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November 20, 2007

Musharraf Plays Bush for a Fool

Pakistan’s President General Pervez Musharraf declared a state of emergency on November 3rd after the Pakistani Supreme Court indicated it would overturn the results of an illegitimate election that would have extended Musharraf’s term as president. Musharraf quickly fired the Supreme Court justices who planned to rule against him. And his declaration of emergency attacked the entire population of Pakistan by suspending fundamental constitutional rights to life and liberty, freedom of speech, assembly and association, and equal protection of the law.

As a result of Musharraf’s action, Pakistani Chief Justice Iftikhar Mohammed Chaudhry is being held under house arrest, and over 2500 lawyers in different parts of Pakistan have been detained. The detainees include the President of the Supreme Court Bar Association and officials of the Democratic Lawyers Association of Pakistan. The government also ordered that journalists who brought “ridicule or disrepute” to Musharraf could face three years in prison.

The real motivation for Musharraf’s declared emergency is not to defend the country against “Islamic extremists,” as he claims, but to maintain Musharraf in power. He acted to prevent public protests that lawyers and political parties were organizing. And his scheme is working. Musharraf’s brand-new, handpicked Supreme Court ruled on Monday that Musharraf can remain in power for five more years.

Meanwhile, the Bush Administration is scurrying around in damage control mode. Musharraf’s actions would be very embarrassing for Bush — if Bush were the type of guy to get embarrassed. After all, Bush has been claiming for the past several years that he wants to spread democracy throughout the Islamic world. Somehow, Musharraf’s declared state of emergency, followed by mass arrests of his political opponents, doesn’t seem very democratic.

Bush dispatched Deputy Secretary of State John Negroponte to Pakistan to talk sense to Musharraf. Negroponte urged Musharraf to end the state of emergency. But Bush’s man didn’t complain about Musharraf shutting down the Supreme Court and replacing it with his loyalists. Negroponte also failed to tell Musharraf to release the judges and lawyers from prison. So much for democracy and an independent judiciary.

The recipient of nearly $11 billion of U.S. aid since 9/11, Musharraf will cover for his benefactor Bush to keep him from losing face in light of the Pakistani strongman’s blatant and tyrannical power grab. Musharraf has agreed that parliamentary elections scheduled for January will proceed and that he will take off his military uniform after the sham elections are held. Of course, Musharraf’s jailed political opponents will likely find it difficult to campaign effectively for seats in parliament while incarcerated under a state of martial law.

American citizens whose tax dollars are being used to prop up this ruthless and corrupt regime should demand an accounting of how their money is being spent.

Bush claims that Musharraf is an indispensable ally in his “war against terror,” and that money sent to Pakistan supports that goal. It appears from my vantage point, though, that Musharraf is playing Bush for a fool. Musharraf tells Bush he will help destroy the Taliban. However, Pakistani Professor Pervez Hoodbhoy wrote in the November 18 Los Angeles Times that some people in Pakistan believe Musharraf is “secretly supporting the Taliban as a means for countering Indian influence.” Moreover, if Musharraf wants to regain and maintain support of the Pakistani people, he will continue to support the Taliban. Hoodbhoy also wrote, “Most Pakistanis see the [Taliban] as America’s enemy, not their own. The Taliban is perceived as the only group standing up against the unwelcome American presence in the region.” According to Hoodbhoy, “For more than 25 years, the army has nurtured Islamist radicals as proxy warriors for covert operations on Pakistan’s borders in Kashmir and Afghanistan.”

Hoodbhoy’s remarks are corroborated by Adrien Levy, co-author of “Deception: Pakistan, the United States and the Global Nuclear Weapons Conspiracy.” Levy told Amy Goodman on Democracy Now!, “The [Musharraf] agenda is to destabilize Afghanistan, to create a government there which is favorable to Islamabad. These are goals which are actually contrary to the goals – very largely contrary to the goals of the West. Yet,” Levy, said, “this slowly moving car crash of the U.S. pumping billions of untraceable cash into the Pakistan military has continued since 2001 and we’re left with the position where Pakistan is devoid of democracy, democracy is weakened and feeble, and we have just increased instability, quite honestly.”

If Congress stands by and does nothing to cut off the funds to Musharraf while he maintains martial law in Pakistan, it will confirm our worst fears that Democrats and Republicans alike are making a sham of our democracy.

October 22, 2007

Michael Mukasey: Another Loyal Bushie

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 9, 2007

Unrepentant, Bush Denies Torture

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

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

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

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

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

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

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

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

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

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

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

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

September 25, 2007

Pursue Diplomacy, Not War, With Iran

Iranian President Mahmoud Ahmadinejad’s visit to the United States has prompted an outcry, including protests and tabloid headlines calling him “evil” and a “madman.” As Juan Cole says, “The real reason his visit is controversial is that the American right has decided the United States needs to go to war against Iran. Ahmadinejad is therefore being configured as an enemy head of state.” The Bush administration, which maintains that “all options” remain on the table with Iran, should vigorously pursue the diplomatic option, instead of moving inexorably toward the military option.

Ahmadinejad said in a “60 Minutes” interview, “It’s wrong to think that Iran and the U.S. are walking toward war. Who says so? Why should we go to war? There is no war in the offing.” Iran has not threatened to attack the United States, or Israel for that matter, except if it is attacked first. Iranian authorities sent a proposal to the United States in May 2003 offering negotiations on a deal for Iran to freeze its nuclear program if the United States would end its hostility against Iran. The Bush administration thumbed its nose at the Iranian proposal, then tried to cover up the story, according to Trita Parsi, in his new book, Treacherous Alliance: The Secret Dealings of Israel, Iran, and the United States.

Bush has conducted a belligerent policy toward Iran ever since he inaugurated it into his “axis of evil” in January 2002. General David Petraeus and Bush both menacingly mentioned Iran five times in their respective August speeches touting how well things are going in Iraq. Petraeus referred to “malign actions” by Iran; Bush discussed Iran and al-Qaeda in the same breath even though Iran has never attacked us.

U.S. plans for war with Iran continue to escalate. Centcom (U.S. Central Command) has engaged in detailed contingency planning for an attack on Iran for more than two years. In June, the U.S. Air Force established Project Checkmate tasked with “fighting the next war.” The Pentagon is building a military base near the Iran-Iraq border. Earlier this month, British forces, at the request of the Americans, were sent from Basra to the Iranian border. Two aircraft carrier groups (USS Nimitz and USS Truman) are reportedly en route to the Persian Gulf to join the USS Enterprise.

Philip Giraldi wrote last month in The American Conservative that Dick Cheney ordered the U.S. Strategic Command to draw up a “contingency plan” for a large-scale air assault on Iran using both conventional and tactical nuclear weapons. “As in the case of Iraq,” according to Giraldi, “the response is not conditional on Iran actually being involved in the act of terrorism directed against the United States. Several senior Air Force officers involved in the planning are reportedly appalled at the implications of what they are doing – that Iran is being set up for an unprovoked nuclear attack – but no one is prepared to damage his career by posing any objections.”

Bush will likely provoke a confrontation with Iran, then strike back in “self-defense.” The Sunday Telegraph reported, “A strike will probably follow a gradual escalation. Over the next few weeks and months the U.S. will build tensions and evidence around Iranian activities in Iraq . . . Under the theory – which is gaining credence in Washington security circles – U.S. action would provoke a major Iranian response, perhaps in the form of moves to cut off Gulf oil supplies, providing a trigger for air strikes against Iran’s nuclear facilities and even its armed forces.”

Steve Clemons likewise wrote on Salon that David Wurmser, a member of Cheney’s national security staff, allegedly discussed convincing Israel to launch a low-yield cruise missile strike against the Natanz nuclear reactor in Iran, to “hopefully” prompt a military reaction by Iran against U.S. forces in Iraq and the Gulf.

Former CIA counter-terrorism chief Vincent Cannistrano, now a security analyst, stated, “The decision to attack was made some time ago. It will be in two stages. If a smoking gun is found in terms of Iranian interference in Iraq, the U.S. will retaliate on a tactical level, and they will strike against military targets. The second part of this is: Bush has made the decision to launch a strategic attack against Iranian nuclear facilities, although not before next year. He has been lining up some Sunni countries for tacit support for his actions.”

Patrick Cronin, director of studies at the International Institute for Strategic Studies, concurs. “Washington is seriously reviewing plans to bomb not just nuclear sites, but oil sites, military sites and even leadership targets. The talk is of multiple targets,” he said. “In Washington there is very serious discussion that this is a window that has to be looked at seriously because there is only six months to ‘do something about Iran’ before it will be looked at as a purely political issue.”

The United Nations’ chief nuclear weapons inspector, Mohamed ElBaradei, warned against an “out of control” drift to war with Iran. “I would not talk about any use of force,” he said. “There are rules on how to use force, and I would hope that everybody would have gotten the lesson after the Iraq situation, where 700,000 innocent civilians have lost their lives on the suspicion that a country has nuclear weapons.” The UN Charter only permits the use of force in self-defense or with the blessing of the Security Council. “Many of the potential targets are in populated places, endangering civilians both from errant bombs and the possible dispersal of radioactive material,” cautioned Peter Galbraith in the New York Review of Books. The failure to protect civilians violates the Geneva Conventions.

Yet Bush continues his march to war. In an end run around the UN Security Council, “Washington and its allies are developing a parallel track to the UN effort in the event that a third resolution ends up only modestly increasing pressure on Iran,” according to the Washington Post. “We’ll continue on the UN track, but we also have the track of the U.S.-E.U.,” a State Department official said.

Former General Wesley Clark is a likely presidential running mate for Hillary Clinton, who also intends to keep the military option against Iran on the table. In Sunday’s Washington Post, Clark laid out a detailed military plan to ensure that we “win” the next war. “Today, the most likely next conflict will be with Iran,” he wrote, while cautioning that war is the last resort.

Senators Joe Lieberman and Jon Kyl just introduced an amendment to the defense authorization bill that would authorize Bush to attack Iran. Here is the language from the amendment:

(3) that it should be the policy of the United States to combat,
contain, and roll back the violent activities and destabilizing
influence inside Iraq of the Government of the Islamic Republic of
Iran, its foreign facilitators such as Lebanese Hezbollah, and its
indigenous Iraqi proxies;

(4) to support the prudent and calibrated use of all instruments of
United States national power in Iraq, including diplomatic, economic,
intelligence, and military instruments, in support of the policy
described in paragraph (3) with respect to the Government of the
Islamic Republic of Iran and its proxies.

If the Congress adopts this amendment, U.S. policy would be to “combat” Iran with “all . . . military instruments.” It is imperative that this amendment be defeated.

As Bush and Cheney once again go through the motions of diplomacy as they did during the run-up to war with Iraq, they move steadily toward war. They would do well to heed the sentiments of the Bipartisan Security Group, which advocates the Middle Powers Initiative. That statement says, “Resolution of differences between the United States and Iran through diplomatic means has become imperative. The catastrophe of Iraq should inform us that the use of force under present circumstances will bring even greater tragedy to the war-torn Middle East. Any threat to unilaterally use overwhelming force is irresponsibly hazardous. There is no imminent threat posed by Iran. There is a practical, legal and moral obligation to obtain security through peaceful and law abiding means.”

The initiative points to the United States’ hypocrisy of condemning Iran for seeking nuclear weapons while maintaining the right to use nukes against Iran. “The United States and other nuclear weapon states can more credibly insist on Iranian compliance with its international obligations if they meet their own. To decry the Iranian potential of developing nuclear weapons while brandishing arsenals of unimaginable destructive capacity on launch-on-warning status is inconsistent . . . Accordingly, the United States is required to renounce the use of nuclear weapons against Iran rather than to maintain that ‘all options are on the table.’”

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.