blog

February 14, 2008

The National Lawyers Guild Condemns Senate Grant of Immunity to Lawbreaking Telecommunications Companies

Responding to fear-mongering by the Bush administration, the Senate voted on February 12 to give retroactive immunity to the telecommunications companies that have turned over our telephone and Internet communications to the government. These companies have violated several laws, including the Foreign Intelligence Surveillance Act (FISA), Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution.

The Bush administration has been illegally engaging in warrantless surveillance since early 2001, through its “Terrorist Surveillance Program.” Over 40 lawsuits against the telecommunications companies challenging the legality of the program are pending.

On the eve of Congress’s Labor Day recess last year, the Bush administration had rammed that the “Protect America Act” through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn’t anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that provided consumer telephone and computer data to the government.

The day before the Senate took up this issue, Vice President Dick Cheney invoked the memory of September 11, 2001 twelve times in his address to the Heritage Foundation, and urged Congress to make the Act permanent. In the face of lawsuits against the telecom companies, Attorney General Michael Mukasey described the need for the companies to defend against litigation as “an enormous burden.” Indeed, defending these lawsuits has likely cut in to their enormous profits.

Although President George W. Bush claims that making the Act permanent was critical to keeping us safe, he threatens to veto the bill unless it includes the immunity provision. Apparently protecting corporate profits trumps national security.

The House of Representatives passed a bill without immunity for the telecoms. The two bills will have to be harmonized. The National Lawyers Guild urges Congress to adopt the House version that omits immunity. Litigation against the telecommunications companies is the only remaining avenue of accountability for the administration’s lawbreaking.

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.

January 25, 2008

Senate Poised to Capitulate to Cheney’s Fear-Mongering

After a January 24 debate in the Senate on amending the Foreign Intelligence Surveillance Act, the Senate appears ready to capitulate once again to the Bush administration’s agenda of sacrificing liberty for questionable security.

On the day before Congress was slated to take up this issue, Dick Cheney addressed the Heritage Foundation, the most influential right-wing think tank. He was given a thunderous reception, to which he quipped, “I hold an office that has only one constitutional duty – presiding over the Senate and casting tie-breaking votes.” But the most powerful vice president in this nation’s history was about to strong-arm Congress into doing the administrations’ bidding.

Invoking the memory of September 11, 2001 twelve times, Cheney said it was “urgent” that Congress update the FISA law immediately and permanently. Notwithstanding the administration’s well-known violations of FISA months before 9/11, Cheney claimed they had used “every legitimate tool at our command to protect the American people against another attack.” He omitted the illegal tools the administration has admitted using, that is, Bush’s so-called “Terrorist Surveillance Program” and a massive data mining program. FISA makes it a crime, punishable by up to five years in prison, for the executive to conduct a wiretap without statutory authorization. The TSP has been used to target not just the terrorists, but also critics of administration policies, particularly the war in Iraq.

Although Cheney repeatedly linked amending FISA with protecting America, there is no evidence Bush’s secret spying program has made us any safer. Indeed, in 2006, the Washington Post reported that nearly all of the thousands of Americans’ calls that had been intercepted revealed nothing pertinent to terrorism. About the same time, the New York Times quoted a former senior federal prosecutor, who described tips from intelligence officials involved in the surveillance. “The information was so thin and the connections were so remote, that they never led to anything, and I never heard any follow-up,” he said.

In his speech to the Heritage Foundation, Cheney aimed to bully Congress into making the so-called “Protect America Act of 2007” permanent. On the eve of Congress’s Labor Day recess last year, the Bush administration had rammed that act through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn’t anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law, which expires February 1, went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that turned over our telephone and Internet communications to the government.

Permanent immunity, retroactive to 9/11, for the telecommunications companies is apparently the most critical concern of the Bush administration, whose primary constituency has been the mega-corporations. Although Cheney touted these companies as patriotic partners in the administration’s “war on terror,” they are breaking several U.S. laws, including FISA itself, Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution. Indeed, as the Electronic Frontier Foundation put it, “the real heroes are the companies that refused to help [the administration], like Verizon Wireless” and Quest Communications.

Cheney quoted Attorney General Michael Mukasey, who described the need for these companies to defend against litigation as “an enormous burden.” What he really meant is that defending the roughly 40 pending lawsuits is cutting into their enormous profits.

The House of Representatives passed a bill without immunity for the telecoms. But in a 60-36 vote, the Senate rejected a proposal from the Senate Judiciary Committee that omitted immunity and contained important limits on wiretapping powers. Republican senators John McCain and Lindsey Graham, and Democratic senators Hillary Clinton and Barack Obama were not present for the vote.

Senator Christopher Dodd has indicated his intent to filibuster, or prevent a Senate vote, on a version of the bill that includes immunity. Senate Majority Leader Harry Reid apparently now supports the filibuster. The Senate is scheduled to vote on whether to proceed to a final Senate vote on this issue on January 28. Three of the Democrats who voted against the SJC proposal must be persuaded to change their votes, and Clinton and Obama must follow suit in order to maintain the filibuster and prevent the Senate from adopting a bill that includes immunity and omits vital civil liberties safeguards.

Here are the Democrats who voted against the SJC proposal:

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852

John Edwards, the only Democratic presidential candidate willing to effectively take on the corporations, should weigh in against immunity for the telecoms and challenge his competitors to do the same. This is a golden opportunity for Clinton and Obama to exercise leadership on a crucial issue. Our civil liberties and privacy rights are at stake.

January 21, 2008

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.

December 27, 2007

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.

December 19, 2007

Bush Still Spinning Nukes in Iran

The unanimous conclusion of the 16 U.S. intelligence agencies, that Iran ceased pursuing a program of nuclear weapons in 2003, has dealt a severe blow to the Bush-Cheney agenda of forcible regime change in Iran. For several months, the rhetoric emerging from the White House escalated to the point that many observers predicted Bush would attack Iran before he leaves office.

But although the new National Intelligence Estimate (NIE) makes it more difficult to carry out his agenda in Iran, Bush is trying to publicly undermine its conclusions. “I have said Iran is dangerous,” he declared, “and the NIE estimate doesn’t do anything to change my opinion about the danger Iran poses to the world – quite the contrary.” Will Bush provoke an incident with Iran and then respond in “self-defense”?

Bush “rewarded” Iran for its help in consolidating U.S. power in Afghanistan after the 9/11 attacks by inaugurating Iran into his “axis of evil” in January 2002. The following year, Iran offered the U.S. government a comprehensive plan for negotiations and cooperation, which addressed all of Bush’s claimed pet peeves about Iran. In Iran’s 2003 memorandum, sent to the U.S. government via Swiss diplomats, Iran proposed a “dialogue in mutual respect.” It sought negotiations with the United States on the concerns Bush has repeatedly expressed.

Iran proposed “full transparency” to show “there are no Iranian endeavors to develop or possess WMD.” It also sought to guarantee “decisive action against any terrorists (above all Al Qaida) on Iranian territory, full cooperation and exchange of all relevant information.” In Iraq, Iran proposed “coordination of Iranian influence for activity supporting political stabilization and the establishment of democratic institutions and a non-religious government.” Iran agreed to discuss the “stop of any material support to Palestinian opposition groups (Hamas, Jihad etc.) from Iranian territory” and “pressure on these organizations to stop violent action against civilians within borders of 1967.” And Iran listed its “acceptance of the Arab League Beirut declaration (Saudi initiative, two-states-approach).” This meant Iran would recognize the state of Israel.

The Iranian memorandum also offered to negotiate the following with the United States: “Halt in US hostile behavior and rectification of status of Iran in the U.S.: (interference in internal or external relations, ‘axis of evil’, terrorism list)”; “Abolishment of all sanctions: commercial sanctions, frozen assets, judgments (FSIA), impediments in international trade and financial institutions”; “Iraq: democratic and fully representative government in Iraq, support of Iranian claims for Iraqi reparations, respect for Iranian national interests in Iraq and religious links to Najaf/Karbal”; “Full access to peaceful nuclear technology, biotechnology and chemical technology”; “Recognition of Iran’s legitimate security interests in the region with according defense capacity”; and “Terrorism: pursuit of anti-Iranian terrorists, above all MKO.”

This 2003 offer by Iran to negotiate these pressing issues with the United States was an incredible opportunity, which Bush, who claims to pursue diplomacy, should have seized. Yet the White House thumbed its nose at the Iranian offer and then tried to cover up the story.

Why did Bush reject Iran’s 2003 offer and now seek to discredit the conclusions of the National Intelligence Estimate? Because even if all his stated gripes with Iran were resolved, Bush’s hidden agenda would not be addressed. That agenda comes into focus on the website of the American Enterprise Institute, a neoconservative think tank that claims Paul Wolfowitz, Lynne Cheney, Richard Perle and John Bolton as members. Under the AEI’s list of “Research Projects” is “Global Investment in Iran.”

Just as “Operation Iraqi Freedom” was about corporate control over Iraq’s oil, Bush’s strategy on Iran is about making Iran safe for global investment. And just as Bush lied about the danger posed by Saddam Hussein, he is now lying about the perils Iran poses.

U.N. International Atomic Energy Agency Director Mohamed ElBaradei has consistently said there is “no evidence” Iran has ever maintained a program of developing nuclear weapons. Yet even though Bush learned about the NIE report in August or September, according to National Security Advisor Stephen Hadley, he invoked World War III in the same breath with Iran in October. On December 4, Bush lied about when he learned Iran had no weapons program, saying, “I was made aware of the NIE last week.”

Hadley’s report on the timing of Bush’s knowledge of the NIE is corroborated by a shift in the rhetoric emerging from the White House. During the last two months, Bush stopped talking about Iran possessing nukes, and began referring to Iran having “knowledge” of nuclear weapons, which he linked with World War III.

In spite of the unanimous conclusion in the National Intelligence Estimate and ElBaradei’s informed judgment, we cannot trust Bush-Cheney to abandon their imperial designs on Iran. Bush will probably provoke a military confrontation with Iran, then invoke the language in the 2002 Congressional authorization for the use of military force in Iraq that says, “The President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States.”

Congress must support Rep. Neil Abercrombie’s resolution stating that Bush has been given no authority to go to war with Iran.

December 4, 2007

Guantánamo Detainees’ Fate at Stake in Boumediene

The Supreme Court will hear arguments on Wednesday in Boumediene v. Bush. Most of the 34 detainees whose fate hangs in the balance in this case were brought to Guantánamo after being picked up by bounty hunters or tribesmen in Afghanistan and Pakistan. Yet the Bush administration has fought hard to keep them away from any independent court where they could contest the legality of their confinement.

In February, 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 statutory rights of all Guantánamo detainees to have their habeas corpus petitions heard by U.S. federal courts. The Supreme Court will decide in Boumediene whether these men still have a constitutional right to habeas corpus.

If the lower court decision is left to stand, they can be held there for the rest of their lives without ever having a federal judge determine the legality of their detention.

Background on the Guantánamo cases

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 these tribunals amounted to an end-run around Rasul. They were established to determine whether a detainee is an enemy combatant.

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. Military commissions are criminal courts to try prisoners for war crimes.

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 amends the habeas corpus statute to strip statutory habeas rights from all Guantánamo detainees.

Do detainees retain constitutional right to habeas corpus?

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.

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. 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 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 high 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, then tried and convicted of war crimes by an American military commission in Nanking.

The Eisentrager court listed 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 continued:

“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.”

Combatant Status Review Tribunals not adequate substitute for habeas corpus

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.”

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.

The Supreme Court should 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. Surely the Court will not decide that Bush has succeeded in placing the detainees beyond the reach of our federal courts by sending them to Guantánamo. It should also conclude that the judicial review of the decisions of Combatant Status Review Tribunals does not provide an adequate substitute for constitutional habeas corpus.

December 3, 2007

Operation Iraqi Freedom Exposed: Bush Negotiates Permanent Presence in Iraq

The revelation that Bush will sign an agreement for a permanent U.S. military presence in Iraq before his term is up confirms the real reason he invaded Iraq and changed its regime.

It was never about weapons of mass destruction. It was never about ties between Saddam and al Qaeda. And it was never about bringing democracy to the Iraqi people. These claims were lies to cover up the real motive for Operation Iraqi Freedom: to create a permanent American presence in Iraq. With Bush’s November 26, 2007 announcement that the United States and Iraq were negotiating a permanent “security relationship,” his lies have been exposed.

Bush declared, Iraqi leaders “understand that their success will require U.S. political, economic, and security engagement that extends beyond my presidency.” His outline for the permanent U.S.-Iraqi “Economic” relationship is “to encourage the flow of foreign investments to Iraq.” Two senior Iraqi officials told the Associated Press that Bush is negotiating preferential treatment for U.S. investments.

This isn’t the first time Bush has tried to turn Iraq into an investment haven for U.S. oil companies. He used to tout the “Iraqi oil law,” which would transfer control of three-quarters of Iraq’s oil to foreign companies, as the benchmark for Iraqi progress. But in the face of opposition by the Iraqi oil unions, the parliament has refused to pass that law.

All along, Bush has been 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. Our $600 million American embassy in the Green Zone just opened. The largest embassy in the world, it is a self-contained city with no need for Iraqi electricity, food or water.

Although Bush has negotiated terms to keep U.S. troops in Iraq in perpetuity, the majority of American people oppose a permanent American occupation of Iraq.

So do many Iraqis. University of Michigan Juan Cole’s blog, “Informed Comment,” cited an Al-Hayat report in Arabic that the Sadr Movement and the Sunni Iraqi Accord Front rejected the “memorandum of understanding” between the United States and Iraq that Bush and Nuri al-Maliki signed. According to the Iraqi Constitution, the agreement would be illegal unless ratified by the legislature, and Iraqi lawmakers complain about the absence of any timetable for the withdrawal of U.S. troops.

No wonder Iraqis oppose the U.S. occupation. The organization Just Foreign Policy has estimated that 1,118,846 Iraqis have been killed since Operation Iraqi Freedom began. Australian born journalist John Pilger wrote, “The scale of death caused by the British and U.S. governments may well have surpassed that of the Rwanda genocide, making it the biggest single act of mass murder of the late 20th century and the 21st century.”

Yet Congress refuses to reign in the President. When Bush announced that violence is down in Baghdad so he can withdraw 5,000 troops, the Democratic candidates cheered, diverting their criticism to the lack of political progress in Iraq. But with so many Iraqis dead, there are fewer to kill.

We the people have to keep the pressure on. As we demand the United States withdraw completely from Iraq, we must also forbid Bush to attack Iran. Our voices must be heard – by Congress, by the media, and throughout the world.

November 27, 2007

National Lawyers Guild and Society of American Law Teachers Strongly Oppose Homegrown Terrorism Act

On October 23, 2007, the House of Representatives passed the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007 by a vote of 404-6. The bill will be referred out of committee this week and will then go to the Senate floor. The National Lawyers Guild and the Society of American Law Teachers strongly oppose this legislation because it will likely lead to the criminalization of beliefs, dissent and protest, and invite more draconian surveillance of Internet communications.

This bill would establish a Commission to study and report on “facts and causes” of “violent radicalism” and “extremist belief systems.” It defines “violent radicalism” as “adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change.” The term “extremist belief system” is not defined; it could refer to liberalism, nationalism, socialism, anarchism, communism, etc.

“Ideologically based violence” is defined in the bill as the “use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual’s political, religious, or social beliefs.” Thus, “force” and “violence” are used interchangeably. If a group of people blocked the doorway of a corporation that manufactured weapons, or blocked a sidewalk during an anti-war demonstration, it might constitute the use of “force” to promote “political beliefs.”

The bill charges that the Internet “has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens.” This provision could be used to conduct more intrusive surveillance of our Internet communications without warrants.

This legislation does not criminalize conduct, but may well lead to criminalizing ideas or beliefs in violation of the First Amendment. By targeting the Internet, it may result in increased surveillance of Internet communications in violation of the Fourth Amendment.

The National Lawyers Guild and the Society of American Law Teachers strongly urge the Senate to refuse to pass the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007.

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.

The Society of American Law Teachers (SALT) is a community of progressive law teachers working for justice, diversity and academic excellence. SALT is the largest membership organization of law faculty and legal education professionals in the United States.

November 25, 2007

Remembering Victor Rabinowitz: Legal Giant of the Left

On November 16, 2007, Victor Rabinowitz, one of the giants of the legal profession and a tireless fighter for social justice, died at the age of 96. One of the founders of the National Lawyers Guild 70 years ago, Victor defended unpopular clients when other lawyers were afraid to touch them. During the McCarthy period, he and his partner Leonard Boudin represented unions that were considered to be left-wing. The firm counted as clients Daniel Ellsberg, Paul Robeson, Julian Bond, Dashiell Hammett, Dr. Benjamin Spock, the Rev. Philip Berrigan, Alger Hiss, the Black Panthers, the Salvador Allende government in Chile, and the Cuban government.

Victor handled several landmark cases. In 1950, he challenged the provision of the Taft-Hartley Act that prevented unions from representing workers unless all union officers swore a loyalty oath that they were not members of or affiliated with the Communist Party. He lost the case 5 to 4 in the Supreme Court. His work in the Supreme Court case of United States v. Yellin was instrumental in the demise of the notorious House Un-American Activities Committee (HUAC). In 1964, in a 8 to 1 decision, the Supreme Court held in Banco Nacional de Cuba v. Sabbatino that U.S. courts cannot review the legality of the Cuban nationalizations of U.S.-owned property under international law. Victor represented the government of Cuba in that case.

John Mage, prominent radical lawyer and Officer and Director of the Monthly Review Foundation, wrote a review of Victor’s book, Unrepentant Leftist: A Lawyer’s Memoir, for Monthly Review. Mage recalled his favorite Victor story: “In the Cuban bank litigation, Victor (representing the Cubans) was served with a discovery demand that he forwarded to the Cuban Finance Ministry, at that time headed by Che. Shortly afterwards he was in Havana for an anniversary celebration and was invited to accompany Guevara. Che directed Victor’s attention to the confetti being thrown from an office tower and said ‘remember that discovery demand? . . . There it is.'”

The Rabinowitz Boudin partnership “constituted the defining invention of radical lawyering,” said Northwestern law professor Bernardine Dohrn, a leader of the Weathermen who became the Guild student organizer while Victor was NLG president in 1967. The firm “always represented the most controversial victims of oppressive state power: labor struggles, the Community Party cases, constitutional right to travel and political speech issues, defense of the Cuban revolution, support for the civil rights/Black Freedom Movement, defense of anti-Vietnam War activists, and legal defense of Palestinian political activists,” Dohrn added.

In his book, Victor characterized McCarthyism as “the era of Great Fear.” In those days, it was the fear of Communism; today, it is the fear of Terrorism that the administration uses as an excuse to decimate civil liberties. Describing the government repression against Communists, leftists, and those suspected of being associated with them, Victor wrote, “It was the worst of times . . . It was a terrible and terrifying time.” Even the ACLU “succumbed to the red scare” in those days.

“It became dangerous to utter radical or even progressive thoughts in an audible tone of voice,” he added. The motion picture industry, teachers, progressive Congress members, progressive organizations, and those who read books considered “un-American” were targeted. “Thousands of people lost their jobs, with little prospect of finding new ones quickly. Families were destroyed and friendships were wrecked,” Victor reported.

Rabinowitz Boudin “probably represented more clients before McCarthy and HUAC than any other law firm in the country, mostly for little or no fee,” said Michael Krinsky, a partner in the firm.

Victor wrote, “I was under surveillance by the FBI from the early fifties until the late sixties. The earliest report on me I’ve found in my FBI files states that on June 23, 1943, I was believed to be a member of the Communist party, and it further described me as an ‘agile-minded labor attorney’ [Thanks].” Victor joined the Communist Party in 1942 after the Soviet Union and the United States became allies; he remained a member until the early 1960s.

During the Vietnam War, the Rabinowitz Boudin firm represented hundreds of men facing the draft or criminal charges for refusing induction due to their opposition to the war.

Lawyers pick and choose the cases they take for various reasons. Victor’s decisions were always based on principle. “I had always adhered to a few basic rules,” Victor observed. “I would not represent a landlord against a tenant; I would not represent a drug dealer; I would not represent an employer against a union; I would not represent a fascist or right-wing institution.”

Victor helped found the National Lawyers Guild, to, in his words, “counter the anti-New Deal corporation-controlled American Bar Association (ABA), which at that time did not admit black lawyers or Communists to membership.” As former Guild president and Yale law professor Thomas Emerson wrote, “The National Lawyers Guild was born in revolt – a revolt that embraced the entire intellectual life of the times.”

Victor’s efforts contributed mightily to the Guild’s survival after the McCarthy period. He counted his work with the Guild as perhaps his most significant accomplishment. “There are a few things I can point to with some pride,” Victor reflected. “The National Lawyers Guild is almost sixty years old, and I played some part in building it. I cannot think of more than a handful of national progressive organizations that have lived so long in this perilous world.”

Tributes to Victor are legion. Doris Brin Walker, the first woman president of the Guild and one of its leaders during the McCarthy period, said, “Victor was inspirational, witty, insightful, tolerant/intolerant, humane, didactic – one of the most important and beloved persons in my life. And he will remain so.” Ann Fagan Ginger, another Guild leader in this era, noted, “During the McCarthy/Truman repressive period, Victor played a particularly important role in meeting with other lawyers to figure out the best strategies to defend against, and finally to attack, the Red Baiters. His principles were larger than his ego, and after the meetings, he went back to his office and saw to it that the tasks agreed on were actually carried out.” She called the Rabinowitz Boudin firm “a place of refuge and hope for many whose jobs, reputations, and family relationships were under attack.”

“In each decade, Victor managed to stay utterly committed to the revolutionary principles of his youth,” according to Dohrn, “to work with the highest intellectual and professional standards of the law, and to attract clients of the most urgent issues of the moment. His passionate love of books, his dedicated friendships, and his wry humor abide in our hearts.”

The National Lawyers Guild and all justice-loving people will miss Victor Rabinowitz. He was a giant of a man.

November 23, 2007

Preventing the Impending War on Iran

Rhetoric flowing out of the White House indicates the Bush administration is planning a military attack on Iran. Officials in Saudi Arabia, a close Bush ally, think the handwriting is on the wall. “George Bush’s tone makes us think he has decided what he is going to do,” according to Rihab Massoud, Prince Bandar ben Sultan’s right-hand man. Saudi Social Affairs Minister Abdel Mohsen Hakas told Le Figaro, “We are getting closer and closer to a confrontation.”

As Bush and Cheney try to whip us into a frenzy about the dangers Iran poses, their argument comes up short. They say Iran is developing nuclear weapons, but Mohamed ElBaradei, director of the U.N. International Atomic Energy Agency (IAEA), says there is “no evidence” of this. They say Iran is sending deadly weapons into Iraq to kill U.S. troops, but those devices can be manufactured in any Iraqi machine shop. Now the New York Times reports most of the foreign fighters in Iraq come, not from Iran, but from two Bush allies – Saudi Arabia and Libya. An estimated 90 percent of suicide bombings are carried out by foreign fighters. And senior U.S. military officials believe the financial support for Al Qaeda in Mesopotamia comes primarily from Saudi Arabia.

Yet the Bush/Cheney polemics about Iran continue to escalate. In light of the lack of evidence Iran is actually developing nukes, Bush equated Iranian “knowledge” to make nuclear weapons with World War III. “If you’re interested in avoiding World War III,” he said recently, “it seems like you ought to be interested in preventing them from having the knowledge necessary to make a nuclear weapon.” This substantially lowers the bar for a U.S. attack on Iran.

A few days after Bush warned of World War III, Cheney called Iran “the world’s most active state sponsor of terrorism,” adding, “The Iranian regime needs to know that if it stays on its present course, the international community is prepared to impose serious consequences . . . We will not allow Iran to have a nuclear weapon.” These threats are eerily reminiscent of his rants in the run-up to the U.S. invasion of Iraq.

In an unprecedented move, the Bush administration labeled the Iranian Revolutionary Guard a terrorist organization. It appears the administration applied that label in an effort to trigger language in the 2002 Congressional authorization for the use of military force in Iraq. That authorization says, “The President has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States.”

Like Bush’s invasion of Iraq, an attack on Iran would violate international and U.S. law. The U.N. Charter prohibits the use of military force except in self-defense or with the approval of the Security Council. Iran, which has not attacked any country for 2,000 years, hasn’t threatened to invade the United States or Israel. Rather than protecting Israel, U.S. or Israeli military force against Iran will endanger Israel, which would invariably suffer a retaliatory attack.

In making its case against Iran, the administration points to Iranian President Mahmoud Ahmedinejad’s alleged comment that Israel should be wiped off the map. But this is an erroneous translation of what he said. According to University of Michigan professor Juan Cole and Farsi language analysts, Ahmadinejad was quoting Ayatollah Khomeini, who said the “regime occupying Jerusalem must vanish from the page of time.” Cole said this “does not imply military action or killing anyone at all.” Journalist Diana Johnstone points out the quote is not aimed at the Israeli people, but at the Zionist “regime” occupying Jerusalem. “Coming from a Muslim religious leader,” Johnstone wrote, “this opinion is doubtless based on objection to Jewish monopoly of a city considered holy by all three of the Abramic monotheisms.”

It seems significant that support for Ahmadinejad may be waning among the real power brokers in Iran, particularly the supreme leader Ayatollah Ali Khamenei. The Jomhouri Eslami daily in Iran, which has close ties to Khamenei, has denounced Ahmadinejad’s characterization of those opposed to his nuclear program as traitors.

If the United States attacks Iran, the results would be catastrophic. Three Europeans, including former French Prime Minister Michel Rocard and Yehuda Atai, a member of the Israeli Committee for a Middle East without Weapons of Mass Destruction, wrote in Libération, “We are being warned about it from all sides: The United States is at the brink of war, ready to bombard Iran. The only thing lacking is the presidential order.” Drawing parallels with the U.S. war in Iraq, they caution, “An attack against Iran, whatever its targets, its methods and its initial scope, will significantly aggravate the situation, achieving similar results, without even talking about the disastrous impact on the global economy.” They add, “It would be still worse if the insane idea of using tactical nuclear weapons – which exist – to prevent Iran from building, in spite of its denials, the nuclear weapons that recent IAEA inspections have found no trace of, were implemented.”

The threats against Iran appear to be politically motivated. Seymour Hersh’s extensive research has convinced him that Bush/Cheney will invade Iran. They likely think embroiling us in Iran will ensure a GOP victory in 2008. It will certainly make it harder for the next President to withdraw from Iraq once we are mired in Iran.

If Hillary Clinton becomes that next President, she will likely continue Bush’s foreign policy. Clinton, who favors leaving a large contingent of U.S. troops in Iraq, says nothing about disbanding the huge U.S. military bases there. Clinton is also rattling the sabers in Iran’s direction. She voted to urge Bush to label the Iranian Revolutionary Guard a terrorist organization and she, too, misquotes Ahmadinejad about Israel.

As we go to the polls in the coming months, it is imperative we scrutinize the candidates’ positions on Iraq and Iran. The security of the United States, as well as the Middle East, is hanging in the balance.