July 21, 2005

Mr. Roberts’ Neighborhood

Who leaked the name of John G. Roberts before Bush’s official prime time revelation Tuesday night? My guess: Karl Rove. He had the most to gain from an early announcement. Rove knows the mainstream media has a very short attention span. What better way to deflect our attention away from Rove’s crime in leaking the identity of a CIA operative than to leak a potentially contentious nomination for the High Court?

What we’ll never know is whether, absent Rove’s scandal, Bush would’ve nominated someone else. Other candidates would probably have drawn a virulent response from Democrats, who have taken a cautious but muted stance toward Roberts’s nomination. Many talk of his scant paper trail; they call him a “stealth candidate.” But Roberts’s record is clear.

As a lawyer for the Reagan and Bush I administrations, and later for his corporate clients, Roberts displayed a consistent commitment to conservative doctrine. In both abortion cases he handled, he maintained a legal attack on reproductive rights. In one case, Roberts argued that Operation Rescue’s routine – sometimes violent – blocking of clinics where abortions were performed constituted protected free speech.

In Rust v. Sullivan, Roberts co-authored a brief in support of regulations prohibiting family planning programs that received federal aid from providing any abortion counseling. In that brief, he wrote: “We continue to believe that Roe was wrongly decided and should be overruled … The Court’s conclusion in Roe that there is a fundamental right to an abortion … finds no support in the text, structure, or history of the Constitution.”

During his Senate confirmation hearing for appointment to the Court of Appeals in 2003, Roberts changed his tune – apparently. When asked about his views on abortion, Roberts assured the senators, “Roe v. Wade is the settled law of the land. There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.” But his personal views wouldn’t keep Roberts from unsettling Roe as the law of the land, consistent with his statement in Sullivan that there is no right to an abortion in the Constitution. Roberts would likely vote to overturn Roe v. Wade if presented with the opportunity as a Supreme Court justice.

Roberts has had other opportunities to demonstrate his partisanship. As a judge, he ruled against requiring Dick Cheney’s energy task force to release its records to the public. He opposed protections in the Endangered Species Act. Displaying a clear conflict of interest, Roberts ruled against environmentalists seeking increased government regulation over copper smelters that emit toxic lead and arsenic pollutants; many of those smelters were owned by members of the National Mining Association. Just four years before, Roberts had filed a brief against citizens opposed to the coal industry’s destructive mountaintop removal, on behalf of the same National Mining Association.

Last Friday, Roberts voted to support Bush’s military commissions to try suspected terrorists, finding that the protections of the Geneva Conventions do not apply to anyone the administration believes is a member of al Qaeda. Bush established those commissions to deny the accused due process protections that are well-established in US and international law. Although he would probably recuse himself from this case if it reached the Supreme Court, Roberts is likely to walk in lockstep with the Bush administration in its “war on terror” and concomitant war on civil liberties in the years to come.

Roberts also showed his true colors when he argued for the expansion of religion in public schools, against a woman with carpal tunnel syndrome who was fired by Toyota, against federal affirmative action programs, and against a congressional effort to enable minorities to enforce the Voting Rights Act.

But Roberts is a dyed-in-the-wool conservative. He was a member of “Lawyers for Bush-Cheney” and served as a legal advisor to Jeb Bush during the recount in the 2000 presidential campaign. He has donated to the political campaigns of several Republican candidates, including one senator on the Judiciary Committee that will vote on Roberts’s nomination. He has spent most of his career as a corporate lawyer, and he comes to the Court with a partisan agenda.

At the end of the Supreme Court’s 2000 term, Roberts told a reporter for the Baltimore Sun, “The conventional wisdom is that this is a conservative court. We have to take that more skeptically. On the three issues the public was most interested in – school prayer, abortion and Miranda rights – the conservatives lost on all.” Sounds like wistful thinking.

It is incumbent upon the senators on the Judiciary Committee, and in the full Senate, to demand all pertinent records on Roberts from the Republican administrations in which he served. Senators must thoroughly interrogate Roberts about his views that could affect his lawmaking as a member of our highest court. They should ask him, for example, whether the Constitution has a right to privacy, and whether a woman’s reproductive freedom is entitled to constitutional protection.

Roberts is not brash and outspoken. But he may well be the iron fist in the velvet glove. Having spent his entire professional career as a hired gun for the right-wing, Roberts is unlikely to betray his social and political constituency.

Those who think Roberts is a moderate who will generate little controversy need only notice the reactions of Bush’s conservative religious backers. “The president is a man of his word,” said Tony Perkins, president of the Family Research Council, a right-wing Christian organization. “He promised to nominate someone along the lines of a Scalia or a Thomas, and that is exactly what he has done.” Operation Rescue President Troy Newman agrees. “We pray that Roberts will be swiftly confirmed,” he announced.

It’s payback time, and Bush has delivered.

And by the way, Bush is a president who insists he is firmly committed to diversity. There have been 109 justices on the Supreme Court. Roberts will be the 105th white male. He will replace the first woman ever to sit on the High Court. That leaves only one.

July 13, 2005

No War Criminal for Supreme Court

No sooner had the ink dried on Sandra Day O’Connor’s resignation letter, than the right-wing evangelicals began shouting threats: Bush had better pick a justice who would decimate the right to abortion as we know it. And corporate lobbyists promised to fight hard for a justice who would insulate big business from punitive damages, and against state regulation to protect consumers and the environment.

But most of the post-O’Connor discussion about possible candidates has focused on the bona fides of Bush’s Attorney General and confidant Alberto Gonzales, who many describe as a “moderate.” The religious conservatives find Gonzales unacceptable, since he refused to say that Roe v. Wade should be reversed when he sat on the Texas Supreme Court. Senate Democratic leader Harry Reid, however, thinks Gonzales is “qualified” to sit on the high court. Indeed, Reid chastised “the far right” for attacking Gonzales.

In their zeal to ensure that Bush does not choose a justice who would tip the court’s balance away from allowing a woman to make decisions about her own body without governmental interference, many Democrats would apparently settle for a war criminal. In spite of opposition from the right and the left, Gonzales is expected to be confirmed easily, without the necessity of the nasty filibuster.

Several senators posed hard questions to Gonzales during his attorney general confirmation hearing. Ultimately, however, the Senate confirmed Gonzales 60-36, with 4 abstentions. Six Democrats voted to confirm Gonzales and 3 didn’t cast votes. Curiously, Reid, who voted against Gonzales for attorney general, now finds him qualified to sit on the nation’s highest court.

When Senator Richard Durbin asked Gonzales at his hearing, “Can U.S. personnel legally engage in torture under any circumstances?”, Gonzales failed to give a categorical negative answer. “I don’t believe so,” he testified, “but I’d want to get back to you on that.” Gonzales surely knew that the Convention against Torture, which the United States has ratified, says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture.”

Gonzales is the very one who, as White House counsel, advised Bush that the President need not follow the law. The Geneva Conventions, which Gonzales called “quaint” and “obsolete,” are ratified treaties, and thus part of United States law under the Supremacy Clause of the Constitution.

Gonzales also counseled Bush on how to avoid prosecution for war crimes under the federal War Crimes Act.

Gonzales commissioned the Department of Justice’s Office of Legal Counsel’s August 1, 2002 memorandum, which illegally redefined torture so narrowly that the pain caused by interrogation must include death, organ failure or serious impairment of body functions. Any treatment short of that would be allowed.

That memo remained in place until December 30, 2004, on the eve of Gonzales’ attorney general confirmation hearing. In order to forestall tough questioning of Gonzales by Democrats on the Senate Judiciary Committee about the August 2002 memo, the Justice Department issued a new memo, broadening the definition of torture.

Gonzales’ advice to Bush led to the establishment of policies that set the stage for the torture and inhuman treatment of prisoners in U.S. custody in Iraq, Afghanistan, Guantánamo Bay, and secret CIA prisons throughout the world. Torture and inhuman treatment constitute war crimes under the federal War Crimes Statute. That law provides that one who commits a war crime “shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”

It is not necessary to personally conduct the torture in order to be liable under the War Crimes Statute. Under the well-established doctrine of “command responsibility,” a superior who knew or should have known his inferiors would commit war crimes, but who failed to stop or prevent those acts, is just as responsible as those who committed the criminal acts. Gonzales knew or should have known the policies he advocated would result in the torture and inhuman treatment of prisoners in U.S. custody.

Alberto Gonzales should not sit on the United States Supreme Court. He should be indicted and tried as a war criminal. (See The Gonzales Indictment, http://marjoriecohn.com/2005/01/gonzales-indictment.html.)

July 7, 2005

Payback Time?

“It is time to make good on those campaign promises, Mr. President. You have been given a mandate to end abortion in our nation by the American people who cast their votes for you.”
— Troy Newman, president of Operation Rescue, an anti-abortion group

“Al Gonzales is a great friend of mine. I’m the kind of person, when a friend gets attacked, I don’t like it.”
— George W. Bush, responding to right-wing criticism of Alberto Gonzales

With the unexpected resignation of Sandra Day O’Connor, George Bush finds himself on the horns of a dilemma. After his 2000 campaign pledge to appoint justices in the mold of Antonin Scalia and Clarence Thomas, Bush garnered the crucial support of right-wing evangelical Christians. Mobilizing in thousands of churches across the country, they provided the foot soldiers and the votes to elect and re-elect Bush. Their eyes were on the big prize – overturning Roe v. Wade, to stop the “holocaust” of abortion. The Supreme Court vacancy they’ve prepared for so long and hard has finally materialized, and the right-wing fundies are calling in their chits.

However, if Bush succumbs to pressure from his right-wing religious base and nominates an anti-abortion extremist, he is in for the mother of all confirmation battles. Pro-choice advocates recognize the significance of the Supreme Court seat that Justice O’Connor has occupied. They also are ready to rumble.

O’Connor was a swing vote on the abortion issue, but she ultimately voted to uphold Roe v. Wade. In the event Bush were to replace O’Connor with a justice who would vote to overrule Roe, that would not necessarily tip the balance sufficiently to outlaw abortion. Assuming William Rehnquist remains on the Court or is replaced with an anti-choice justice, there would be four solid pro-choice votes (John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer) and four solid anti-choice votes (Scalia, Thomas and the two new justices, or Rehnquist and the new justice). Anthony Kennedy swings both ways. Although personally opposed to abortion, he voted to affirm Roe. So, until the 85-year-old Stevens, or Ginsburg (who is not in good health) leave the Court, Roe will remain the law of the land – for now.

If Rehnquist steps down before the Court’s new term begins, that would alter the confirmation equation. While the Christian right would be gunning for two anti-Roe justices, the Democrats are more likely to accept a justice like Rehnquist if the other were more moderate, like O’Connor.

And Bush’s quandary is further complicated by his own situation. He no longer faces re-election and would like to focus on his legacy. Bush the politician would love to reward a loyal friend with a plum appointment. Long eager to appoint the first Hispanic to the Supreme Court, this is his chance. There is a Hispanic who would satisfy the religious right, the anti-choice Emilio Garza, touted by evangelical Hispanic groups. Bush, however, would prefer his dear friend Attorney General Alberto Gonzales, whom he affectionately calls “mi abogado” (my lawyer). They go way back – to the days when Texas Governor George W. Bush turned to Gonzales for advice on legal issues such as whether the governor should pardon prisoners facing the death penalty. Gonzales never met a death row inmate he didn’t want to execute.

As soon as O’Connor stepped down, right-wing interest groups, which have raised millions to eliminate a woman’s right to choice, took aim at Gonzales. Never mind that Gonzales champions policies that conservatives love. He was chief architect of the memos that would allow the United States to torture prisoners in the name of Bush’s “war on terror.” And Gonzales’ zealous support for the death penalty in Texas led to execution in nearly every case that came before him.

But abortion is the trump card for the religious right, and Gonzales does not satisfy their requirements. When Gonzales sat on the Texas Supreme Court, he voted to overturn a law that would require parental notification before a minor could have an abortion. Even though he voted the opposite way in a similar case, the right-wing evangelicals allow for no wiggle room on this subject.

Although both the right and the left would oppose a Gonzales nomination, ironically, he would be confirmed without a major conflagration. Senators already aired most of the contentious issues during Gonzales’s attorney general confirmation process. The filibuster and the nuclear option would not likely be used if Bush nominates Gonzales to fill O’Connor’s seat.

A Gonzales nomination would enrage right-wing fundamentalists, but could move many Latino voters into the Republican camp for the midterm elections.

Yesterday, once again mouthing his mantra that he will use “no litmus test” on abortion for a Supreme Court nominee, Bush added that he will “try to assess their character, their interests.” These may be buzz words for a Gonzales nomination. Bush knows Gonzales’ character and interests well. And he likes them.

Both the White House and the Senate Republican leadership are trying to rein in the right-wing hyperbole against Alberto Gonzales. “The extremism of language, if there is to be any, should be demonstrably on the other side,” warned Eric Ueland, chief of staff to Senate Majority Leader Bill Frist. “The hysteria and the foaming at the mouth ought to come from the left.”

Conversely, Nation columnist David Corn warns progressives to avoid labeling a Bush choice “extremist,” and instead urge confirmation of a judge who won’t eliminate or curtail abortion rights, favor corporate polluters over consumers, or restrict the federal government’s role in advancing social justice.

With so much at stake, we must exhort our senators to demand a commitment from the nominee to put constitutional rights above corporate and conservative interests. This means opposing Alberto Gonzales for his torture and death penalty policies, as well as opposing any nominee who would gut a woman’s right to make decisions about her own health and life without governmental interference.

July 1, 2005

The Creeping Draft

A young man in the Delayed Entry Program changed his mind about enlisting. The recruiter said to him that September 11 changed everything – “If you don’t report, that’s treason and you will be shot.” I helped him to obtain a discharge.
— Bill Galvin, Counseling Coordinator, Center on Conscience and War

Like the recruiter trying to get the youth to enlist in the military, George Bush invoked the September 11 terrorist attacks in his June 28 speech – six times. Bush ended his address with a recruiting pitch: “I thank those of you who have re-enlisted in an hour when your country needs you. And to those watching tonight who are considering a military career, there is no higher calling than service in our armed forces.”

Although there is not, and never has been, any evidence of a link between the September 11 attacks and Saddam Hussein’s regime, Bush desperately uses the September 11 tragedy to pump up support for his increasingly unpopular misadventure in Iraq.

“The president’s frequent references to the terrorist attack of September 11 show the weakness of his arguments,” House Democratic leader Nancy Pelosi said. “He is willing to exploit the sacred ground of 9/11, knowing that there is no connection between 9/11 and the war in Iraq.”

Indeed, Sen. Russ Feingold (D-Wis.) said it’s because of the lessons of the September 11 attacks that he opposes Bush’s approach to keeping the troops in Iraq without any timetable for withdrawal: “The US military presence in Iraq has become a powerful recruiting tool for terrorists, and Iraq is now the premier training ground and networking venue for the next generation of jihadists.”

Bush is in denial about the recruiting shortfall. In his speech, he intoned, “Some Americans ask me, if completing the mission is so important, why don’t you send more troops? If our commanders on the ground say we need more troops, I will send them. But our commanders tell me they have the number of troops they need to do their job.”

Maj. Chris Kennedy of the Third Armored Cavalry Regiment indicates otherwise. “We have a finite number of troops,” he said. “But if you pull out of an area and don’t leave security forces in it, all you’re going to do is leave the door open for them to come back. This is what our lack of combat power has done to us throughout the country.”

As American troops continue to die – more than 1,730 at latest count – in Bush’s war-that-never-had-to-be, recruiters are having an increasingly tough time getting kids to sign up. Although the Army met its monthly recruiting goal in June, it still faces a nearly insurmountable battle to meet its annual quota. The active-duty Army is still 7,800 recruits short of the 80,000 enlistees it seeks to send to boot camp, with only three months left in the recruiting year. This will be the first time since 1999 that the Army will have missed its annual enlistment quota.

The Army provides 105,000 of the 139,000 US troops currently in Iraq. Recruiters for the Marines, which supplies about 22,000 troops, report spending an average of 12 hours per recruit they enlist. This is 3 hours more than they spent only a year ago.

Over $3 billion a year is spent on recruitment, or about $14,000 per recruit. So frantic are recruiters to meet their goals, many have signed up people with serious mental diseases, and have ignored medical and police records of potential recruits.

“Recruiters must meet quotas,” says Kathleen Gilberd, co-chair of the National Lawyers Guild’s Military Law Project. “Those who fail to do so face transfer to much less desirable duties, like combat, as well as poor performance evaluations, which can affect promotion and careers. While recruiter fraud and misconduct have been around for years,” according to Gilberd, “the recruitment problems of the war in Iraq have resulted in more lies as well as more complaints about recruiter misconduct.”

The Army reserve has upped its eligible age limit to 39, and the Army is increasingly recruiting high school dropouts and kids with lower scores. Non-citizens are being targeted. The military is now offering expedited naturalization with relaxed requirements to those on active duty status on or since September 11, 2001.

Enlistees are given a date to report within 365 days of the day they sign up. This is called the Delayed Entry Program (DEP). If, for any reason, they change their mind within that time, they don’t have to go. A counselor with the San Diego Military Counseling Project told me that recruiters lie. They do underhanded things to circumvent the DEP. A recruiter might show up at the recruit’s job and tell his boss he isn’t patriotic and get the recruit fired. On the day before the recruit is due to report, the recruiter will tell him to come down to the office to complete some paperwork. The recruit will then be kept there overnight and sent directly to boot camp the next day. This is kidnapping.

A recruiter told the New York Times recently, “The problem is that no one wants to join. We have to play fast and loose with the rules just to get by.”

The Pentagon has recently signed a contract with an outside marketing firm to compile an extensive database on 30 million 16- to 25-year-olds to help recruiters target potential enlistees. The data will contain detailed information about high school students ages 16 to 18, all college students, and Selective Service System registrants. Statistics collected include Social Security numbers, e-mail addresses, grade-point averages and ethnicities of possible recruitment targets.

The No Child Left Behind Act, which Bush signed in 2002, aims to ensure that no child is left behind when the ships leave for Iraq. It allows the Pentagon to gather home addresses and telephone numbers of public-school students. Schools must provide military recruiters with this data or risk losing millions in federal education funding. The Pentagon’s new database, however, will include much more extensive information on these kids.

But the Act also contains an “opt out” clause which allows parents to sign a form preventing schools from providing information about their children to the military.

Some recruiters say the greatest single obstacle to military recruitment is parents. “The parents of the kids being sought by recruiters to fight this unpopular war,” wrote the New York Times’ Bob Herbert, “are creating a highly vocal and potentially very effective antiwar movement.” This is not surprising in light of the recent Washington Post-ABC News poll that showed 60 percent of Americans think the Iraq war has become a quagmire. A Department of Defense survey last November found that only 25 percent of parents would recommend military service to their children, down from 42 percent the year before.

Rep. Jim McDermott (D-Wash.) said of the recruiters, “They’re not going to all the schools. They’re going to the schools where they figure the kids will have less chance to go to college. It’s an insidious kind of draft, quite frankly.” McDermott faults the military for enticing students with talk of patriotism, adventure and college funds, instead of giving them a realistic view of combat. He is among those in Congress trying to change the law so that students “opt-in” for recruitment; the presumption would be against the schools providing the data to the Pentagon.

“There’s nothing dishonorable with serving in the military,” said McDermott, a psychiatrist who served stateside during the Vietnam War. “But it ought to be done with your eyes open.”

A woman named Kathie who posted on the Military Families Speak Out (MFSO) website tells of her 17-year-old son who joined the Marines through the DEP just after he finished his junior year in high school. But, “somehow, all the glossy brochures and videos about the Marines had failed to mention the dehumanization of military training and war,” his mother wrote. Her son has filed for conscientious objector status.

Charlie C. Carlson II, Command Sergeant-Major USA Ret., also posted on the MFSO website. He wrote: “My son recently returned from the Iraq War, his third war, and, being fed up with Bush lies and back-to-back-deployments, applied to be discharged from his ‘indefinite enlistment’ status. Six days later he was under investigation for making ‘disloyal comments’ about George Bush … which amounted to saying in general conversation with other soldiers that ‘Bush should never have started the war’ and ‘Bush is no military leader.'” Although “his 14 years of military service up to this point was flawless, he was an excellent soldier … he was demoted and sentenced to 45 days of extra duty. His crime involved nothing more than expressing his personal political opinion as guaranteed under the Bill of Rights, the very document that he had risked his life defending.”

The Military Law Task Force reports that the GI Rights Hotline received 32,000 calls in 2004 from soldiers and sailors seeking information about conscientious objector claims, going AWOL, disability, Post Traumatic Stress Disorder, and general advice about alternatives to remaining in the military. Since the beginning of 2005, the Hotline has fielded about 3,000 calls per month. The GI Rights Hotline number is 1-800-394-9544.

June 30, 2005

Signing Your Life Away

A young man in the Delayed Entry Program changed his mind about enlisting. The recruiter said to him that Sept. 11 changed everything –
“If you don’t report, that’s treason and you will be shot.”
I helped him to obtain a discharge.
-Bill Galvin, Counseling Coordinator, Center on Conscience and War

Like the military recruiter trying to get the youth to enlist in the military, George Bush invoked the September 11 terrorist attacks in his June 28 recruiting speech – six times. Bush ended his address with a recruiting pitch: “I thank those of you who have re-enlisted in an hour when your country needs you. And to those watching tonight who are considering a military career, there is no higher calling than service in our armed forces.”

Although there is, and never has been, any evidence of a link between the Sept. 11 attacks and Saddam Hussein’s regime, Bush desperately uses the Sept. 11 tragedy to pump up support for his increasingly unpopular misadventure in Iraq.

“The president’s frequent references to the terrorist attack of September 11 show the weakness of his arguments,” House Democratic leader Nancy Pelosi said. “He is willing to exploit the sacred ground of 9/11, knowing that there is no connection between 9/11 and the war in Iraq.”

Indeed, Sen. Russ Feingold (D-Wis) said it’s because of the lessons of the Sept. 11 attacks that he opposes Bush’s approach to keeping the troops in Iraq without any timetable for withdrawal: “The US military presence in Iraq has become a powerful recruiting tool for terrorists, and Iraq is now the premier training ground and networking venue for the next generation of jihadists.”