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June 26, 2007

Targeting Dissent: FBI Spying on the National Lawyers Guild

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

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

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

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

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

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

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

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

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

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

June 12, 2007

Repression in Oaxaca: One Year Anniversary of State’s Bloody Attack on Popular Movements

There’s an Aztec legend of a warrior who was in love with a princess. When he left to go into battle, the lovers promised each other eternal love. The warrior died in battle, but to fulfill his promise to the princess, he came back as a brilliant orange flower. That flower now graces Flamboyan trees throughout Latin America. Another Flamboyan legend speaks of the struggle of the Puerto Rican people against colonial domination.

On Sunday, June, 10, 2007, under a Flamboyan tree, the Popular Assembly of the People of Oaxaca (APPO) held a press conference to announce the liberation of one of the leaders of the year-long popular struggle for social and economic justice in Oaxaca. Marcelino Coache Verano, secretary general of the free union of Oaxaca municipal workers, had been arrested, severely beaten, and held for six months in prison before he was released on May 31, with all charges against him dismissed.

The press conference kicked off a week of actions to commemorate the brutal June 14, 2006 attack by 1,000 armed police against people peacefully demonstrating in support of the demands of some 70,000 teachers for higher wages, improvement of school buildings, and better resources for children. A teacher typically earns the equivalent of $220 every two weeks, and must purchase school supplies herself. Although the Mexican constitution guarantees free education, mothers have to pay registration fees.

State governor Ulises Ruiz Ortiz sent in state police, accompanied by dogs, who viciously attacked the sleeping teachers and supporters. They tear-gassed everyone in the vicinity, including pregnant women and children; one woman miscarried as a result. Ninety-two people were wounded. Members of the community reacted with outrage, fighting back with anything they could find. They chased the police from the square, and re-established the camp.

On June 17, several hundred local organizations came together to form the APPO, comprising almost 350 different civil organizations working in areas of indigenous issues, sustainable community development, human rights, and social justice. APPO demanded that Governor Ulises Ruiz step down. Meanwhile, the movement continued to grow, with large but peaceful demonstrations. On August 1, hundreds of women marched, and when denied air time by the government radio station, occupied the station and broadcast their position themselves.

Throughout this period, police raids, beatings, and shooting continued. On October 28, four people were killed, including indymedia journalist and U.S. citizen Brad Will and a Mexican teacher, Emilio Alonso Fabian.

The Mexican government sent in the Federal Preventive Police. On November 25, they appeared in full riot gear and encircled the entire area, firing tear gas. As people fled, many were arrested and beaten. Among the prisoners were some simply on their way to work or to the market place that morning. One hundred seventy people were arrested that day, and most were taken to the far away prison of Nayarit. Thirty four were women, and five were minors.

At various times during the seven month period, nearly 1,500,000 teachers, workers, professors and artists, many of them Indigenous people, occupied Oaxaca’s main plaza. Although the movement crystallized to support the striking teachers, the frustration of the people resulted from deep economic and social problems the government has aggravated and allowed to fester. These problems that have harmed workers were exacerbated by NAFTA and the Bush administration’s neoliberal policies. The majority of the population of Oaxaca is Indigenous, most of whom live in extreme poverty.

Last week, I participated in a human rights delegation of lawyers from the National Lawyers Guild, the International Association of Democratic Lawyers, and the National Association of Democratic Lawyers in Mexico to investigate alleged violations of international law by police against the people of Oaxaca during the past year. We met with lawyers, workers and prisoners.

Coache Verano related how he and three other activists had been arrested in Mexico City, on their way to meet with government officials to negotiate an end to the strife. They were stripped naked, beaten, and guards walked on their backs. Coache Verano’s finger was broken. One of the other men was released with Coache Verano. The other two, including APPO leader Flavio Sosa Villavicencio, remain in custody. Coache Verano’s wife and young children told us how they were terrorized for months with death threats and shots fired at their home.

The two prisoners we interviewed at the Tlacolula prison, about 20 miles outside of Oaxaca, also described how they were beaten by police. Flabiano Juárez Hernández was not part of the demonstration. He was working in the market near the plaza when he was arrested on November 20 and charged with auto theft, a crime considered so serious, there is no possibility of bail. The blows to his head required several stitches and left a scar. Juárez Hernández is indigenous and doesn’t speak fluent Spanish; yet he was denied the services of an interpreter.

Wilbert Ramon Aquino Aragón is a worker who participated in the demonstrations on November 20 and 25. On January 10, he was arrested for the attempted murder of a taxi driver he never met. He was told he would be released if he identified people in police photographs. Since he refused, he continues to be held at Tlacolula. The police beat Aquino Aragón so badly he is scheduled for surgery next week. His head bears scars from the blows the police dealt.

Twenty year-old Pedro Garibo Pérez was not involved in the demonstration. Yet on November 20, he was arrested and kept face down for 6 hours with his leg on a hot muffler. The 20 centimeter burn on his leg was left unattended for more than two and a half months. When lawyers finally were able to visit him, they saw a large areas of exposed raw flesh on his leg. As a result of their demands, he finally received medical attention. Garibo Pérez spent 10 days in the hospital, where he was diagnosed with a hematoma and received a skin graft.

A 50-year-old widow named Aurelia was working as a maid inside a house on November 25, and didn’t know what was happening outside. She had just left work when they arrested her a half a block away. She was walking down the street and saw people running all over the place. The police started firing tear gas at everyone. She said, “I felt myself asphyxiating and my eyes filled with tears. I couldn’t move. I was so scared.”

The police grabbed Aurelia by the hair, cursed at her and kicked her. They forced her and several other women to kneel for two hours on the cobblestone. Then they were thrown into a truck in a pile, “like animals, with their hands and feet tied.” Many were crying out that they could not feel their legs. The police officers responded, “You may as well die you old hags.”

Aurelia had to sleep on a cement block in a cold room with no blanket. “Later that night,” Aurelia said, “you could hear the men screaming nearby. I thought about my family members who were there yelling, beaten.” Many of the women were beaten; some had head injuries.

They were flown to Nayarit and held there for 21 days. During that time, the women heard nothing about the men or the rest of their families.

The treatment to which these people were subjected violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which I explain in my book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Three of the techniques used by the police in Oaxaca apparently originated in the United States. They include terrorizing people with ferocious dogs, threats to throw prisoners from helicopters into the sea, and a humiliation technique of denying toilet privileges, leaving people to defecate in their pants.

Nine men remain in custody. There are only 13 lawyers representing the 350 people who still have charges pending against them. Many of the lawyers have suffered some form of harassment, including threats, beatings, and sexual harassment. Five inmates were made to sign statements denouncing lawyer Yésica Sánchez Maya, president of the Mexican League for Defense of Human Rights (LIMEDDH), in exchange for their release from prison. The 29-year-old Sánchez Maya, a passionate and effective leader of the movement, told us she knows she might be arrested at any moment. She remains unbowed.

The International Civil Commission for the Observation of Human Rights concluded that 20 people have been illegally executed in the past few months. APPO has documented 29 who have been assassinated and 100 tortured throughout this struggle. The murders have been carried out by paramilitary or parapolice groups presumably linked to the state government.

On March 14, 2007 Mexico’s National Human Rights Commission reported that 12 people had been killed and documented 1,600 rights violations. The Commission demanded that the Senate punish the killings and other human rights abuses in Oaxaca. APPO criticized the report for overlooking killings and failing to implicate Ruiz.

Mexican Supreme Court Justice minister Juan Silva Meza said on May 28 that federal, state and municipal authorities committed grave civil rights violations during the Oaxaca conflict. Silva Meza recommended that the Court create a committee to investigate the responsible public officials.

Lawyers for LIMEDDH and APPO have filed deununcias against Ruiz, the president of Mexico, and the attorney general, seeking to remove Ruiz and hold them criminally accountable. The charges include assassination, torture, forced disappearance, and denial of justice. These requests have not been acted upon although a special prosecutor was named, (who is not independent) and the Supreme Court has indicated its intention to form a committee to investigate.

Marcelino Coache Verano has his freedom for now. But, he told the reporters, “there is no freedom for us if there isn’t freedom for our comrades. There is no justice until those responsible for the assassinations and torture are brought to justice.”

The government has criminalized the social movement. And the problems underlying the struggle remain unsolved. But like the Flamboyan tree, the movement in Oaxaca will continue to flower. “I never went to the marches before,” Aurelia said, “but now after what the government has done to me, I’ll be there to show my support. I don’t know what the APPO is because I’ve never been to anything that has to do with APPO, but now I’m going to support them. I’ve heard of the teachers and I’ll support them too, now, because it hurt so much what the government did to me.”

June 7, 2007

No Unlawful Enemy Combatants at Guantanamo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 31, 2007

The Unitary King George

As the nation focused on whether Congress would exercise its constitutional duty to cut funding for the war, Bush quietly issued an unconstitutional bombshell that went virtually unnoticed by the corporate media.

The National Security and Homeland Security Presidential Directive, signed on May 9, 2007, would place all governmental power in the hands of the President and effectively abolish the checks and balances in the Constitution.

If a “catastrophic emergency” – which could include a terrorist attack or a natural disaster – occurs, Bush’s new directive says: “The President shall lead the activities of the Federal Government for ensuring constitutional government.”

What about the other two co-equal branches of government? The directive throws them a bone by speaking of a “cooperative effort” among the three branches, “coordinated by the President, as a matter of comity with respect to the legislative and judicial branches and with proper respect for the constitutional separation of powers.” The Vice-President would help to implement the plans.

“Comity,” however, means courtesy, and the President would decide what kind of respect for the other two branches of government would be “proper.” This Presidential Directive is a blatant power grab by Bush to institutionalize “the unitary executive.”

A seemingly innocuous phrase, the unitary executive theory actually represents a radical, ultra rightwing interpretation of the powers of the presidency. Championed by the conservative Federalist Society, the unitary executive doctrine gathers all power in the hands of the President and insulates him from any oversight by the congressional or judicial branches.

In a November 2000 speech to the Federalist Society, then Judge Samuel Alito said the Constitution “makes the president the head of the executive branch, but it does more than that. The president has not just some executive powers, but the executive power — the whole thing.”

These “unitarians” claim that all federal agencies, even those constitutionally created by Congress, are beholden to the Chief Executive, that is, the President. This means that Bush could disband agencies like the Federal Communications Commission, the Food and Drug Administration, the Federal Reserve Board, etc., if they weren’t to his liking.

Indeed, Bush signed an executive order stating that each federal agency must have a regulatory policy office run by a political appointee. Consumer advocates were concerned that this directive was aimed at weakening the Environmental Protection Agency and the Occupational Safety and Health Administration. The unitary executive dogma represents audacious presidential overreaching into the constitutional province of the other two branches of government.

This doctrine took shape within the Bush administration shortly after 9/11. On September 25, 2001, former deputy assistant attorney general John Yoo used the words “unitary executive” in a memo he wrote for the White House: “The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.” Six weeks later, Bush began using that phrase in his signing statements.

As of December 22, 2006, Bush had used the words “unitary executive” 145 times in his signing statements and executive orders. Yoo, one of the chief architects of Bush’s doctrine of unfettered executive power, wrote memoranda advising Bush that because he was commander in chief, he could make war any time he thought there was a threat, and he didn’t have to comply with the Geneva Conventions.

In a 2005 debate with Notre Dame professor Doug Cassel, Yoo argued there is no law that could prevent the President from ordering that a young child of a suspect in custody be tortured, even by crushing the child’s testicles.

The unitary executive theory has already cropped up in Supreme Court opinions. In his lone dissent in Hamdi v. Rumsfeld, Justice Clarence Thomas cited “the structural advantages of a unitary Executive.” He disagreed with the Court that due process demands an American citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker. Thomas wrote, “Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive.”

Justice Thomas’s theory fails to recognize why our Constitution provides for three co-equal branches of government.

In 1926, Justice Louis Brandeis explained the constitutional role of the separation of powers. He wrote, “The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

Eighty years later, noted conservative Grover Norquist, describing the unitary executive theory, echoed Brandeis’s sentiment. Norquist said, “you don’t have a constitution; you have a king.”

One wonders what Bush & Co. are setting up with the new Presidential Directive. What if, heaven forbid, some sort of catastrophic event were to occur just before the 2008 election? Bush could use this directive to suspend the election. This administration has gone to great lengths to remain in Iraq. It has built huge permanent military bases and pushed to privatize Iraq’s oil. Bush and Cheney may be unwilling to relinquish power to a successor administration.

May 10, 2007

Fighting Terror Selectively: Washington and Posada

Since the 9/11 attacks, the Bush administration has made the “war on terror” the centerpiece of its domestic and foreign policy. Bush cries terror where there is none – as he did in Iraq and in the communications of ordinary Americans. Meanwhile, he protects the real terrorists in our midst.

Luis Posada Carriles is a Cuban-born terrorist who has accurately been called the Osama bin Laden of the Western hemisphere. He boasted of helping to detonate deadly bombs in Havana hotels 10 years ago. Declassified FBI and CIA documents at the National Security Archive reveal that Posada was the mastermind of a 1976 bombing of a civilian Cuban airplane that killed 73 people. He escaped from a Venezuelan prison where he was being tried for his role in the first in-air bombing of a commercial airliner. Posada then played a central role in the illegal Iran-Contra scandal.

Posada entered the United States in March 2005 using false papers and was charged in El Paso with lying to Immigration and Customs officials. FBI agent Thomas Rice swore in a June 2005 affidavit that “the FBI is unable to rule out the possibility that Posada Carriles poses a threat to the national security of the United States.” Yet on April 19, 2007 Posada was released on bail despite being a flight risk.

This stranger-than-fiction story has a logical explanation. Posada has a long history of ties to the U.S. government. He became a CIA agent in 1961. The U.S. government claims his CIA service ended in 1976. But on April 30, Posada filed a motion in federal court declaring that he continued to work for the CIA for more than 25 years. That puts him on the CIA’s payroll when he engineered the terrorist airline bombing. In his motion, Posada asserted the right to present evidence of his CIA work as a defense to the perjury charges. The specter of Posada revealing the dirty deeds committed by the CIA when George H.W. Bush was CIA director was intolerable to Washington.

The government was caught between a rock and a hard place. There had been pressure to try Posada for his terrorist crimes, as required by Security Council resolution 1373 and three international treaties. Resolution 1373, passed in the wake of the September 11, 2001 attacks, mandates that all countries deny safe haven to those who commit terrorist acts, and ensure that they are brought to justice. These provisions of resolution 1373 are mandatory, as they were adopted under Chapter VII of the UN Charter. The treaties require the United States to extradite Posada to Venezuela for trial or try him in U.S. courts for offenses committed abroad. The Department of Justice elected instead to charge him with perjury for lying about how he entered the United States in 2005.

But the government could not take the risk that Posada might sing like a canary. On Tuesday, U.S. District Court Judge Kathleen Cardone dismissed all charges against Posada. In her ruling, Cardone wrote that “the Government engaged in fraud, deceit, and trickery” by using a “routine” immigration interview to investigate possible criminal charges against Posada. But questions about Posada’s prior criminal conduct were relevant to the moral character determination at the immigration interview. Posada is not a “routine” guy and his lawyer was present throughout the interview to protect him against self-incrimination. Cardone found the government’s tactics “grossly shocking and so outrageous as to violate the universal sense of justice.” She then disingenuously claimed, “This Court’s concern is not politics; it is the preservation of justice.”

It is shocking and outrageous that Luis Posada Carriles, whose crimes rival those of al Qaeda, is now walking free in Miami. And Cardone’s decision is deeply political.

Rep. William Delahunt has called for a congressional hearing to examine the U.S. government’s role in promoting impunity in the Posada case. Delahunt sent a letter to Attorney General Alberto Gonzales requesting an explanation as to why the Justice Department did not invoke the USA Patriot Act to declare Posada a terrorist and detain him, stating, “The release of Mr. Posada puts into question our commitment to fight terrorism.”

That commitment is also belied by the way Washington has dealt with the Cuban Five. These men peacefully infiltrated criminal exile groups in Miami to prevent terrorism against Cuba. The Five turned over the results of their investigation to the FBI. But instead of working with Cuba to fight terrorism, the U.S. government arrested the five Cubans and tried and convicted them of conspiracy-related offenses. A three-judge panel of the U.S. Circuit Court of Appeals in Atlanta reversed their convictions, finding they could not receive a fair trial in Miami. In August 2006, a majority of the full circuit rejected the earlier ruling and sent the matter back to the panel where further appeals are pending. The U.S. media has been irresponsibly silent on the case of the Cuban Five and the irregularities of the trial.

The Los Angeles Times, however, showed singular insight on April 20 when it said the release of Posada “exposed Washington to legitimate charges of hypocrisy in the war on terror.” The editorial criticized the U.S. for holding men at Guantánamo without due process while releasing Posada. “The U.S. government has done many odd things in 46 years of a largely failed Cuba policy,” the Times said, “but letting a notorious terrorist walk stands among the most perverse yet.”

April 21, 2007

Alberto Gonzales: Tip of the Iceberg

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

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

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

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

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

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

At Gonzales’ confirmation hearing for attorney general, he said he wasn’t sure whether torturing prisoners could be lawful. The former Texas Supreme Court justice surely knew the terms of the Convention Against Torture, a treaty ratified by the United States and therefore part of the supreme law of the land under the Supremacy Clause of the Constitution. The convention says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture.”

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

Gonzales’ confirmation testimony led the New York Times to opine, “Mr. Bush had made the wrong choice when he rewarded Mr. Gonzales for his loyalty,” and the Washington Post to say, “The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world.” The Post concluded, “Those senators who are able to reach clear conclusions about torture and whether the United States should engage in it have reason for grave reservations about Mr. Gonzales.”

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

April 12, 2007

The New Watergate: U.S. Attorneys and Voting Rights

The Bush administration is shocked, shocked, that the firing of a few U.S. attorneys has caused such a stir in Washington. After all, the Oval Office says, the President can choose whomever he wants to prosecute federal cases. But the Supreme Court declared in Berger v. United States that a prosecutor’s job is to see that justice is done, not to politicize justice. The mass ouster of the top prosecutors had more to do with keeping a grip on power – by manipulating voting rights – than with doing justice. And like the Watergate scandal, the evidence points to a cover-up.

This cover-up revolves around efforts by the Bush administration to disenfranchise African-American voters in communities where the vote would likely be close. George W. Bush came to power in 2000 by a razor-thin margin awarded him by the Supreme Court. During the 2004 election, there were allegations of attempts to disenfranchise African-American voters, especially in Ohio. Yet no voting discrimination cases were brought on behalf of African-American or Native American voters from 2001 to 2006.

Instead, the administration instigated efforts that would further disenfranchise these voters. U.S. attorneys were instructed to prosecute “voter fraud” cases. “Voter fraud” has “become almost synonymous with ‘voting while black,'” the New York Times’ Paul Krugman observed. Also, Republican lawmakers enacted voter ID laws which established new hurdles for voters to jump.

Former staffers in the Justice Department’s civil rights division said they were “repeatedly overruled when they objected to Republican actions, ranging from Georgia’s voter ID law to Tom DeLay’s Texas redistricting, that they believed would effectively disenfranchise African-American voters,” Krugman added.

The administration’s effort to prosecute voter fraud is a sham. The New York Times reports that voter experts have found “widespread but not unanimous agreement that there is little polling place fraud.” However, the Election Assistance Commission, a federal panel charged with election research, skewed the findings of the voter experts.

The Bush administration has been hyping voter fraud since the last election; Karl Rove called it an “enormous and growing” problem. Two of the fired U.S. attorneys, David Iglesias from Albuquerque and John McKay from Seattle, were dismissed because they refused to file voter fraud charges after being warned to do so by well-placed Republicans. Others were fired for pursuing investigations of Republicans.

Kyle Sampson, Alberto Gonzales’ former right-hand man, wrote in an email that the qualification to be a U.S. attorney was to be a “loyal Bushie.”

Shortly after the Watergate break-in, President Richard Nixon and his loyal chief of staff H.R. Haldeman spoke in the old Executive Office Building. Their conversation was taped, but 18.5 minutes were erased. This gap incriminated Nixon in the cover-up which eventually led to his impeachment and resignation.

Likewise, there is a suspicious 16-day gap in the email records between the Justice Department and the White House just before seven of the U.S. attorneys were fired in December. Moreover, many of the communications about the matter were conducted using email accounts of the Republican National Committee instead of government accounts, possibly in violation of the Presidential Records Act.

The Los Angeles Times reported that senior Justice Department officials prepared documentation to justify the firings after the dismissals. One Justice Department official threatened to “retaliate” against the eight fired U.S. attorneys if they continued to publicly speak about their dismissals.

Attorney General Alberto Gonzales, who heads the Justice Department, denied he was involved in discussions about the firings. But Sampson testified that Gonzales was consulted at least five times and signed off on the plan to fire the U.S. attorneys. “I don’t think it’s entirely accurate what he [Gonzales] said,” Sampson told the Senate Judiciary Committee.

Gonzales is reportedly sweating bricks over his own testimony before that Committee, slated for April 17. As a result of Gonzales’ stonewalling in response to the House Judiciary Committee’s request for documents, committee chairman Rep. John Conyers has subpoenaed the records. If the Justice Department defies the subpoena, the Judiciary Committee, and the full Congress, could cite the department for contempt of Congress, and a federal grand jury could issue criminal indictments for obstruction of justice.

The White House has indicated it will not allow Karl Rove and former White House Counsel Harriet Miers to testify under oath. Why the resistance unless they intend to lie?

Alberto Gonzales should be fired, not just for malfeasance in the U.S. attorney affair, but also for advising Bush to violate the Geneva Conventions which led to torture and abuse of prisoners in U.S. custody. Recall that Gonzales told Bush the Geneva Conventions were “quaint” and “obsolete.” Those were the same words the Nazi lawyers used at Nuremberg to describe the Geneva Conventions.

Firing Gonzales may temporarily stanch the flood of accusations about the U.S. attorney matter. But the corruption, the lawbreaking, and the cover-up go deeper – all the way up to the Oval Office. Hopefully, Nancy Pelosi and John Conyers will put impeachment back on the table.

April 3, 2007

Coming Up Short on Habeas for Detainees

The Bush administration has stopped the Supreme Court from giving the Guantánamo detainees their day in court – at least for now.

In Boumediene v. Bush and Al Odah v. United States, 45 men challenged the constitutionality of the habeas corpus-stripping provision of the Military Commissions Act that Congress passed last year.

On Monday Justices Stephen Breyer, David Souter and Ruth Bader Ginsburg fell one vote short of the four needed to grant review of the lower court decision which went against the detainees. It was no surprise that Justices John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas voted to deny review.

Two justices – John Paul Stevens and Anthony Kennedy – declined review on procedural grounds, saying the detainees had to exhaust their remedies before appealing to the high court. That means they must first go through the appeals process of the Combatant Status Review Tribunals (CSRTs).

The CSRTs are used to determine whether a detainee is an unlawful enemy combatant. They deny basic due process protections such as the rights to counsel, to see evidence, and to confront adverse witnesses.

The procedure for challenging a CSRT decision is found in the Detainee Treatment Act (DTA). It is limited to determining whether the decision was consistent with the CSRT’s standards and procedures, and whether the use of those standards and procedures was legal and constitutional.

There are two issues the Supreme Court would have to decide if it did review this case. First, do the Guantánamo detainees have a constitutional right to habeas corpus? In 2004, the Court held in Rasul v. Bush that the habeas statute applied to those detainees because the United States maintains complete jurisdiction and control over Guantánamo.

Second, even if the Court applied its Rasul reasoning to constitutional habeas corpus, it would then need to determine whether the procedure for contesting Combatant Status Review Tribunal decisions constitutes an adequate substitute for habeas corpus.

It should have been a no-brainer for Justices Stevens and Kennedy to vote to hear this case. The DTA’s review procedures cannot cure the sub-standard standards of the Combatant Status Review Tribunals.

Since Justice Stevens authored the Court’s two prior decisions upholding rights for the Guantánamo detainees, his vote in this case is puzzling. But if he provided the fourth vote for review, there’s no guarantee he could garner the five votes needed to overturn the lower court ruling. Justices Stevens and Kennedy left open the option of future review if “the government has unreasonably delayed proceedings” or causes the detainees “some other and ongoing injury.” Justice Stevens evidently thought it prudent to side with Justice Kennedy at this point to cultivate the latter’s vote on the merits down the road.

Meanwhile, the detainees languish in confinement that could last the rest of their lives if they are denied the right to have a U.S. judge hear their habeas corpus petitions. Of the 755 men and boys held at Guantánamo in the past five years, Bush has called only 14 of them “high value detainees.” Just 10 – not including any of the 45 men appealing the current case – have been charged with a crime.

Although the Supreme Court has stood up to the Bush administration in the past, it is precariously balanced and cannot be relied upon to consistently provide justice. Congress has finally shown the will to challenge the Bush agenda – on the Iraq war, and the U.S. Attorney firing scandal. The ball is in Congress’s court to rescind the habeas-stripping provisions of the Military Commissions Act.

March 14, 2007

Cover-up of Women Soldiers’ Deaths

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

March 12, 2007

Patriot Act Unbound: Political Purging and Spying on Americans

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

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

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

Why did these prosecutors run afoul of the Bush gang?

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

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

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

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

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

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

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

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

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

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