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January 25, 2006

Bush on Trial for Crimes against Humanity

The International Commission of Inquiry on Crimes against Humanity Committed by the Bush Administration convened last weekend in New York City’s Riverside Church. Martin Luther King Jr.’s portrait hangs in the foyer. Dr. King delivered his historic 1967 speech, “Beyond Vietnam: A Place to Break the Silence,” opposing the war and calling for the removal of all foreign troops from Vietnam, in that same church.

Center for Constitutional Rights President Michael Ratner, who delivered a keynote address to the commission of inquiry, invoked Dr. King’s words from 1967: “A time comes when silence is betrayal.” The following year, the Bertrand Russell War Crimes Tribunal put the US government on trial for “crimes without precedent” it was committing in Vietnam. In the tradition of the Russell tribunal, the panel of judges at the commission of inquiry heard evidence of George W. Bush’s war crimes and crimes against humanity committed in Iraq, Afghanistan, Guantánamo Bay, and elsewhere.

Ratner said that Bush openly and notoriously “laid the plan for coup d’état in America” with a small paragraph in his “signing statement” attached to the McCain anti-torture amendment. Bush wrote that his commander in chief power allows him to do anything he thinks is necessary, including torture, notwithstanding the amendment passed by Congress. Ratner called that a “historic, unprecedented grab for power” that spells the end of checks and balances in our government. Bush, according to Ratner, has declared that George Bush is the law.

Harry Belafonte gave the other keynote address. “When a government fails to protect justice,” Belafonte declared, “it is the responsibility of the people to rise up and change the guard, change the regime.” In a hoarse voice, the legendary singer charged, “Those who fail to answer that call should be charged with patriotic treason.”

T r u t h o u t writer Ray McGovern, a CIA analyst from 1961 to 1990, took the testimony of Scott Ritter, a senior United Nations weapons inspector in Iraq from 1991 to 1998. The allegation that Iraq possessed weapons of mass destruction was the only justification on which George W. Bush’s war in Iraq was based, McGovern said. He cited statements by Colin Powell and Condoleezza Rice before September 11, 2001, that Saddam Hussein had no WMDs and was unable to pose even a conventional threat to his neighbors. After September 11, however, Donald Rumsfeld expressed “no doubt” that Hussein had WMDs. “A trained ape knows that,” Rumsfeld said.

Ritter noted that Rumsfeld knew Iraq had disarmed and had no ongoing weapons program. By 1998, the weapons inspectors had accounted for 95 to 98 percent of Iraq’s WMDs, Ritter said. “No nation had hard factual data that Iraq retained or was reconstituting WMDs,” Ritter added. “No nation had those facts.”

The Bush administration willfully misled the American people about Iraq’s weapons programs, Ritter charged. When Dick Cheney said that Iraq was constituting its nuclear program, he “was lying,” Ritter said.

From 1991 to 2003, the United States policy in Iraq was regime change, according to Ritter. The US and the United Kingdom sought to maintain the public perception that Iraq was not complying with its obligations to disarm, in order to justify regime change. The US never intended to disarm Iraq; it would have had to lift the sanctions, which were aimed at undermining Iraq’s welfare, weakening the government, and facilitating regime change.

“Intelligence” in the George W. Bush administration “was being fixed around the policy of regime change,” Ritter maintained. “What passes for intelligence is nothing more than politically motivated propaganda.” He said, “There was no intelligence failure because the policy wasn’t disarmament; it was regime change.”

Another witness, David Swanson, from www.afterdowningstreet.org, detailed the Downing Street Minutes, which were prepared in March 2002 and July 2002, but were leaked to the public last spring. They disclosed that Bush was determined to go to war and was building a case to accomplish that goal. “Intelligence was being fixed around the policy,” the minutes reveal. “Going to the UN was an attempt to legalize a war that had already been decided upon,” Swanson testified.

Dahr Jamal, who spent 8 months in occupied Iraq as an independent journalist, also testified at the commission. He charged that the US military carried out collective punishment in Fallujah in violation of international law. Snipers engaged in targeted killings, and troops prevented ambulances from reaching the wounded and prevented the wounded from receiving medical attention, violations of the Geneva Conventions.

The United States decided that the entire city of Fallujah, with more than 350,000 civilians, was “a free-fire-zone,” Jamal said. In the attack on Fallujah in November 2004, between 4,000 and 6,000 civilians were killed. The US military employed illegal weapons, including cluster bombs, depleted uranium, and white phosphorous.

Jamal accused the media, including CNN, Fox, Judith Miller, Thomas Friedman, Bill O’Reilly, and Rush Limbaugh, of aiding and abetting the Bush administration’s war crimes and crimes against humanity in their coverage of the US assault on Fallujah.

Another eyewitness to the occupation, journalist Jeremy Scahill, testified about the targeted killing of independent journalists by the US military. He cited the killing of an Al Jazeera reporter and the bombing of the Palestine Hotel in Baghdad, both on April 8, 2004. More than 100 unembedded journalists were in that hotel, and the US knew it, Scahill contended. The attack killed two cameramen.

Scahill said the Pentagon warned unembedded journalists, “Baghdad is not a safe place. You should not be there.”

The Bush administration has consistently attempted to link Iraq with the September 11 attacks. Scahill observed, “There is a connection between Saddam Hussein and Al Qaeda. It’s called Washington,” he said.

Challenging the Democrats to end the war, Scahill alleged: “We can’t be vegetarians between meals. A loyal opposition is not going to end this war.”

Craig Murray, former UK ambassador to Uzbekistan, testified before the commission. Murray charged that Uzbekistan practices torture on an industrial scale. He cited a UN investigation that concluded torture was widespread and systemic in that country. Thousands of people are tortured every year, Murray said. This includes rape with objects like broken bottles, smashing of limbs, pulling out of fingernails, and immersing people into boiling liquid.

Uzbekistan, Murray said, is a US ally in the war on terror, a member of the coalition of the willing. Murray displayed a letter on the big screen. It was from Ken Lay, former chairman of Enron, to then Texas Governor George W. Bush in April 1997. It began, “Dear George” [“Look who’s boss,” Murray noted], and continued, “You will be meeting with” the Uzbek ambassador to the United States to discuss Enron’s $2 billion oil and gas contract.

The real reason underlying the war in Iraq, Murray testified, was oil and gas. So “they needed false intelligence from torture chambers,” he said, in order to justify the war on terror. Sir Michael Wood informed Murray that the official position was that it’s not illegal to get information from torture provided they do not themselves torture or direct that a specific individual be tortured.

“You can’t build security on evil,” Murray said. “I don’t believe torture works,” he concluded. “But even it if did work, I’d rather die than have anyone tortured to save my life.”

I presented the testimony of Janis Karpinski, a brigadier general who was assigned to Iraq in July 2003 to oversee 17 prison facilities, including Abu Ghraib. Karpinski described how General Geoffrey Miller transferred the interrogation techniques he had instituted at the US prison at Guantánamo Bay to Abu Ghraib.

Miller was specially selected by Rumsfeld and sent to Iraq to run the interrogations operation, to work with the military intelligence personnel and teach them new and improved interrogation techniques to obtain more actionable intelligence from their interrogations.

When Miller arrived at Abu Ghraib, he said, “It’s my opinion that you’re treating the prisoners too well. At Guantánamo, the prisoners know that we are in charge, and they know that from the very beginning.” He said, “You have to treat the prisoners like dogs, and if you think or feel differently, you’ve lost control.”

Miller declared, “We’re going to Gitmo-ize the operation” (referring to the techniques they used at Guantánamo Bay).

Karpinski thought Miller came with the authority of Rumsfeld because General Ricardo Sanchez, who was a 3-star, deferred to Miller, although he was only a 2-star. Even though Miller told Congress he was sent to Abu Ghraib merely in an assisting capacity, Colonel Thomas Pappas furnished Miller with a daily report detailing the results of interrogations at Abu Ghraib.

Sanchez himself signed an 8-page memorandum with a laundry list of harsher interrogation techniques, including the specific use of unmuzzled dogs, Karpinski said.

Control of cellblocks 1-A and 1-B, “the hard sites,” was transferred to military intelligence. Karpinski didn’t learn of the torture and abuse until January 12, 2004. In fact, she never attended any of the meetings in which the progress of interrogations was discussed. Sanchez said, “We scheduled them specifically when she would not be available to attend.”

When Karpinski was told about the photographs and the abuse, she prepared to hold a press conference and tell the Iraqis in Arabic that there would be a full investigation. But Sanchez warned her off. “He looked me dead in the eye and said, ‘absolutely not. You are not to discuss this with anyone. And that’s an order.'”

Karpinski discovered that all personnel and documents relating to the scandal had been removed from Abu Ghraib. The only thing that remained was a memorandum signed by Rumsfeld. It was called, “Approval of Harsher Interrogation Techniques,” and listed sleep deprivation, stress positions, playing loud music, insulting religious beliefs. In the margin, there was a note in Rumsfeld’s handwriting. It said, “Make sure this happens.”

Sanchez would not have implemented the techniques without the approval of Rumsfeld, and Rumsfeld would not have authorized them without the approval of the vice president, Karpinski testified. “And so it filtered down, and it never filtered down to me because I wasn’t even responsible for interrogations.”

Ultimately, however, Karpinski and 7 low-ranking soldiers were made the scapegoats. Karpinski was demoted to colonel. “I believe the Pentagon wanted to put this into a nice little package, 7 so-called bad apples, out of control on the night shift, and a female officer. They wanted to put that in a package, tie it up in a bow, and sink it forever, to make people believe we got it under control, we solved the problem.”

Karpinski also testified that American female soldiers in Iraq were assaulted or raped by male soldiers in the women’s latrines, and an alarming number committed suicide. “Because the women were in fear of getting up in the darkness [to go to the latrine], they were not drinking liquids after 3 or 4 in the afternoon,” Karpinski said. “In the 100 degree heat, they were dying of dehydration in their sleep. Rather than making everyone aware – it was shocking – they told the surgeon not to brief on the details, and don’t say specifically that they were women.” Karpinski identified the commander who ordered that the cause of death of the women not be listed on the death certificates. It was General Sanchez, she said.

The commission heard testimony about the Bush administration’s criminal responsibility for indefinite detention, rendition for torture, destruction of the global environment, attacks on global public health and reproductive rights, and actions and inactions leading up to and following Hurricane Katrina. The panel of judges will consider the testimony and release its findings.

January 23, 2006

Friendly Fire Ambush

Sergeant Patrick R. McCaffrey, Sr. and First Lieutenant Andre D. Tyson died on this day two years ago in Balad, Iraq. Back then, military officials reported that enemy insurgents ambushed them. The Army subsequently conducted an investigation and learned the men were targeted and killed by Iraqi troops they were training.

Although the Army completed its investigation on September 30, 2005, it failed to clarify the initial notification to the families for nine months. It took a May 22 letter from Senator Barbara Boxer’s office to force the Army to finally come clean.

A month before he died, Patrick told his father that Iraqi forces they were training had attacked his unit. When he filed a complaint with his chain of command, Patrick “was told to keep his mouth shut,” his mother said.

After Patrick died, his parents conducted their own investigations. The Army denied requests to see autopsy reports. The McCaffreys persisted. They talked to soldiers in their son’s unit and managed to learn what really happened.

Bob McCaffrey was informed by members of his son’s company that insurgents were offering Iraqi soldiers about $100 for each American they could kill. “Iraqi troops are turning on their American counterparts,” Bob said. “That puts a knock in the spin that the White House is trying to put on this story — how the Iraqis are being well trained and are getting ready to take over.”

Nadia McCaffrey learned that after her son was shot, a US truck arrived. It picked up Lt. Tyson, who was dead, but did not take her son who was still alive. The truck returned later and took him to the base, where he bled to death.

Yesterday, Brig. Gen. Oscar Hilman and three other officers visited Patrick’s mother to deliver the official report. “It was overwhelming,” Nadia told me. “I had to live through the whole thing again.”

The officers “tried to patronize me as a good Mom,” she added. “I said I won’t stand for that. I want the truth!”
When Nadia talked to Army officers yesterday she asked them, “How could you possibly let this happen”? They sat silent.

An Army official cited the “complexity” of the case as an excuse for the delay in telling the families how their sons really died, according to the Los Angeles Times.

“They never tell the family the truth,” said Ophelia Tyson, grandmother of Andre Tyson. “You know how politics is.”

“I really want this story to come out; I want people to know what happened to my son,” Nadia said. “There is no doubt to me that this is still happening to soldiers today, but our chain of command is awfully reckless; they don’t seem to give a damn about what’s happening to soldiers.”

The father of two children, Patrick joined the National Guard the day after the Sept. 11, 2001 attacks. He was the first combat death in the 58 year history of California’s 579 Engineer Battalion, based in Petaluma, Ca. Patrick was listed as “Casualty number 848.” That was 1652 deaths ago.

“He was killed by the Iraqis that he was training,” Nadia said. “People in this country need to know that.”

“It’s god-awful,” said Bob, himself an Army veteran. “It underlies the lie of this whole situation in Iraq. It’s all to me a pack of lies.”

Boxer noted, “You have to ask yourself, ‘What are we doing there with a blank check and a blind eye, when our soldiers are risking their lives for the Iraqi people and the Iraqis are turning around and killing our soldiers? “We need an exit strategy.”

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January 17, 2006

Honoring Clinton Jencks, Legendary Labor Organizer

Legendary labor organizer Clinton Jencks, who led mineworkers in New Mexico in a strike depicted in the classic 1953 movie “Salt of the Earth,” died Dec. 15, 2005 in San Diego of natural causes. He was 87.

An international representative of the Amalgamated Bayard District Union of Mine, Mill, and Smelter Workers in New Mexico, Jencks was convicted of falsely swearing a non-Communist affidavit required of officials under the Taft-Hartley Act during the McCarthy era. His five-year prison sentence was reversed by the Supreme Court in the landmark 1957 case, Jencks v. United States. The government had refused to turn over to the defense statements made by prosecution witnesses, including Harvey Matusow, a former Communist who went to work for Senator Joseph McCarthy. Matusow later recanted his testimony against Jencks in the book “False Witness.”

The Supreme Court ordered the government to give Jencks full access to its records. After the FBI refused, the prosecution was forced to dismiss the case against Jencks. Thanks to the Jencks case, the government is now required to provide the defense with prosecution witness statements. This hurdle was cited by the Department of Justice as a reason for abandoning prosecutions under the Smith Act, the centerpiece of federal anti-Communist legislation in the 1940’s and 1950’s.

Three months after the Jencks case was decided, Congress enacted the Jencks Act, in order to blunt the effects of the high court’s decision. The statute provides that no statement of a government witness shall be turned over to the defense until after the witness has first testified on direct examination.

Jencks raised the ire of the government with his successful organizing efforts. He was beaten up, thrown into jail, and his car was shot full of holes. “Why was I singled out?”, Jencks asked. “I was a very good organizer. I was dangerous in that sense.” Jencks said his work “concentrated at an intersection of several important struggles” – the proliferation of union organization after the Great Depression and World War II, and the new struggles of Mexican-American workers and of women.

Unusually democratic in his sensibility to all people, Jencks respected everyone, cultivating leadership within the rank and file. Dolores Huerta, co-founder of the United Farm Workers Union, said, “His life was one of extraordinary bravery. He was a pioneer, such a leader in an organization of mostly Spanish-speaking people. He earned everyone’s respect.”

Jencks, whom the Latino workers affectionately dubbed “El Palomino,” said, “If you believe in freedom, it’s freedom for everybody. And the only way you can test another’s devotion to freedom is in the crucible of struggle.”

Jencks led the primarily Latino union in a 15-month strike against Empire Zinc Co. beginning in 1950. They demanded equal pay with white workers, better safety conditions and healthcare. When the men were enjoined from walking the picket line, the women took over, and the men tended house, a radical notion in the 1950’s. The strike was ultimately successful.

“Salt of the Earth” chronicled that strike. Made by blacklisted filmmakers, it was produced on a shoestring with few professional actors. The strikers, including Jencks, portrayed themselves in the film. Theaters nationwide succumbed to pressure from the House Committee on Un-American Activities (HUAC), the Screen Actors Guild and the International Alliance of Theater and Stage Employees, and refused to show the film.

One of only 100 films selected by the Library of Congress for the National Film Registry, “Salt of the Earth” is one of the most widely viewed films in the world.

Lorenzo Torres was a fellow striker; his wife, Anita, walked the picket line. The couple, who also worked with Jencks on the film, said, “Clinton’s contribution has not been matched since then. The coalition work which resulted from his leadership was a phenomenal improvement from the past and still is present. It will resonate among the miners.”

Jencks, a highly decorated war veteran, was blacklisted, unable to find work for many years. He moved to San Francisco, a union town, and finally got a job. But, he said, “The FBI is very powerful and far-reaching.” Once again, he was out of work, leading a California State Employment counselor to tell him, “We need a new unemployment classification for you. I think you may be politically unemployable.”

In 1959, Jencks was awarded the prestigious Woodrow Wilson Fellowship for training university professors. He was then ordered to appear before HUAC. In spite of intense pressure from the FBI, the foundation affirmed his fellowship and Jencks received a Ph.D. in economics from U.C. Berkeley and later taught for 22 years at San Diego State University. When Jencks began teaching, the university withstood intense pressure to fire him; it had succumbed to red baiting of prior faculty members and was determined to stand firm behind Jencks.

Frank Wilkinson was another target of the government’s red-baiting during this period. In the heyday of McCarthyism, Wilkinson formed the The National Committee to Abolish HUAC which ultimately succeeded in its goal. Wilkinson, who went to jail for a year for refusing to testify before HUAC, said of Jencks, “Clint’s heartfelt contributions to building a better world are forever enshrined in the history of people fighting for peace and justice.”

Jencks loved the National Lawyers Guild. His lawyer, John McTernan, a prominent Guild member, uncovered the actual frame-up of Jencks by the FBI. At a 1999 Guild meeting at Thomas Jefferson School of Law, Jencks said, “I thank the Guild members very much for their courage in times of stress. The Guild was attacked for being a Communist front, when what the Guild was trying to do was to be something more than the ABA; it had a little bigger vision, a little bigger challenge for you and me.”

Clinton Jencks remained committed to the fight for economic and social justice. Three days before he died, Clint told me he saw parallels between the repression he and others endured during the McCarthy period and the Bush administration’s current policies. “It gives me pause to think what would happen if I were going to court today,” he said. “The government, right up to the Supreme Court, refused to come clean.”

A true egalitarian, Clint maintained, “We can have individual dignity only if all have dignity. Life is a choice, and we have to choose to make a difference – a better life for everyone without exception.”

January 11, 2006

Alito Sounds Death Knell for Individual Rights

Yesterday, the Senate Judiciary Committee began its confirmation hearings on the nomination of Samuel Alito for Associate Justice of the Supreme Court.

Alito is no John Roberts. Whereas Roberts had barely been a judge for two years when Bush nominated him for the Supreme Court, Alito has authored 361 opinions during his 15-year tenure on the federal court bench. Whereas Roberts is photogenic, with a winning smile, Alito is stiff and awkward before the cameras. Most significantly, whereas Roberts replaced Chief Justice William Rehnquist, who had a similar judicial philosophy, Alito would take the place of Justice Sandra Day O’Connor, who provided the swing vote 77 percent of the time.

If confirmed, Alito would tip the high court’s delicate balance radically to the right. Nearly always favoring the government, corporations and universities, Alito has ruled against individual rights in 84 percent of his dissents.

In a 196-page report released last week, the Alliance for Justice (AFJ) determined that in split decisions – the “difficult cases” – “the reasoning Judge Alito employs and the results he reaches are not balanced. Rather,” the report found, “they track the staunchly conservative political and legal views he expressed in his 1985 application to be Deputy Assistant Attorney General for the Office of Legal Counsel in President Reagan’s Justice Department.”

Alito’s 1985 application stresses his commitment to federalism (states’ rights), his view that “the Constitution does not protect a right to an abortion,” and his disagreement with the criminal procedure, reapportionment (one-man, one-vote), and Establishment Clause (church-state separation) decisions of the Warren Court.

The members of the Senate Judiciary Committee drew clear lines in yesterday’s session. Although abortion was a significant concern for three senators from each party, the limitation on executive power was a much more prominent theme during the opening statements.

Six Democratic senators, as well as committee chairman Sen. Arlen Specter (R-Pa.), expressed alarm at the recent revelation that Bush has been secretly spying on Americans since 2002. Five Democrats made reference to O’Connor’s opinion for the Court in Hamdi v. Rumsfeld: “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.”

Alito’s record reveals that he “has been extraordinarily deferential to the exercise of government power, especially executive branch power, except in cases involving alleged infringements on religious expression,” according to the AFJ. His “judicial record strongly suggests that he will … interpret the Constitution as giving the president greater authority to evade Congressional statutes and constitutional limitations whenever deemed essential to national security.”

Indeed, in a memorandum he wrote as a lawyer in the Reagan Justice Department, Alito argued that the attorney general should receive absolute immunity from lawsuits when he illegally wiretaps Americans. The Supreme Court rejected Alito’s view in a 1985 decision.

Alito also advocated that the president make a “signing statement” indicating what he thinks the law means when he signs a bill. Even though the Constitution grants the lawmaking power only to Congress, and thus courts look to congressional intent to interpret statutes, Alito hoped that the president could divert the courts’ focus away from congressional intent in favor of what he called “the President’s intent.”

George W. Bush has issued at least 108 such “signing statements,” according to the Washington Post. Most recently, Bush qualified his concurrence with the McCain amendment that outlaws torture and cruel, inhuman or degrading treatment, implying that he would be free to torture if he felt it was necessary for national security.

In 2000, Alito told a Federalist Society meeting that he was a strong proponent of the “unitary executive,” which means that all federal executive power resides in the president. This theory would reject discretionary executive power of independent agencies Congress has created since the New Deal, such as the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Reserve Board.

Alito argued in other memoranda that the Federal Bureau of Investigation should have broad latitude to investigate federal employees, and that an American Bar Association opinion prohibiting lawyers from secretly taping conversations should not prevent IRS lawyers from secretly taping as part of a federal criminal investigation.

Although the senators only touched on Alito’s alarming civil rights record in yesterday’s session, one would hope they would fully inquire into this area during the questioning.

In split decisions on claims involving violations of the civil rights of women, racial minorities, seniors and the disabled, Alito almost uniformly ruled against the claimants.

As America mourns the deaths of the 12 miners in West Virginia, we are reminded of the importance of mine safety regulations. Yet Alito disagreed with the Department of Labor and would not have applied mine safety rules to an area of a defunct Pennsylvania mine from which the company was still extracting materials to process into energy.

Sen. Edward Kennedy (D-Mass.) has raised the issue of Alito’s credibility. Although he promised the Senate Judiciary Committee in his 1990 confirmation hearing for the Court of Appeals that he would recuse himself from cases involving Vanguard companies, in which he had substantial financial investments, Alito subsequently proceeded to sit on a Vanguard case. And on his 1985 job application, Alito boasted of his membership in the ultraconservative Concerned Alumni of Princeton, which opposed co-education and affirmative action. Yet he now denies any memory of being in that group.

In his opening statement, Alito told the senators, “A judge can’t have any agenda. A judge can’t have any preferred outcome in any particular case.”

Yet Sen. Chuck Schumer (D-NY) advised Alito, “We need to know that presidents and paupers will receive equal justice in your courtroom. If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team’s players were up and repeatedly called 95 percent of pitches balls when the other team’s players were up, one would naturally ask whether the umpire was being impartial and fair.” Schumer observed, “The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions.”

Sen. Patrick Leahy (D-Vt.) said, “It’s important to know whether [Alito] would serve with judicial independence or as a surrogate for the president nominating him.” Sen. Russ Feingold (D-Wis.) declared, “We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect. And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach.”

We will see during the questioning whether the senators will indeed hold Samuel Alito’s feet to the fire, and demand that he forthrightly state his beliefs on the critical issues. Sen. Dianne Feinstein (D-Calif.) correctly noted that Alito’s nomination is a “pivotal” one in the history of this country.

January 9, 2006

First Officer Publicly Resists War

Yesterday, US Army First Lieutenant Ehren Watada became the first officer to publicly state his refusal to obey an order to deploy to Iraq. Lieutenant Watada said at a press conference in Tacoma, Washington, “The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war.” He stated, “An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq.”

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

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

Lt. Watada asked me to speak about the legality of the war at his press conference.

The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war. An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq.
US Army First Lieutenant Ehren Watada

I cited the Nuremberg Charter, which set forth the three most serious crimes: crimes against the peace, war crimes, and crimes against humanity. The US Army Field Manual 27-10, art. 28, incorporates the prohibition against these three crimes. The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.

The United States Is Committing a Crime Against the Peace in Iraq

The Nuremberg Tribunal called the waging of aggressive war “essentially an evil thing … to initiate a war of aggression … is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

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

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

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

Moreover, the Constitution gives only Congress, not the President, the authority to declare war. Congress cannot delegate that authority to the President. Even if Congress could delegate the war power to the President, it cannot authorize the President to execute an aggressive war.

The United States Is Committing War Crimes in Iraq

All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment.

Violations of the laws of war, memorialized in the Hague and Geneva Conventions, constitute war crimes.
All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment. These prohibitions are memorialized in the Army Field Manual 27-10, art. 506. The Pentagon is trying to remove Article 3 Common from the newly revised instructions that go with the Manual. The implication is that the Defense Department intends to treat prisoners inhumanely.

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

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

Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their inferiors were committing war crimes and failed to stop or prevent them. However, it is unlikely that Attorney General Alberto Gonzales will charge Bush, Cheney or Rumseld with war crimes.

The United States Is Committing Crimes Against Humanity in Iraq

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

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

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

Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: “No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”

The Uniform Code of Military Justice, in articles 90-92, sets forth the duty of military personnel to obey lawful commands. The Nuremberg Principles, which are part of US law, provide that all military personnel have the obligation not to obey illegal orders. The Army Field Manual 27-10, sec. 609 and UCMJ, art. 92, incorporate this principle. Article 92 says: “A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States …”

The Bush administration is committing crimes against the peace, war crimes and crimes against humanity in Iraq. Lieutenant Ehren Watada is correct when he says this is an illegal war. I salute his courage.

December 27, 2005

Big Brother Bush Is Listening

Any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order.
-George W. Bush, April 20, 2004, Buffalo, New York.

In an assertion of executive power that rivals the excesses of the McCarthy era of the late 1940’s and 1950’s, and the dreaded COINTELPRO (counter-intelligence program) of the 1950’s, 1960’s and 1970’s, George W. Bush’s National Security Agency has been secretly spying on United States citizens without warrants for the last three years.

George Orwell’s book “1984” was first published during the heyday of McCarthyism in 1949. In the society Orwell described, everyone was under surveillance by the authorities. The people were constantly reminded of this by the phrase, “Big Brother is watching you.”

During the McCarthy period, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in “red-baiting.”

Although Orwell’s allegory was aimed at communism, it was the United States government that initiated COINTELPRO, designed by its own terms to “disrupt, misdirect, discredit and otherwise neutralize” political and activist groups. In the 1960s, for example, the FBI targeted Dr. Martin Luther King, Jr. in a program called “Racial Matters.” King’s campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed King’s organization was being infiltrated by communists. In fact, the FBI was really concerned that King’s civil rights campaign, and particularly his opposition to the Vietnam War, “represented a clear threat to the established order of the US.” The FBI went after King with a vengeance, wiretapping his telephones and securing very personal information which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of COINTELPRO, a congressional committee chaired by Senator Frank Church, a Democrat from Idaho, conducted an investigation of activities of the domestic intelligence agencies in the 1950’s, 1960’s and early 1970’s. Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering. Reacting against President Richard Nixon’s assertion of unchecked presidential power, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978, to regulate electronic surveillance, while at the same time protecting national security.

FISA established a secret court to consider applications by the government for wiretap orders. It specifically created only one exception for the president to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers, and that there is no substantial likelihood that a United States person will be overheard.

FISA allows the Attorney General to engage in wiretapping in emergency situations without a prior judicial order provided he or she applies for one within 72 hours after initiating the surveillance. And FISA specifically covers warrantless wiretaps during wartime; it limits them to the first 15 days after war is declared. Since 1978, the court has granted about 19,000 warrants and only turned down five.

Nevertheless, in spite of FISA’s streamlined procedure for allowing lawful surveillance, Bush has sidelined the Foreign Intelligence Surveillance Court. In 2002, he signed an executive order that authorizes the National Security Agency to wiretap people within the United States with no judicial review. It is estimated that the NSA has eavesdropped on thousands of private conversations in the last three years. Additionally, the NSA has combed through large volumes of telephone and Internet communications flowing into and out of the United States. It has thus collected vast personal information that has nothing to do with national security.

In the wake of the outcry after the New York Times broke the story of Bush’s secret surveillance, Attorney General Alberto Gonzales cited Congress’s authorization of the use of force the day after the September 11 terrorist attacks as justification for the program. But the 2001 Authorization for Use of Military Force (AUMF) only permits the president to use “necessary and appropriate force” against “nations, organizations, or persons” that “planned, authorized, committed, or aided” the 9/11 attacks, or that “harbored such persons.”

That license to use appropriate force does not authorize the government to spy on people in the United States without a warrant. Indeed, several congresspersons who voted for the AUMF say they only intended to grant the president authority to invade Afghanistan, not to conduct unbridled electronic surveillance of people in the United States.

Tom Daschle, a former Democratic senator from South Dakota, was Senate majority leader when Congress passed AUMF. He helped negotiate the law with the White House counsel’s office. “I can state categorically that the subject of warrantless wiretaps of American citizens never came up,” Dashcle said. “I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.”

In fact, Daschle revealed that Congress turned down White House proposals both to authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States,” and to authorize the use of appropriate force “in the United States.”

Senator Edward M. Kennedy, D-Mass., described Bush’s spying program as an “arrogant usurpation of power.” He said, “The president is not above the law; he is not King George.” Senator Russ Feingold, D-Wis., agreed: “He is the president, not a king,” Feingold noted.

Senator Arlen Specter, R-Pa., Chairman of the Senate Judiciary Committee, said such behavior by the executive branch “can’t be condoned.” He declared on the Senate floor, “That’s wrong, clearly and categorically wrong. This will be a matter for oversight by the Judiciary committee as soon as we can get to it in the new year – a very, very high priority item.”

The spying revelation also influenced the Senate vote on the renewal of the USA Patriot Act. It swayed New York Democratic Senator Charles Schumer’s decision. “Today’s revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote,” Schumer said. “Today’s revelation makes it very clear that we have to be very careful – very careful.”

In a stunning blow against Bush, who had hoped several provisions of the Patriot Act would be made permanent, Congress extended the Patriot Act for only five weeks just before it recessed for the holidays.

It is not just congresspersons who are outraged at Bush’s secret surveillance. US District Judge James Robertson, one of 11 members of the FISA court, has resigned. Robertson, selected by former Chief Justice William Rehnquist to serve on the FISA court, reportedly expressed deep concern that Bush’s program is legally questionable and may have tainted the FISA court’s work, according to the Washington Post.

Besides the NSA program, the American Civil Liberties Union has discovered through a Freedom of Information request that counter-terrorism agents at the FBI have conducted extensive surveillance of such groups as the Vegan Community Project, the People for the Ethical Treatment of Animals, and a Catholic Workers group the FBI accuses of having a “semi-communist ideology.” Red-baiting is once again alive and well in America.

In 1975, Senator Frank Church said of the NSA, “That capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.” Church worried about the capacity of “this agency and all agencies that possess this technology” to “make tyranny total in America.”

George W. Bush has fulfilled the prophesies of both George Orwell and Frank Church – with a vengeance. But neither Orwell nor Church could have foreseen the technological developments that enable Bush’s large ears to penetrate our most intimate conversations.

The real motivation underlying Bush’s unprecedented assertion of executive power was revealed by Dick Cheney: “Watergate and a lot of the things around Watergate and Vietnam, both during the 1970’s, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area. The President of the United States needs to have his constitutional powers unimpaired.”

Bush has gone far beyond what the Constitution authorizes, however. Only Congress has the power to make laws. Congress has not authorized the president to suspend the law. And FISA makes it a crime, punishable by up to five years in jail, for the executive to conduct a wiretap without statutory authorization.

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).