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September 15, 2007

Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom

One week after renowned legal scholar Erwin Chemerinsky was offered the position of dean of the new law school at the University of California at Irvine, Chancellor Michael Drake withdrew the offer, informing Professor Chemerinsky he had proved to be “too politically controversial.” Duke Law Professor Chemerinsky is one of the most eminent law teachers and constitutional law scholars in the country. Author of a leading treatise on constitutional law, he has written four books and more than 100 law review articles. In 2005, he was named by Legal Affairs as one of “the top 20 legal thinkers in America.”

This is the latest chapter in the post September 11 attack on academic freedom under the guise of protecting security. Two weeks after 9/11, former White House spokeman Ari Fleischer cautioned Americans “they need to watch what they say, watch what they do.” The American Council of Trustees and Alumni, a group founded by Lynne Cheney and Senator Joe Lieberman, accused universities of being the weak link in the war on terror; it listed the names of 117 “un-American” professors, students and staff members. A few months later, a blacklisting Internet site called Campus Watch was launched. It published dossiers on scholars who criticized U.S. Middle East policy and Israel’s treatment of the Palestinians. And the Bruin Alumni Association at UCLA offered students $100 to tape left-wing professors.

In 2003, the American Association of University Professors recalled the “still-vivid memories of the McCarthy era” and warned of the perils of sacrificing academic freedom in the war on terror. The premise of their report was that “freedom of inquiry and the open exchange of ideas are crucial to the nation’s security, and that the nation’s security and, ultimately, its well-being are damaged by practices that discourage or impair freedom.”

At a 2004 conference on academic freedom at UC Berkeley, Professor Beshara Doumani observed, “Academic freedom in the United States is facing its most important threat since the McCarthy era of the 1950s. In the aftermath of 11 September 2001, government agencies and private organizations have been subjecting universities to an increasingly sophisticated infrastructure of surveillance, intervention, and control. In the name of the war against terrorism, civil liberties have been seriously eroded, open debate limited, and dissent stifled.”

Art. 9, § 9 of the California Constitution, which sets forth the powers and duties of the Regents of the University of California, provides, “The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs.”

Drake denied he was influenced by pressure from donors, politicians or the UC California Board of Regents. Yet psychology professor Elizabeth Loftus, a member of the search committee, told the Los Angeles Times that Drake advised the committee he was compelled to make the decision by outside forces whom he did not identify. Her account was confirmed by a second member of the committee, who talked to the Times on condition of anonymity.

Chemerinsky has handled several cases in the appellate courts and the U.S. Supreme Court, and has testified many times before congressional and state legislative committees, including before the Senate Judiciary Committee in the Samuel Alito confirmation hearings. Chemerinsky has represented Valerie Plame Wilson, the CIA agent whose identity was revealed by members of the Bush administration; a Guantánamo detainee asserting his right to habeas corpus; a man sentenced to 50 years-to-life under California’s three strikes law; and a person challenging the Texas Ten Commandments monument.

UCI’s November 16, 2006 press release announcing the inauguration of the new law school said, “UCI law graduates will be particularly encouraged to pursue careers in public service, including non-governmental organizations and philanthropic agencies. As part of their training, UCI law students will provide legal services to people who are unable to afford counsel. They also will be encouraged to pursue public interest law through programs focusing on underserved communities.” Chemerinsky is devoted to public service as well as legal scholarship and education. He was elected by voters to be a Commissioner and chaired the Los Angeles Elected Charter Reform Commission; the new Charter was adopted by voters in 1999. He also spearheaded the Los Angeles Independent Analysis of the Board of Inquiry Report on the Rampart Police Scandal, Prepared at the Request of the Police Protective League, September 2000.

Untold numbers of law students have been helped through law school and the bar exam by Chemerinsky, including National Lawyers Guild Student Vice President Teague Briscoe, who said, “Chermerinsky on Constitutional Law saved my life in law school and I loved him doing the Professional Responsibility lectures but, most of all, I really dug that he was a progressive law prof who defends an unpopular client.”

David Dow, an adjunct lecturer at the Annenberg School of Journalism and former veteran CBS correspondent who frequently interviewed Chemerinksy on legal issues, said, “I can’t imagine any considerations that would outweigh the prospect of launching a law school with an internationally-known, highly-respected, fair-minded expert at the helm. Apart from his legal and professional credentials, Erwin has demonstrated an ability to get along well with colleagues and the community wherever he’s been.” Dow’s words were echoed by Stanford Law School Dean Larry Kramer, who called Chemerinsky “the nicest person in legal education.” Conservative law professor Douglas Kmiec wrote of Chemerinsky, “there is no person I would sooner trust to be a guardian of my constitutional liberty. Nor is there anyone I would sooner turn to for a candid, intellectually honest appraisal of an academic proposal.”

One of the “controversial” matters Drake cited to Chemerinsky was an August op-ed the professor wrote in the Los Angeles Times criticizing a proposed regulation by then-Atty. Gen. Alberto Gonzales to shorten the time death row inmates have to file habeas corpus petitions. In an op-ed in the Sep. 14 Times, Chemerinsky explained, “There are more than 275 individuals on death row in California without lawyers for their post-convictions proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court.”

Drake’s action, which sends a clear message to academics that they must avoid speaking out or writing about controversial issues, is a threat to academic freedom. As Chemerinsky wrote, “Without academic freedom, the reality is that many faculty members would be chilled and timid in expressing their views, and the discussion that is essential for the advancement of thought would be lost.”

Hundreds of faculty, students and staff at UC Irvine are urging reinstatement of Chemerinsky. In an open letter to Drake, they wrote, “We are disturbed because of the deep violation both of the integrity of the university and of the intrusion of outrageously one-sided politics and unacceptable ideological considerations into a hiring process that should be driven by academic excellence, administrative experience, leadership capacity, and personal integrity.”

Chancellor Michael Drake should immediately reinstate Professor Erwin Chemerinsky as dean of the UC Irvine Law School.

September 2, 2007

Bush Plans War on Iran

The Sunday Times of London is reporting that the Pentagon has plans for three days of massive air strikes against 1,200 targets in Iran. Last week, Alexis Debat, director of terrorism and national security at the Nixon Center, told a meeting of The National Interest, a conservative foreign policy journal, that the military did not intend to carry out “pinprick strikes” against Iranian nuclear facilities. He said, “They’re about taking out the entire Iranian military.”

Bush has already set the wheels in motion. With Rovian timing, Alberto Gonzales’ resignation was sandwiched between two Bush screeds – one aimed at ensuring Congress scares up $50 billion more for the occupation of Iraq, the other designed to scare us into supporting war on Iran. As Gonzales rides off into the sunset, the significant questions are who will take his place and how that choice will facilitate Bush’s occupation of Iraq and attack on Iran.

One name that’s been floated for Bush’s third attorney general is Joe Lieberman, the “independent” senator from Connecticut. Lieberman, who advocates the use of military force against Iran, was the only person Bush quoted in his August 28 speech to the American Legion. Bush called Iran “the world’s leading state sponsor of terrorism” and pledged to “confront Tehran’s murderous activities.”

Gonzales greased the Bush/Cheney wheels for torturing in violation of the Geneva Conventions, illegally spying on Americans, and purging disloyal Bushies.

Similarly, Lieberman would ensure the Justice Department mounts a vigorous defense of a war of aggression against Iran. And Bush would get a two-fer: Connecticut’s Republican governor would appoint a Republican to fill Lieberman’s seat, returning control of the Senate to the GOP. A Republican-controlled Senate would direct the agenda, thereby furthering the Bush/Cheney plan.

Lieberman is closely affiliated with American Israeli Public Affairs Committee. “AIPAC leverages its power by an alliance with the Christian Right, which has adopted a bizarre ideology of ‘Christian Zionism,'” according to University of Michigan professor Juan Cole. “It holds that the sooner the Palestinians are ethnically cleansed, the sooner Christ will come back. Without millions of these Christian Zionist allies,” Cole added, “AIPAC would be much less influential and effective.”

During the 2004 election, a 100% “AIPAC voting record” was Lieberman’s litmus test for an acceptable presidential candidate. As the House of Representatives was on the verge of passing a resolution that would’ve required Bush to consult Congress before attacking Iran, the AIPAC lobby stopped it in its tracks.

Bush’s WMD-hyping against Iran is déja vu in the run-up to Operation Iraqi Disaster, where he played loose and fast with the truth about Iraq’s alleged WMDs. His statement that a nuclear Iran could put the region “under the shadow of a nuclear holocaust” conjures up his images of a “mushroom cloud” in the hype-up to Iraq.

How inconvenient for Bush that the UN International Atomic Energy Agency (IAEA) just found Iran’s uranium enrichment program is operating well below capacity and is nowhere near producing significant amounts of nuclear fuel. The IAEA report says that Iran “has been providing the agency with access to declared nuclear materials, and has provided the required nuclear material accountancy reports in connection with declared nuclear material and facilities.”

Iran and IAEA agreed on a plan with a step-by-step timetable of cooperation to settle unresolved issues. The agreement said there were “no other remaining issues and ambiguities regarding Iran’s past nuclear program and activities,” and characterized the accord as “a significant step forward.”

“This is the first time Iran is ready to discuss all the outstanding issues which triggered the crisis in confidence,” said IAEA director general Mohamed ElBaradei. “I’m clear at this stage you need to give Iran a chance to prove its stated goodwill. Sanctions alone, I know for sure, are not going to lead to a durable solution”

In 2003, when Dr. ElBaradei reported there was no evidence that Iraq was reconstituting its nuclear program, the White House was not pleased. And as Saddam Hussein became more cooperative with the weapons inspectors, Bush became “infuriated,” according to Bob Woodward.

Bush’s vow, “We will confront this danger before it is too late,” is the Iran incarnation of his illegal preemptive war doctrine, which he inaugurated in Iraq. In a clear signal he is seeking regime change in Iran, Bush called for “an Iran whose government is accountable to its people, instead of leaders who promote terror and pursue the technology that could be used to develop nuclear weapons.”

Barnett Rubin reported on Global Affairs blog that one of the leading neo-conservative institutions has “instructions” from Dick Cheney’s office to “roll out a campaign for war with Iran in the week after Labor Day; it will be coordinated with the American Enterprise Institute, the Wall Street Journal, the Weekly Standard, Commentary, Fox, and the usual suspects. It will be heavy sustained assault on the airwaves, designed to knock public sentiment into a position from which a war can be maintained. Evidently they don’t think they’ll ever get majority support for this – they want something like 35-40 percent support, which in their book is ‘plenty.'”

Bush/Cheney created the White House Iraq Group (WHIG) to lead a propaganda campaign to bolster public support for war with Iraq. The White House decided to wait until after Labor Day of 2002 to kick off WHIG’s mission. Chief of staff Andrew Card explained, “From a marketing point of view, you don’t introduce new products in August.” Five years later, they’re marketing a new and even more dangerous product – war with Iran. British military historian Corelli Barnett says “an attack on Iran would effectively launch World War III.”

Our military spending has reached $1 billion every 2-1/2 days and we are borrowing $2-1/2 billion per day. Bush is mortgaging our children’s future security and wealth. We have lost more than 3,700 soldiers in Iraq and hundreds of thousands of Iraqis have died.

We have already seen how easily Congress caves in to AIPAC. It’s up to the people. As Noam Chomsky said, “The most effective barrier to a White House decision to launch a war [on Iran] is the kind of organized popular opposition that frightened the political-military leadership enough in 1968 that they were reluctant to send more troops to Vietnam.”

August 25, 2007

Bush’s Killing Fields: Turning Iraq Into Vietnam

Desperate to shore up support for continuing his unpopular war on Iraq, George W. Bush drew an analogy with Vietnam when he addressed the Veterans of Foreign Wars. “The price of America’s withdrawal [from Vietnam] was paid by millions of innocent citizens,” Bush declared. But he overlooked the four million Indochinese and 58,000 American soldiers who paid the ultimate price for that imperial war. And the myriad Vietnamese and Americans who continue to suffer the devastating effects of the defoliant Agent Orange the U.S. forces dropped on Vietnam. The 10 years it took to end our war there claimed untold numbers of lives.

Bush cited the “killing fields,” referring to the more than one million Cambodians who died after we pulled out of Vietnam. He failed to mention that if Richard Nixon had ended the war by 1969, as the antiwar movement was demanding, the war wouldn’t have extended into Cambodia. Secret U.S. carpet bombing of Cambodia destroyed that country, enabling Pol Pot and the Khmer Rouge to come to power. Nixon, too, had warned of a bloodbath in Vietnam to justify continuing his war.

Contrary to the picture Bush painted, Vietnam is a unified, stable country that doesn’t threaten the region; it has become a trading partner of the United States.

In his desperation to rationalize the death and destruction he is wreaking in Iraq, Bush credited the United States with the great progress South Korea and Japan have made. He didn’t say that the people of North and South Korea seek to reunify their country but the United States stands in the way. And Bush neglected to add that his government is pressuring Japan to repeal Article 9 of its Peace Constitution which now forbids the aggressive use of military force.

George Bush also reiterated that Iraq is “the central front” of the war on terror. But for his invasion, war and occupation of Iraq, however, al Qaeda wouldn’t be there.

Bush claimed “our troops are seeing this progress that is being made on the ground.” Perhaps the President didn’t read the elegant op-ed that seven infantrymen and noncommissioned officers penned in the New York Times last week. “The claim that we are increasingly in control of the battlefield in Iraq is an assessment arrived at through a flawed, American-centered framework,” they wrote. The soldiers noted the two million Iraqis in refugee camps and close to two million more who are internally displaced. “Four years into our occupation, we have failed on every promise, while we have substituted Baath Party tyranny with a tyranny of Islamist, militia and criminal violence.”

The only reason we stayed in Vietnam as long as we did was to avoid the U.S. superpower from being perceived as the “loser.” American involvement in Vietnam finally ended because our soldiers refused to fight, our people took to the streets in record numbers, Nixon was weakened by his impending impeachment, and the North Vietnamese – unlike the government in the South – won the hearts and minds of the Vietnamese people.

Congress has no more will to end the Iraq War than it did the Vietnam War. It was one year after our troops came home that Congress finally cut the funding for all support of the South Vietnamese government; Nixon didn’t veto the bill because he needed insurance against impeachment. There is no substantial support in Congress or among the leading presidential candidates to bring all the troops home and disband the mega-bases Bush has built in Iraq.

Resistance to the Iraq War will continue to grow within the military. Like the Vietnamese, the Iraqis will be instrumental in ending Bush’s war. The soldiers pegged it in their op-ed: Iraqis “will soon realize that the best way to regain their dignity is to call us what we are – an army of occupation – and force our withdrawal.”

August 10, 2007

FISA Revised: A Blank Check for Domestic Spying

Responding to fear-mongering by the Bush administration, the Democrat-led Congress put its stamp of approval on the unconstitutional wiretapping of Americans.

George W. Bush has perfected the art of ramming ill-considered legislation through Congress by hyping emergencies that don’t exist. He did it with the USA Patriot Act, the authorization for the Iraq war, the Military Commissions Act, and now the “Protect America Act of 2007” which amends the Foreign Intelligence Surveillance Act (FISA).

FISA was enacted in 1978 in reaction to excesses of Richard Nixon and the FBI, who covertly spied on critics of administration policies. FISA set up a conservative system with judges who meet in secret and issue nearly every wiretapping order the administration requests.

But that wasn’t good enough for Bush. In 2001, he secretly established his “Terrorist Surveillance Program,” which the National Security Agency has used to illegally spy on Americans. Instead of holding hearings and holding the executive accountable for his law-breaking, Congress capitulated once again to the White House’s strong-arm tactics. As Congress was about to adjourn for its summer recess, Bush officials threatened to label anyone who opposed their new legislation as soft on terror. True to form, Congress – including 16 Senate and 41 House Democrats – caved.

The new law takes the power to authorize electronic surveillance out of the hands of a judge and places it in the hands of the attorney general (AG) and the director of national intelligence (DNI). FISA had required the government to convince a judge there was probable cause to believe the target of the surveillance was a foreign power or the agent of a foreign power. The law didn’t apply to wiretaps of foreign nationals abroad. Its restrictions were triggered only when the surveillance targeted a U.S. citizen or permanent resident or when the surveillance was obtained from a wiretap physically located in the United States. The attorney general was required to certify that the communications to be monitored would be exclusively between foreign powers and there was no substantial likelihood a U.S. person would be overheard.

Under the new law, the attorney general and the director of national intelligence can authorize “surveillance directed at a person reasonably believed to be located outside of the United States.” The surveillance could take place inside the United States, and there is no requirement of any connection with al-Qaeda, terrorism or criminal behavior. The mandate that the AG certify there is no substantial likelihood a U.S. person will be overheard has been eliminated.

By its terms, the new law will sunset in 180 days. But this is a specious limitation. The AG and DNI can authorize surveillance for up to one year. So just before the statute is set to expire around February 1, 2008, they could approve surveillance that will last until after Bush leaves office.

There is provision for judicial review of the procedures the AG and DNI establish to make sure they are reasonably designed to ensure communications of U.S. persons are not overheard. But that requirement is also specious. They must submit their procedures to the Foreign Intelligence Surveillance Court 120 days after the effective date of the act. The court doesn’t have to respond to their submission until 180 days after the effective date of the act, and the standard of review is appallingly low. It’s limited to whether the government’s determination is “clearly erroneous.” Even if the court were to find the proffer clearly erroneous, the AG and DNI have another 30 days to fix it. That takes the entire review process beyond the 6 month sunset period. Meanwhile, the surveillance can continue.

The Supreme Court held in the 1967 case of Katz v. United States that government wiretapping must be supported by a search warrant based on probable cause and issued by a judge. In 1972, the Court, in U.S. v. U.S. District Court (Keith), struck down warrantless domestic surveillance. The Court has recognized the “special needs” exception to the warrant requirement. The special need must be narrowly tailored to the problem. However, the new law is much too broad to come under this exception. Congress eliminated any need that the person surveilled be a foreign power or an agent of a foreign power. The government need only show it is seeking “foreign intelligence information.” There is no requirement of any connection with terrorism. The special needs exception also requires an absence of discretion in the implementing authority. There is unlimited discretion now as long as the target is reasonably believed to be outside the United States.

The AG is required under the new law to report to Congress semi-annually, but only on incidents of non-compliance. Can we really trust Alberto Gonzales to be forthcoming about compliance with this law? Senator Christopher Dodd told Glenn Greenwald at the YearlyKos convention last week that neither he nor the other senators have any idea of how the Bush administration has been using its secret program to spy on Americans.

Finally, the new law requires telephone companies to collect data and turn it over to the federal government. It also grants immunity against lawsuits to these companies, many of which are currently defendants in civil cases.

Indeed, the mad rush to push this legislation through last week was likely a preemptive strike by Bush to head off adverse rulings in lawsuits challenging the legality of his Terrorist Surveillance Program. On August 9, a federal district court in San Francisco will hear oral arguments by lawyers from the Center for Constitutional Rights and the National Lawyers Guild in CCR v. Bush. And on August 15, Guild lawyers and others will argue Al-Haramain v. Bush in the 9th U.S. Circuit Court of Appeals.

In six months, when the “Protect America Act of 2007” is set to expire, there will be even more political pressure on Congress to appear tough on terror in the run-up to the 2008 presidential election. We cannot expect a Congress that so easily caved in to the fears hyped by the Bush administration to stand firm in support of the Constitution.

July 30, 2007

Time for an Independent Counsel

Congressional leaders are calling for the appointment of a special counsel to investigate possible perjury charges against Alberto Gonzales. As we saw during the Watergate scandal, the executive branch cannot be counted on to investigate itself.

Watergate led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President Jimmy 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. President Carter, who signed the bill in 1978, declared, “I believe that this act will help to restore confidence in the integrity of our government.”

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.

The referral clause of the independent counsel statute provided, “An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.” But Congress, reacting to Kenneth Starr’s witch hunt which led to Bill Clinton’s impeachment, allowed the independent counsel statute to expire by its own terms in 1999.

With the death of the independent counsel statute, the pendulum had swung back. By failing to renew the act, Congress returned the investigation of high government officials to pre-Watergate policies. Once again, the power to appoint an independent counsel would rest with the executive branch, that is, the attorney general. The Department of Justice drafted a set of regulations to guide future investigations.

Now the attorney general, not a three-judge panel, has the authority to appoint and remove special counsel to investigate top government officials. He exercises power over indictments and other prosecutorial actions, and the special counsel remains accountable to the attorney general. He can block “any investigative or prosecutorial step” he deems “inappropriate or unwarranted.”

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).)

In light of material inconsistencies in Alberto Gonzales’s testimony before Congress, a criminal investigation is warranted. Gonzales, who is suspected of committing perjury, has a conflict of interest. The public interest requires that the highest prosecutor in the land be brought to justice.

Congress should appoint a permanent special counsel to investigate and advise Congress about misconduct by high government officials, beginning with Alberto Gonzales. That procedure should lead the House Judiciary Committee to initiate impeachment proceedings against Gonzales.

July 24, 2007

Showdown Looming Over Executive Privilege

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

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

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

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

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

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

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

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

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

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

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

July 19, 2007

Iraqis Will Be the Deciders

As Congress debates whether to withdraw U.S. troops from Iraq, George Bush is trying to buy time. He and Dick Cheney have no intention of ever pulling out of Iraq.

Cheney commissioned a 2000 report by the neoconservative Project for a New American Century, which said “the need for a substantial American force presence in the Gulf transcends the issue of the regime of Saddam Hussein.” A document for Cheney’s secret energy task force included a map of Iraqi oilfields, pipelines, refineries, charts detailing Iraqi oil and gas projects, and a “Foreign Suitors for Iraq Oil Contracts.” It was dated March 2001, six months before 9/11.

On April 19, 2003, shortly after U.S. troops invaded Baghdad, the New York Times quoted senior Bush officials as saying the United States was “planning a long-term military relationship with the emerging government of Iraq, one that would grant the Pentagon access to military bases and project American influence into the heart of the unsettled region.” They discussed “maintaining perhaps four bases in Iraq that could be used in the future.”

Indeed, Bush is building mega-bases In Iraq. Camp Anaconda, which sits on 15 square miles of Iraqi soil, has a pool, gym, theater, beauty salon, school and six apartment buildings. To avoid the negative connotation of “permanent,” Bush officials call their bases “enduring camps.” Our $600 million American embassy in the Green Zone will open in September. The largest embassy in the world, it is a self-contained city with no need for Iraqi electricity, food or water.

The motive for a permanent presence in Iraq has been obvious from day one. It’s the oil. The oft-mentioned benchmark for Iraqi progress, touted by Bush and Congress alike, is the so-called Iraqi oil law. The new law would turn over control of most oil production and royalties to foreign oil companies. The Iraqi people are opposed to the oil law.

The biggest impediment to the privatization of Iraq’s oil is the unions. Faleh Abood Umara, general secretary of the Iraqi Federation of Oil Unions, told U.S. photojournalist David Bacon, “It will undermine the sovereignty of Iraq and our people … If the law is ratified, there will be no reconstruction. The U.S. will keep its hegemony over Iraq.”

In early June, the Iraqi Federation of Oil Unions shut down the oil pipelines. Iraqi Prime Minister Nouri al-Maliki capitulated to the union’s demand that implementation of the oil law be postponed until October so the union could propose alternatives.

Arab labor leader Hacene Djemam said, “War makes privatization easy: First you destroy society; then you let the corporations rebuild it.” After Halliburton entered Iraq in 2003 and tried to control the wells and rigs by withholding reconstruction aid, the union went on strike for three days. Exports stopped and government revenue was cut off. Halliburton shut down its operations.

Iraqis overwhelmingly oppose a permanent U.S. presence in their country. A group of Iraqi nationalists, including Sunnis, Shiites and Kurds, have formed a pan-Iraqi coalition to topple al-Maliki. They represent a vast majority of rank-and-file Iraqis outside of Parliament. Their primary basis of unity is opposition to the U.S. occupation of Iraq; they also strongly oppose Al Qaeda in Iraq and the Iranian influence in Iraq.

“All the problems come from the occupation,” Umara observed “… The occupation fosters the enormous corruption … As long as we have an occupation, we’ll have more sabotage and killing. But when people from the local tribes control the security, they have expelled the al-Qaeda forces and those others who are terrorizing people. This means we can protect ourselves and bring security to our nation, with no need of the U.S. forces. To those who believe that if the U.S. troops leave there will be chaos, I say, let them go, and if we fight each other afterwards, let us do that. We are being killed by the thousands already.”

The Iraqi unions want the occupation to end. Hashmeya Muhsin Hussein, president of the Electrical Workers Union of Iraq, told Bacon, “If it was up to Bush, he’d occupy the world. But that’s not what the nations of the world want. Would they accept occupation, as we have had to do? Our nation does not want to be occupied, and we’ll do our best to end it.”

Nationalists in the Iraqi Parliament recently passed a bill calling for the United States to set a timetable for withdrawal, and another demanding the Iraqi government present any plan to extend the occupation past 2007 to Parliament. They will not accept a proposal that includes permanent U.S. bases on Iraqi soil. Our national discourse must include a discussion of U.S. intentions for Iraq after a troop withdrawal. But ultimately, as in Vietnam, it will be the Iraqi people who are the deciders.

July 17, 2007

Reining In an Out-of-Control Executive

Our Founding Fathers created three separate but co-equal branches of government to check and balance each other so no one branch would become all powerful. Indeed, James Madison wrote in the Federalist Papers, “The preservation of liberty requires that the three great departments of power should be separate and distinct.” Madison warned, “The accumulation of all powers, legislative, executive, and judiciary in the same hands … may justly be pronounced the very definition of tyranny.” The American colonists were reacting against a police state.

More than 200 years later, we have another King George. In the last six years, George W. Bush has sought to accumulate all governing powers in the same hands – his. In the Declaration of Independence, the framers charged that the King “refused his Assent to Laws, the most wholesome and necessary for the public good.” Bush has repeatedly violated the Constitution’s command that the President “shall take Care that the Laws be faithfully executed,” by breaking some and refusing to enforce others. The Constitution grants Congress the power to make laws; after both houses pass a bill, the President can only sign it or veto it. Bush, however, takes a different tack. He has vetoed just three bills, then quietly attached “signing statements” to more than 1,000 congressional laws, indicating his intent to follow only those parts with which he agrees.

In an end run around Congress and the courts, Bush secretly authorized the Terrorist Surveillance Program to conduct electronic surveillance without a judicial warrant, in violation of the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment. Although two judges on a three-judge panel of the Sixth Circuit Court of Appeals ordered the dismissal of a lawsuit challenging the legality of Bush’s spying program for lack of standing, the only two judges ever to rule on the merits declared the program illegal.

The Bush administration lied to Congress to get authority to invade Iraq. Long before the 9/11 terrorist attacks, Bush and his officials were planning to attack Iraq and change its regime. Dick Cheney’s secret energy task force drew up maps of Iraq’s oil fields to divvy up the black gold once we occupied that country. They then devised an elaborate scheme to convince the American people that Saddam Hussein posed a threat to the United States, notwithstanding overwhelming intelligence to the contrary. Since Bush launched “Operation Iraq Freedom,” more than 3,600 American soldiers and tens of thousands of innocent Iraqis have died; many thousands more have been wounded. This invasion is a war of aggression, which violates the UN Charter, because it was neither executed in self-defense nor approved by the Security Council.

During the war, U.S. troops have been acting under rules of engagement – free-fire zones – that have led some to commit war crimes. For instance, the killing, execution-style, of 24 civilians in the Haditha Massacre, the execution of a disabled man, and the shooting of a wounded unarmed Iraqi in a mosque violate the Geneva Conventions which prohibit willful killing of civilians. Commanders, all the way up the chain to the commander-in-chief, could be convicted of war crimes if they should’ve known their subordinates would commit them and the commanders didn’t stop or prevent it.

Bush’s legal eagles, particularly David Addington and John Yoo, concocted elaborate “legal” arguments to justify the torture of prisoners. Never mind that international and American law forbid torture under all circumstances. Pursuant to a common plan to violate the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prisoners in U.S. custody are being tortured and abused. Prisoners have been subjected to water-boarding, attacks by dogs, sexual humiliation, and excruciatingly painful force-feeding.

The Bush administration has secretly rendered prisoners to other countries to be tortured. One former CIA agent observed, “If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear – never to see them again – you send them to Egypt.”

Shortly after 9/11, the Bush gang set up a prison camp in Guantánamo, intending to create a legal black hole where they could hold prisoners for the rest of their lives without any judicial oversight. But the Supreme Court didn’t buy the administration’s argument that U.S. courts have no jurisdiction over Guantánamo because it’s in Cuba. And the Court struck down Bush’s original military commissions since they violated the Uniform Code of Military Justice and the Geneva Conventions.

The Supreme Court said in Berger v. United States that a prosecutor’s job is to see that justice is done, not to politicize justice. But Bush’s Department of Justice, the chief law enforcement agency in the government, has been seriously compromised. Several U.S. attorneys who refused to bring frivolous charges that would further Bush’s political agenda, or who brought charges that didn’t, were purged.

The White House is resisting congressional subpoenas that call for testimonial and documentary evidence about the U.S. attorney firing scandal. The deadline for Bush, Cheney and the Justice Department to produce documents in response to Senate Judiciary Committee subpoenas about the warrantless surveillance is July 18. In 1974, when the House Judiciary Committee passed three articles of impeachment against Richard Nixon, Article III charged refusal to comply with subpoenas during the Watergate hearings.

July 6, 2007

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

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

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

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

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

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

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

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

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

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

June 26, 2007

Targeting Dissent: FBI Spying on the National Lawyers Guild

In 1937, the American Bar Association refused to allow people of color to join its ranks. With the blessing of President Franklin D. Roosevelt, the National Lawyers Guild was founded as a multi-racial alternative to the ABA. The Guild’s founding members included the attorney general, several judges, some congressmen, and the head of the National Labor Relations Board.

Three years after the creation of the National Lawyers Guild, the FBI began to conduct secret surveillance of the Guild. From 1940 to 1975, the FBI wiretapped Guild phones, burglarized Guild offices, and sent informers into Guild meetings. The June 25, 2007 New York Times report on the FBI’s program of spying on the Guild omits FBI Director J. Edgar Hoover’s primary rationale for undertaking this surveillance: “to blunt the Guild’s criticism of the FBI and, if possible, to destroy the organization,” in the words of Michael Krinsky, one of the lawyers who filed the 1977 lawsuit against the FBI.

The Guild, which provided legal support for the people, was a thorn in Hoover’s side. In 1950, the Guild was about to release a big exposé on the FBI, prepared by Yale law professor and ex-Guild president Thomas Emerson. No other organization was undertaking such a comprehensive criticism of the FBI. Through illegal wiretaps and informants the FBI learned of the Guild’s impending report. In advance of the report’s release, the FBI launched a pre-emptive strike at the Guild by causing people in the press and the Senate to denounce the report. “So the story became the Lawyers Guild, not the FBI,” Krinsky said.

The FBI asked Richard M. Nixon, a member of the House Un-American Activities Committee (HUAC), to call for an investigation of the Guild, on the eve of the release of the Guild report. The investigation led to the 1950 HUAC report titled, “National Lawyers Guild: Legal Bulwark of the Communist Party.” It concluded with a call to the attorney general to designate the National Lawyers Guild a “subversive organization.” The AG complied in 1953, but when no evidence to support the designation was forthcoming, he dropped it in 1958.

From the 1950s through the early 1970s, the FBI continued to focus on the National Lawyers Guild. The FBI had a list called The Security Index, which identified people, including Guild leaders, to be rounded up in the event of a national emergency.

Hoover’s COINTELPRO (Counter-Intelligence Program) engaged in illegal surveillance of other organizations and individuals as well as the Guild. For example, in a program called Racial Matters, the FBI wiretapped Dr. Martin Luther King Jr.’s hotel rooms and tried to drive him to divorce and suicide. Dr. King’s voter registration campaign and especially his vocal opposition to the Vietnam War incurred the wrath of J. Edgar Hoover, who went after Dr. King with a vengeance. Groups such as the Committee in Solidarity with the People of El Salvador (CISPES) were also on Hoover’s surveillance list.

The revelation of President Richard Nixon’s illegal surveillance of groups opposed to his policies as well as hearings by a select Senate committee chaired by Senator Frank Church led to the enactment of the Foreign Intelligence Surveillance Act (FISA) and other curbs on the power of the FBI and the CIA. Today we are faced with President George W. Bush’s secret domestic spying program, which, as I explain in my book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, violates not only FISA, but the Fourth Amendment as well.

Bush’s predecessors illegally targeted those who criticized their policies, under the guise of fighting communism. Bush’s rationale for bending the Constitution is fighting terrorism, but his attacks are leveled at disssenters.

The HUAC report and the AG’s designation of the Guild not only violated the Constitution; they nearly succeeded in destroying the organization. Membership in the Guild fell to about 300 members. But the Guild survived and today it boasts nearly 6,000 members.

Members of the National Lawyers Guild continue to work beside those who struggle for economic, racial and sexual equality, and against imperial wars and occupations. I’m proud to have been a Guild member for more than half of its 70-year life.