blog

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.

March 6, 2007

Conscientious Objector Faces Court-Martial

On March 6, the court-martial will begin in Germany for Army Specialist Augustín Aguayo, who faces up to seven years in prison for refusing to deploy to Iraq for a second tour of duty. His petition for habeas corpus was denied by a three-judge panel of the D.C. Circuit Court of Appeals on February 16. Judges Sentelle and Randolph were the same jurists who recently upheld the provision of the Military Commissions Act that strips habeas corpus rights from Guantánamo detainees.

Before his first deployment to Iraq, Aguayo discovered he was a conscientious objector. When he began to train in arms, Aguayo had great difficulty firing at human-shaped silhouettes and stabbing human mannequins. “During basic training,” he recalls, “I felt guilty when I had to pick up and hold a weapon and practice killing with it.”

When Aguayo and his wife, Helga, saw an article on the Internet about conscientious objector Stephen Funk, they realized that Aguayo was a conscientious objector.

After he applied to be a conscientious objector three years ago, Aguayo was sent to Iraq as a medic. He refused to load his gun. But instead of treating him as a non-combatant, he was given guard duty and placed in dangerous positions with an unloaded weapon.

A week after Aguayo’s habeas corpus petition was denied on August 24, 2006, his unit was slated to deploy to Iraq for the second time. On September 1, 2006, Aguayo went AWOL and missed his unit’s deployment to Iraq. He turned himself in to the Army the following day.

Rather than court-martialing Aguayo, Army personnel told him he would be going to Iraq anyway, even if they had to handcuff him and shackle him to the plane. Aguayo fled from the military base in Germany and turned himself in once again on September 26, 2006. He was shipped back to Germany where he will be tried by court-martial this week.

In his statement to the Court of Appeals, Aguayo wrote: “In my last deployment, I witnessed how soldiers dehumanize the Iraqi people with words and actions. I saw countless innocent lives which were shortened due to the war. I still struggle with the senselessness of it all – Iraqi civilians losing their lives because they drove too close to a convoy or a check point, soldiers’ being shot by mistake by their own buddies, misunderstandings (due to the language barrier) leading to death. This is not acceptable to me. It makes no sense that to better the lives of these civilians they must first endure great human loss. This, too, is clear and convincing evidence to me that all war is evil and harmful.”

“I also oppose war,” Aguayo added, “because I have seen first-hand the direct result of deployments to war zones. As a result of Operation Iraqi Freedom II, I have seen many veterans whose lives have been shattered. Many men came back with missing parts, and countless physical and emotional scars, such as Post Traumatic Stress Disorder. I have personally seen my comrades come back to commit suicide, drink themselves to death, and develop a strong addiction to drugs. It is obvious to me that these men’s lives were destroyed by war. What participation in war does to our own soldiers is another reason why war is fundamentally immoral and wrong.”

Aguayo received positive recommendations from the chaplain and Capt. Sean Foster, who held Aguayo’s conscientious objector hearing in Tikrit, Iraq. They both found Aguayo’s beliefs to be sincere and recommended he be granted conscientious objector status.

But the Court of Appeals sided with four officers who recommended Aguayo’s petition be denied. None of the four interviewed Aguayo. The appellate court mentioned that Aguayo was agnostic and cited a report that said Aguayo lacks a “religious foundation” to be a conscientious objector.

Aguayo, who was born in Mexico, is a naturalized U.S. citizen. On February 23, the Mexican legislature condemned the military proceedings pending against Aguayo. Senator Silvano Aureoles called Aguayo “a prisoner of conscience and one more victim of president George W. Bush’s militaristic eagerness.”

Augustín Aguayo is represented by National Lawyers Guild lawyers James Klimaski, Peter Goldberger, and James Feldman. For more information on Aguayo’s case, see http://www.aguayodefense.org/.

February 27, 2007

Why Boumediene Was Wrongly Decided

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

A little background:

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

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

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

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

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

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

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

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

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

This reasoning is erroneous for three reasons:

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

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

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

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

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

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

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

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

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

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

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

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

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

February 14, 2007

Fool Us Twice? From Iraq to Iran

It’s déja vu. This time the Bush gang wants war with Iran . Following a carefully orchestrated strategy, they have ratcheted up the “threat” from Iran, designed to mislead us into a new war four years after they misled us into Iraq.

Like its insistence that Iraq had WMD, the Bush administration has been hyping claims that Iran seeks nuclear weapons. The International Atomic Energy Agency (IAEA), however, has found no evidence that Iran is building nuclear weapons. IAEA chief Mohamed ElBaradei says there is plenty of time for negotiation with Iran.

Bush has sent two battle carrier groups, replete with nukes, to the Persian Gulf and a third is reportedly preparing to follow. In support of Bush’s case that Iran poses a danger to the U.S. , three unnamed American officials ceremoniously trotted out metal parts found in Iraq and claimed Iran supplied them to kill our soldiers in Iraq.

This “evidence” – or “packaging,” as the Associated Press calls it – doesn’t pass the straight face test with most reputable observers. “The officials offered no evidence to substantiate allegations that the ‘highest levels’ of the Iranian government had sanctioned support for attacks against U.S. troops,” according to Monday’s Washington Post.

Saturday’s New York Times cited information gleaned from “interrogation reports” from Iranians and Iraqis captured in the recent U.S. raid on the Iranian embassy in northern Iraq . They allegedly indicated money and weapons components are brought into Iraq over the Iranian border at night. If those people indeed provided such information, query what kind of pressure, i.e. torture, might have been applied to encourage their cooperation. Recall the centerpiece of Colin Powell’s 2003 lies to the Security Council about ties between Iraq and al Qaeda came from false information tortured out of Ibn al-Shaykh al-Libi.

Any Iranian weapons in Iraq may belong to the Supreme Council for Islamic Revolution in Iraq (SCIRI), a Shiite resistance group the U.S. used to support. There could be old Iranian munitions lying around which are left over from the Iran-Iraq war during the 1980s. A former high level U.S. military officer told me it was not uncommon to find large caches of weapons around Iraq . He cited the 2004 discovery of 37,000 American Colt 45 handguns in a warehouse near the Iranian border on the Iraq side, likely procured “when Saddam was our friend.” The United States armed both sides in the Iran-Iraq conflict.

The U.S. National Intelligence Estimate on Iraq , released last week, concluded that Iranian or Syrian involvement is “not likely to be a major driver of violence” in Iraq .

Paul Krugman wrote that even if Iran were providing aid to some factions in Iraq , “you can say the same about Saudi Arabia , which is believed to be a major source of financial support for Sunni insurgents – and Sunnis, not Iranian-backed Shiites, are still responsible for most American combat deaths.” Indeed, 15 of the 19 hijackers on 9/11 were Saudis. But as Krugman mentions, the Bush administration’s “close personal and financial ties to the Saudis” have caused it to downplay “Saudi connections to America ‘s enemies.”

American troops are still fighting in Afghanistan . Yet the Bush administration hasn’t complained about the Taliban attacks on Afghanistan that originate in Pakistan , a country with documented nuclear weapons. Of course the Bush administration is cozy with the Pakistani regime.

The government of Israel, which also has nukes, is fueling the call for an invasion of Iran . On February 7, the Los Angeles Times cited Israeli politicians and generals warning of a “second Holocaust” if no one fails to prevent Tehran from acquiring nukes.

Israel would like to start a war with Iran and supports this desire by citing a quote from Iranian president Mahmoud Ahmadinejad that Israel should be wiped off the map. But this is an erroneous translation of what he said. According to University of Michigan professor Juan Cole and Farsi language analysts, Ahmadinejad was quoting Ayatollah Khomeini, who said the “regime occupying Jerusalem must vanish from the page of time.” Cole said this “does not imply military action or killing anyone at all.” Journalist Diana Johnstone points out the quote is not aimed at the Israeli people, but at the Zionist “regime” occupying Jerusalem. “Coming from a Muslim religious leader,” Johnstone wrote, “this opinion is doubtless based on objection to Jewish monopoly of a city considered holy by all three of the Abramic monotheisms.” Iran has not threatened to invade Israel.

Indeed, only 36 percent of the Jews in Israel told pollsters last month they thought a nuclear attack by Iran posed the “biggest threat” to Israel . Americans concur. Seventy-five percent want negotiations in lieu of war with Iran.

Yet Hillary Clinton, Barack Obama and John Edwards, all beholden to the Israel lobby, have bought into Bush’s dangerous rhetoric about Iran.

It would be sheer lunacy to make war on Iran. Three former high-ranking U.S. military officers and a coalition of 13 British think-tanks and faith groups have warned that an attack on Iran would have disastrous consequences.

Bush probably won’t ask Congress to bless his Iran war. He will provoke a confrontation and then claim we have to fight back. Last year, the New York Times documented a January 2003 meeting with Prime Minister Tony Blair, where Bush “talked about several ways to provoke a confrontation [with Iraq], including a proposal to paint a United States surveillance plane in the colors of the United Nations in hopes of drawing fire.”

A nuclear attack on Iran would violate U.S. obligations under the Nuclear Non-Proliferation Treaty. Any attack would violate the U.N. Charter. All treaties we ratify become part of U.S. law under the Constitution’s Supremacy Clause. Twelve European, international, and U.S. legal and human rights groups issued an open letter warning of the illegality of any offensive military action by the U.S. against Iran. (http://www.nlg.org/news/statements/Military_Iran_2007.htm ).

Congress has tied itself in knots over a non-binding resolution on Iraq . If our elected representatives responded to their constituencies instead of the Bush gang’s fear mongering, they would stand up to him and pass a modern day Boland Amendment forbidding military action against Iran.

February 9, 2007

Mistrial at Court Martial: Watada Beats the Government

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 2, 2007

Bush Targets Iran

As Congress and the American people protest the travesty Bush created in Iraq, our President is gunning for a confrontation with Iran. Bush is rattling the sabers and opting for gunboat diplomacy by pledging to “seek out and destroy” Iranian networks “providing advanced weaponry and training to our enemies” in Iraq. But he has produced no hard evidence that Iran is supplying forces in Iraq with such weapons or manufacturing their own nuclear weapons.

When I say “gunboat diplomacy,” I mean that literally. Bush recently sent U.S. warships and Patriot missile batteries to the Persian Gulf and moved U.S. attack aircraft to Turkey and other countries on Iran’s borders. U.S. forces stormed the Iranian consulate in northern Iraq and captured six Iranian nationals, and Bush announced he will go after any Iranians he considers a threat. There are also indications the Bush administration would support military action by Israel against Iran.

On Tuesday, the administration stepped up its inflammatory rhetoric. U.S. officials said Iranians may have trained attackers who killed five Americans in Karbala on January 20. They also implicated the Mahdi Army, the militia controlled by Moktada al-Sadr. It’s very interesting that The New York Times characterized the focus on Iran and the Mahdi Army as “convenient from the point of view of the Bush administration.”

Investigators were stumped at how the attackers, who wore American-style uniforms, secured forged U.S. identity cards and American-style M-4 rifles, and used stun grenades like those used only by U.S. forces. They are also confounded at the way the attackers’ convoy of SUVs gave the impression that it was American and slipped through Iraqi checkpoints. Wednesday’s article in the Times cites a theory that “a Western mercenary group” may have been involved. In the past, the U.S. government used the CIA to covertly overthrow governments, such as Iran in 1953 and Chile in 1973. Could mercenaries now be doing the Bush administration’s dirty work?

The plan to attack Iran has been in the works since Bush inaugurated that country into his “axis of evil” in January 2002. Bush’s 2006 National Military Strategy says, “We may face no greater challenge from a single country than from Iran.” In April 2006, Seymour Hersh revealed the U.S. military was making preparations for an invasion of Iran. “Air Force planning groups are drawing up lists of targets, and teams of American combat troops have been ordered into Iran, undercover, to collect targeting data and to establish contact with anti-government ethnic-minority groups,” Hersh learned from current and former American military intelligence officials.

One of the military proposals calls for the use of bunker-buster tactical nuclear weapons against underground nuclear sites in Iran. That would mean “mushroom clouds, radiation, mass casualties, and contamination over years,” a former senior intelligence official told Hersh. A Pentagon adviser said the Air Force would strike many hundreds of targets in Iran, 99 percent of which have nothing to do with nuclear proliferation.

A former defense official who still advises the Bush administration informed Hersh the military planning was grounded in the belief that “a sustained bombing campaign in Iran will humiliate the religious leadership and lead the public to rise up and overthrow the government.” That’s the same faulty logic the U.S. government used to justify its cruel embargo and blockade of Cuba since 1961.

Congress has the responsibility to prevent Bush from attacking Iran. In view of congressional opposition to his war in Iraq, Bush will not likely ask permission to make war on Iran. We can expect Bush to provoke — or even fabricate a la Gulf of Tonkin — an incident with Iran and then claim he’s responding to Iranian aggression. Senior Pentagon officials reported in Wednesday’s Los Angeles Times that Air Force and Navy fighter planes along the Iran-Iraq border may be used more aggressively. Bush will then try to bootstrap the September 2001 and October 2002 congressional authorizations for force in Afghanistan and Iraq, respectively, into consent to attack Iran.

Offensive military action against Iran would be illegal under the United Nations Charter, which requires that members settle international disputes by peaceful means. The UN Charter is a treaty ratified by the U.S. and thus part of American law under the Supremacy Clause of the Constitution. Under the Charter, a country can attack another only in self-defense or with the blessing of the Security Council. Moreover, the use of nuclear weapons would violate our obligations under the Nuclear Non-Proliferation Treaty.

Congress should immediately pass a binding resolution reaffirming the United States’ legal obligations and informing the Bush administration that it will not concur in any invasion or military action against Iran, would refuse to approve any funding for it, and would consider actions taken in contravention of the resolution as impeachable offenses.

January 17, 2007

Pentagon Attacks Lawyers of Guantánamo Detainees

In one of the most severe blows the Bush administration has dealt to our constitutional democracy, the Pentagon attacked the lawyers who have volunteered to represent the Guantánamo detainees.

Deputy Assistant Secretary of Defense Charles Stimson threatened corporate lawyers who agree to defend the men and boys imprisoned there. Flashing a list of corporations that use law firms doing this pro bono work, Stimson declared, “Corporate C.E.O.’s seeing this should ask firms to choose between lucrative retainers and representing terrorists.”

In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts.

Adams later said his representation of those British soldiers was “one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”

Federal Judge Green, who has handled the many habeas corpus petitions filed by the Guantánamo detainees, expressed appreciation for the lawyers: “I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service.”

More than 750 men and boys have been held like animals in cages during the last five years at Guantánamo. Many were picked up by warlords and sold to the U.S. military for bounty. None has been tried for any crime. Very few even have any criminal charges against them.

Ironically, there were no alleged terrorists connected with 9/11 there until Bush recently transferred 14 men from his secret CIA prisons to Guantánamo. Meanwhile, hundreds of detainees languish in custody, aided by 500 courageous lawyers from 120 firms who have volunteered countless hours to represent them.

Under the Military Commissions Act Bush just rammed through Congress, the Guantánamo prisoners could be held for the rest of their lives without ever seeing a judge. Those who decide that death could not be worse than life at Gitmo have participated in a hunger strike.

Rather than subject the Bush administration to embarrassment when prisoners die in U.S. custody, military guards force feed them. Thick plastic tubes are forced down their throats with no anesthesia. Tubes are not sterilized before being reused on other prisoners. The UN Human Rights Commission called the force-feeding “torture.” Many prisoners also report being tortured during interrogations.

Guantánamo has become the symbol of U.S. hypocrisy. While fighting the “war on terror” and attacking other countries for their human rights abuses, the officials in the Bush administration have become war criminals. Torture and cruel or inhuman treatment are punishable as war crimes under the U.S. War Crimes Act.

The Supreme Court held in Rasul v. Bush that the Guantánamo prison is under U.S. jurisdiction, so prisoners there are entitled to the protections of the Constitution. The Sixth Amendment mandates that every person charged with a crime has the right to be defended by an attorney. The government is forbidden by the Fifth Amendment from denying any “person” — U.S. citizen or not — due process of law. The presumption of innocence is enshrined in our legal system.

Bush’s attack on lawyers is the latest assault on our civil liberties, which now includes warrantless surveillance of our phone calls and email, and most recently, our U.S. Mail. Although Bush says he’s spying on the terrorists, those who criticize his policies, including his illegal and immoral war on Iraq, are also invariably in his cross hairs.

All Americans should heed the words of Martin Niemoller: “First they came for the Communists, but I was not a Communist, so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat, so I did nothing. Then came the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little. Then when they came for me, there was no one left who could stand up for me.”

George W. Bush must immediately renounce Stimson’s threats and relieve him of his duties. A country that would sacrifice its own values under the guise of protecting them has no moral authority in this world.

December 24, 2006

What’s Going On?

In 1971, singer Marvin Gaye raised hackles when he tried to make sense of the madness of the Vietnam War by asking, “What’s Going On?” He sang:

Mother, mother/ There’s too many of you crying/ Brother, brother, brother/ There’s far too many of you dying/ You know we’ve got to find a way/ To bring some lovin’ here today — Ya/ Father, father/ We don’t need to escalate/ You see, war is not the answer/ For only love can conquer hate/ You know we’ve got to find a way/ To bring some loving’ here today.

The song, told from the perspective of a returning Vietnam veteran, was inspired by Gaye’s brother who had recently returned from that disastrous war.

Gaye would be asking the same question if he were alive today. Nearly 3,000 U.S. soldiers and tens of thousands of Iraqis have died. A brutal civil war continues to escalate, aggravated by intense opposition to the U.S. occupation. The Joint Chiefs of Staff, Colin Powell, General John Abazaid – commander of U.S. forces in the Middle East who just resigned – and the vast majority of the American people oppose sending more U.S. troops to Iraq. Yet George W. Bush is planning to do just that.

Even staunch Republicans like MSNBC anchor Joe Scarborough, who supported the war and voted twice for Bush, is asking what’s going on. On his December 20 show, Scarborough was appalled by Bush’s statement, “I encourage you all to go shopping more.” MSNBC analyst Mike Barnacle noted that “this President is isolated, delusional, and stubborn.” Bush’s “delusion,” according to Barnacle, is going to result in the deaths and carnage of our troops and people throughout the Middle East. “I don’t think [Bush] knows what he’s saying . . . He is totally isolated from reality,” Barnacle added. “The deaths of American soldiers now verges on the criminal.”

So what is going on? Former Nixon counsel John Dean recently told a San Diego audience he doesn’t think Bush is in charge – Cheney is running the government. “One of Dick Cheney’s geniuses is that he lets Dubya wake up every morning and think he’s President,” Dean noted. Cheney has set up his own National Security Council in the Vice President’s office, according to Dean. Decisions about budgets, personnel, etc., never get to the Oval Office. Cheney decides the important matters before they ever reach Bush’s desk, Dean said.

The report of the Iraq Study Group was not prepared by a bunch of radicals. It even recommended privatizing Iraq’s oil. But the group of 10 saw that more troops and shunning Iran and Syria is not the answer. What did Bush do? He dismissed the ISG report out of hand in favor of Cheney’s agenda.

Why would Dick Cheney and the neocons who convinced Bush to start this war decide to pull out now? They created the war to achieve their imperial dream of privatizing Iraqi oilfields and building permanent U.S. military bases nearby to protect them. They are willing to sacrifice the lives of our soldiers and the Iraqi people in pursuit of their dream.

Cheney is undoubtedly telling the evangelical Dubya to hang in there, God is testing him. Remember Bush said he consulted with his heavenly father before starting the war. If Bush thinks God told him to start this war, what will it take to make him stop?

And it could get worse. Cheney-Bush has sent our battleships to the Persian Gulf to “warn” Iran that we mean business. And the White House blacked out parts of a New York Times op-ed on negotiating with Iran written by two former U.S. government advisors. This means, in all likelihood, that Cheney has decided it’s time to pick off the next member of the Axis of Evil. They’re following the same strategy they used on the way to Iraq: convince the American people that Iran is building weapons of mass destruction, notwithstanding overwhelming evidence to the contrary. Attacking Iran would cause a disaster of epic proportions.

Now that the Democrats are taking over the reins in Washington, we have a golden opportunity to set things right. But incoming Senate majority leader Harry Reid’s first instinct was to align himself with the 12 percent of Americans who support sending more troops to Iraq. And new House Speaker Nancy Pelosi lost no time in declaring that they would not cut funding for the war.

It seems more likely the Republicans, not the Democrats, will try to derail the Cheney-Bush war express. Senator Gordon Smith (R-Ore) declared last week on the Senate floor: “I, for one, am at the end of my rope when it comes to supporting a policy that has our soldiers patrolling the same streets in the same way, being blown up by the same bombs day after day. That is absurd. It may even be criminal. I cannot support that anymore.”

Ultimately, it is up to the American people to step up to the plate and stop this war. It’s fine to tell the pollsters we want our troops out of Iraq. But that’s not doing the trick. The Vietnam War ended after thousands of people marched in the streets. We may not have the draft to get the college kids off their duffs. But we do have our consciences. And that should be enough.