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December 13, 2005

The Death Penalty Is Not Pro-Life

In 1960, California Governor Edmund G. “Pat” Brown agonized about whether to grant clemency to death row inmate Caryl Chessman. Brown’s refusal to commute Chessman’s sentence haunted him for the rest of his life. He reversed 23 death judgments in the last 7 years of his term. Ronald Reagan, who defeated Brown in the 1966 gubernatorial election, used the death penalty as a weapon to unseat the incumbent governor.

Twenty years later, Rose Bird, one of the greatest chief justices ever to serve on the California Supreme Court, lost her confirmation election largely because of the way she voted in death penalty cases. In all 64 capital cases that came before her during her tenure, Bird voted to overturn every one. Her court as a whole reversed 61. Some of Bird’s supporters advised her to affirm just one death verdict in order to win confirmation. Bird refused. She said, “It is easy to be popular. It is not easy to be just.”

Republican Governor George Deukmejian and President Ronald Reagan both campaigned against Bird. “The defeat of Rose Bird was significant because it created a new danger in [California], the danger of politicizing a judicial branch that had not previously been subject to political pressures,” Court of Appeals Justice J. Anthony Kline observed. Reagan’s opposition to judges who “save the lives of killers” helped him in his bid for the presidency.

The fate of Stanley Tookie Williams now rests in the hands of California Governor Arnold Schwarzenegger. The governor is damned if he does and damned if he doesn’t spare Williams’s life. On the one hand, Schwarzenegger is under pressure from right-wing Republicans to refuse clemency. But there’s also high-profile pressure on him in California to grant clemency and prove his campaign claims that he really is a moderate.

When Schwarzenegger denied clemency to Donald Beardslee, the governor was the subject of a mighty backlash in his native Austria, which has outlawed the death penalty. And he must deal with his conscience, much like Pat Brown did in 1960. Schwarzenegger said the Beardslee decision was “the hardest day” of his life.

If ever there was a condemned man who deserved clemency, Williams is the one. A co-founder of the Crips gang, Williams has undergone a remarkable transformation in the 24 years he has been in prison. The author of several children’s books that decry gang violence (65,000 have been sold to schools and libraries), Williams has been nominated for the Nobel Peace Prize.

In 1993, Williams videotaped a message from death row supporting a truce between the Crips and the Bloods. He said, “Working together, we can put an end to this cycle that creates deep pain in the hearts of our mothers, our fathers, and our people, who have lost loved ones to this senseless violence.” The videotape was shown during a peace summit meeting attended by over 400 gang members. If Schwarzenegger refuses Williams’s plea, what message will it send to our children?

By granting clemency to Williams, Schwarzenegger would affirm the ideal of rehabilitation he claims to favor. A governor’s pardon of Williams would signal that people can be redeemed, that mercy, not just retribution, is a worthy goal. “I have a despicable background,” Williams said. “I was a criminal. I was co-founder of the Crips. I was a nihilist. But people forget that redemption is tailor-made for the wretched.”

But even if Schwarzenegger pardons Stanley Tookie Williams, we must ask ourselves if we want to continue to engage in the state-sponsored killing of our people. “The reason to oppose capital punishment,” the Los Angeles Times wrote in a recent editorial, “has to do with who we are, not who death row inmates are. The death penalty is inappropriate in all situations because it is unbefitting of a civilized society. Williams’ case, though poignant, is irrelevant to this argument.”

As it deliberates the nomination of Judge Samuel Alito, the Senate must also deal with what it means to be “pro-life.” Alito, who claims to be pro-life when it comes to abortion, is pro-death when it comes to the death penalty.

During his tenure on the Court of Appeals, Alito has shown little solicitude for death row inmates bringing habeas corpus petitions, particularly claims based on ineffective assistance of counsel and racial discrimination in jury selection. His positions in these cases run contrary to recent Supreme Court decisions emphasizing the importance of both race-neutral jury selection and constitutionally adequate counsel.

In 2001, Alito voted to affirm the death judgment of an African-American man convicted by an all-white jury in Delaware. The prosecutor had struck all prospective African-American jurors from the jury pool. That same prosecutor had struck every prospective African-American juror in 3 other capital murder trials in the same county during the prior year. When Alito refused to infer racial discrimination from that pattern, he said, flippantly, “Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections … But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?”

A majority of the full court accused Alito of “minimiz[ing] the history of discrimination against prospective black jurors and black defendants.”

Stanley Tookie Williams, an African-American, was also convicted and sentenced to death by a jury cleansed of all prospective African-American jurors by the prosecutor, based on the testimony of paid police informants. Williams maintains his innocence.

If confirmed as a Supreme Court justice, Alito would have a powerful influence over whether many of our citizens live or die. In the past 5 years, the Court decided only 3 cases concerning abortion, but over 3 dozen involving the death penalty.

Capital cases are complex and often laden with error. A recent study at Columbia University found that 67 percent of death penalty cases had been reversed for serious constitutional error. Recurring features in these cases include prosecutorial or police misconduct; the use of unreliable witness testimony, physical evidence, or confessions; and inadequate defense representation. There is a growing number of cases where DNA or other evidence has proved conclusively that death row inmates are factually innocent. In some cases, that evidence has surfaced too late – after innocent people have already been executed.

The United States is the only industrialized Western democracy that still executes its citizens. In 2004, 97 percent of all known executions took place in China, Iran, Vietnam and the United States. Several major international human rights treaties eschew the death penalty. None of the 3 international criminal tribunals – the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda – permit the death penalty as a sentencing option for the most heinous of crimes over which they have jurisdiction.

Scientific studies have consistently failed to find convincing evidence that that the death penalty deters crime more effectively than other punishments, according to Amnesty International.

“The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality,” US Supreme Court Justice Arthur L. Goldberg wrote in a 1976 article in the Boston Globe. We must not be a society that rewards the meanest judges and elected officials. Let us choose and affirm life, not death.

November 29, 2005

Bush Game on Padilla May Backfire

Once again, at the 11th hour, the Bush administration has pulled its punches in the case of Jose Padilla. Using an approach that more closely resembles a game of chess than a system of justice, Team Bush has altered its strategy, while seeking to keep all options open. Its fancy footwork, however, may ultimately backfire.

Last Tuesday, just before today’s due date for the government’s reply to Padilla’s petition to the Supreme Court, Attorney General Alberto Gonzales announced the criminal indictment of Padilla. With this move, Bush hopes to prevent the high court from placing limits on his power to hold anyone he designates an “enemy combatant.”

I remember the day in May of 2002 that Jose Padilla, a US citizen, was arrested at O’Hare Airport in Chicago. Former Attorney General John Ashcroft interrupted his trip to Moscow to ceremoniously announce on television that the government had foiled Padilla’s effort to detonate a radioactive “dirty” bomb on the streets of America. Coming just 8 months after the September 11 attacks, those were fighting words to the American people.

The day of Padilla’s arrest, I appeared on MSNBC’s Abrams Report. Dan Abrams was foaming at the mouth about “the dirty bomber.” When I reminded Abrams, a lawyer himself, about the presumption of innocence, he became furious, slamming his papers on the table.

Bush & Co. were banking on a similar reaction from the American people and the US courts. Team Bush hoped we would just salute and march when they rounded up hundreds of “terrorists,” locked them up, and then threw away the key. They hoped we would look the other way when they tortured their prisoners. They hoped that the Imperial President could designate anyone an “enemy combatant” and no questions would be asked.

The government has changed its designation for Jose Padilla 3 times. When Padilla was arrested, he was called a “material witness,” being held to testify against the terrorists. A month later, Bush labeled Padilla an “enemy combatant.” Padilla was transferred to a military brig in South Carolina and denied any contact with counsel. Even though a federal judge ruled in December 2002 that Padilla was entitled to have a lawyer to challenge his detention, he was not permitted to consult with counsel until March 2004.

Bush finally allowed Padilla to meet with a lawyer in order to pre-empt an unfavorable ruling in his upcoming Supreme Court case in 2004. And while the Court was considering Padilla’s case, the Justice Department announced that he had planned to use natural gas to blow up apartment buildings in the US. These 2 moves by the administration were designed to save face and undercut Padilla’s case in the Supreme Court.

In June 2004, the Supreme Court ruled in the case of Yaser Hamdi that a US citizen held in the United States as an enemy combatant has a due process right to contest his detention before a neutral decision maker, and that includes the right to counsel. Justice Sandra Day 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.”

The same day, however, the high court declined to rule on Padilla’s case because his habeas corpus petition had been filed in New York, where he was originally held, rather than South Carolina, where he was currently incarcerated. Five of the 9 justices said that Padilla must re-file his petition in South Carolina and name the commander of the military brig, rather than Donald Rumsfeld, as a defendant. Padilla filed a new petition.

In the Hamdi case, Justice Sandra Day O’Connor and 4 other justices limited the definition of “enemy combatant” to someone “carrying a weapon against American troops on a foreign battlefield.” But Padilla was arrested in the United States. Padilla’s lawyers are asking a question that the Bush administration is afraid for the Court to answer: “Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?”

Bush will argue that this issue is now moot, since he filed criminal charges against Padilla. But, talking out of both sides of its collective mouth, the Bush administration also maintains that even if Padilla is ultimately acquitted of the criminal charges, it can re-arrest him and hold him as an enemy combatant. Thus, Padilla’s lawyers are arguing that the issue is not moot and the Supreme Court should decide it.

Ironically, the charges the government brought against Padilla have nothing to do with dirty bombs or natural gas explosions. The indictment portrays Padilla as a bit player in a conspiracy to murder and kidnap, but not in the United States. And it accuses him of providing material aid to terrorists. It does not even allege he is a member of al Qaeda.

If the government had charged Padilla with dirty bomb or explosion charges, the testimony of the prosecution’s only “witnesses” would be inadmissible or unbelievable since they were tortured to implicate Padilla. One of them, Khalid Sheikh Mohammed, suffered excessive use of “waterboarding,” a torture technique that simulates drowning. This was confirmed last year in a report by the CIA inspector general. Another review released by US intelligence agencies in April 2003 assessed the quality of Mohammed’s information as “Precious Truths, Surrounded by a Bodyguard of Lies.”

A second government “witness” against Padilla, Binyan Mohammed, was taken to Morocco to be tortured, according to his lawyer Clive A. Stafford Smith. “He signed a confession saying whatever they wanted to hear, which is that he worked with Jose Padilla to do the dirty bomb plot. He says that’s absolute nonsense, and he doesn’t know Jose Padilla.”

Padilla has been held by the Bush administration in solitary confinement for more than 3 years without criminal charges. Now, in the government’s haste to avoid an unfavorable ruling in the Supreme Court, it has charged Padilla with crimes that may be trumped up. For the first time, Padilla will have an opportunity to tell his side of the story in court; it may be a story of harsh interrogation that the government would prefer to keep quiet. Padilla will undoubtedly be offered a plea bargain to prevent his telling the truth about what happened to him while he languished in military custody for so long. The government may offer Padilla a deal like the one it offered John Walker Lindh, who was also facing life in prison. Lindh was allowed to plead guilty to lesser charges on the condition that he not mention the mistreatment he suffered while in custody.

The legal maneuvering by the Bush administration is “a remarkable game of musical courtrooms,” said Eugene Fidell, president of the National Institute for Military Justice. “The Justice Department cannot continue changing course each time action from the courts is imminent,” according to Rep. Adam B. Schiff (D-Calif.), a member of the Judiciary Committee.

Bill Goodman, Legal Director of the Center for Constitutional Rights, characterizes the charges against Padilla as a “stale conspiracy” and predicts the government will try to have Padilla’s petition to the Supreme Court dismissed as moot. “In my judgment,” Goodman said on Democracy Now!, “that borders on abuse of process by the Justice Department. What they are doing is manipulating the process in order to sustain an opinion that says the President can virtually shred the Constitution … and saying someone who had been held in violation of constitutional principles because he was such a danger to the United States because of these allegations, now they’re irrelevant. It’s shocking. It’s an outrage.”

Jose Padilla’s case may end up being a lose-lose situation for the Bush administration if the Supreme Court decides to go ahead and hear Padilla’s petition anyway. Depending on the composition of the high court after Samuel Alito’s confirmation hearing, the Court could place some limits on the President’s power to indefinitely detain a US citizen arrested on American soil and held as an “enemy combatant.” Padilla could refuse a plea bargain and testify about how he was treated – or mistreated – while in custody. And the defense may have a meritorious motion to dismiss the criminal charges because the government denied Padilla due process by its delay in filing the charges against him.

November 22, 2005

Ending the Occupation

In a bombshell that reverberated throughout the country, Congressman John Murtha called Thursday for an immediate withdrawal of our troops from Iraq. “The US cannot accomplish anything further in Iraq militarily,” Murtha said. “It is time to bring [the troops] home … They have become the enemy.”

Murtha, a decorated and highly-respected veteran of the Vietnam War, said he has been visiting our wounded troops at Bethesda and Walter Reed hospitals almost every week since Bush invaded Iraq.

Rep. Murtha probably saw “soldiers with faces slashed by bombs and stitched up by doctors, soldiers with legs terribly mangled, soldiers with no legs – amputees with short stumps, with long stumps, without any stumps since entire limbs are missing,” as fellow veteran Stewart Nusbaumer reported seeing at Walter Reed in his article in Intervention Magazine last month.

At times choking back tears, Murtha said, “I have visited with the severely wounded of this war. They are suffering.”

The 73-year-old former Marine colonel, who earned two Purple Hearts, a Bronze Star with a Combat “V” and the Vietnamese Cross of Gallantry, knows of what he speaks. It was Murtha to whom Dick Cheney turned for advice years ago. In the 2004 vice-presidential debate, Cheney, who didn’t fight in Vietnam because he had “other priorities,” noted that Murtha was “one of my strongest allies in Congress when I was Secretary of Defense [in the Bush I administration].” When Cheney was first tapped for the job, he told Murtha, “I’m going to need a lot of help. I don’t know a blankety-blank thing about defense.”

Cheney’s respect for the war hero evaporated, however, after Murtha’s explosive remarks last week. “The President and I cannot prevent certain politicians from losing their memory, or their backbone,” the chicken hawk veep snarled in a speech to the right-wing Frontiers of Freedom Institute.

In a clear reference to Cheney’s draft dodging during the Vietnam War, Murtha replied, “I like guys who got five deferments and [have] never been there and send people to war, and then don’t like to hear suggestions about what needs to be done.”

Murtha’s powerful statements echoed through the White House. Spokesman Scott McClellan, taking a page from Ann Coulter’s playbook, accused Murtha of “endorsing the policy positions of … the extreme liberal wing of the Democratic Party.” Unfortunately, the Democratic Party has no significant liberal wing.

But Murtha’s comments were the catalyst for a fierce debate in the House about the war. House Democrats gave Murtha a standing ovation when he entered the chamber Friday. Congresswoman Jean Schmidt (R-Ohio) attacked Murtha by quoting an Ohio Marine colonel: “He asked me to send Congress a message: stay the course. He also asked me to send Congressman Murtha a message: that cowards cut and run, Marines never do.”

Democrats reacted with loud boos, shouting Schmidt down. The House came to a standstill.

Many in Congress may be catching up with the majority of Americans who want all US troops out of Iraq by the end of 2006. Two days before Murtha made his statement, the Senate approved a resolution by a vote of 79 to 19, designating 2006 as “a period of significant transition to full Iraqi sovereignty … thereby creating the conditions for the phased redeployment of United States forces from Iraq.” The resolution also requires the White House to submit unclassified reports to Congress every 90 days with details about US policy and military operations.

That resolution was passed after the Senate voted down a Democratic resolution that would have pressured Bush to formulate a plan to reduce US forces in Iraq. Although only 13 House Democrats have endorsed Murtha’s proposal to begin an immediate withdrawal from Iraq, the Los Angeles Times reported yesterday that some insiders believe a majority of them may ultimately support it.

“No matter how the White House chooses to spin it,” a New York Times editorial said Thursday, “the United States Senate cast a vote of no confidence this week on the war in Iraq.”

During his press conference, Murtha quoted Gen. George Casey, commander of US forces in Iraq, who told Congress in September that “the perception of occupation in Iraq is a major driving force behind the insurgency.” Murtha said, “Our troops have become the primary target of the insurgency. They are united against US forces and we have become a catalyst for violence. US troops are the common enemy of the Sunnis, Saddamists and foreign jihadists.”

Murtha cited the findings of a recent poll that “over 80 percent of Iraqis are strongly opposed to the presence of coalition troops, and about 45 percent of the Iraqi population believes attacks against Americans are justified.” Murtha added, “I believe we need to turn Iraq over to the Iraqis.”

Phyllis Bennis of the Institute for Policy Studies in Washington thinks the Bush administration will begin to reduce the number of US troops after the Iraqi elections in December. She predicts that Bush will leave 35,000 to 50,000 troops, sending them to the four big US bases in the four quadrants of Iraq to protect the other 10 permanent US bases.

Indeed the New York Times reported Saturday that the Pentagon is about to approve a sweeping directive to elevate “stability operations” to a core military mission on par with full-scale combat.

Bennis says there is a civil war raging in Iraq, but not a conflict between Sunni and Shi’a. It is a clash between those who support the occupation and those who oppose it. She estimates there are only about 1,000 armed terrorists – who target civilians. If the US ended its occupation, the Iraqi resistance forces would continue to fight each other for a while, but they would isolate the hard core terrorists.

Rep. John Murtha’s call for an end to the occupation was echoed by Larry Johnson, a former CIA expert on terrorism. Johnson wrote in the Booman Tribune Friday, “The Iraqi insurgency consists of at least 26 different groups and draws upon as many as 250,000 supporters. These groups represent a spectrum of beliefs ranging from secular nationalists to hard core jihadists. The only thing they agree on is that they hate the invader, which is us.”

Last month, William E. Odom, Director of the National Security Agency under Reagan and Assistant Chief of Staff for Intelligence, penned an article on Antiwar.com called “We Should ‘Cut & Run.'” He wrote, “We can’t prevent a civil war by staying” in Iraq. “For those who really worry about destabilizing the region, the sensible policy is not to stay the course,” according to Odom.

“The American public is way ahead of the members of Congress,” Murtha said. The quagmire Bush created in Iraq is draining life from our soldiers and money from our coffers.

The United States should not simply withdraw some of its troops from Iraq. The occupation must end now.

November 15, 2005

Graham Amendment Invokes Constitutional Crisis

The “accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
–James Madison, Federalist Paper No. 47

In blatant defiance of the Constitution’s guarantees of Habeas Corpus and separation of powers, the Senate on Thursday approved the Graham Amendment to the Department of Defense Authorization Act by a vote of 49 to 42. Five Democrats joined all but 4 Republican Senators in giving the President unfettered power to hold prisoners at Guantánamo Bay, Cuba, for the rest of their lives, with no criminal charges, and no right to challenge their confinement by Habeas Corpus.

Last year, the Supreme Court held in Rasul v. Bush that the Guantánamo detainees are entitled to file habeas petitions in US courts to contest their detentions. The high court determined that non-US citizens held at Guantánamo, “no less than American citizens, are entitled to invoke the federal courts’ authority” to hear their petitions under 28 USC § 2241, the US Habeas Corpus statute.

The Supreme Court stated firmly in Rasul, “Consistent with the historic purpose of the writ, this Court has recognized the federal courts’ power to review applications for habeas relief in a wide variety of cases involving Executive detention, in wartime as well as in times of peace.”

The Graham Amendment is crafted to render Rasul a nullity by cutting off the rights of Guantánamo prisoners to have their habeas petitions considered by the federal courts. The Amendment limits federal court review to the narrow issue of the validity of decisions rendered by Combatant Status Review Tribunals. These kangaroo courts were set up to determine whether the Guantánamo prisoners are “enemy combatants.” They are not independent judicial tribunals, but rather administrative proceedings stacked with military officials who can use secret or even fabricated evidence. The prisoner is not entitled to be represented by an attorney.

Only a handful of prisoners at Guantánamo have been charged with crimes. Their cases will be heard in military commissions that George W. Bush established to impose long sentences and even execute detainees with virtually no judicial oversight. Without habeas access to federal courts, Bush and Donald Rumsfeld will ostensibly serve as prosecutor, judge and executioner in the military commissions. This flies in the face of the constitutional doctrine of separation of powers. Three days before the Graham Amendment was passed, the Supreme Court announced it would review the legality of those military commissions in Hamdan v. Rumsfeld.

Even though the majority of prisoners detained at Guantánamo admittedly pose no threat to the United States, they continue to languish in virtual isolation under torturous conditions. Two hundred of them, who have decided death is preferable to life, are trying to starve themselves in a hunger strike.

Last month, the Senate passed the McCain Amendment, which makes it unlawful for any “individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location [to be] subject to cruel, inhuman, or degrading treatment or punishment.” Bush and Cheney have fought this measure tooth-and-nail because it would interfere with their ability to torture prisoners with impunity. The Graham Amendment will undermine the ability of tortured prisoners to enforce the McCain Amendment in federal courts.

By foreclosing judicial review of sentences imposed by the military commissions, the Graham Amendment also violates Common Article 3 of the Geneva Conventions, a ratified treaty and therefore part of US law under the Supremacy Clause of the Constitution. That article prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Unlawful combatants are protected by Common Article 3.

Violations of Common Article 3 constitute war crimes under the federal War Crimes Act. Violators can receive life in prison, or even the death penalty if the victim dies.

Sen. Lindsey Graham’s pernicious Amendment was proposed and passed with no debate about its far-ranging implications and without any hearings. The senators who voted for it bought into Bush’s “war on terror” mantra, ignoring the basic constitutional principles that inform our system of government.

These senators will have the opportunity to rectify this grave threat to the Constitution. As early as today, Senator Jeff Bingaman (D-NM) will attempt to strike from the Graham Amendment the language barring Guantánamo prisoners from habeas relief. Senator John McCain may support a compromise. He said, “Based on ongoing discussions, it is entirely possible that the current version of the amendment will be modified to address concerns about lawful treatment and the scope of independent appeals.”

More than 100 legal scholars, including this writer, have signed a letter urging senators to adopt an amendment of the kind proposed by Senator Bingaman. The Center for Constitutional Rights concurs: “Habeas Corpus is a fundamental right that our entire legal tradition is founded on. Unfettered Executive power jeopardizes our free and democratic society. Creating ‘no law zones’ of unreviewable Executive power at Guantánamo undermines the moral standing of the United State in the eyes of the world and endangers the lives of US soldiers abroad.”

The Graham Amendment has also drawn opposition from Judge John Gibbons, who argued Rasul v. Bush before the Supreme Court; John Hutson, Dean of Franklin Pearce Law Center and former Judge Advocate General of the US Navy; and the National Institute for Military Justice. NIMJ President Eugene R. Fidell wrote, “We disable ourselves from objecting to flagrant lawlessness elsewhere when we shut the doors to our courts, which are the jewel in the crown of our democracy.”

Habeas Corpus, known as The Great Writ, is the final bastion of liberty for those unjustly held. There was an attempt to suspend Habeas Corpus during the internment of tens of thousands of Japanese-Americans during World War II. That travesty is now universally recognized as a shameful chapter in our nation’s history. To suspend The Great Writ while allegations of systematic torture continue to emerge from US prisons, will threaten our Constitution and render “quaint” our democracy.

The Democrats who voted in favor of the Graham Amendment were Joseph Lieberman (Conn.), Kent Conrad (N.D.), Ben Nelson (Neb), Mary L. Landrieu (La), and Ron Wyden (Or).

November 7, 2005

The President and His Vice: Torturer’s Puppetmasters

The dots have finally been connected and the picture is not a pretty one. It is the face of the president of vice, Dick Cheney. The policies on the treatment of prisoners emanating from Cheney’s office triggered the abuse and torture, according to Lawrence Wilkerson, former Secretary of State Colin Powell’s chief of staff.

“It was clear to me that there was a visible audit trail from the Vice President’s office through the Secretary of Defense down to the commanders in the field,” Wilkerson, a former colonel, said on National Public Radio’s “Morning Edition.” The interrogation techniques sanctioned by Cheney “were not in accordance with the spirit of the Geneva Conventions and the law of war,” Wilkerson declared.

Not coincidentally, Cheney has been lobbying Congress to prevent it from outlawing torture (which is already against the law, by the way). After Republican Senator John McCain secured 90 votes in the Senate to codify the prohibition against cruel, unusual, or degrading treatment or punishment, Cheney began to sweat. With CIA Director Porter Goss in tow, Cheney paid a visit to McCain and tried to convince the senator to allow an exemption for the CIA. McCain refused to legalize the CIA’s ongoing illegal torture of prisoners.

Last week, Dana Priest wrote in the Washington Post that the CIA has been surreptitiously interrogating prisoners in a Soviet-era compound in Eastern Europe. Human Rights Watch identified Romania and Poland, two supporters of Bush’s wars on Iraq and Afghanistan, as locations for these secret prisons.

Only Bush and a few of his top officials, undoubtedly including Cheney, have known about the existence and situs of these “black sites,” as they are called in classified White House, CIA, Justice Department and Congressional documents, according to Priest.

The secret prisons were established pursuant to a presidential “finding” signed by Bush six days after the September 11 attacks. That finding gives the CIA permission to kill, capture and detain members of al Qaeda anywhere in the world. Assassination, or summary execution, violates US and international law.

More than 100 suspected terrorists have been taken to these “black sites.” Many are held underground and subjected to torture out of view of the International Committee of the Red Cross.

CIA interrogators use “Enhanced Interrogation Techniques,” which violate US law. They include “waterboarding” (mock drowning) and mock suffocation. Another enhancement is a “stress position,” in which a prisoner in suspended from the ceiling or wall by his wrists, which are handcuffed behind his back. Iraqi Manadel Jamadi was subjected to this treatment before he died in CIA custody at Abu Ghraib in November 2003. Tony Diaz, an MP who witnessed his torture, said that blood gushed from Jamadi’s mouth like “a faucet had turned on” after he was lowered to the ground.

Several current and former intelligence officials are nervous about these “black sites,” which were set up in a knee-jerk response to 9/11, Priest reported.

About the same time the “black sites” were established, Cheney undertook a campaign to introduce torture as a standard interrogation technique, according to the Washington Monthly. One of his test cases was Ibn al-Shaykh al-Libi, an al-Qaeda prisoner captured shortly after 9/11. An ex-FBI official reported that “they duct-taped his mouth, cinched him up and sent him to Cairo” for some torturous Egyptian interrogations, in violation of US law prohibiting extraordinary renditions.

A newly declassified memo reveals that al-Libi provided us with false information that suggested Iraq had trained al-Qaeda to use weapons of mass destruction. Even though US intelligence thought the information was false as early as 2002 because it was obtained under torture, al-Libi’s information provided the centerpiece of Colin Powell’s now thoroughly discredited February 2003 claim before the United Nations that Iraq had developed WMD programs.

Dick Cheney not only ordered the torture; he was willing to use false information obtained through torture to support Bush’s pre-determined decision to make war on Iraq.

Now that Cheney has been fingered as complicit in the torture, it is just a matter of time before the official torture dots connect to the President himself. In December 2004, the American Civil Liberties Union released an internal FBI email that the ALCU received pursuant to the Freedom of Information Act. The email, dated May 22, 2004, describes an Executive Order that authorized sleep deprivation, placing hoods over prisoners’ heads, the use of loud music for sensory overload, stripping detainees naked, the use of “stress positions,” and the use of dogs. The White House, Pentagon and FBI officials denied that Bush had issued such an Executive Order, saying that it was really a Defense Department directive instead.

It is undisputed that Bush determined in a February 7, 2002, order that he had the authority to suspend the Geneva Conventions, a position never before taken by an American president and a clear violation of US law.

Bush wrote in that order, “As 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.” (Emphasis added.)

In essence, Bush declared, incorrectly, that as commander in chief, he had the power to override the law with his policy. Where did he get that idea? From a January 25, 2002, memo sent by Alberto Gonzales to the President, which described the Geneva Conventions as “obsolete” and “quaint.” That memo was inspired by David Addington, just named by Cheney to replace the indicted I. Lewis “Scooter” Libby as the Vice President’s chief of staff.

Addington was assistant general counsel to the CIA when Reagan was funding the death squads in El Salvador and the illegal Nicaraguan contras. Cheney’s new chief of staff helped draft the infamous August 2002 memo that illegally narrowed the definition of torture, and justified torture in some cases. Now, Addington is trying to prevent the Pentagon from adopting the language of Geneva in its revised rules for handling prisoners. The circle of torture remains unbroken.

Libby is charged with obstruction of justice and lying to the FBI about the outing of a CIA agent. As in the Watergate scandal, a White House official is being prosecuted for the cover-up. There is plenty of evidence that officials in the Bush administration have been trying to cover up their torture since the inception of Bush’s “war on terror.”

The earliest example of the official cover-up was when John Walker Lindh, captured in Afghanistan shortly after September 11, 2001, was given a plea bargain that required him to keep mum about the mistreatment he suffered while in US custody. Col. Janis Karpinski told me in an August 3, 2005, interview for t r u t h o u t (Abu Ghraib General Lambastes Bush Administration) that after she first learned of the abuse scandal at Abu Ghraib, Gen. Ricardo Sanchez took systematic steps to hush it up. Soldiers reported to Human Rights Watch that US soldiers, called “Murderous Maniacs,” broke prisoners’ bones every other week at FOB Mercury; then, “those responsible would state that the detainee was injured during the process of capture and the physician assistant would sign off on this.”

Most recently, in an effort to smooth over the torture of the hunger strikers by US officials at Guantánamo prison, Donald Rumsfeld said, “There are a number of people who go on a diet where they don’t eat for a period and then go off of it at some point. And then they rotate and other people do that.” Rumsfeld refuses to allow UN human rights investigators to meet with the prisoners there.

What is Rumsfeld trying to hide at Guantánamo? About 200 prisoners, many of whom have been there nearly four years without criminal charges, have been on a hunger strike for several weeks. Several of them are being force-fed through large tubes inserted into their noses and down into their stomachs, with no sedatives or anesthesia. One prisoner explained to his lawyer, “Now, after four years in captivity, life and death are the same.”

The Washington Post reported today that Cheney has waged an intense, largely unpublicized campaign over the past year to prevent Congress, the Pentagon and the State Department from restricting interrogations of terrorist suspects.

Dick Cheney is right in the center of the Bush administration’s government of dirty tricks. By replacing Libby with Addington, Cheney has signaled his determination to continue Bush’s torturous policies. In a recent editorial, the Washington Post called Dick Cheney “Vice President for Torture.” The President and his Vice continue to pull the torturers’ puppet strings. Will Bush be deemed complicit in the torture? Or will his deputies cover up for him the way Ronald Reagan’s men insulated him from liability in the Iran-Contra scandal?

November 1, 2005

Bush Taps “Scalia-Lite” to Replace O’Connor

On the day we honored Rosa Parks, Mother of the Civil Rights Movement, George W. Bush appointed a white male to replace Sandra Day O’Connor on the Supreme Court. Evidently unable to find a woman or Latino sufficiently “qualified” to sit on the high court, Bush reached deep into the trough of right-wing federal judges and pulled out Samuel Alito.

On Friday, at 12:40 p.m., the same hour that Patrick Fitzgerald announced the indictment of I. Lewis “Scooter” Libby, Bush called Alito. Desperate to stop the hemorrhaging from the withdrawal of Harriet Miers, the grim revelation that the 2000th American soldier had died in his unnecessary war in Iraq, and the pending indictment of a principal White House neocon, Bush tapped a judge adored by the right wing.

The conservatives’ giddy reaction to the nomination of “Scalito” or “Scalia-Lite,” as Alito is frequently called because of his affinity with Antonin Scalia, stands in stark contrast to that of the more moderate Miers. His record tracks the right-wing agenda.

Alito would gut abortion rights if given the chance. As a judge on the Third US Circuit Court of Appeals in Philadelphia, he voted in Planned Parenthood v. Casey in 1991 to uphold a Pennsylvania law that included a provision requiring women seeking abortion to notify their spouses. When the case reached the Supreme Court, the justices used it to reaffirm Roe v. Wade. Justice O’Connor wrote the decision, which struck down the state’s spousal notification requirement. In his dissent in Casey, Chief Justice William Rehnquist quoted Alito’s dissent from the lower court opinion.

But Alito’s right-wing bona fides don’t stop there. Alito engages in “judicial restraint” – the right wing’s stated litmus test – only when the conservative ends justify the means. He showed little restraint when he voted to scuttle Congress’s intent by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, Alito’s colleagues on the Third Circuit observed that the federal law prohibiting employment discrimination “would be eviscerated if our analysis were to halt where [Judge Alito] suggests.”

Alito voted to invalidate part of the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one. The 2003 Supreme Court decision in Nevada v. Hibbs upheld the FMLA, essentially reversing a 2000 opinion by Alito which found that Congress had exceeded its power in passing the law.

In Erienet v. Velocity Net, Alito dissented from an opinion that makes it easier for consumers to get relief in state courts for violation of the Telephone Consumer Protection Act.

Samuel Alito has also shown hostility to privacy rights by supporting the unauthorized strip searches of women and children who are not named in a search warrant. He voted to uphold the strip search of a mother and her 10-year-old daughter in Doe v. Groody in 2004. That vote drew harsh criticism from Bush’s current Homeland Security Director Michael Chertoff, who was on the Third Circuit at the time. Chertoff accused Alito of rubber-stamping police misconduct. Alito’s excessive deference to executive power in Groody could signal his willingness to defer to the power of the executive in Bush’s wars on Iraq, terror and civil liberties. This is cause for great concern.

In 2001, Alito authored a decision that struck down a public school district’s policy that prohibited harassment against students based on their sexual orientation. The policy focused on harassment that might interfere with a student’s educational performance or create an intimidating, hostile or offensive environment. But Alito ruled this policy was unconstitutional because it could cover “simple acts of teasing and name-calling.”

Alito pandered to the gun lobby when he voted to strike down a federal law prohibiting the possession of machine guns. His position led Alito’s colleagues to accuse him of disrespecting the considered decision of Congress by requiring it to “play ‘Show and Tell’ with the federal courts.”

Several progressive organizations, including the National Lawyers Guild (NLG), the AFL-CIO, NARAL-Pro Choice America, the Alliance for Justice, MoveOn.org and the Leadership Conference on Civil Rights are opposing the Alito nomination. NLG President Michael Avery stated, “Judge Alito’s record on the Third Circuit Court of Appeals is replete with examples of how his extremely conservative views have led to decisions that ignore the legitimate interests of women, families, people of color, consumers and working people. These decisions run contrary to established Supreme Court precedent and the will of the Congress.”

Alliance for Justice President Nan Aron said, “If confirmed to the pivotal O’Connor seat, Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms.” Karen Pearl, interim president of Planned Parenthood Federation of America, agreed. Alito’s confirmation “would radically transform the Supreme Court and create a direct threat to the health and safety of American women,” she said.

Key Democrats immediately stepped up to the plate and challenged the Alito nomination. Senate Democratic Leader Harry Reid said, “Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people.” Reid also criticized Bush’s selection of another white male: “This appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The President has chosen a man to replace Sandra Day O’Connor, one of only two women on the Court. For the third time, he has declined to make history by nominating the first Hispanic to the Court … President Bush would leave the Supreme Court looking less like America and more like an old boys club.”

Senator Patrick Leahy said, “Judge Alito’s record on the bench demonstrates that he would go to great lengths to restrict the authority of Congress to enact legislation to protect civil rights and the rights of workers, consumers and women. Judge Alito has also set unreasonably high standards that ordinary Americans who are the victims of discrimination must meet before being allowed to proceed with their cases.”

Other Democrats have reacted similarly. Senator Ted Kennedy said, “If confirmed, Alito could very well fundamentally alter the balance of the court and push it dangerously to the right, placing at risk decades of American progress in safeguarding our fundamental rights and freedoms.” Senator Charles Schumer observed, “It’s sad that [Bush] felt he had to pick a nominee likely to divide America.” Senator John Kerry asked, “Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?” And Senator Barack Obama said, “President Bush has … made a selection to appease the far right wing of the Republican Party.”

The precariously balanced Supreme Court will tip to the right if Alito is confirmed. Larry Lusberg, a former federal prosecutor who has known Alito for 22 years, affirms: “Make no mistake: he will move the court to the right, and this confirmation process is really going to be a question about whether Congress and the country want to move this court to the right.”

With his nomination of Samuel Alito, Bush has thrown down the gauntlet. Although many Democrats are vociferous in their displeasure, it is not clear that 41 of them will agree to a filibuster. Several must stand for election next year in red states, and Alito’s intellect and credentials – notwithstanding his radical ideology – may sway them in his direction. If the Democrats do filibuster, it will force the Republicans to use the “nuclear option” to override the time-honored filibuster for the first time.

As the Libby indictment continues to put on trial the lies on which the Iraq war was based, Bush’s agenda – including the Alito nomination – may be hobbled.

October 27, 2005

Harriet Miers: Bush’s Pit Bull

Bush has nominated his Texas crony as a stealth appointment to the Supreme Court. Although the Senate will be hard-pressed to discover Harriet Miers’s positions on the critical issues, she does have a long record of loyalty to Bush, whom she calls “the most brilliant man I ever met.” Bush undoubtedly knows where she stands – and it doesn’t appear to be on the side of civil liberties.

Miers represented a string of large corporations, including Walt Disney Co., Microsoft, Ford, Chrysler, Honda, Citibank and the Bank of America. Like John Roberts, Harriet Miers has no history of protecting the rights of women, minorities, the poor, the disabled or the environment.

Some far-right Christian organizations appear disappointed that Bush didn’t tap an ideological judge like Priscilla Owen, Janice Rogers Brown, J. Michael Luttig, or Michael W. McConnell. Public Advocate President Eugene Delgaudio calls Miers’s nomination “a betrayal of the conservative, pro-family voters whose support put Bush in the White House in both the 2000 and 2004 elections and who were promised Supreme Court appointments in the mold of Thomas and Scalia.”

Miers has never been a judge, so there is no concrete evidence of her judicial philosophy. But when Rush Limbaugh sought reassurance from Dick Cheney that Miers’s judicial philosophy parallels that of Scalia or Thomas, Cheney responded, “I’m confident that she has a conservative judicial philosophy that you’d be comfortable with … And the President has great confidence in her judicial philosophy.”

James Dobson, founder of Focus on the Family, and one of the most radical evangelical conservatives, sanctioned the Miers nomination after a well-placed call from Karl Rove. “Some of what I know I am not at liberty to talk about,” Dobson said.

Justice Nathan Hecht of the Texas Supreme Court testified to Miers’s bona fides as an evangelical Christian. He guarantees that Miers personally opposed abortion and attended “pro-life” events with him.

Bush is asking his right-wing religious backers to take it on faith that Miers will fulfill their agenda of further Christianizing America. There are clues that would confirm that faith. When Bush named Miers as White House Counsel to replace newly minted Attorney General Alberto Gonzales, Bush used the fundamentalist buzz word “grace” to describe Miers. She works with Exodus Ministries, which is dedicated to fulfilling released prisoners’ “need for intimate knowledge of the saving grace of Jesus Christ.” Its website proclaims that “Exodus is a place where ex-offenders learn how faith in Christ is the first step from captivity to freedom.”

After the American Bar Association voted to take a pro-choice position, Miers led the charge to have that vote reconsidered by the ABA membership. While we can expect her to tell the Senate Judiciary Committee that she was only concerned with the proper role for the ABA, Miers’s enthusiasm for undoing the ABA’s pro-choice stance belies such an excuse.

Harriet Miers was the first woman to serve as president of the Texas Bar Association. Yet she opposed a plan that would guarantee the election of a racial or ethnic minority bar president every sixth year.

Senate Majority leader Bill Frist of Tennessee is delighted with the Miers nomination. He called her “another outstanding nominee,” describing her selection as “a nomination we are excited about, we are pleased with.” Frist says “she is a woman who understands judicial restraint.”

Senate Democratic leader Harry Reid of Nevada is equally ebullient. Evidently relieved that Bush didn’t nominate the dreaded Priscilla Owen or Janice Rogers Brown, Reid declared, “I’m very happy we have someone like her.”

Harriet Miers is likely to be as circumspect about her views as was John Roberts about his. Indeed, it was Miers who refused to share Roberts’ memos from his tenure in the Solicitor General’s office with the Senate. Miers will not share her records from her service in the Bush administration either.

Like Roberts, Miers has been a Republican party loyalist. She is being rewarded for her 12-year service to Bush, who plucked her from his inner circle of confidantes. In 1996, Bush called the loyal Miers, who helped Bush hide his National Guard record, “a pit bull in size 6 shoes.” Hardly a fitting replacement for the open-minded Sandra Day O’Connor.

When Bush nominated Miers, he proclaimed, “She has devoted her life to the rule of law and the causes of justice.” On the contrary, it appears that Miers has devoted her life to the interests of big corporations and George W. Bush.

The senators and the American people will be left to guess at how Miers feels about the issues that affect our lives.

Harriet Miers is not an intellectual giant like John Roberts. The enigmatic Miers must persuade the senators that she is committed to equality under the law. Harriet Miers has a high burden to carry to convince the Senate that she is qualified to sit on the highest court in the land.

October 18, 2005

Continuing in His Defiance of the Law

Republicans and Democrats have finally found something they can agree on. They have bipartisan support to stop Bush’s inhuman and degrading treatment of prisoners in United States custody: It’s bad for our image in the Arab and Muslim world. It breeds more resentment against the US, making us more vulnerable to terrorism. And it’s just plain un-American.

Last month, an Army captain and two sergeants from the 82nd Airborne Division contacted Senator John McCain (R-Ariz) and Human Rights Watch with allegations that members of the unit routinely beat, tortured and abused detainees in 2003 and early 2004. Capt. Ian Fishback, a Westpoint graduate, said he was frustrated that his reports to superiors went unheeded.

They reported seeing soldiers break prisoners’ legs, and strike blows to the heads, chests, and stomachs of prisoners – on a daily basis. They described witnessing soldiers pour chemical substances on prisoners’ skin and into their eyes. They said the mistreatment at a base near Fallujah was “just like” what happened at Abu Ghraib.

Capt. Fishback told Human Rights Watch that he believes the abuses he witnessed in Iraq and Afghanistan were caused in part by Bush’s 2002 decision not to apply the Geneva Conventions protections to detainees captured in Afghanistan. Fishback said:

[In Afghanistan,] I thought that the chain of command all the way up to the National Command Authority [President Bush and Secretary of Defense Donald Rumsfeld] had made it a policy that we were going to interrogate these guys harshly … We knew where the Geneva Conventions drew the line, but then you get that confusion when the Sec Def [Secretary of Defense] and the President make that statement [that Geneva did not apply to detainees].
Two weeks ago, 90 percent of the Senate voted to ban “cruel, inhuman, or degrading treatment or punishment” of prisoners held in US military custody. Although the vote merely reflects prohibitions already existing in several treaties the United States has ratified – making them binding domestic law under the Constitution – the Bush administration has refused to follow the law.

The measure introduced by McCain and other Republican senators was an amendment to a $440 billion Defense Appropriations bill. It was adopted by the votes of 46 Republicans, 43 Democrats and one Independent. The amendment also prohibits the use of any interrogation treatment or technique not authorized by and listed in the US Army Field Manual on Intelligence Information.

Notwithstanding the universal prohibition on cruel, inhuman, or degrading treatment or punishment in the laws that bind the United States, the Bush administration has taken the position that they apply only within US territory, and only within limits recognized in the US War Crimes Act with respect to US nationals abroad.

For that reason, the McCain amendment specifies there will be no “geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment.”

McCain, a POW in Vietnam for nearly six years, said, “Many of my comrades were subjected to very cruel, very inhumane and degrading treatment, a few of them even unto death. But every one of us – every single one of us – knew and took great strength from the belief that we were different from our enemies.”

More than two dozen retired senior military officers, including Colin Powell and John Shalikashvili, both former chairmen of the Joint Chiefs of Staff, support the McCain amendment.

Bush sent Dick Cheney to pressure McCain to withdraw his amendment, without success. Now that the amendment has been adopted by the Senate, Bush threatens to veto the appropriations bill if the McCain amendment is appended to it. The White House says the measure would “restrict the president’s authority to protect Americans effectively from terrorist attack and bringing terrorists to justice.”

A presidential veto can be overturned by a two-thirds majority in both houses. But some House Republicans plan to push for the McCain amendment to be dropped from the spending bill in a joint House-Senate conference committee.
An editorial in the Washington Post said: “Let’s be clear: Mr. Bush is proposing to use the first veto of his presidency on a defense bill needed to fund military operations in Iraq and Afghanistan so that he can preserve the prerogative to subject detainees to cruel, inhuman and degrading treatment. In effect, he threatens to declare to the world his administration’s moral bankruptcy.”

It’s a pity that Congress continues to finance the failed US wars in Iraq and Afghanistan. If the Democrats recapture the House and Senate in the mid-term elections, and if, as Bob Herbert wrote in yesterday’s New York Times, the Democrats “get over their timidity, look deep into their own souls, discover what they truly believe and then tell it like it is,” they could push Congress to stop funding those wars and we could withdraw our troops. That is how US involvement in Vietnam ended. But don’t hold your breath.

The Bush administration persists in blocking any independent investigation of the torture, murder and inhuman treatment of prisoners in US custody, and Congress has thus far failed to demand one.

Bush is probably taking solace from a statement by Professor John Yoo, one of the principal authors of the Bush administration’s torture memos, who wrote in the Washington Post: Harriet Miers “may be one of the key supporters in the Bush administration of staying the course on legal issues arising from the war on terrorism.” When legal challenges to Bush’s policies come before the Supreme Court, Miers may well salute and march to the orders of her former boss.

October 11, 2005

Nobel Prize Slaps Bush Nuke Policy

Last week, the International Atomic Energy Agency and its chief, Mohamed ElBaradei, won the 2005 Nobel Peace Prize for their efforts to stop the proliferation of nuclear weapons. The award was a slap at George W. Bush, who had pressed for ElBaradei’s removal just months before. It was also a blow to Bush’s policies of dealing with nuclear issues unilaterally, and the US focus on non-proliferation to the exclusion of disarmament – both of which are required by the Non-Proliferation Treaty.

The Bush administration tried to engineer the ouster of ElBaradei after the IAEA chief refused to endorse Bush’s claims that Saddam Hussein had restarted Iraq’s nuclear weapons program. The US also perceived ElBaradei as too soft on Iran, a charter member of Bush’s axis-of-evil.

A month before George W. Bush invaded Iraq, ElBaradei told the United Nations, “We have to date found no evidence of ongoing prohibited nuclear or nuclear-related activities in Iraq.” John Bolton, then Undersecretary of State for Disarmament, now United States ambassador to the UN, responded that ElBaradei’s statement was “impossible to believe.” Dick Cheney said, “I think Mr. ElBaradei frankly is wrong.”

But it turned out that ElBaradei was right about the absence of nukes in Iraq, and his refutation of Bush’s allegation that Iraq had bought tons of enriched uranium from Niger has also been corroborated.

A few days before Bush launched “Operation Iraqi Freedom,” ElBaradei revealed that the US had relied on fabricated documents to support its Niger claim. This revelation raised the ire of Bush, who had included the false Niger assertion in his state of the union address in order to whip up support for his impending illegal invasion of Iraq.

In the run-up to the war, ElBaradei said, “No, we are not finding any evidence of weapons of mass destruction.” He added courageously, “No, we are not going to give the US the kind of report they wanted that would have served as a legal justification for war against Iraq.”

ElBaradei is the first UN official to call for Israel to eliminate its secret nuclear weapons program. He advocated a nuclear-free Middle East, consistent with Security Council Resolution 687 that ended the Gulf War in 1991. In Article 14, the resolution spells out the need to create a zone free of all weapons of mass destruction across the Middle East. Ironically, this US-crafted resolution created enhanced powers for the IAEA and arms inspection verification.

“We must abandon the unworkable notion that it is morally reprehensible for some countries to pursue weapons of mass destruction,” ElBaradei said, “yet morally acceptable for others to rely on them for security – and indeed continue to refine their capacities and postulate plans for their use.”

ElBaradei was likely referring to the hypocrisy of the United States, which continues to expand its nuclear arsenal and promulgate policies that would allow it to pre-emptively use its nukes, all the while setting its sights on countries like Iran and North Korea for their nuclear programs.

The Pentagon’s March 15th “Doctrine for Joint Nuclear Operations” provides for the US to use nuclear weapons to counter potentially overwhelming conventional adversaries, to secure a rapid end of a war on US terms, or simply “to ensure success of US and multinational operations.”

By standing up to the mighty United States, ElBaradei showed uncommon courage, leading the Nobel Committee to describe him as “an unfraid advocate of new measures to strengthen” the nuclear non-proliferation regime.

The US and ElBaradei are squaring off again, this time over Iran. ElBaradei says there is no evidence that Iran has a nuclear weapons program. In an attempt to discredit him, the US eavesdropped on dozens of phone calls between ElBaradei and Iranian diplomats, according to the Washington Post.

But the United States’ efforts to collect ammunition against ElBaradei were unsuccessful. When his re-election was put up for a vote, 34 of the IAEA countries voted for ElBaradei to continue as head of that organization. Only the US voted no.

Although the IAEA recently passed a resolution that discusses the possibility of sending the issue of Iran’s nuclear capacity to the Security Council, the Nobel Prize may embolden the IAEA to stand up to US pressure to refer Iran to the Council, according to Phyllis Bennis from the Institute for Policy Studies in Washington, DC.

“The fact that the United States government doesn’t like the government of Iran doesn’t give them the right to impose their own version of what the NPT [Non-Proliferation Treaty] requires and doesn’t require,” Bennis said on Democracy Now!

The latest National Intelligence Estimate on Iran, whose highly classified findings were disclosed by the Washington Post, reported the intelligence community’s consensus judgment that Iran remains 6 to 10 years away from the threshold of nuclear weapons capability.

Dr. Vojin Joksimovich, a nuclear engineer in San Diego, told me that Iran is not violating the NPT by its civilian use of nuclear power. Although there is no right to enrich uranium to 90 percent or more, which would be weapons grade material, Iran is enriching to 3 to 5 percent for fuel for nuclear power plants, according to Joksimovich. Brazil, he said, is also enriching uranium using the centrifuge technique that Iran wants to use. But the US doesn’t challenge Brazil; Bush seeks to build a case for war with Iran.

In a dejá vu from the run-up to “Operation Iraqi Freedom,” Bush began rattling the sabers against Iran in August. He declared on Israeli television that “all options are on the table” if Tehran does not comply with international demands.

Bush might think that attacking Iran would bolster the Republican Party’s showing in the 2006 mid-term elections, by distracting attention from his failed Iraq war. Ironically, the Bush administration is supporting Iraq’s Shiite government, which has close ties to Iran.

ElBaradei said in August that the only way to resolve the situation with Iran “is through negotiation.” German Chancellor Gerhard Schroeder responded to Bush’s threatening comments by saying, “Let’s take the military option off the table. We have seen it doesn’t work.”

Russia agrees that diplomacy is the answer. A statement on the ministry’s web site said, “We favor further dialogue and consider the use of force in Iran counter-productive and dangerous, something which can have grave and hardly predictable consequences … We consider that problems concerning Iraq’s nuclear activities should be solved through political and diplomatic means, on the basis of international law and Tehran’s close cooperation with the International Atomic Energy Agency.”

Bennis hopes the peace prize will encourage ElBaradei to call directly on the five nuclear powers (who also happen to be the veto-bearing members of the Security Council), and particularly the United States, to give up their nuclear arsenals, as required by the NPT.

Under the Non-Proliferation Treaty, countries that don’t have nuclear weapons agree not to acquire them, in exchange for the promise from nuclear states to progressively disarm. Disarmament and non-proliferation are two sides of the same coin or two contractual promises exchanged. Thus, when the Bush administration unilaterally decides not to disarm, but instead to develop and even contemplate using new nukes, it is in flagrant violation of the NPT. The US cannot “choose” non-proliferation over disarmament.

Tragically, nuclear disarmament and non-proliferation were omitted from the Outcome Document at last month’s UN Summit that marked the 60th anniversary of the founding of the United Nations. It was the Bush administration that insisted on the omission.

September 29, 2005

US Pulls the Strings in Haiti

Laden with heavy security, Secretary of State Condoleezza Rice paid a quick visit to Haiti on Tuesday. Her mission: to reassure Haiti’s interim government that the United States wants the elections to go forward in November, and to see to it that President Jean-Bertrand Aristide does not return to Haiti.

Once again, the US is manipulating Haiti.

On February 29, 2004, the United States had forcibly removed President Aristide from Haiti, then maintained that he voluntarily resigned. President Aristide had been elected with 80 percent of the vote. True to form, the Bush administration, which claims to love democracy, engineered a coup d’etat and removed a democratically-elected leader of another country.

The Aristides are now in South Africa, which granted them asylum. On August 31, President Aristide issued a statement, cautioning that free and fair elections could not take place in Haiti until the thousands of Lavalas [the pro-Aristide party comprised mostly of Haiti’s poor] who are in jail and in exile are free to return home, the repression that has already killed over 10,000 people ends immediately, and national dialogue begins.

President Aristide asked, “In 1994, who could have expected free, fair and democratic elections in South Africa with Nelson Mandela, Govan Mbeki, Oliver Tambo and other leaders and members of the African National Congress in jail, exile or in hiding?”

Two prominent Lavalas leaders are in jail. Rev. Fr. Gérard Jean Juste, who has been in custody for two months, was declared a prisoner of conscience by Amnesty International. More than 400 interfaith religious leaders have signed a letter asking for Fr. Jean Juste’s release. Former Prime Minister Yvon Neptune has been jailed for 16 months, with no charges against him. Both men are in frail health.

The United Nations maintains a peacekeeping force of 8,000 in Haiti. I asked Mildred Aristide, the President’s wife, what role the UN has played in Haiti’s problems. She told me: “Before the coup in February 2004 – up until that very day – the constitutional government requested assistance from the UN to help defend Haitians from the murderous band of former soldiers, drug dealers, and thugs who were set on destabilizing the country and killing innocent people.”

How did the UN respond? It “stood by and allowed a democratically elected President, along with nearly 7,000 elected officials, to be removed from office,” Mrs. Aristide said. Only then, she added, did the UN vote to send an intervention force to Haiti.

“Credible reports of UN complicity in human rights abuses have surfaced,” Mrs. Aristide noted. “The UN has been forced to investigate allegations. The Haitian Police distribute machetes to hooded attachés, gun down innocent demonstrators, systematically raid poor slums, disappear prisoners turned over to them by the UN – all under the official sanction of the UN which voted to exercise control over the police.”

Referring to the police and the UN, Mrs. Aristide said, “The people of Haiti who are under siege are hard pressed to see any distinction among their repressors.” Both Haiti’s police and the UN force are enabled by United States political and economic clout.

When Rice was in Haiti Tuesday, she made clear the US does not want President Aristide to return to Haiti. “The Haitian people are moving on,” Rice said.

But things in Haiti are not going according to “script,” says Mrs. Aristide. Roger Noriega, assistant secretary of state for Western Hemisphere affairs in the State Department, resigned. In August, Haiti’s interim government released the imprisoned Louis-Jodel Chamblain, a leader of the vicious Front for the Advancement and Progress of Haiti (FRAPH), a paramilitary group blamed for thousands of killings during the military dictatorship that ruled Haiti after forcing President Aristide from power in 1991. James B. Foley, the US Ambassador to Haiti, left his post in August for unknown reasons. Foley called Chamblain’s release a “sham,” especially in light of Neptune’s continued incarceration with no evidence against him. Foley characterized Neptune’s detention as “a violation of human rights, an injustice and an abuse of power.”

“Kidnappings, murder and other crimes have become widespread in Haiti since the interim government came to power a year-and-a-half ago,” Rep. Maxine Waters (CA) said in an August statement.

On August 20, police accompanied by machete-wielding civilians attacked a soccer crowd of thousands, shooting or hacking to death at least six and as many as 30 spectators. “Our tax dollars were at both ends of the killing,” Brian Concannon, Director of the Institute for Justice and Democracy in Haiti, told the Congressional Black Caucus last week. “The soccer game was sponsored by a USAID program, to promote peace in the neighborhood. The US also sponsors the killers, the Haitian National Police, by providing guns and weapons despite a consistent history of police killing over the last 18 months.”

“Roads and infrastructure have fallen into disrepair, and public services have virtually disappeared. The interim government has done nothing to stem the growing violence in the country, and it has done nothing to make millions of dollars in promised aid from international donors available to the Haitian people,” said Rep. Waters. “Just about the only thing the interim government has done is jail hundreds of political prisoners.”

Since President Aristide’s ouster, thousands of people have demonstrated to protest the horrific conditions, and the interim government has responded with violence against the people. Spurred by the US to take a more “proactive role” in going after armed pro-Aristide gangs, UN troops have engaged in “a wave of Fallujah-like collective punishment inflicted on neighborhoods known for supporting Aristide,” according to Naomi Klein.

The International Crisis Group (ICG) has documented that 18 months after President Aristide was forced out of the country, Haiti remains insecure and volatile. Much of the population displays “disenchantment, apathy and ignorance about the electoral process,” the ICG found.

The IGC reported that “a week before the scheduled close of registration, only 870,000 [of 4 million] potential voters had registered, and none had yet received the new national identity card required to vote.”

Although Rice tried to put a positive gloss on Haiti’s prospects for fair and free elections, “Haiti is in the midst of a comprehensive program of electoral cleansing,” said Concannon. “Its ballots are being cleansed of political dissidents, its voting rolls cleansed of the urban and rural poor. The streets are being cleansed of anti-government political activity,” he said.

Lavalas supporters have said they will not participate in the elections unless political prisoners are released, political persecutions are ended, and President Aristide is returned to Haiti. Senior officials at Canada’s Foreign Affairs Department admit that Lavalas remains Haiti’s most popular party. Thus, an election without Lavalas would be sham.

On June 28, the House of Representatives passed Rep. Barbara Lee’s resolution to block arms transfers to Haiti. The State Department responded by announcing on August 9 that it would send $1.9 million worth of guns and other equipment to the police before the elections and presumably before the Senate could vote on the resolution, according to Concannon.

Rep. Waters’ proposed amendment to H.R. 2601 provides good standards for evaluating conditions in Haiti as the elections approach, in Concannon’s opinion. It requests adequate security, disarmament of paramilitary groups, and trials or release for the political prisoners. Concannon stresses the importance of the opportunity to vote, to organize, and to campaign.

Haitians are still demonstrating in spite of the repression. Haitian democracy supporters are planning a demonstration in Port-au-Prince tomorrow to commemorate the anniversary of the 1991 coup against President Aristide, which they have done every September 30 since 1996. The interim government has outlawed all demonstrations until October 2. That decree “is as unconstitutional in Haiti as it would be in the US and most other countries,” said Concannon.

Demonstrations and other Haiti solidarity events will be held in 38 cities in 14 countries on or around September 30.