials in his administration are committing the crime of aggression.

Virtually every Western democracy has ratified the treaty of the International Criminal Court, except the United States. Bush knows that the Court will eventually prosecute leaders for the crime of aggression. Mindful that he and his officials could become defendants, Bush renounced the Court, and extracted bilateral immunity agreements from more than 80 countries.

This year, however, Bush unsuccessfully sought to ram through the Security Council an immunity resolution that would exempt U.S. personnel from the Court’s jurisdiction. But shortly after the photographs of U.S. torture of Iraqi prisoners emerged, the Council refused to put its imprimatur on preferential treatment for the United States.

Bush knows that the Court will also punish war crimes. Pursuant to policies promulgated by Bush and Rumsfeld, U.S. forces have engaged in widespread torture and inhuman treatment of prisoners in Iraq, Afghanistan, and Guantánamo Bay, Cuba. Bush admitted in his 2003 State of the Union address that he had sanctioned summary executions of suspected terrorists.

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

The first U.S. attack on Fallujah, last April, killed 900-1000 people, mostly noncombatants. It was conducted in retaliation for the killing and mutilation of the bodies of four Blackwater Security Consulting mercenaries. Collective punishment against an occupied population for offenses committed by others also violates the Geneva Conventions.

Bush’s forces occupied the hospital because it was from there that the civilian death tallies emerged last April. That led to outrage throughout Iraq, outrage Bush wanted to avoid this time around.

Bush has sought to cover his crimes by putting an Iraqi face on his brutal war. Before the November invasion of Falluja, the New York Times reported: “Thousands of Iraqi troops have moved into position with their American counterparts and are expected to take part … American soldiers are to do most of the fighting on the way in, clearing the way for the Iraqi security forces to take control once the insurgents are defeated. With this method, Iraqi and American leaders hope for the best of both worlds: American muscle and an Iraqi face.”

If Bush were a student of history, he would realize that Iraqization, like Vietnamization, will fail to win the hearts and minds of the Iraqi people.

Working hand-in-glove with the U.S. government, interim puppet prime minister Iyad Allawi helped to soften up the rebels by declaring martial law throughout most of Iraq. His authority came from legislation the human rights minister characterized as “very similar to the Patriot Act of the United States.” It enables Allawi to conduct extensive surveillance, impose cordons and curfews, limit freedom of movement and association, and freeze bank accounts and seize assets.

“Iraqi confidence in the interim government has plummeted in recent months as the insurgency in Falluja and elsewhere has gained in strength and lethality,” according to The New York Times.

And although foreign Islamic extremists have joined the fight, most resisting the American occupation are Iraqi. “Didn’t the Americans bring with them the British and the Italians?”, asked Suhail al Abdali. “Well, we have multinational forces, too,” he said wryly. Then al Abdali added, “They will pay the price with the blood of American sons who came to occupy Iraq. They won’t take Fallujah unless they fight street to street, house to house.”

Twenty-six prominent Saudi scholars and preachers wrote in an open letter to the Iraqi people: “The U.S. forces are still destroying towns on the heads of their people and killing women and children. What’s going on in Iraq is a result of the big crime of America’s occupation of Iraq.” They stressed that armed attacks by militant Iraqi groups on U.S. troops and their allies in Iraq represent “legitimate resistance.”

“The attack on Fallujah is an illegal and illegitimate action against civilians and innocent people,” said the Association of Muslim Scholars, an influential Sunni clerics group. “We denounce this operation which will have a grave consequence on the situation in Iraq,” declared spokesman Mohammed Bashar al-Faidhi.

Baghdad University political science professor Salman al-Jumaili warns, “What happens in Fallujah will spread out across other Sunni cities, including Baghdad.” Al-Jumaili expects the Fallujah offensive will spin out of control, with fighting hop-scotching from one town to the next.

A senior U.S. diplomat agrees. “I would never tell you that violence in Sunni areas won’t get worse when you open up a battle,” he told the Los Angeles Times, on condition of anonymity.

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war "essentially an evil thing . . . to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

Bush’s aggressive war against the people of Iraq promises to kill many more American soldiers and untold numbers of Iraqis. Nuremberg prosecutor Justice Jackson labeled the crime of aggression "the greatest menace of our times." More than 50 years later, his words still ring true.

Read on >>

The Quaint Mr. Gonzales

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

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

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

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

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

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

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

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

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

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

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

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

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

Gonzales's sordid record goes beyond his apologies for torture of prisoners. When he was counsel to Texas Governor George W. Bush from 1995 to 1997, Gonzales provided his boss with "scant summaries" on capital punishment cases that "repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence," according to the Atlantic Monthly.

Gonzales prepared 57 such summaries, including one regarding the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about his mental condition. Gonzales's three-page summary of the case for Bush mentioned only that Washington's defense counsel's 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush refused to stay executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

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

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

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

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

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

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

Read on >>

Aggressive War: Supreme International Crime

Associate United States Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. In his report to the State Department, Justice Jackson wrote: "No political or economic situation can justify" the crime of aggression. He also said: "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

Between 10,000 and 15,000 U.S. troops with warplanes and artillery have begun to invade the Iraqi city of Fallujah. To "soften up" the rebels, American forces dropped five 500-pound bombs on "insurgent targets." The Americans destroyed the Nazzal Emergency Hospital in the center of town. They stormed and occupied the Fallujah General Hospital, and have not agreed to allow doctors and ambulances go inside the main part of the city to help the wounded, in direct violation of the Geneva Conventions.

The battle of Fallujah promises to be far more shocking and aweful than the bombardment of Baghdad that kicked off Operation "Iraqi Freedom" in April 2003. A senior Marine Corps surgeon warned that casualties will surpass any level seen since the Vietnam War.

There have already been 100,000 "excess" Iraqi deaths since Bush launched his first strike on Iraq 18 months ago - that is, above and beyond those killed by Saddam Hussein, sanctions, U.S. bombings, and disease, all put together, in the 15 months prior to the invasion.

A study published by the Lancet found that the risk of death by violence for Iraqi civilians is now 58 times higher than before Bush began to liberate them in April 2003.

Bush's war on Iraq is a war of aggression. "Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition," according to General Assembly Resolution 3314, passed in the wake of Vietnam.

The only two situations where the UN Charter permits the use of armed force against another state is in self-defense, or when authorized by the Security Council. Iraq had not invaded the U.S., or any other country, Iraq did not constitute an imminent threat to any country, and the Security Council never sanctioned Bush's war. Bush and the officials in his administration are committing the crime of aggression.

Virtually every Western democracy has ratified the treaty of the International Criminal Court, except the United States. Bush knows that the Court will eventually prosecute leaders for the crime of aggression. Mindful that he and his officials could become defendants, Bush renounced the Court, and extracted bilateral immunity agreements from more than 80 countries.

This year, however, Bush unsuccessfully sought to ram through the Security Council an immunity resolution that would exempt U.S. personnel from the Court's jurisdiction. But shortly after the photographs of U.S. torture of Iraqi prisoners emerged, the Council refused to put its imprimatur on preferential treatment for the United States.

Bush knows that the Court will also punish war crimes. Pursuant to policies promulgated by Bush and Rumsfeld, U.S. forces have engaged in widespread torture and inhuman treatment of prisoners in Iraq, Afghanistan, and Guantánamo Bay, Cuba. Bush admitted in his 2003 State of the Union address that he had sanctioned summary executions of suspected terrorists.

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

The first U.S. attack on Fallujah, last April, killed 900-1000 people, mostly noncombatants. It was conducted in retaliation for the killing and mutilation of the bodies of four Blackwater Security Consulting mercenaries. Collective punishment against an occupied population for offenses committed by others also violates the Geneva Conventions.

Bush has sought to cover his crimes by putting an Iraqi face on his brutal war. The New York Times reported: "Thousands of Iraqi troops have moved into position with their American counterparts and are expected to take part ... American soldiers are to do most of the fighting on the way in, clearing the way for the Iraqi security forces to take control once the insurgents are defeated. With this method, Iraqi and American leaders hope for the best of both worlds: American muscle and an Iraqi face."

If Bush were a student of history, he would realize that Iraqization, like Vietnamization, will fail to win the hearts and minds of the Iraqi people.

Working hand-in-glove with the U.S. government, interim puppet prime minister Iyad Allawi helped to soften up the rebels by declaring martial law throughout most of Iraq. His authority came from legislation the human rights minister characterized as "very similar to the Patriot Act of the United States." It enables Allawi to conduct extensive surveillance, impose cordons and curfews, limit freedom of movement and association, and freeze bank accounts and seize assets.

"Iraqi confidence in the interim government has plummeted in recent months as the insurgency in Falluja and elsewhere has gained in strength and lethality," according to The New York Times.

And although foreign Islamic extremists have joined the fight, most resisting the American occupation are Iraqi. "Didn't the Americans bring with them the British and the Italians?" asked Suhail al Abdali. "Well, we have multinational forces, too," he said wryly. Then al Abdali added, "They will pay the price with the blood of American sons who came to occupy Iraq. They won't take Fallujah unless they fight street to street, house to house."

Twenty-six prominent Saudi scholars and preachers wrote in an open letter to the Iraqi people: "The U.S. forces are still destroying towns on the heads of their people and killing women and children. What's going on in Iraq is a result of the big crime of America's occupation of Iraq." They stressed that armed attacks by militant Iraqi groups on U.S. troops and their allies in Iraq represent "legitimate resistance."

"The attack on Fallujah is an illegal and illegitimate action against civilians and innocent people," said the Association of Muslim Scholars, an influential Sunni clerics group. "We denounce this operation which will have a grave consequence on the situation in Iraq," declared spokesman Mohammed Bashar al-Faidhi.

Baghdad University political science professor Salman al-Jumaili warns, "What happens in Fallujah will spread out across other Sunni cities, including Baghdad." Al-Jumaili expects the Fallujah offensive will spin out of control, with fighting hop-scotching from one town to the next.

A senior U.S. diplomat agrees. "I would never tell you that violence in Sunni areas won't get worse when you open up a battle," he told the Los Angeles Times, on condition of anonymity.

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war "essentially an evil thing . . . to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

Bush's aggressive war against the people of Iraq promises to kill many more American soldiers and untold numbers of Iraqis. Nuremberg prosecutor Justice Jackson labeled the crime of aggression "the greatest menace of our times." More than 50 years later, his words still ring true.

Read on >>

Torture of Prisoners in U.S. Custody

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Least of These

You see that a person is justified by what he does and not by faith alone... Faith without deeds is dead.
- James 2:14-26

And when did we see thee sick