August 6, 2004

Modern Ballot Box Stuffing: Can We Trust Team Bush?

Democracy requires consent of the governed. Consent is measured by the results of fair and free elections. The midwives of our democracy were the founders who made the Revolution, and the leaders of the Civil Rights Movement that gave birth to The Voting Rights Act of 1964.

As we approach the November presidential election, the media treats us to daily updates on the razor-thin margin between the candidates as measured by the polls. The issues that divide Bush from Kerry are parsed in print and on television. We debate the state of the economy, the growing deficit, job loss, terrorism, and the War on Iraq.

Our conversations assume that voters, guided by the differences between the candidates on the issues, will go to the polls and cast their votes freely and fairly.

Casting a pall over that assumption, however, is the memory of Florida 2000, where 537 votes separated Bush from Gore. A confluence of factors led to the anointing of Bush as President.

A black vote in Florida was 50 percent more likely to be “spoiled”- and thus not counted – than a white vote, according to the U.S. Civil Rights Commission.

“Florida’s 2000 felon purge program resulted in over 50,000 legal voters being disenfranchised,” said Ion Sancho, Supervisor of Elections for Leon County in Florida.

And then there were the five members of the Supreme Court who diverged from their traditional deference to “states’ rights” by second-guessing the Florida courts. The conservative justices who handed the election to Bush became one-time champions of “equal protection of the laws” when they stopped the recounting of ballots.

The horrors of hanging and dimpled chads led many to sing the praises of electronic balloting. One of the corporations that manufactures touch-screen voting machines is Diebold Election Systems. Its chief executive, Walden O’Dell, told Republicans in an August 14, 2003 fundraising letter that he is “committed to helping Ohio deliver its electoral votes to the president next year.” As the state of Ohio will be pivotal in the upcoming election, O’Dell’s statement galvanized Democrats to demand a “paper trail” for all votes.

Thanks to the efforts of organizations such as MoveOn.Org, TrueMajority,, and ACT, all votes cast in Ohio in November will now have a paper trail.

But Election Data Services estimates that nearly 30 percent of voters in the presidential election will not vote in systems that produce paper to be used if a recount becomes necessary.

David Dill, Professor of Computer Science at Stanford University and founder of, has no evidence of a conspiracy to fix the election. But, he told me, “We know people would steal elections if they get the chance, and it wouldn’t be hard to steal.” The easiest way to commit fraud, according to Dill, would be by an insider at the company, a programmer who makes a hidden change to the software. With the current procedures, he said, there’s “not a ghost of a chance” the culprit would be caught.

Nearly 100 million of the 115 million votes cast in November will be tabulated by computers owned by four private corporations. Besides O’Dell’s Diebold, Election Systems and Software, Sequoia Voting Systems, and Hart InterCivic will count 5 out of 6 of the votes. Tom Hicks, one of Hart’s principal investors, has close financial ties with Bush.

Dill says, “It is not sufficient for an election to be accurate – the public has to know it’s accurate.” After Senator Max Cleland, the odds-on favorite to win reelection in Georgia in 2002, was defeated, 1 in 8 voters were “not very confident” or “not at all confident” that touch-screen voting machines had produced accurate results. Thirty-two percent were only “somewhat confident.”

Professor Dill advocates transparency in the process. People should watch, and audit trails must exist. With electronic voting, we can’t see inside the machine. Dill admits that paper ballots result in fraud as well, but we can see them; they’re transparent. He’s worried about a system that’s vulnerable to theft. Professor Dill endorses the optical scan system, which electronically scans the vote, and creates a paper backup.

In both the 2002 general election and the March 2004 presidential primary in Florida, there was a higher percentage of undervotes in counties that used touch-screen machines than in those using optical scanners. Undervotes occur when a voter apparently fails to make any choice at all. Moreover, nearly all the electronic records – 8 percent of the vote – from the 2002 primary in Miami-Dade County have been lost, leaving no audit trail. Voters using the touch-screen machines were 6 times as likely to record no votes as those in counties using optical scan machines. This suggests the possibility that intended votes were not recorded for some reason.

There is a bill pending in the House of Representatives that would require a voter-verified permanent record or hardcopy of every vote cast. H.R. 2239 has 150 co-sponsors. Dill maintains it is possible to provide paper backup for all votes cast in November, but thinks it “extremely unlikely,” as the bill is bottled up in committee. He does predict it might pass with an amendment requiring compliance by 2006. A similar bill by Bob Graham and Hillary Clinton, and co-sponsored by seven Democrats and one Independent, is pending in the Senate.

A June editorial in The New York Times decried the foibles of electronic voting machines, which, it claimed, are less secure than slot machines: “Voting machine standards are out of date and inadequate. Machines are still tested with standards from 2002 that have gaping security holes. Nevertheless, election officials have rushed to spend hundreds of millions of dollars to buy them.”

An additional cause for concern is the wrongful disenfranchisement of ex-felons. Republicans planning another mass purge in Florida were caught with their pants down when a judge forced them to reveal that Hispanics – who notoriously vote Republican there – were excluded from the purge. (With Bush’s latest anti-Cuba travel ban alienating many Florida Cubans, however, all bets are off on their votes).

Ion Sancho is alarmed at the lack of data to support the accuracy of Florida’s new felon purge list database for 2004: “As the Supervisor of Elections for Leon County,” Sancho said, “I will not be party to any effort, program or activity which may deny the voting rights of our citizens. I am outraged that our State officials, in an apparent pursuit of some imaginary voting fraud problem, are once again pursuing an ill-conceived program which may once again lead to the disenfranchisement of thousands of Floridians.”

In 2000, Florida denied the vote to 6 percent of its voting age citizens, 16 percent of its black voting age citizens, and 31 percent of its black citizen voting age men.

California attorney John R. Cosgrove argues in a new article in the Thomas Jefferson Law Review that the disenfranchisement of ex-felons in many states violates the Constitution. The Fourteenth Amendment carves out an exception to the Equal Protection Clause – intended to promote black male suffrage – for men who have committed a crime. Cosgrove maintains that this provision only excludes from voting those men who have committed crimes that were felonies at common law. Drug crimes, for example, are not common law crimes. He also notes there is no legal basis to disenfranchise female ex-felons.

The “Protect American Voters Act of 2004, “with 29 co-sponsors, is pending in the House of Representatives. It would require States to provide notice and an opportunity for review prior to removing any individual from the official list of eligible voters by reason of criminal conviction or mental incapacity.

It all boils down to trust. When Bush told us he was a “compassionate conservative,” he said: trust me. When he assured us he would pursue a “humble foreign policy” with no “nation-building,” he said: trust me. When Bush said Iraq was an imminent threat to us, he said: trust me. When he reassured us that the torture of prisoners was the work of but a few bad apples, he said: trust me. And most recently, when he raised the terror alert based on years-old intelligence data, he said: trust me.

Can we really trust this man, who has consistently lied to us about the most important matters of national security, not to engage in dirty tricks in the November election?

With many still smarting from the 2000 election stolen by George W. Bush, some have taken to quoting Joseph Stalin, who said: “Those who cast the votes decide nothing. Those who count the votes decide everything.” But Professor Dill, the voting rights champion, cautions against pessimism that would lead people to sit out the election. Even if the only option is touch screen voting without a paper trail, says Dill, “don’t stay away from the polls.” Our lives depend on it.

July 30, 2004

Bush Jumps on the 9/11 Band-Aid Wagon

The families of the people killed in the September 11 attacks had to fight tooth and nail for a commission to investigate why their loved ones died. George W. Bush opposed an investigation, but finally relented in the face of public pressure. He then dragged his feet when asked to provide information to the commission.

Four days before the start of the Democratic National Convention, the 9/11 Commission released its 567-page report, replete with recommendations for reform of a government that allowed the deaths of 3000 people. The chairman and vice chairman of the commission then appeared on myriad media outlets warning of the possibility of an imminent terrorist attack.

As his opponents took center stage this week, Bush secluded himself at his ranch in Crawford, Texas. But in a classic example of “when you’re being run out of town, get in the front of the crowd and make it look like a parade,” he’s taking a break from chopping wood to sign executive orders implementing some of the recommended reforms. “The president said he wants this on a fast track,” a Bush aide told reporters down at the Crawford ranch.

Bush “cannot be serious – and rest assured he is not,” Richard Cohen wrote in the Washington Post on Tuesday. “The many months of inactivity in this area offer eloquent testimony to Bush’s firm belief that little needs to be fixed. In the same way he could not answer earlier this year what mistakes he had made as president, he cannot even say what mistakes his government made that might have led to Sept. 11 and the debacle in Iraq.”

In my editorial, The 9/11 Report Misses the Point, I asked why the report omits any analysis of how the Iraq war has made us less safe since September 11. Lee Hamilton, vice chair of the commission, gave a revealing answer to that question in an interview by CNN’s Wolf Blitzer. Hamilton first explained that dealing with the Iraq issue “would have been highly divisive” for the bipartisan commission, but then caught himself and said it would’ve exceeded the commission’s mandate.

I also criticized the commission for failing to analyze the political reasons behind the 9/11 attacks. In an interview with The American Conservative, a former CIA agent charged with analyzing Osama bin Laden, identified by the Boston Phoenix as Michael Scheuer, said, “al-Qaeda itself has said that it could not wish for a better government than the one that is now governing the U.S. because, on the policies of issue to Muslims, al-Qaeda believes this government is wrong on every one and thus allows their insurgency to grow larger to incite other groups to attack Americans.”

Scheuer listed 6 U.S. policies Osama bin Laden has identified that appeal to the anger of Muslims: our unqualified support for Israel; our ability to keep oil prices down; our support for people who oppress Muslims; our presence in the Arabian peninsula; our military presence in Iraq and Afghanistan; and our support for Muslim tyrannies.

Yet Team Bush is in denial. Dick Cheney, touring the country while his boss chops wood, persists in defending the decision to attack Iraq, even though no weapons of mass destruction were ever found: “Sixteen months ago,” he told marines and sailors at Camp Pendleton, California Tuesday, “Iraq was a gathering threat to the United States and the civilized world. Now it is a rising democracy, an ally in the war on terror, and the American people are safer for it.”

Has Cheney adopted Bush’s habit of not reading the newspapers? The vice president didn’t mention the daily attacks on our troops in Iraq, nearly 1000 of whom have been killed. He doesn’t explain that the war on Iraq has brought terrorists out of the woodwork both there and around the world, where resentment against America is growing.

How would John Kerry deal with the quagmire in Iraq? In my opinion, much more effectively than Team Bush. While we don’t know the details of Kerry’s plans for Iraq, we do know there are major differences between Bush and Kerry as men.

When asked by Larry King how her husband would’ve reacted if he were president on September 11, 2001, Teresa Heinz Kerry would not fault Bush for his failure to react decisively. But John Kerry, she said, would’ve gone to the scene immediately. He would’ve wanted to be with his men.

Mindful that Bush is running on his claim that he’ll keep America safer, the Democrats have made national security the centerpiece of their convention. They are understandably taking advantage of John Kerry’s heroism in Vietnam. In the words of the Reverend Jesse Jackson, Kerry truly “left no one behind” when he turned his swift boat around and sped back into enemy fire to rescue a fallen comrade.

Contrast Kerry’s resolute and courageous actions during the Vietnam War with Bush’s reaction on September 11, 2001, when told the nation was under attack. Bush sat frozen in a kindergarten classroom for 7 minutes before rising from his chair. There can be no question which of these men is better suited to be commander-in-chief.

Rest assured the Republicans will mount vicious attacks on Kerry at their convention in late August. The Democrats should not hesitate to challenge head-on the current commander-in-chief whose leadership has proved disastrous.

July 24, 2004

The 9/11 Report Misses the Point

After vigorously resisting the establishment of the National Commission on Terrorist Attacks Upon the United States, known as the 9/11 Commission, George W. Bush is now celebrating its findings. “Constructive,” said the commander-in-chief, who plans to study the report. Bottom line: Bush is mightily relieved that the collective finger of the Commission doesn’t point too much in his direction.

No person or agency is singled out to take serious responsibility for the attacks that killed 3000 people on September 11, 2001. A list of missed opportunities is carefully divided 60-40, six occurring during the Bush II administration and four on Clinton’s watch. The report recommends the creation of a new intelligence czar, increased congressional oversight, and transparency in funding for intelligence. But the Commissioners were unanimous in refusing to conclude that 9/11 could have been prevented.

The events of September 11 are recited in chilling detail in the much-anticipated 500-page tome. Although the Commission concludes that the attacks “were a shock,” it says, “they should not have come as a surprise.” The report provides an itemized list of structural shortcomings, and improvements that could better prepare us for the next terrorist attack.

“Because of offensive actions against al Qaeda since 9/11, and defense actions to improve homeland security,” the Commissioners wrote, “we believe we are safer today.” They go on to say: “But we are not safe.” The centerpiece of Bush’s election campaign is his mantra that the world has become a safer place on his watch. Earlier this week, however, U.N. Secretary-General Kofi Annan said, “I cannot say the world is safer today than it was two, three years ago.”

Indeed, many feel Bush’s misguided war on Iraq has actually made us less safe. But the 9/11 report does not address Operation “Iraqi Freedom” critically. A 23-year veteran of the CIA, identified in the Boston Phoenix as Michael Scheuer, maintains in his soon-to-be-released book, “Imperial Hubris: Why the West is Losing the War on Terror,” that “Iraq was a gift of epic proportions to Osama bin Laden and those who think like him.”

The former CIA agent advocates a genuine debate within the United States about its policies in the Middle East, including its relationship with Saudi Arabia and its unqualified support for Israel. “I think before you draft a policy to defeat bin Laden,” says Sheuer, “you have to understand that our policies are what drives him and those who follow him.”

Scheuer is not alone in his admonition. Earlier this month, Senator Ernest F. Hollings (D-S.C.) penned in the Charleston Post and Courier: “Osama bin Laden hit us because of our presence in Saudi Arabia and policy in Israel/Palestine.” Hollings wrote: “Imagine 37 years’ occupation of Palestine … Palestine is left with the hopeless and embittered … But embittered refugees from without lead with terrorism.” The senator urges the building of a Palestinian state. “It can’t be built,” however, “while homes are bulldozed, settlements extended and walls are constructed.”

Both Hollings and Brandeis Professor Robert B. Reich, Secretary of Labor in the Clinton administration, dismiss the notion that we are fighting a “War on Terrorism.” Hollings says, “Terrorism is not a war, but a weapon.” Reich agrees: “Terrorism is a tactic. It is not itself our enemy.”

Challenging Bush’s claim that the terrorists hate us because of our values, Hollings retorts: “It’s not our values or people, but our Mideast policy they oppose.” Reich argues for restarting the Middle East peace process, which Bush has “run away from.”

Many in the Arab and Muslim world see U.S. policies as terrorist. They witnessed the deaths of one million innocent Iraqis as a result of Western sanctions during the 1990s. The tens of thousands of Iraqi civilians killed by Bush’s “coalition” in Iraq have not escaped their notice. And they see the photographs and hear the accounts of torture and humiliation of their brothers emerging from the prisons in Iraq, Afghanistan and Guantanamo Bay.

Yet the 9/11 report glosses over the atrocities, calling them “allegations that the United States abused prisoners in its custody.” The photographs belie this characterization as mere “allegations.” And the Commissioners have bought into Donald Rumsfeld’s moniker of “abuse,” when it is clear that rape, murder and sodomy with foreign objects constitute torture.

Conspicuously absent from the report is a political analysis of why the tragedy occurred. Missing from the report is a comprehensive strategy to overhaul U.S. foreign policy to inoculate us from the wrath of those who resent American imperialism.

The report does not undertake a serious criticism of Bush’s misadventure in Iraq, the lies under girding it, and the tragedy it has wrought in that country. It fails to analyze why this war that Bush created has opened a Pandora’s Box of terrorism where none existed before. Notably, there is a categorical statement that no evidence linked Iraq with the September 11 attacks.

However, the report focuses on Iran, noting that some of the hijackers easily passed through Iran in the months before 9/11. Yet it finds no evidence that Iran knew of the impending attacks.

Bush’s response to the report’s Iran reference is reminiscent of his reaction after the September 11 attacks. When Richard Clarke caught Bush alone in the Situation Room the next day, Bush “testily” ordered Clarke to investigate whether Iraq was involved in the attacks. Even though Bush admitted this week that the CIA had found “no direct connection between Iran and the attacks of Sept. 11,” he promised that “we will continue to look and see if the Iranians were involved.”

The Likud lobby in Washington, which drives much of our foreign policy, seeks the overthrow of the Iranian government partly because it stands in the way of the Israeli annexation of southern Lebanon and its prized Litani River. Bush’s base – the fundamentalist Christians – walks in lockstep with Ariel Sharon, driven by their determination that Jerusalem be in Jewish hands when Christ returns.

Whether Bush will make Iran the next test of his new illegal “preemptive” war doctrine if elected in November remains to be seen. His blustering about Iran may be designed to pander to his hawkish supporters as the election approaches. At the least, we can expect Bush, if given a second term, to covertly undermine Iran’s government, much as we did in 1953. The CIA led a coup to overthrow the democratically elected Mohammad Mossaddeq, and replaced him with the tyrannical but U.S.-friendly Shah, ushering in 25 years of torture and murder against the people of Iran.

Iran’s membership in Bush’s “axis of evil” was in the works two years before its formal inauguration in his state of the union address. In its September 2000 document, “Rebuilding America’s Defenses, Strategy, Forces and Resources For a New Century,” the neocon’s Project for the New American Century identified Iran, Iraq and North Korea as strategic targets.

We should not be surprised that countries like Iran and North Korea seek to develop nuclear weapons. While the United States rattles its sabers at these “rogue states,” it continues to develop new and more efficient nukes and pledges to use them “preemptively,” in violation of its commitments under the Nuclear Nonproliferation Treaty. The Bush administration has also exempted itself from a treaty prohibiting biological weapons to avoid being subject to international inspections.

Short shrift is given in the 9/11 report to the reverberations from U.S. policy in Iraq and Israel: “Right or wrong, it is simply a fact that American policy regarding the Israeli-Palestinian conflict and American actions in Iraq are dominant staples of popular commentary across the Arab and Muslim world.” Period. No analysis of the content or consequences of that commentary.

The Commissioners conclude: “Across the government, there were failures of imagination, policy, capabilities and management.” The consequences of U.S. foreign policy, which the CIA dubbed “blowback,” need not be left to the imagination of our leaders. The anger of millions of people in the Middle East does not stem from resentment at our democratic way of life. It is the understandable result of our policies that torture and kill their brethren.

The title of one chapter in the report quotes George Tenet: “The system was blinking red.” Indeed, we must heed the blinking red light of bitterness against U.S. imperialism throughout the Middle East.

Finally, the Commission writes, “we should offer an example of moral leadership in the world.” Unprovoked attacks on other countries, uncritical support for repression against an occupied people, and the killing and torture of prisoners are not examples of moral leadership.

We can reorganize, restructure and revamp our institutions. But until the American government undertakes a radical rethinking and remaking of our role in the world, we will never be safe from terrorist attacks.

July 13, 2004

Bush’s Judges: Right-Wing Ideologues

In 1988, while trying to convince skeptical conservative activists of his father’s Christian bona fides, George W. Bush reassured them that George I was with them on judicial nominations, as well as abortion and other issues dear to their hearts. Then he punctuated his declarations with the six words that would ensure their support for him 12 years later: “Jesus Christ is my personal savior.”

Bush’s brand of religiosity permeates his national policies. When Bob Woodward asked him whether he consulted his dad before invading Iraq, Bush said, “He is the wrong father to appeal to for advice, the wrong father to go to, to appeal to in terms of strength. There’s a higher Father that I appeal to.”

George W. Bush’s sort of Christianity also guides his judicial nominations. Bush’s nominees for lifetime appointments to our federal courts are judges who would eviscerate civil rights, workers’ rights, and the environment. Their agendas are anti-choice and pro-corporate.

Many people think the two most important things at stake in November’s presidential election are the war on Iraq and the economy. True, but perhaps the most far-reaching impact of this election is who will appoint the nation’s judges beginning January 2005.

The political balance on the Supreme Court hangs by a slender thread. Seventeen cases were decided on a 5-4 vote. Associate Justice Sandra Day O’Connor provided the swing vote in many of them. O’Connor and Chief Justice William Rehnquist have reportedly considered stepping down from the Court.

Associate Justice John Paul Stevens, lamenting the Court’s interference in the 2000 presidential election, said, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Although a one-vote margin of the Supreme Court anointed George W. Bush president in 2000, the Court has not voted in lockstep this term. In the Guantánamo and U.S. citizen detention cases, the Court made clear that the President’s power is not absolute. It upheld the rights of the disabled, and non-citizens to recover for human rights violations.

But the next President of the United States may have the opportunity to appoint four new justices to the Supreme Court. That power could radically change the complexion of the precariously divided Court that pronounces the law of the land.

Rehnquist, who has been on the Court for 32 years, is 79 years old. Stevens, a member of the Court for 29 years, is 84. And O’Connor, on the Court for 23 years, is 74 years old. Associate Justice Ruth Bader Ginsburg, 71 years old, is a cancer survivor in frail health.

It is common for a Supreme Court justice to serve for at least 20 or 30 years. That means that the man elected in November will likely determine the fabric of the law in America for the next 40 years. Ralph Neas, executive director of People for the American Way, says “more than 100 Supreme Court precedents would be overturned with one or two more right-wing justices like Thomas and Scalia.”

If Bush is elected, we can expect his Supreme Court picks to mirror his choices for our nation’s lower federal courts. Two of his nominees have made news lately for their advice on how Bush’s interrogators can torture prisoners without risking criminal prosecution.

Former Assistant Attorney General Jay S. Bybee prepared a 50-page document that defied U.S. statutory and treaty law by defining torture so narrowly, it would permit horrific treatment as long it wasn’t life-threatening. Bush rewarded Bybee for his legal creativity with an appointment-for-life to the Ninth Circuit Court of Appeals, the federal court with the largest caseload in the country.

Pentagon General Counsel William Haynes II is a career military lawyer with almost no courtroom experience that would qualify him for a lifetime seat on the Fourth Circuit Court of Appeals. Yet after Haynes supervised the preparation of a report advising that the President’s Commander-in-Chief authority would trump the prohibition against torture, Bush nominated him for a coveted spot on the Fourth Circuit.

This “federal appeals court in Richmond, Va., is emerging as a cutting-edge testing ground for conservative legal theories that only a few years ago seemed radical and almost unthinkable to liberal legal analysts,” Warren Richey wrote in the Christian Science Monitor two years ago. “Today, many of them are the law of the land. Instead of being overturned, these legal theories – involving limits to federal power and defendants’ rights – are being embraced and upheld by a slim majority of conservative justices on the US Supreme Court,” according to Richey. It’s no surprise that John Ashcroft decided to file the cases against John Walker Lindh and Zacarias Moussaoui in the Virginia district court. Ashcroft knew he would get more favorable appellate treatment from the Fourth Circuit, widely heralded as the most conservative circuit in the country.

The revelations of Haynes’ apologies for torture may not sit well when U.S. Senators, who must give their advice and consent to Bush’s nominees, consider Haynes’ nomination. Pictures and accounts of torture at Abu Ghraib prison, Guantánamo Bay and Afghanistan may have poisoned the well for William Haynes.

The Senate has confirmed 198 of Bush’s judicial nominees, bringing the vacancy rate to its lowest level in years. Nevertheless, in a campaign trip to Senator John Edwards’ home state of North Carolina and to Michigan, Bush claimed that Democrats were unfairly obstructing his judicial nominations.

Edwards’ tough questioning of Charles Pickering, Bush’s nominee to the Fifth Circuit Court of Appeals, was instrumental in the defeat of Pickering’s nomination. Bush, however, circumvented the Senate’s constitutional role in the selection of judges by appointing Pickering anyway during a Congressional recess.

Pickering’s checkered past includes his article explaining how to strengthen Mississippi’s statute criminalizing interracial marriages. He also cast several votes as a state senator impeding the full extension of electoral opportunities to African-Americans. Pickering voted for a constitutional convention to overturn Roe v. Wade. Perhaps his most controversial action as a federal district court judge involved his threats and unethical communications to force prosecutors to drop a charge against a man convicted of burning a cross on the lawn of an interracial couple with a small child.

Bush also ran an end run around the Senate by appointing Bill Pryor to the Eleventh Circuit Court of Appeals. Pryor has expressed extreme hostility to a woman’s constitutional right to reproductive choice. He called Roe v. Wade “the worst abomination of constitutional law in our history.”

But Pryor’s contempt isn’t limited to women. When he went to federal court to try to overturn a consent decree protecting abused and neglected Alabama children, he told reporters: “It matters not to me whether or not [my actions protect children]. My job is to make sure the state of Alabama isn’t run by [a] federal court. My job isn’t to come here and help children.”

Pryor fits nicely into Bush’s mold for right-wing Christian ideologues. Judge Pryor said that the challenge of this millennium will be to “preserve the American experiment by restoring its Christian perspective.”

Bush’s recess appointments of Pickering and Pryor so incensed Democratic senators that they held up several of Bush’s other pending judicial nominations. In May, Bush struck a deal with the Democrats. He agreed not to make recess appointments; the Democrats consented to allowing the votes to proceed on the 25 mostly “noncontroversial” pending nominees.

By a vote of 51-46, however, the Senate last week confirmed James Leon Holmes for a seat on the Eastern District of Arkansas, a federal district court. Holmes’ anti-woman and anti-choice views were so extreme that Republican Senators Hutchison, Chafee, Snowe, Collins, and Warner crossed party lines and voted against him.

Bush’s nomination of Holmes became a lightning rod due to his views on the subservience of women. In a 1997 article in a Catholic newspaper, Holmes wrote: “The wife is to subordinate herself to her husband” and “the woman is to place herself under the authority of the man.”

Holmes has compared legalized abortion to the Holocaust, and said: “I think the abortion issue is the simplest issue this country has faced since slavery was made unconstitutional. And it deserves the same response.” He has even dismissed the rape and incest exception by inventing the preposterous claim that “the concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami.”

In fact, studies estimate that between 25,000 and 32,000 women each year become pregnant as a result of rape in the United States, but only about 50 percent of these pregnancies end in abortion. And it has only snowed once in Miami in the last century.

Holmes blames the feminist movement for what he considers a whole host of immoralities: “It is not coincidental that the feminist movement brought with it artificial contraception and abortion on demand, with recognition of homosexual liaisons to follow. No matter how often we condemn abortion, to the extent we adopt the feminist principle that the distinction between the sexes is of no consequence and should be disregarded in the organization of society and the Church, we are contributing to the culture of death.”

Bush’s pending judicial nominees for federal circuit court appointments include Texas Supreme Court Justice Priscilla Owen, who voted to benefit Halliburton and Enron after taking campaign contributions from them. He has also nominated California Supreme Court Justice Janice Rogers Brown, whose decisions have shown great hostility to affirmative action, the rights of workers, gays, senior citizens and the disabled, to protecting children from lead poisoning, and to the right of choice. Two hundred-fifty law professors, including this writer, signed a letter to the Senate Judiciary Committee urging rejection of Brown’s nomination.

The Alliance for Justice, which monitors Bush’s nominations for federal judgeships, has set forth alternative criteria for evaluating the record of a judicial nominee: He or she should have demonstrated a commitment to protecting the rights of ordinary Americans, rather than placing the interests of the powerful over those of individual citizens. The nominee must have fulfilled his or her professional obligation to work on behalf of the disadvantaged. His or her record should show a commitment to the progress made on civil rights, reproductive freedom, and individual liberties. Or the nominee should have manifested a respect for the constitutional role Congress plays in promoting civil rights and health and safety protections and ensuring recourse when these rights are breached.

Many of George W. Bush’s nominees fail to satisfy any of these requirements. He has sought out ideologues who meet a litmus test for pleasing his right-wing religious backers. If Bush is elected president in November, we can expect him to mold the federal judiciary – and probably the Supreme Court – in his own image. A frightening thought.

July 4, 2004

The Reincarnation of Saddam Hussein

“I am Saddam Hussein, president of the Republic of Iraq.” So began the surreal public appearance of Saddam Hussein, his first since being dragged out of a spider hole by the “coalition forces” six months ago.

The proud, defiant Saddam who ruled Iraq with an iron hand for nearly 25 years was back with a vengeance.

Describing himself as always in the third person, he said Saddam “respected the will of the people that decided to choose Saddam Hussein as the leader of the revolution. Therefore, when I say president of the Republic of Iraq, it’s not a formality or a holding fast to a position, but rather to reiterate to the Iraqi people that I respect its will.”

Reminiscent of the staged assassination followed by an immediate swearing in of Woody Allen as the new president of a mythical Latin American country in “Bananas,” we were missing only Howard Cosell to narrate the charade.

According to the Los Angeles Times, “U.S. and Iraqi authorities took pains to make the court proceedings appear to be solely an Iraqi undertaking.”

In spite of the Statute of the Iraqi Special Tribunal’s mandate of public hearings, no one save the two dozen or so people present in the courtroom were supposed to hear Saddam’s words. But an audiotape of the proceedings was smuggled out to the media and listeners throughout the world.

A team of U.S. military officers censored the media coverage of the proceeding. They destroyed the videotapes of Saddam in chains and deleted the legal record of the statements of the 11 senior members of Saddam’s regime who appeared at the same hearing.

One journalist present in the courtroom revealed: “We learned later that the judge didn’t order us to turn off our sound. The Americans lied – it was they who wanted no sound. The judge wanted sound and pictures.”

The 26-minute colloquy gave us a roadmap of how Saddam will defend himself. Showing utter contempt for the judge whom he identified as a tool of the occupiers, Saddam sneered: “So you are an Iraqi representing the coalition forces?” Indeed, the judge was appointed by Saddam’s successor, L. Paul Bremer.

Saddam added: “You know that this is all a theater by Bush the criminal, to help him win his election.”

He was adamant that he had the right to invade Kuwait. Saddam declared that he “defended Iraq’s honor and revived its historical rights over those dogs,” whom, he claimed, “said it will reduce Iraqi women to 10-dinar prostitutes.”

The sight of Saddam standing up to his accusers played well throughout Iraq. Even many who had endured atrocities under Saddam’s regime saw him as the embodiment of their Arab land, shattered by bombs and occupied by Western infidels.

Yes, they suffered under Saddam. But Operation “Iraqi Freedom” has brought mostly misery to the people of Iraq. Tens of thousands of them have died in this illegal war. Almost 20 million of Iraq’s 26 million people have less available electricity than before the war began, according to the General Accounting Office. The Iraqi security forces are suffering from mass desertion. And the judicial system is more clogged than before the war; assassination attempts against judges are rampant.

The timing of Thursday’s court appearance corroborates Saddam’s assertion that the whole thing was theater. The ink was hardly dry on the “sovereignty” transfer papers when Saddam was rushed into a televised court appearance to create the illusion that Iraqis are running the show.

Truthfully, however, American fingerprints are all over these proceedings. Bremer was responsible for drafting The Statute of the Iraqi Special Tribunal before which Saddam appeared. This “neutral” tribunal is financed by the United States. The FBI is leading the investigation. Also on the team are the Bureau of Alcohol, Tobacco and Firearms and the Department of Justice. And although Iraqis have been given legal custody of Saddam, he remains in the physical custody of the Americans.

Emmanuel Ludot, one of 22 lawyers designated by Saddam’s wife to defend him, told the French newspaper Liberation: “All our effort will consist of paralyzing the operation of the Iraqi special tribunal, the legality of which we contest. This tribunal has no basis in law, since Iraq has no National Assembly today to create a special jurisdiction.” He called the trial preparations “a masquerade of justice.”

Ludot said: “The tribunal being put in place by the Americans is a disguised execution squad … These judges are still under the shock of emotion and pain.” Saddam, he warned, “will either be judged in fear or in vengeance.”

“The first thing Saddam will say is that he is and remains the Iraqi President,” according to Ludot. “Two countries, the United States and Great Britain, have invaded Iraq without a mandate and in violation of international law. Legally, that’s an aggression and everything that has happened since this invasion is tinged with irregularity.”

Asked where Saddam should be tried if this court is not competent, Ludot answered: “Since the United States did not want the International Criminal Court, there is a complete legal vacuum.”

But not one of Saddam’s 22 lawyers was with him in court Thursday. The tribunal’s statute provides for the right to counsel. The judge told Saddam: “I’m investigating, interrogating you.” Saddam asked for his lawyer before he signed the document the judge instructed him to sign. But when Saddam refused, the judge signed it for him.

Ludot said: “Clearly, we are not welcome in Iraq. The new authorities would prefer Iraqi lawyers easy to intimidate and a quick trial.” British attorney Tim Hughes said he and his colleagues were “kept in the dark” about the proceedings.

Another member of the legal defense team received threats from someone claiming to be from the Iraqi Justice Ministry. Anyone who tried to defend Saddam, the caller said, would be “chopped to pieces.”

Many Iraqis sympathize with Saddam. “It’s a humiliation, not just for Iraqis but for all Arab peoples,” Aamer Eliisa, a Shiite, told the Los Angeles Times. Eliisa said Saddam has become “a symbol for all Iraqis.”

Saddam’s harsh words about Kuwait hit a chord with Iraqis. Akram Adil said: “He’s right. Kuwait is a part of Iraq. He was defending our national rights … Kuwait was stealing oil from Iraq and trying to destroy our national economy.”

Kuwaitis have earned a reputation for “arrogant, drunken, lecherous and vulgar behavior,” according to the Los Angeles Times. And they have been implicated in the looting of the Iraqi National Museum that followed the march of the foreign forces into Baghdad last April.

Former president of Yugoslavia Slobodan Milosevic has defended himself against the same heinous charges Saddam will face. Like Milosevic, who was removed from his presidency by U.S.-led forces engaged in illegal regime change, Saddam will put America on trial.

This will be interesting in light of the support the United States furnished to Saddam in the 1980s, including the provision of chemical weapons. That support is embodied in the photograph of Donald Rumsfeld’s warm handshake with Saddam even with the knowledge that Saddam was gassing the Kurds.

June 30, 2004

Supreme Court: War No Blank Check for Bush

In a direct repudiation of the Bush administration’s position that the President is answerable to no one, the Supreme Court held the Guantánamo prisoners and U.S. citizen Yaser Hamdi are entitled to contest their detention in federal courts. The Court, however, punted in Jose Padilla’s case, holding that he filed his case against the wrong person in the wrong court.

For more than two years, the government has held 600 foreign-born men and boys prisoner at Guantánamo Bay, Cuba. No charges have been filed and they have not been allowed access to any court to challenge their confinement. Bush has maintained that, under his war-making power, he could hold prisoners captured in the “war on terror” incommunicado indefinitely if he decided they were “enemy combatants.”

Bush ruled in 2002 that he could suspend the protections of the Geneva Conventions. His order likely led to the torture that has recently come to light at Guantánamo, as well as in Afghanistan and Iraq. (See my editorial, “Bush’s ‘Humane’ Torture Policy Hits a Speed Bump.”)

Prisoners released from Guantánamo report being tortured. They describe assaults, prolonged shackling in uncomfortable positions, sexual abuse and threats with dogs. There are reports of prisoners being pepper sprayed in the face until they vomited, fingers being poked into their eyes, and their heads being forced into the toilet pan and flushed. Dozens of videotapes of American guards brutally attacking prisoners are reportedly catalogued and stored at the Guantánamo prison. Thirty-two suicides took place in an 18-month period.

As evidence of torture leaked out of Abu Ghraib prison during the last few months, a Guantánamo-Iraq torture connection was revealed. General Geoffrey Miller, implicated in setting torture policies in Iraq, had been transferred from Guantánamo to Abu Ghraib last fall specifically to institute the same harsh interrogation procedures he had put in place at Guantánamo.

Bush’s torturers had plied their trade in secret, accountable to no court or public scrutiny. Guantánamo was, according to a Red Cross spokeswoman, “a legal black hole.”

The Bush administration denied these men their day in court, saying that Guantánamo Bay is not a U.S. territory, and thus, U.S. courts are not available to them. This position was premised on the absurd notion that Cuba is actually sovereign over Guantánamo Bay, even though the United States exercises exclusive jurisdiction over it.

Amnesty International noted: “It is deeply ironic that the USA is violating fundamental rights on Cuban soil, and relying on the fact that it is on Cuban soil to keep the US courts from examining its conduct.”

The government’s lawyer asserted during oral argument in a Ninth Circuit case that the Guantánamo prisoners would have no judicial recourse even if they were claiming the government subjected them to torture or summary execution. The court was deeply disturbed by this notion.

When the first 20 shackled prisoners arrived at Guantánamo on Jan. 11, 2002, Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, warned: “These are people who would gnaw through hydraulic lines at the back of a C-17 to bring it down.” But last week, The New York Times reported that the value of the information possessed by the alleged terrorists was greatly exaggerated.

Nevertheless, these men have languished in tiny cells under inhuman conditions. With no judicial accountability, military interrogators could torture them with impunity. They could all be held until the “war on terror” ends – that is, for the rest of their lives, solely on Bush’s say-so.

Fortunately, the Supreme Court’s ruling in Rasul v. Bush has changed that. It held that the Guantánamo prisoners have the right to go to federal court to challenge their confinement. The United States exercises “complete jurisdiction and control” over the Guantánamo Bay base, wrote Justice Stevens. “Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority” under the habeas corpus statute.

The Court’s opinion, however, is a bittersweet ruling. Although it provides the Guantánamo prisoners access to the courts, it implies that courts could uphold the President’s “enemy combatant” designation in certain cases, resulting in lifetime confinement even without a criminal conviction. The Court tragically ignores the explicit prohibition on indefinite detention enshrined in international law.

In Hamdi v. Rumsfeld, the Supreme Court ruled that due process demands a U.S. citizen held in the United States as an enemy combatant is entitled to a meaningful opportunity to contest the factual basis for his detention before a neutral decision maker. That includes the right to counsel. Yaser Hamdi’s detention might be lawful, however, if a court determined that the government correctly classified him as an “enemy combatant.”

Hamdi’s father, who filed the lawsuit on his son’s behalf, said the 20-year-old was traveling on his own for the first time, and because of his lack of experience, he was trapped in Afghanistan once the U.S. military campaign began. Hamdi, who went to Afghanistan to do relief work, was there less than two months before September 11, 2001. The government filed a document filled with vague generalities to support Bush’s designation of Hamdi as an enemy combatant.

Justice O’Connor wrote for the Court: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” In a direct slap at Bush, O’Connor noted, “even the war power [of the President] does not remove constitutional limitations safeguarding essential liberties.” O’ Connor echoed a theme she has raised in prior Court decisions, which is particularly relevant today: “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

But, instead of holding that a President cannot hold an American citizen indefinitely, the Court set forth a balancing test for determining whether the President’s designation of a U.S. citizen as an enemy combatant will be upheld. Henceforth, a court reviewing a claim will weigh the private interest of the detained citizen against the governmental interest in determining whether to sustain an enemy combatant classification.

O’Connor did, however, make clear that detentions of U.S. citizens must be limited to the Afghanistan context; they are not authorized for the broader “war on terrorism.” She acknowledged, “history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not pose that sort of threat.”

Justice Souter wrote a concurring opinion, noting that the USA Patriot Act authorizes the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings. Congress, therefore, would require the government to clearly justify its detention of an American citizen held on home soil incommunicado.

Curiously, the right-wing Justice Scalia, in his separate opinion joined by the most liberal Justice Stevens, would not permit the indefinite detention of an American citizen in Hamdi’s present situation. They would require the government to prefer criminal charges or release the individual, unless Congress were to suspend the writ of habeas corpus.

“The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal,” according to Scalia.

Only Justice Thomas held out for blind deference to the President: “This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision.”

That the Rasul and Hamdi decisions are a mixed blessing is illustrated by the reactions to them. Hamdi’s lawyer said he was “delighted” by the decision. The American Civil Liberties Union called the rulings “a huge defeat for the government.” Likewise, the American-Arab Anti-Discrimination Committee said the decisions represent “a major victory in upholding due process rights … a great victory in protecting our core values as Americans.” In striking contrast, the conservative Wall Street Journal called them “a modest but important victory for the Presidency.” Its editorial celebrated the Court’s affirmation of “the authority of the Commander-in-Chief to detain enemy combatants, including U.S. citizens.”

Finally, the Supreme Court, in a 5-4 nod to the Bush administration, elevated procedure over substantial rights, and declined to rule on Jose Padilla’s case. Ironically, whereas the Guantánamo prisoners can now file habeas corpus petitions in any federal court, U.S. citizen Jose Padilla’s petition was thrown out because it was filed in New York rather than South Carolina.

After he was arrested in Chicago, Padilla was taken to New York to answer a grand jury material witness warrant. While Padilla was in New York, Bush ordered Donald Rumsfeld to designate Padilla an “enemy combatant.”

Rumsfeld transferred Padilla to military custody and sent him to a naval brig in South Carolina. Meanwhile, Padilla filed a habeas corpus petition in the New York Court, naming Rumsfeld as a defendant. Five of the nine justices ruled that Padilla had to re-file his petition in South Carolina and name the commander of the military brig as a defendant.

The four dissenters decried Padilla’s “secret transfer” to South Carolina, which prevented his lawyer from filing in South Carolina. Once he was transferred, Padilla was denied access to his attorney until February 11, 2004. The dissent’s author, Justice Stevens, wrote: “At stake in this case is nothing less than the essence of a free society.” Accusing the majority of using a procedural technicality to deny Padilla fundamental rights, Stevens concluded his opinion with reference to torture:

“Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”
Tragically, Jose Padilla remains incarcerated in limbo indefinitely until the lengthy procedure to secure the rights guaranteed him by the Constitution works its way once again through the judicial system.

George W. Bush has used the crimes against humanity committed on September 11, 2001, to launch a “war on terrorism.” Under the guise of his new “war,” Bush rounded up more than 1000 men in the United States solely for being Arab or Muslim. At Guantánamo, Bush has kept 600 men and boys locked up, with the intention of keeping them there incommunicado until his “war on terror” is over. In Iraq, Bush invaded a sovereign country that posed no threat to the United States, killed thousands of its people and allowed nearly 1000 of our people to be killed. In spite of the absence of any evidence linking Saddam Hussein to the September 11 attacks, Bush claims his war on Iraq is a centerpiece of his “war on terror.”

The Supreme Court has bought into Bush’s claim that we are fighting a “war on terror.” It has declined to tell Bush he cannot hold “enemy combatants” indefinitely. But, most significantly, the Court has told Bush his power is not absolute. The 600 prisoners at Guantánamo and Yaser Hamdi finally have the right to go into court and claim their innocence.

This is indeed a victory for the rule of law.

June 28, 2004

Bush’s “Humane” Torture Policy Hits a Speed Bump

On February 7, 2002, George W. Bush declared in an executive order that he could suspend the Geneva Conventions, which require that war prisoners receive humane treatment. Myriad news reports during the past month suggest that government interrogators took full advantage of that order to extract information from prisoners held at Abu Ghraib prison in Baghdad.

To read the headlines in The New York Times, though, you would think that order qualified Mr. Bush for a Nobel Peace Prize. The Times credited Bush with setting a “humane tone” in his order. The Times places too much emphasis on self-serving language in the order stating “[a]s a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” When one reads the full text of the order, however, there can be no doubt that Bush intended to authorize U.S. interrogators to use torture to elicit information from its prisoners in Afghanistan, Guantánamo Bay and elsewhere. The Times overlooked Bush’s qualifier that “military necessity” trumps humane treatment.

You would hardly recognize the men implicated in the apparent conspiracy to torture prisoners in U.S. custody. Former Assistant Attorney General – now federal court Judge – Jay S. Bybee, is characterized as a “gentle” soul in another New York Times article. Yet he advised Alberto R. Gonzales, Bush’s White House lawyer, that “certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity” to constitute unlawful torture. In an August 1, 2002 memo, Bybee took 50 pages to methodically explain how U.S. military interrogators could circumvent our laws prohibiting torture. A human being, according to the gentle Bybee, could torture another human being as long as the torturer relied in good faith on legal advice in Bybee’s memo.

Bybee’s thesis, of course, is preposterous. Following the hue and cry heard ’round the world after release of his legal memo, the Bush administration quickly distanced itself from it. White House spokesmen inform us that the “humane” Mr. Bush never saw it. They now declare it “irrelevant,” although it remained in force for two years, and was cited in numerous subsequent memos. We are told that it will be completely rewritten. The slate will be wiped clean.

Bush’s spinmeisters first maintained that the heinous torture methods justified in memos recently released by the government were never employed. Those hundreds of pages of carefully worded legalese, according to Gonzales, were merely “exploring the boundaries as an abstract matter” of what was permissible.

But now they contend that the Bybee memo was not intended for use at Guantánamo Bay, only to guide CIA interrogators who question top al-Qaeda leaders. “Current and former government officials” quoted in today’s New York Times admit, however, that the memo was used as an after-the-fact legal basis for harsh procedures already in use by the CIA. First the sentence, then the verdict.

Bush’s deputies, desperate to quell the firestorm surrounding the burgeoning torture exposé, deny that the commander-in-chief saw many of the memos. “I don’t believe the president had access to any legal opinions from the Department of Justice,” said his lawyer Gonzales.

We do know, however, that Bush had “extensive discussions” involving the “complex legal questions” of whether the Geneva Conventions apply to the al-Qaeda and Taliban fighters captured by U.S. forces, because his February 7, 2002 order stated precisely that.

In his order, Bush “accept[s] the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva.” Gonzales would have us believe Bush accepted the Ashcroft/Justice Department conclusion without even reading any memos.

We are being asked to take it on faith that even though Bush had extensive discussions with lawyers from the Defense and Justice Departments before issuing his February 7, 2002 order, he conveniently wasn’t privy to later memos that justified torture. Most significantly, we don’t know whether Bush signed any directives on prisoner interrogation after February 7, 2002.

After some of the memos leaked out last month, the administration decided to release more of them in the face of intense public outrage. The original intent was to keep them secret. Bush’s Feb. 7, 2002 order was not scheduled for declassification until 2012. Donald Rumsfeld’s April 16, 2003 memo, which authorized the use of aggressive interrogation methods at Guantánamo Bay, was to remain classified until 2013.

Senator Patrick Leahy [D-Vt] spearheaded a subpoena for a gaggle of other government memos advising how to torture without risking criminal prosecution. (Last week, on the Senate floor, the genteel Vice President Dick Cheney rewarded Leahy for his efforts to shine light on Halliburton’s activities by suggesting to Leahy: “Go fuck yourself.”) In a characteristic move to limit transparency – and political damage to Bush – the Republican-dominated Senate Judiciary Committee scuttled Leahy’s subpoena. Senator Edward Kennedy thereafter accused the White House of orchestrating “a cover-up.”

Of the memos recently made public, The New York Times editorialized: “About the only thing in them worth keeping secret was the degree to which the administration had decided to exempt itself from the Geneva Conventions and then spent months debating whether there was a legalistic way to justify what ordinary people would consider torture of prisoners.”

The discussions within the administration about interrogation policy did not occur without dissent, although the communications from the dissenters were conspicuously absent from the documents the government released last week.

A 2002 letter from William H. Taft, the State Department’s legal advisor to the Justice Department’s deputy assistant attorney general, called the Justice Department’s approach to handling detainees “seriously flawed,” and said its reasoning was “incorrect as well as incomplete.”

Senior military leaders concurred. They maintained that the Geneva Conventions should apply to the Taliban militia. Also, pursuant to a requirement of Geneva, flouted by Bush, military lawyers favored holding military tribunals to determine which Geneva provisions would protect individual detainees.

Additional pressure on the Bush administration is coming from the attorneys defending the soldiers charged with criminal conduct at Abu Ghraib. Harvey Volzer, counsel for Army Spc. Megan Ambuhl, said: “Isn’t it amazing that hooding, nudity and physical contact short of death and organ failure all are mentioned as techniques, and yet the administration would have us believe that they were not employed when Bush was getting no results from interrogations”?

At the same time Bush’s A-team was engaged in damage control on the torture front, his UN-team was scrambling to ram a resolution through the Security Council that would give him and his men immunity from war crimes prosecutions in the International Criminal Court. Similar strong-arm tactics had earned him immunity resolutions in the previous two years. But the revelations of torture were too much for U.N. Secretary General Kofi Annan to bear. Annan urged the Security Council to resist the resolution “given the prisoner abuse in Iraq.” He warned, “It would discredit the Council and the United Nations that stands for the rule of law and the primacy of the rule of law.”

As a result, Bush was dealt a severe political blow when he was unable to muster enough votes for the resolution. “It also marked the most concrete evidence of a diplomatic backlash against the scandal over abuses of U.S. detainees in Afghanistan and Iraq,” according to the Washington Post. The Financial Times called it a “major diplomatic defeat.”

No big deal. U.S. Deputy Representative to the U.N., James Cunningham, said we still have the bilateral immunity agreements. The Bush administration secured them by blackmailing 90, primarily small, nations or fragile democracies with weak economies. These countries have pledged not to hand over U.S. nationals to the International Criminal Court, which Bush has denounced. But the three-dozen countries that resisted Bush’s bullying suffered the cutoff of military assistance for their obstinacy.

Not to worry. Coalition dictator Paul Bremer extended his order that U.S. military personnel would be immune from prosecution for killing or torturing Iraqis. The only glitch is the handover of “sovereignty” to the Iraqis on June 30. Bremer’s decree will be null and void once the occupation ends.

The new Iraqi government would be hard pressed to agree to give Americans immunity for killing and torturing Iraqis. When the Iranian government granted immunity to U.S. troops in the 1960s, Ayatollah Ruhollah Khomeini used it to galvanize opposition to the Shah. In a 1964 speech, Khomeini said, “Our honor has been trampled underfoot; the dignity of Iran has been destroyed.” The immunity, according to Khomeini, “reduced the Iranian people to a level lower than that of an American dog.”

In another blast from the past, the gentle soul John D. Negroponte was quietly sworn in as U.S. ambassador to Iraq. Negroponte, who was U.S. ambassador to Honduras in the 80s, was instrumental in covering up the torture and summary executions carried out by the Honduran government.

Also sworn in under the radar was the kindly John Danforth as U.S. ambassador to the United Nations. As described in my column, “John Danforth – Bad Choice for U.N. Ambassador,” Danforth knows almost nothing about the United Nations. He voted against sanctions on apartheid South Africa and for cutting funds for U.N. peacekeeping. But his vote to limit U.S. support for international family planning and his fanatical, albeit dishonest, engineering of Clarence Thomas’ Supreme Court nomination landed him the plum nomination for U.N. ambassador.

Bush has compassionately appointed individuals with torturous pasts to high positions in government. The Good Judge Bybee, expert on how to torture without leaving illegal marks, will regularly be called upon to interpret laws against torture which are frequently cited by applicants for political asylum.

Last week, in response to the growing torture scandal, Bush attempted to put us at ease by saying: “Let me make very clear the position of my government, and our country. We do not condone torture. I have never ordered torture. I will never order torture.”

Bill Clinton was unsuccessful in putting many at ease when he said, “I am going to say this again: I did not have sexual relations with that woman, Ms. Lewinsky.” Clinton was subsequently impeached for lying to a grand jury about the Monica Lewinsky affair.

It remains to be seen whether the “humane” Mr. Bush’s torture denials will hold up. Time will also tell whether Bush, who hired a trial lawyer and was questioned by federal prosecutors for 70 minutes, can escape a felony grand jury indictment for the Valerie Plame affair.

June 18, 2004

The Torturer-in-Chief

The teflon that has enveloped George W. Bush is chipping off. Arriving in office with the promise of a “humble” foreign policy, Bush was sitting pretty at the beginning of his term. But George’s honeymoon has turned sour.

From the first day of his presidency, the neocons in Bush’s cabal determined to “stabilize” Iraq for U.S. corporate investment. Bush had his own motives to “git” Saddam for his would-be hit on George I. The tragedy of September 11 gave them just the opportunity they’d been waiting for.

Cloaking themselves in the “War on Terror,” Bush and his minions methodically wove an intricate web of deception to convince the American people that Saddam was about to launch the “mushroom cloud,” ending civilization as we know it.

It was our mission, Bush preached, to save the Iraqis from Saddam-the-torturer. But a telling phrase in Bush’s January 2003 State of the Union Address should have prepared us for the emergence of Bush-the-torturer.

“All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate,” Bush said. “Let’s put it this way,” he clarified, “they are no longer a problem for the United States and our friends and allies.”

This was an implicit admission by Bush that he had sanctioned the summary execution of the “many others.”

Gradually, it became clear there were no weapons of mass destruction. This week, the 911 Commission reported there is no credible evidence Saddam Hussein and al Qaeda cooperated in the 911 attacks. Yet, this same week, Dick Cheney intoned that Saddam “had long-established ties with al Qaeda.” More disinformation.

Americans soon began to tire of Operation “Iraqi Freedom.” Most feel there was no good reason to suffer the deaths of nearly 1000 American soldiers and thousands of Iraqis, no need to spend billions of precious taxpayer dollars on the Iraqi quagmire.

In the face of waning support for the war and the impending U.S. election, the Bushies devised a strategy to hand-over “sovereignty” to the Iraqi people on June 30. Notwithstanding the titular end of the occupation, 138,000 American troops will remain on the ground in Iraq. Although the violence in Iraq has intensified, with Iraqis fighting both the occupiers and other Iraqis, the June 30 date stands firm.

Meanwhile, the photographs began to emerge. The world was treated to images of pyramids of naked Iraqis, forced masturbation, unmuzzled dogs snarling at prisoners a few inches away, bleeding and dead Iraqis.

Major General Antonio Taguba’s report was released. It documented sodomy with a chemical light and electric wires attached to the penis of a nude hooded prisoner.

As fingers began to point up the chain-of-command, prisoners were released and commanders reassigned. The cover-up got underway.

Donald Rumsfeld called it “abuse,” not “technically” torture. A few bad apples. Nothing too serious.

Seven low-ranking soldiers were quickly charged with crimes under the Uniform Code of Military Justice – the fall guys and gals.

And then “the leaks” began. The photographs and testimonials of torture had empowered those on the inside to contact the media with the bombshells. We learned that Bush’s hired guns had secretly penned two tomes, one for the Defense Department and the other for the Justice Department. Both documents purport to justify the use of torture under the President’s war-making power, notwithstanding the Constitution’s clear mandate that only Congress can make the laws.

The Congressional powers enumerated in the Constitution: “Congress shall have the power – to define and punish – offenses against the law of nations; to declare war – and make rules concerning captures on land and water; – [and] to make rules for the government and regulation of the land and naval forces.”

As commander-in-chief, however, the President has a “constitutionally superior position” to Congress, according to the memo written for the Defense Department. It seems the president’s men have now taken on the tripartite Separation of Powers doctrine enshrined in the Constitution.

Their constitutional apostasy flies in the face of the landmark ruling in the Korean War case, Youngstown Sheet & Tube Co. v. Sawyer, where the Supreme Court held, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” For, as the Court noted, “The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times.”

Try as they might, the lawyers commissioned by Donald Rumsfeld and presidential counsel Alberto R. Gonzales were unable to find a loophole in the Torture Convention’s absolute proscription on torture. “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,” according to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Torture Convention, ratified by the United States, is part of the supreme law of the land under the Constitution. Congress implemented our obligations under this treaty by enacting the Torture Statute, which provides 20 years, life in prison, or even the death penalty if death results from torture committed by a U.S. citizen abroad. The USA PATRIOT Act added the crime of conspiracy to commit torture to the Torture Statute.

Bush’s lawyers used tortured reasoning to opine that the Torture Statute cannot be utilized to prosecute Americans in Guantanamo because it lies within the “territorial jurisdiction of the United States, and accordingly is within the United States.”

The Bush administration has hypocritically taken the opposite position in denying the Guantanamo prisoners access to U.S. courts to challenge their indefinite detention.

The Torture Convention prohibits the intentional infliction of severe physical or mental pain or suffering on a person to (a) obtain a confession, (b) punish him, or (c) intimidate or coerce him based on discrimination of any kind. To violate this treaty, the pain or suffering must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Ashcroft’s legal eagles redefined torture, narrowing it to require the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” For mental pain or suffering, they would require “significant psychological harm of significant duration, e.g., lasting for months or even years.”

The Istanbul Protocol of 9 August 1999 is the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It sets forth international guidelines for the United Nations High Commissioner for Human Rights.

Included in the Protocol’s list of torture methods are rape, blunt trauma, forced positioning, asphyxiation, crush injuries, humiliations, death threats, forced engagement in practices violative of religion, and threat of attacks by dogs. The photographs and reports from prisoners in Abu Ghraib include all of these techniques.

Moreover, the Defense Department analysis maintained that a torturer could get off if he acted in “good faith,” not thinking his actions would result in severe mental harm. If the torturer based his conduct on the advice in these memos, he would, according to this argument, have acted in good faith.

Who authored the “whorific” rationalizations for the Justice and Defense Departments? A Washington Post editorial called it “a shocking and immoral set of justifications for torture.” William J. Haynes II, Bush’s nominee for a lifetime seat on the Fourth Circuit Court of Appeal, oversaw the preparation of the report for the Department of Defense. And another Bush nominee for a federal judgeship, former Assistant Attorney General Jay S. Bybee, now a permanent judge on the Ninth Circuit Court of Appeals, drafted the document for the Department of Justice. How cozy.

Not only has Bush received legal [sic] advice on how to get around our obligations under the Torture Convention and the Torture Statute. His lawyer Alberto Gonzales, opining on whether to apply the Geneva Conventions to Taliban and al Qaeda prisoners, told Bush the “new paradigm” of the war on terror “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”

Evidently the Bush administration thinks prohibitions on torture, and Congress’ lawmaking authority in our own Constitution, are quaint.

Gonzales, who is often mentioned as a prospective Bush nominee for the Supreme Court, went on to assure his boss that “your determination [to bypass the Geneva Conventions] would create a reasonable basis in law that Section 2441 [the War Crimes Statute] does not apply, which would provide a solid defense to any future prosecution.” So Bush’s own decision to bypass Geneva gives him a defense to violating Geneva.

One year ago, Bush repudiated torture in a statement on the United Nations International Day in Support of Victims of Torture: “Torture anywhere is an affront to human dignity everywhere,” he assured us disingenuously.

Trying to calm the mushrooming public relations disaster occasioned by the leaking of the legal opinions, Bush said flippantly, “The instructions went out to our people to adhere to law. That ought to comfort you.” But last week, when Bush was asked whether he had seen the Justice Department memo, he answered, “I don’t remember.”

Rumsfeld, who, according to a Defense Department spokesman, approved 24 of 35 interrogation techniques in a classified directive, refuses to state publicly what he sanctioned. Ashcroft defied Congressional requests to release the legal policy memo prepared at his instigation.

“There are some extremely damaging documents around, which link senior figures to the abuses,” according to former New York Bar Association chairman Scott Horton, who is advising dissenters at the Pentagon. He maintains, “The biggest bombs in this case have yet to be dropped.”

If Bush knew or should have known about the torture, and failed to stop or prevent it, he could be liable for “command responsibility” if prosecuted under the War Crimes Act or the Torture Statute. A federal court in Miami in July 2002 held two retired Salvadoran generals liable for torture, even though neither had perpetrated or ordered it.

On January 21, 2004, a prisoner gave a sworn statement to the Washington Post about his experience in Abu Ghraib. He reported being beaten on his kidneys and ear until he lost consciousness, being tied to the window with his hands behind his back until he lost consciousness, and being sodomized with a stick about 2 centimeters into his anus.

Sgt. Greg Ford, a California National Guardsman, said he repeatedly revived prisoners who had passed out after being choked in an Iraqi police station. Ford saw a soldier stand on the back of a handcuffed detainee’s neck and pull his arms until they popped out of their sockets. “Twice I had to pull burning cigarettes out of detainee’s ears,” according to Ford.

Another former National Guardsman was choked and beaten to the point of brain damage, while acting as a detainee being beaten by fellow military policeman during training at Guantanamo.

These accounts do not describe conduct befitting a civilized country.

George W. Bush came into the White House – albeit through the back door – pledging to restore honor to the White House. Instead, he has dishonored America by leading us into an illegal war under false pretenses.

In light of the Defense and Justice Department documents, there is probable cause to believe that the commander-in-chief condoned the methodology of torture to secure information from prisoners.

The Constitution mandates the impeachment of a President for high crimes and misdemeanors. There is no higher crime than a war crime. Willful killing, torture and inhuman treatment constitute grave breaches of the Geneva Convention, which are considered war crimes under The War Crimes Act of 1996. Even if Bush’s lawyers could successfully parse the meaning of torture, they cannot deny that the atrocities we’ve seen constitute inhuman treatment.

Bush impliedly admitted sanctioning willful killing, torture and inhuman treatment in his 2003 State of the Union Address. He would be liable under the doctrine of command responsibility for war crimes committed in Iraq as well. The captain goes down with his ship. It is time to call for the Impeachment of George W. Bush.

June 11, 2004

John Danforth—Bad Choice for U.N. Ambassador

Cheers went up on both sides of the aisle last week when George W. Bush nominated John Danforth to be the new U.S. ambassador to the United Nations. Easy confirmation is expected for the former Republican senator from Missouri who has much experience brokering agreements in the Senate.

Coincidentally, Danforth, an ordained Episcopalian minister, was also tapped to officiate at Ronald Reagan’s funeral Friday, as Billy Graham is hospitalized. With millions of Americans watching that emotional event, the senators who will vote on Danforth’s nomination would be hard-pressed to oppose it.

Hail fellow, well met. Danforth is popular among his brethren in the Senate.

Unfortunately, John Danforth “doesn’t know much about the U.N.,” according to former ambassador Robert Oakley. William H. Luers, president of the United Nations Association, said Danforth would be hampered by his lack of knowledge about the U.N. “He hasn’t had any great experience in diplomacy,” said Oakley. “But,” he added, “knowing how to work the crowd in the U.S. Senate teaches you how to work the crowd anywhere.”

So how will Danforth work the crowd at the United Nations? He voted against imposing sanctions on South Africa for its system of apartheid in the mid-80s, and for cutting funds for U.N. peacekeeping in 1990s.

But most telling is Danforth’s vote to limit U.S. support for international family planning – the litmus test for a Bush nomination. With the premier international peacekeeping organization at a crucial crossroads in this “preemptive strike” period, Danforth’s anti-abortion pedigree does not qualify him to take the United States seat at the Security Council.

Danforth is a right-wing zealot in moderate’s clothing. By his own account, he ferociously rammed Justice Clarence Thomas’ imperiled nomination to the Supreme Court through the Senate in 1991.

In his cathartic book, Resurrection: The Confirmation of Clarence Thomas, Danforth wrote he was “ashamed” by his unchecked emotions and the methods he used to discredit Professor Anita Hill, who had accused Thomas of sexual harassment. Aware of Hills’ charges, Danforth didn’t tell the senators, instead trying to force a vote before the Senate had been able to hear Hill’s accusations. He also threatened to refuse to support a civil rights bill if moderate Democrats opposed Thomas.

“In my years in the Senate,” wrote Danforth, “I had never witnessed an explosion of uncontrolled anger like mine.” Danforth admitted, “I completely lost my temper in a table-pounding, shouting, red-in-the-face profane rage.” Even Sen. Strom Thurmond was shocked. “You are a minister,” Thurmond told Danforth. “You shouldn’t take the Lord’s name in vain.”

Aside from Danforth’s irascibility, the book reveals his poor judgment in supporting a paranoid and unstable future Supreme Court justice who thought people were out to kill him long before Hill came forward with her allegations. Danforth characterizes Thomas in a state of hysterical withdrawal, nearly catatonic, clenched in a fetal position, hyperventilating and sobbing convulsively. Frightening allegations about one of the judges who sits on the highest court in the land, albeit silently, during oral arguments.

Danforth asserts disingenuously, “Clarence did not want to be nominated to the Supreme Court,” a claim belied by Thomas’ own frequent statements to the contrary. Danforth also admits using questionable methods to tarnish Hill’s credibility, with conduct so unprincipled that some of his own staff threatened to quit. Rob McDonald, Danforth’s top aide, thought Danforth “had to win at any cost.”

“Ms. Hill was outspoken and argumentative,” wrote Danforth. “In Clarence’s words, ‘She was certainly not a Republican. She was not part of the Reagan team.'” Indeed, Clarence had campaigned for Reagan in 1984.

Often referred to as “Saint Jack,” Danforth describes praying with Thomas and playing “Onward Christian Soldiers” for him just before Thomas’ final defense in front of the Senate Judiciary Committee. “And when Clarence left my office for the Caucus Room,” Danforth wrote, “it was not as a martyr with his eyes fixed on heaven. It was as a warrior doing battle for the Lord.”

Most alarming, Danforth expressed a fear several times that Thomas’s denials might subject him to perjury charges and possible impeachment.

Aside from Danforth’s questionable judgment on domestic matters, what about his international experience?

Shortly before September 11, 2001, Bush appointed Danforth to be his special envoy to Sudan. In the past year, Sudan’s government and its allied death squads have killed an estimated 30,000 people in the Darfur region of western Sudan.

Mukesh Kapila, the U.N. resident coordinator for Sudan, said, “In my view this is the world’s greatest humanitarian crisis and possibly the world’s greatest humanitarian catastrophe … There has been systematic burning of villages and displacement of the population. There are reports of women being raped, other men and women disappearing.”

Danforth helped broker a peace agreement between the Sudanese government and rebel forces. But if Danforth had engaged the United Nations in this conflict in a meaningful way, the ethnic cleansing in Darfur might have been prevented.

An editorial in the Washington Post earlier this week said, “The tragedy is that aggressive diplomatic pressure would have a good chance of working … The United States and its allies should press for a U.N. Security Council resolution demanding full and humanitarian access … And they should authorize the use of military escorts for emergency aid.” But, according to The Post, “The United States is overcommitted militarily in Iraq and elsewhere.”

Carroll Bogert, associate director of Human Rights Watch, wrote in the Post last month, “The U.S. should take the lead in the U.N. Security Council – where members are reluctant to take a stand in the face of a strenuous lobbying by the Sudanese government – to lay out a schedule for the reversal of ethnic cleansing.”

Moreover, John Prendergast, special adviser on Africa to the non-partisan International Crisis Group, described Danforth’s “lack of engagement in details of the [peace] negotiations” in Sudan, “which he left to staff people.” Prendergast sees this as a possible “liability at the U.N.”

John Danforth is uniquely unqualified to serve as U.S. ambassador to the United Nations.

But he has other qualities besides his dogmatic religiosity that would endear him to Bush, defender of corporate interests. Danforth is now reincarnated as a corporate lawyer who sits on the Boards of Directors of The Dow Chemical Company, Time Warner, General American Life Insurance Company, Cerner Corporation and MetLife, Inc.

He is also a former senator from Missouri, an important battleground state. Every victorious presidential candidate has won Missouri.

Bush expects Danforth’s nomination to sail through the Senate. But John Danforth’s spotty record should give us pause about how he would behave on our behalf in the Security Council in these most perilous times.

June 9, 2004

Bush the Would-Be Torturer

It’s all falling into place. The Wall Street Journal has revealed that Bush’s lawyers told him he can order that torture be committed with impunity. It is now official that George W. Bush is above the law.

As horror after horror emerged from Abu Ghraib prison, Americans exclaimed that this is not behavior befitting our great country. Many wondered how such atrocities could be perpetrated by United States citizens. We hoped that this was simply the behavior of a few bad apples run amok. But the dots have now been connected for us. Torture is sanctioned policy that comes from the top.

In a classified report prepared for Donald Rumsfeld in early 2003, a working group of lawyers appointed by the Defense Department’s general counsel, William J. Haynes II, advised that Bush is not bound to follow United States laws that prohibit torture. Government agents who torture under orders from Bush won’t be successfully prosecuted, according to the report, which is scheduled to be declassified in 2013.

Never mind that the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which makes it part of the supreme law of the land under our Constitution. Never mind that this treaty specifies that torture is never permitted, even in times of war. Never mind that Congress implemented this treaty by enacting a Torture Statute providing for 20 years, life in prison or, even the death penalty when the victim dies, for U.S. soldiers or civilians who engage in torture. And never mind that torture constitutes a war crime, for which our officials can be punished.

The Bush administration lawyers have created their own jurisprudence, which effectively holds the president is not bound to follow the law.

Extrapolating from the “necessity” defense in criminal law, Bush’s lawyers counsel, in effect, that the end justifies the means. It’s the proverbial ticking time bomb scenario. Torture the bastard to avert a terrorist attack. But not only is this illegal; it doesn’t work. Senator John McCain says the tortured will rarely provide reliable information. This position has been affirmed by many of the prisoners released from Abu Ghraib who said they made up information to get the torture to stop.

Bush’s legal experts also rehabilitated the “superior orders” defense. It didn’t work for the Nazis at Nuremberg or Lt. William Calley who was prosecuted for the My Lai Massacre in Vietnam. That defense can only be asserted when the defendant was following a lawful order. An order to commit torture would be unlawful, as it would violate the Convention Against Torture and the Torture Statute.

But Haynes’ team assures Bush his orders would be legal because he’s the president and he’s the highest law in the land (notwithstanding the Constitution, Congress and the Supreme Court). Indeed, one of the lawyers who prepared the report said the intention of the political appointees heading the working group was to realize “presidential power at its absolute apex.”

The report was written in response to concerns by senior officers at the U.S. prison at Guantanamo Bay, Cuba. They advocated “a rethinking of the whole approach to defending your country when you have an enemy that does not follow the rules.” Of course, we needn’t follow the rules because we’re the good guys.

Remember that in the course of trying to convince the American people that war with Iraq was necessary, Bush marshaled accusations that Saddam Hussein had tortured his people. But we have God – and Bush – on our side, so we’re allowed to torture.

In late 2002, after the Washington Post revealed allegations of behavior of U.S. commanders that might amount to torture in Afghanistan, Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken “to clarify that the use of torture is not U.S. policy.” Roth reminded Bush that, “U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world.” The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven’t ratified the Torture Convention.

The Bush administration has been emboldened to itself engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: “This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off.” If Bush has his way – and the most electoral votes in November – those gloves will stay off.

There are some striking contradictions between Bush administration policy in the “war on terror” and the working group’s rationalizations for Bush to authorize torture. The lawyers who prepared the report admitted that the Torture Statute applies to Afghanistan.

But they declared it does not cover our actions in Guantanamo because it is within the “territorial jurisdiction of the United States, and accordingly is within the United States.” Yet, the Bush administration has denied these prisoners access to U.S. courts to challenge their detention precisely by claiming that the U.S. is not sovereign over Guantanamo Bay. Either the United States has jurisdiction over Guantanamo or it doesn’t. You can’t have it both ways.

The Ninth Circuit Court of Appeals decided that U.S. courts do have jurisdiction to hear the Guantanamo prisoners’ complaints. That court was extremely alarmed at the government’s assertion during oral argument that these prisoners would have no judicial recourse even if they were claiming the government subjected them to acts of torture. The Ninth Circuit said: “To our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.” The court said this was “a position so extreme that it raises the gravest concerns under both American and international law.”

By the end of June, the Supreme Court will decide whether U.S. courts have jurisdiction over the Guantanamo prisoners.

In December 2002, the United Nations General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the U.N. Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.

The legal advice which would permit Bush to order torture without sanction is consistent with his policy to ignore or denounce treaties and federal laws that don’t comport with his program. Bush’s unprecedented act of “unsigning” the International Criminal Court statute, and coercing Security Council resolutions and bilateral immunity agreements, are meant to ensure that neither he nor his top advisors ever become defendants in war crimes prosecutions. But under the well-established laws of the United States, Bush would be a war criminal if he authorizes torture as recommended in the classified report.