blog

February 15, 2005

First They Came for Lynne Stewart

First they came for the communists, and I did not speak out–
because I was not a communist;
Then they came for the socialists, and I did not speak out–
because I was not a socialist;
Then they came for the trade unionists, and I did not speak out–
because I was not a trade unionist;
Then they came for the Jews, and I did not speak out–
because I was not a Jew;
Then they came for me–
and there was no one left to speak out for me.
-Pastor Martin Niemöller, 1945

Now they’re coming for the lawyers, and we must all speak out.

Last Thursday, after 13 days of deliberations, prominent New York civil rights attorney Lynne Stewart was convicted of conspiracy, providing material support to terrorists, and defrauding the United States government. Her 7-month trial was held in the same federal courthouse where the Rosenbergs were tried for conspiracy to commit espionage more than 50 years ago. Stewart faces between 35 and 45 years in prison.

Stewart was indicted in March 2002. The indictment was based on governmental monitoring of conversations between Stewart and her client, Shiek Omar Abdel Rahman, which occurred two and a half years before the terrorist attacks of September 11, 2001.

Rahman is serving a life plus 65-year sentence for conspiring to bomb several New York City landmarks and soliciting crimes of violence against the U.S. military and Egyptian President Hosni Mubarak.

Beginning in 1997, the Bureau of Prisons, at the direction of the Attorney General, imposed special administrative measures (SAMs) on Rahman, limiting his access to the mail, the media, the telephone and visitors.

Stewart was obliged to sign an affirmation agreeing to be bound by the SAMs, before being allowed to see her client. She agreed “only to be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters” and not to “use my meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman.”

The government charged that Stewart allowed the Arabic translator to read letters to Rahman regarding Islamic Group matters, and to conduct a discussion with Rahman regarding whether Islamic Group should continue to comply with a cease-fire in Egypt. It also alleged that Stewart concealed those discussions from prison guards, and announced to the media that Rahman had withdrawn his support for the cease-fire, in violation of the SAMs.

Stewart denied these allegations, and testified that she believed in good faith that relaying Rahman’s statement calling for more consultation about the Egyptian cease-fire did not violate the SAMs. She said she was trying to have Rahman transferred to Egypt to serve his sentence by keeping him visible. Rahman is old, blind, does not speak English, and has been kept virtually incommunicado in a federal prison in Minnesota.

Her good-faith belief, Stewart tesfitied, was based on actions of former U.S. Attorney General Ramsey Clark, another of Rahman’s attorneys. Clark also signed these SAMs, held press conferences, and conveyed Rahman’s statements about Egyptian politics to the press. Yet, Clark was never prosecuted.

Clark, who testified for Stewart at her trial, told Amy Goodman of Democracy Now!, “I don’t know of anything that Lynne did that I didn’t do.” He said, “This case would never have been brought except for the fear generated, and the advantage that the Bush administration was taking of it, by the events of September 11, 2001. In ordinary times and circumstances, it would be recognized that everything that Lynne did was exactly what an effective attorney representing a client zealously would be obligated to do.”

At a 2002 conference, Stewart noted, “Usually if one breaks a Bureau of Prisons edict, one is told one can’t visit the prison again, or one gets some sort of administrative slap on the wrist of some kind. One does not usually get indicted for aiding a terrorist organization.”

Why did the government wait so long before indicting Lynne Stewart? According to Heidi Boghosian, executive director of the National Lawyers Guild, Stewart was a “prime target for the Attorney General, who needed desperately to show that the Justice Department was actively fighting terrorism.”

When Stewart was indicted, John Ashcroft had arrested only one person since September 11 – John Walker Lindh. “By indicting Stewart,” noted Boghosian, “Ashcroft effectively sent the dual message that he could indict other lawyers who represented clients with unpopular beliefs and that such clients do not deserve defense.”

The same day Bush signed the USA Patriot Act into law, General Ashcroft announced an interim amendment to the Bureau of Prisons regulation, which took effect five days later, without the usual public comment period. It permits the Department of Justice (DOJ) unlimited and unreviewable discretion to eavesdrop on confidential attorney-client conversations of persons in custody, with no judicial oversight and no meaningful standards. It applies not only to convicted inmates, but to all persons in the custody of the DOJ, including pretrial detainees, material witnesses, and immigration detainees who have not been accused of any crime.

At a 2002 convention of the National Lawyers Guild, Stewart expressed alarm at what her indictment portends for the future of the attorney-client privilege and criminal defense. She said, “This is about protecting the right to defend. Once the attorney-client privilege is lost, there is no right to defend as we know it.” Speaking about the government’s monitoring of her conversations with her client, Stewart stated, “The question you should be asking is not what I was doing in that room, but what was the government doing in that room?”

During the McCarthy period of the 1950s, 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.”

Since September 11, those who question government policy have been, and will continue to be, branded “terrorist.” Even though “terrorism” was not an element of any of the offenses with which Lynne Stewart was charged, and Osama bin Laden was not part of any of the charges, the prosecution was permitted to bring bin Laden’s name into the trial.

A written threat from the Jewish Defense Organization was posted on the door to Stewart’s home after 10 ½ days of jury deliberations in the trial. It referred to a message purporting “to reach out so the jurors understand what she is. And that’s been done.” The message gave Stewart’s home address and said she “needs to be put out of business legally and effectively.” It threatened to “drive her out of her home and out of the state.” If this message did reach any jurors who were sitting on the fence, it may have pushed them over to the guilty side.

Stewart told Amy Goodman, “These SAMs said you know, ‘If you break these regulations, you may be cut off from your client.’ That was our greatest concern, that we would be cut off from the client. The idea of prosecution never entered our minds.” Stewart continued, “I believe with my mind and heart that it was the right thing to do.”

Lynne Stewart’s indictment, and conviction, will also chill attorneys from taking on cases of unpopular clients. “The purpose of this prosecution,” said Michael Ratner, president of the Center for Constitutional Rights, “was to send a message to lawyers who represent alleged terrorists that it’s dangerous to do so.”

Stewart’s attorney, Michael Tigar, does not blame the jury for this injustice. “We have all in our lifetimes seen well-meaning juries get caught up in the media-dominated government rhetoric of their time, based mostly on fear,” Tigar said after the verdicts were announced. “I do not criticize these jurors. I have every confidence this verdict will be set aside.”

Lawyers representing Guantánamo detainees are being asked to sign agreements that their consultations with their clients will not be confidential. Tigar told Amy Goodman, “The only way that we will ever get to the bottom of the American concentration camp abuses at Gitmo and Abu Ghraib is if the lawyers for these prisoners are permitted to tell their stories to the world. If the government can shut off that communication, which they have attempted to do over and over and over again, these activities will continue in secret.”

It is essential that people feel safe in these perilous times. But, as Supreme Court Associate Justice Sandra Day O’Connor wrote in a 1995 opinion, “It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis.” The confidential relationship between attorney and client sits at the heart of our criminal justice system. We must zealously guard it or we will all be at risk.

February 9, 2005

Lady Liberty Under Attack

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me.
I lift my lamp beside the golden door.
– Emma Lazarus, The New Colossus,
Quoted on base of Statue of Liberty

The House of Representatives today is debating the REAL ID Act of 2005 (HR 418). This bill threatens the very principles upon which this country was founded. It resurrects several anti-immigrant and anti-refugee provisions dropped from the final version of the “Intelligence Reform and Terrorism Prevention Act of 2004” in December 2004 due to widespread opposition.

Although purporting to enhance our nation’s security, the REAL ID Act does absolutely nothing to make us safer. Instead, it targets the world’s most vulnerable group – refugees fleeing persecution, including torture, rape and other atrocities.

Under section 208 of the US Immigration and Nationality Act, a refugee may be granted asylum if she has been persecuted or has a well-founded fear of persecution if she is returned to her home country. The persecution must be based on her race, religion, nationality, membership in a particular social group, or political opinion.

The REAL ID Act would require a refugee to prove her persecutor’s “central” reasons for harming her – essentially penalizing a refugee who cannot prove with unrealistic precision what is going on in her persecutor’s mind. It would give an immigration officer or judge broad leeway to deny a refugee asylum based on her perceived “demeanor” and alleged “statements” taken in unreliable circumstances, ignoring the fact that survivors of rape or torture, suffering from post traumatic stress disorder, may appear lacking in emotion or have difficulty making eye contact.

This bill will allow the wives and children of victims of extortion by alleged terrorists to be deported or barred from asylum based on overly broad definitions of what constitutes “supporting” terrorism. It would require that non-citizens meet a virtually impossible burden of proof to convince the government they did not knowingly support terrorism. Current immigration law makes foreign nationals inadmissible if they knew or should have known that the support they provided to a group would further the group’s terrorist activity.

Under the REAL ID Act, a person would be deportable unless she could show “by clear and convincing evidence” that she did not know the group she was supporting was a terrorist organization under the law’s extremely broad definition of that term. Since it is almost impossible to prove lack of knowledge, this standard would make it nearly impossible for an innocent immigrant to defend herself against deportation. This would, for example, allow the deportation of an immigrant who donated money for tsunami disaster relief in the Aceh province of Indonesia, not knowing the organization that received funds had a subgroup the Department of Homeland Security considered terrorist.

The REAL ID Act would also establish extensive federal control over state issuance of driver’s licenses and state identification cards. If someone is undocumented or has overstayed a visa, he could not get a license or identification card under this scheme. It would undermine the states’ efforts to create a driver’s license system that assures all drivers are certified to drive, are insured, and are carrying valid licenses. This would drive undocumented people further into the shadows and undermine rather than improve security.

One of the most heinous parts of this bill is section 102, which would empower the Secretary of Homeland Security to suspend any and all laws in order to ensure the “expeditious” construction of a set of barriers and roads to keep illegal immigrants out. Then, it prohibits any judicial review of the Secretary’s decision to suspend any law.

What laws could the Secretary of Homeland Security suspend? Environmental and labor laws, such as the Endangered Species Act, National Forest Management Act, and the Davis-Bacon prevailing wage laws and the right to organize and bargain collectively. Defenders of Wildlife warns that section 102 could be used to waive all laws in all areas in the vicinity of the US borders with both Mexico and Canada, nearly 7,500 miles in total. Many of our borders run near or through national parks, forests and monuments, wildlife refuges, wilderness areas and other environmentally sensitive areas.

The American Immigration Lawyers Association cautions that the REAL ID Act will be detrimental to the welfare of the country in that it will actually increase the number of uninsured, unlicensed drivers; limit the critical law enforcement utility of Department of Motor Vehicle databases; make it difficult for people fleeing persecution to obtain refugee status in the United States; undermine free speech and association; and waste valuable resources, both economic and environmental, on false border security solutions.

Recall that the USA Patriot Act, which resurrected several formerly rejected anti-civil liberties provisions, was rammed through a timid Congress in the month following September 11, 2001. Likewise, the substance of the REAL ID Act will be tacked on to a “must pass” emergency spending bill, such as the financing of the Iraq war or tsunami relief, making it much more difficult for the Democrats to block its odious provisions.

The REAL ID Act of 2005 is opposed by myriad religious and civil liberties organizations, including the Anti-Defamation League, Episcopal Migration Ministries, Lutheran Immigration and Refugee Service, American Immigration Lawyers Association, Amnesty International USA, Center for Victims of Torture, Kurdish Human Rights Watch, Inc., National Council of La Raza, and Human Rights First.

Bush’s second term will be characterized by this and other attacks on our liberty and security. It is up to us to challenge these assaults or we will all face the wrath of what is increasingly becoming a police state.

February 2, 2005

Another World Is Possible

The Fifth Annual World Social Forum (WSF) held in Porto Alegre, Brazil from January 26-31 garnered almost no media coverage in the United States. Timed to coincide with the World Economic Forum in Davos, Switzerland, the WSF drew 155,000 activists from 135 countries, who assembled to challenge Bush’s agenda.

The weeklong happening, called “Another World Is Possible,” kicked off with a “march for peace.” An estimated 200,000 people, many with turbans or indigenous clothing, carried bright flags and marched to the beat of omnipresent drums. Several bore posters with pictures of Bush (“The World’s No. 1 Terrorist”). The mood was festive but purposeful as old and young, black, brown, yellow and white, prepared to strategize about how to create a just and peaceful world.

One of the most compelling speakers at the WSF was John Perkins, a former CIA operative and self-described economic hit man for U.S. imperialism. It was Perkins’ job to meet with a leader of a targeted country and encourage him to accept a large loan for a project that both the CIA and the leader knew the country could not afford. The money would go to a bank in the United States and U.S. corporations would get the contract to do the job. The country was then beholden to the United States, manipulated to support U.S. policy and make its natural resources available to U.S. corporations. This is the model of “neo-liberalism.”

Where a head of state refused to accept the CIA’s offer, Perkins would remind him that several leaders had been assassinated or become the victims of a coup and removed from office (e.g., Chile, Haiti). In such a situation, the CIA would back opposition movements within the target country, support corrupt military leaders, or undermine the country’s economy. The CIA often sent in “jackals,” or “hit men,” who plied their trade when other methods failed. Omar Torrijos, former president of Panama, was one victim of these jackals.

When both the economic hit men and the jackals were unsuccessful in bringing the country under U.S. domination, the tactic of last resort was war. This is what happened in Iraq after the U.S. was unable to convince Saddam to support its policies.

Notwithstanding Bush’s rhetoric about creating democracies throughout the world, the United States has tried mightily to facilitate the overthrow of twice democratically-elected Venezuelan president Hugo Chavez. But it has thus far failed. (See my editorial, Chavez Victory: Defeat for Bush Policy). There was talk last week at the WSF that the U.S. is attempting to get Colombia to invade Venezuela, but Chavez and other Latin American leaders are trying to defuse the situation. Likewise, Dick Cheney lobbed out the possibility that Israel might attack Iran (thereby using Israel as a U.S. surrogate to enable the installation of an Iranian government more receptive to U.S. policies).

Hugo Chavez, who also spoke at the WSF, received a hero’s welcome. He highlighted the Bolivarian Alternative for the Americas (ALBA), a proposal made by Venezuela as an alternative to the Free Trade of the Americas. The ALBA emphasizes social and cultural exchanges over profit-based economic deals. Chavez noted, “We can’t wait for a sustained economic growth of 10 years in order to start reducing poverty through the trickledown effect, as the neoliberal economic theories propose.”

Chavez criticized Condoleezza Rice’s recent assertion that Chavez was “a negative force in the region.” He said relations between the U.S. and Venezuela will remain unhealthy as long as the United States continues its policy of aggression. “The most negative force in the world today is the government of the United States,” Chavez said.

Significantly, Chavez maintained, “We must start talking again about equality. The U.S. government talks about freedom and liberty, but never about equality.” Indeed, Bush told the Congressional Black Caucus a few days ago that he was “unfamiliar” with the Voting Rights Act.

Walden Bello, executive director of Focus on the Global South and professor of sociology and public administration at the University of the Philippines, analyzed the role that cultural oppression played in the U.S. presidential election. Bello said that although neo-liberalism and militarism are significant problems, “the cultural dimension is what led the Bush administration to victory by drawing its support largely based on white people in the U.S.” He noted, “The Bush administration in fact appeals to traditional forms of cultural oppression through traditional forms of cultural ethnocentrism and of traditional and old forms of racism.” The people who voted for Bush, according to Bello, “were voting against blacks, they were voting against immigrants, the feminist movement, foreign imports and foreign ideas that are not American.”

The American Association of Jurists (AAJ), in association with the Latin American Association of Labor Lawyers, sponsored three days of panel discussions on Law, Public Order and Social Integration at the WSF. As the U.S. representative to the AAJ, I gave a presentation on Human Rights and the New World Order, in which I noted that Bush told his advisors on the evening of September 11, 2001, that the terrorist attacks provided a “great opportunity” for the United States. Likewise, when the tsunami devastated Asia, Condoleezza Rice used almost the same words. She said the tsunami was a “wonderful opportunity” for the U.S. I presented an analysis of how the neoconservatives have hijacked United States foreign policy and the resulting decimation of human rights, including the torture of prisoners in U.S. custody.

Another speaker at the AAJ conference was Arnel Medina Cuenca, president of the National Union of Cuban Jurists. Discussing the U.S. policy of neo-liberalism, he said, “Matan a los pobres pero no a la pobresa” (“They kill the poor but not the poverty.”)

The AAJ passed a resolution in support of the five Cuban political prisoners incarcerated in New York for what was, in effect, their anti-terrorist actions against terrorists in the U.S. who sought to overthrow the Cuban government. Another AAJ resolution calls for the return of Vieques, a United States military installation on the land of the U.S. colony Puerto Rico. The resolution also calls on the U.S. government to finance the decontamination of Vieques, which has been poisoned by depleted uranium and heavy metals from U.S. weapons testing and military training exercises. As a result the people of Vieques have the highest incidence of cancer in Puerto Rico.

Programs at the WSF advocated sustainable development, cancellation of Third World debt, an end to corporate abuse, struggle against United States imperialism, and termination of the occupation of Iraq.

In Bush’s State of the Union address this evening, we can expect to hear more rhetoric about “freedom,” “liberty” and “spreading democracy throughout the world.” For most of the people of the world, however, Bush’s words signal the spread of neo-liberalism, aggression and regime change, to their detriment. The World Social Forum is one small step toward uniting progressives from around the world to defy Bush’s agenda which threatens us all.

January 24, 2005

The Struggle for the Health and Legal Protection of Farm Workers: El Cortito

The Death of El Cortito
The Struggle for the Health and Legal Protection of Farm Workers: El Cortito
Maurice “Mo” Jourdane
Arte Publico Press, 2004
$34.95.
By Marjorie Cohn

When Cesar Chvez died in 1995, perched atop his wooden coffin was el cortito – the short-handled hoe. Until it was banned in California in 1975, the short hoe was responsible for the excruciating pain and permanent disfigurement of hundreds of thousands farm workers. Forced to stoop in the fields as they used the deadly tool to weed and thin the crops that yielded huge profits for agribusiness employers, laborers were required to work as many as ten to twelve hours a day, often in blazing heat.

It was through the relentless, and ultimately successful, efforts of Mo Jourdane that farm workers now stand tall in the fields, not required to use the short hoe.Read more

The Struggle for the Health and Legal Protection of Farm Workers: El Cortito, Maurice “Mo” Jourdane, Arte Público Press, 2004, $34.95

When César Chávez died in 1995, perched atop his wooden coffin was el cortito – the short-handled hoe. Until it was banned in California in 1975, the short hoe was responsible for the excruciating pain and permanent disfigurement of hundreds of thousands farm workers. Forced to stoop in the fields as they used the deadly tool to weed and thin the crops that yielded huge profits for agribusiness employers, laborers were required to work as many as ten to twelve hours a day, often in blazing heat.

It was through the relentless – and ultimately successful – efforts of Mo Jourdane that farm workers now stand tall in the fields, not required to use the short hoe.

César told Mo when they first met in 1967, “Like so many, I wake up in the night with the pain that comes from stooping in the field all day. The short hoe is the nail they use to hang us from the cross.” César’s doctor later confirmed, “stoop labor had destroyed César’s back.”

Just before Christmas in 1970, César was released after spending 12 days in jail for his nonviolent protest against the Teamsters, who falsely claimed they represented members of the United Farm Workers (UFW) union. The day after he was freed from jail by a unanimous order of the California Supreme Court, César, weakened from his fast, met with Mo, a young staff attorney at California Rural Legal Assistance (CRLA). “Will you get rid of the short hoe?” César asked Mo bluntly.

A few days later, Mo began his five-year battle to ban el cortito from the fields of California. In this book, Mo takes the reader on a journey through a riveting legal and political saga. From recording the back-breaking injuries workers had suffered, to securing medical evidence documenting the crippling effects of the hoe, Mo built his case. He describes his legal strategy, the testimony, and ultimately, the decisions of the Industrial Safety Board and the California Supreme Court.

The short-handled hoe was emblematic of the conditions farm workers faced. These, mostly Mexican, laborers did the work their U.S. counterparts shunned. Lacking union assistance, they were subjected to slave-like employment conditions and forced to live in nearly uninhabitable shanty-towns, for nearly a century before the UFW and CRLA came to their assistance.

In the mid-1970s, the pro-grower administration of then California Governor Ronald Reagan ended with the election of Jerry Brown as governor of the country’s most populous state. It was a new political climate that created the conditions for the demise of el cortito. And with the Brown administration, California farm workers, heretofore excluded from the protections of the National Labor Relations Act, became the first in the United States to secure collective bargaining rights, with the revolutionary Agricultural Labor Relations Act (ALRA).

I met Mo in 1976, when we both worked at the newly-established Agricultural Labor Relations Board (ALRB), the agency charged with administering the ALRA. Although Mo worked in the field offices and I worked in the Sacramento headquarters of the ALRB, I ran into him one day at an unfair labor practice hearing in Salinas. I didn’t know Mo, but as soon as I entered the room, I knew I was in the presence of a great trial lawyer. Mo’s presentation was mesmerizing, and he advocated passionately for his client. The administrative law judge was equally impressed, and ruled in his favor.

In his book, Mo details the struggles in the fields, and in the courts, to achieve justice for those who put food on our tables. “Working for CRLA meant a great deal more than helping farm workers solve the particular problems they brought through the door of our nine offices daily,” writes Mo. “Long hours spent at the office and in the fields were part of fighting the war on poverty, an epic campaign that involved efforts to challenge systematic inequalities in America.”

Mo also succeeded in preventing the children of migrant workers from automatically being placed in the mentally retarded classes, simply because they didn’t score well on a test that was not administered in their native language.

Early one morning, while Mo was on his way to interview witnesses in an unfair labor practice case in rural Kern County, an 80,000-pound oil rig pulled off a dirt access road into the path of Mo’s car. He was severely injured in the collision. Mo survived the crash and ten surgeries to repair his badly damaged face, eyes and head.

Mo went on to be a Superior Court judge in Monterey County from 1982-1985, appointed by Governor Jerry Brown. For the past 20 years, Mo, a marathon runner, has been a staff attorney for the Fourth District Court of Appeal in San Diego.

Besides being an invaluable historical chronicle for all readers, this book is an inspiration to aspiring lawyers. Over and over, Mo fought the odds to secure incredible victories for his clients, through individual and class actions. He sets forth important strategies about how to win when you don’t have the law on your side: marshal the best facts you can; anticipate defenses; never give up. In the words of the familiar UFW chant, Sí Se Puede! (It can be done!)

January 19, 2005

The Gonzales Indictment

Alberto Gonzales should not be the Attorney General of the United States. He should be considered a war criminal and indicted by the Attorney General. This is a suggested indictment of Alberto Gonzales for war crimes under Title 18 U.S.C. section 2441, the War Crimes Act.

COUNT I: Application of Geneva Conventions; Definition of Torture

On or about January 25, 2002 through January 16, 2005, Defendant ALBERTO GONZALES, Counsel to George W. Bush, the President of the United States of America, did write, commission and concur in memoranda that advocated conduct by United States military forces, amounting to war crimes under Title 18 U.S.C. section 2441 (The War Crimes Act ).

The War Crimes Act defines as war crimes: grave breaches of the Geneva Conventions, and violations of Article 3 common to the Geneva Conventions.

Section 130 of the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) defines as grave breaches of that Convention: “willful killing, torture or inhuman treatment,” and “willfully causing great suffering or serious injury to body or health.”

It is well-established that Article 3 common applies to international as well as internal armed conflicts. Article 3 common provides that “persons taking no active part in the hostilities, including members of armed forces who have laid down their arms…shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.”

The following acts constitute violations of Article 3 common: “Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”; “outrages upon personal dignity, in particular, humiliating and degrading treatment”; and “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.”

Article 5 of the Third Geneva Convention provides: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy [are prisoners of war under this Convention], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

Defendant ALBERTO GONZALES wrote, in a memorandum to President George W. Bush dated January 25, 2002, that the war against terrorism is a “new paradigm” that “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”

Defendant GONZALES wrote that the Third Geneva Convention should not apply to members of the Taliban and Al Qaeda who were captured after the United States invaded Afghanistan in October 2001. Defendant GONZALES also advised President Bush in that memorandum that he could avoid allegations of war crimes under The War Crimes Act by simply declaring that the Geneva Convention does not apply to members of the Taliban and Al Qaeda. Defendant GONZALES wrote that a determination of the inapplicability of the Third Geneva Convention would insulate against prosecution by future “prosecutors and independent counsels.”

In apparent reliance on the advice in Defendant GONZALES’ memorandum, and notwithstanding the requirement of Article 5 of the Third Geneva Convention that a “competent tribunal” determine the status of prisoners, President George W. Bush issued an order on February 7, 2002, specifying that the United States would not apply the Third Geneva Convention to members of Al Qaeda, and that as commander-in-chief of the United States, he had the power to suspend the Geneva Conventions regarding the conflict in Afghanistan, although he declined to suspend them at that time.

Defendant ALBERTO GONZALES commissioned the Office of Legal Counsel of the Department of Justice’s memorandum dated August 1, 2002, which required that, in order to constitute “torture,” the pain caused by an interrogation must include “injury such as death, organ failure, or serious impairment of body functions.” This definition is contrary to The War Crimes Act and the Convention Against Torture and Other Cruel, Unusual or Degrading Treatment or Punishment, a treaty ratified by the United States.

Before the August 1, 2002 memorandum was issued, Colin Powell, Secretary of State, had counseled against its conclusions that the Geneva Conventions did not apply; he wrote that this “will reverse over a century of U.S. policy and practice in supporting the Geneva conventions, and undermine the protection of the law of war for our troops, both in this specific conflict and in general.”

Although the August 1, 2002 memorandum was retracted on December 30, 2004, the provisions of the August 1, 2002 memorandum remained in effect for 2 ½ years, notwithstanding the warnings of Secretary Powell.

The January 25, 2002 and August 1, 2002 memoranda, and the February 7, 2002 order set forth policies that led to the willful killing, torture or inhuman treatment; and great suffering or serious injury to body or health, of DOES 1 through 1,000, prisoners in United States custody in Afghanistan, Iraq, Guantánamo Bay, Cuba, as listed in EXHIBIT A (Dear Mr. Gonzales).

Defendant ALBERTO GONZALES knew or should have known that, pursuant to memoranda written by, commissioned or concurred in by him, prisoners in United States custody would be subjected to willful killing, torture or inhuman treatment; and great suffering or serious injury to body or health, in violation of The War Crimes Act.

COUNT II: Military Commissions

Between September 11, 2001 and November 13, 2001, Defendant ALBERTO GONZALES did participate in the drafting of the Military Order establishing the Military Commissions, which order was signed by President George W. Bush on November 13, 2001. Said order mandated conduct by members of United States military forces which constitute war crimes under The War Crimes Act.

The War Crimes Act defines war crimes as grave breaches of the Geneva Conventions. Section 130 of the Third Geneva Convention defines as a grave breach of that Convention: “willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.”

Article 84 of the Third Geneva Convention provides that prisoners of war shall be tried in the same types of courts (military or civilian) as members of the armed forces of the Detaining Power. It also provides: “In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized.”

Article 3 common to the Geneva Conventions 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.”

Unlike courts convened pursuant to the Uniform Code of Military Justice, and civilian courts of the United States, the Military Order provides for no judicial review by federal courts of the United States. The final level of review in the Military Commissions is to the President or the Secretary of Defense.

Military Commission Order No. 1(6)(B)(3) allows the use of evidence that the accused is not permitted to see, and provides for the exclusion of the accused from the proceedings. These provisions violate the rights of the accused to be confronted with the evidence against him, and to confront and cross-examine adverse witnesses. These rights are guaranteed to the accused in courts convened under the Uniform Code of Military Justice and civilian courts in the United States.

Section 4(c)(3) of the Military Order provides for the “admission of such evidence as would, in the opinion of the presiding officer of the military commission…have probative value to a reasonable person.” Such evidence would be inadmissible under the rules of evidence in courts convened under the Uniform Code of Military Justice and civilian courts in the United States.

Defendant ALBERTO GONZALES knew or should have known that the Military Commissions, in whose creation he participated, will deprive prisoners in United States custody who will be tried before them, of the rights of fair and regular trial prescribed in the Third Geneva Convention and Article 3 common to the Geneva Conventions.

Penalties Under the War Crimes Act

Title 18 U.S.C. sec. 2441 provides that any national of the United States 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.”

January 17, 2005

Alito Threatens Dr. King’s Dream

Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.
-Dr. Martin Luther King Jr., Letter from a Birmingham Jail

During his confirmation hearing for the Supreme Court, Samuel Alito Jr. pledged allegiance to the principle of one man-one vote and denied he was a bigot. It is astonishing that these issues even entered our national discourse in 2006. But it is Alito’s record, both as a member of the Reagan administration and as a judge on the Court of Appeals, that raises allegations of racism. And it is that same record that betrays Dr. King’s values and threatens the future of civil rights in this country if Alito is confirmed to the high court.

In his 1985 application for a job in the Reagan Justice Department, Alito noted that he became interested in constitutional law “in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.” The reapportionment cases that upset him were the landmark decisions that affirmed the bedrock principle of our democracy: one person-one vote.

Fred Gray, the veteran civil rights lawyer who represented Dr. King and Rosa Parks, testified at Alito’s hearing. “As one who has been in the trenches and still is in the trenches,” Gray told the senators, “I appear today to attest to the tremendous importance of the reapportionment cases – those cases decided by the Warren Court, one of which I actually litigated and was my brainchild, Gomillion versus Lightfoot … The cases illuminate the inequities of mal-apportionment which deprived African Americans of voting strength across the nation. In my view, there is no more important body of law than that generated in the field of voter registration and in civil and human rights.” Gray testified, “I am troubled, extremely troubled, by Judge Alito’s comments made in his application, notwithstanding his testimony before this committee … A nominee to the Supreme Court who has a judicial philosophy that’s set against the Warren Court and against the reapportionment cases is in effect saying that he would turn the clock back.”

Indeed, when Alito became a judge, he ruled against minority voters who claimed a school board voting plan illegally diluted their voting strength. If he is confirmed, Alito will vote on a series of cases alleging minority vote dilution now pending before the Supreme Court.

Moreover, certain important provisions of the Voting Rights Act that have enhanced the opportunities for African Americans and other minority groups to vote effectively are set to expire next year, unless Congress renews them. These special provisions allow for significant federal oversight of state and local voting functions for jurisdictions deemed to have the worst and most persistent histories of voting discrimination against their minority populations. This heightened oversight is intended to identify and prevent proposed voting changes that worsen the position of minority voters, or to deter covered jurisdictions from proposing such voting changes.

For example, section 5 of the act requires certain covered states and political subdivisions to obtain federal or judicial preapproval or “preclearance” of any voting law changes or practices before they can legally take effect. This oversight has resulted in the detection and prohibition of several harmful voting laws and practices. Appeals of district court decisions on these preclearance provisions go directly to the Supreme Court.

Alito will have the opportunity to rule on section 5 preclearance issues, and may also review the 2007 congressional renewal of the act’s special provisions.

Besides his astounding statement opposing reapportionment, Alito also proudly touted his membership in the Concerned Alumni of Princeton in the same job application. CAP was formed to maintain Princeton as a white male college. It complained that increased numbers of “women and minorities will largely vitiate the alumni body of the future.”

In spite of his avowed pride in being a CAP member, Alito denied any memory of the group after he was nominated for the Supreme Court. His amnesia is particularly surprising in light of his vast recall of the details of the myriad cases on his court’s docket.

Alito’s judicial record in civil rights cases corroborates his bias. In all split decisions in cases alleging race and sex discrimination, Alito voted against the claimants. His dismal record led the NAACP Legal Defense and Education Fund, the Hispanic Caucus Civil Rights Task Force, and the National Bar Association to oppose Alito’s confirmation.

The mainstream media has fixated on Martha Alito’s tearful exit from the hearing after Republican Senator Lindsey Graham’s defensive rhetorical question about whether her husband was a “closet bigot.” Unfortunately, that dramatic film clip obscured the merits of the issue.

Samuel Alito’s record on and off the bench shows a consistent pattern of bigotry – a pattern that promises to continue once he becomes a justice of the Supreme Court. Senators from both parties who truly seek to realize the dream of Dr. Martin Luther King Jr. have a solemn obligation to filibuster and defeat Alito’s nomination.

January 10, 2005

Dear Mr. Gonzales

Dear Mr. Gonzales,

You have been rewarded for your unflinching loyalty to George W. Bush with a nomination for Attorney General of the United States. As White House Counsel, you have walked in lockstep with the President. As Attorney General, you will be charged with representing all the people of the United States. Your performance before the Senate Judiciary Committee on Thursday verified that you will continue to be a yes-man for Bush once you are confirmed.

In the face of interrogation by members of the Committee, you waffled, equivocated, lied, feigned lack of memory, and even remained silent, in the face of the most probing questions. Your refusals to answer prompted Senator Patrick Leahy to say, “Mr. Gonzales, I’d almost think that you’d served in the Senate, you’ve learned how to filibuster so well.”

Even though the Department of Justice retracted the August 2002 torture memo, and replaced it with a new one on the eve of your confirmation hearing, you still refuse to denounce the old memo’s narrow and illegal definition of torture. You permitted that definition to remain as government policy for 2 1/2 years, which enabled the torture of countless prisoners in U.S. custody.

You continually evaded inquiries about your responsibility for drafting the now-repudiated memo by portraying yourself as a mere conduit for legal opinions from the Justice Department’s Office of Legal Counsel. This puzzled Senator Russ Feingold, who said, “If you were my lawyer, I’d sure want to know your opinion about something like that.”

Republican Senator Lindsey Graham told you, “I think we’ve dramatically undermined the war effort by getting on the slippery slope in terms of playing cute with the law, because it’s come back to bite us.” Indeed, 12 retired professional military leaders of the U.S. Armed Forces wrote to the Judiciary Committee, expressing “deep concern” about your nomination because detention and interrogation operations which you appeared to have “played a significant role in shaping” have “undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world.”

When Senator Graham, an Air Force judge advocate, asked you if you agreed with a professional military lawyer’s opinion that the August memo may have put our troops in jeopardy, you were tongue tied. You said nothing for several embarrassing seconds, until Senator Graham suggested you think it over and respond later.

When Senator Richard Durbin asked “Do you believe there are circumstances where other legal restrictions, like the War Crimes Act, would not apply to U.S. personnel?” you again sat mute for several seconds, and then asked to respond later.

It is alarming, Mr. Gonzales, that a lawyer with your pedigree would be stumped into silence by these questions.

You have taken the unprecedented step of advising the President that the Geneva Conventions have become “obsolete.” You testified that since “we are fighting a new type of enemy and a new type of war,” you “think it is appropriate to revisit whether or not Geneva should be revisited.” You admitted preliminary discussions are already underway.

The 12 former military leaders wrote, “Repeatedly in our past, the United States has confronted foes that, at the time they emerged, posed threats of a scope or nature unlike any we had previously faced. But we have been far more steadfast in the past in keeping faith with our national commitment to the rule of law.”

Mr. Gonzales, you have concurred in, even commissioned, advice that led to the following:

Sodomy with a broomstick, chemical light, metal object
Severe beatings

Water boarding (simulated drowning)

Electric shock

Attaching electrodes to private parts

Forced masturbation

Pulling out fingernails

Pushing lit cigarettes into ears

Chaining hand and foot in fetal position without food or water

Forced standing on one leg in the sun

Feigned suffocation

Gagging with duct tape

Tormenting with loud music and strobe lights

Sleep deprivation

Hooding

Subjecting to freezing/sweltering temperatures

“Dietary manipulation”

Repeated, prolonged rectal exams

Hanging by arms from hooks

Permitting serious dog bites

Bending back fingers

Intense isolation for more than 3 months

Grabbing genitals

Severe burning

Stacking of naked prisoners in pyramids

Injecting with drugs

Leaving bullet in body of wounded prisoner

Taping naked prisoner to board

Shooting into containers with men inside

Keeping prisoners in small, outdoor cages

Pepper spraying in face

Forcing heads into toilets and flushing

Threatening live burial, drowning, electrocution, rape and death

Beating prisoners to death

Killing wounded prisoners

Throwing off bridge into river and drowning

Rape

Murder

Saddam Hussein would be proud of you, Mr. Gonzales.

Perhaps most alarming was your response to Senator Durbin’s question, “Can U.S. personnel legally engage in torture under any circumstances?” You answered, “I don’t believe so, but I’d want to get back to you on that.” You failed to give a categorical “no” answer. You surely know, Mr. Gonzales, that the Convention Against Torture prohibits torture at any time. That treaty, ratified by the United States and therefore part of the Supreme law of the land under the Supremacy Clause of the Constitution, 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.”

Mr. Gonzales, based on your record and your performance before the Senate Judiciary Committee, I have critical concerns about your appointment as Attorney General. I believe you would stand mute if George W. Bush told you he planned to collapse the three branches of government into one, destroying the Constitutional separation of powers. Even though Article I, Section 8 of the Constitution gives only Congress the authority “to make Rules concerning Captures on Land and Water,” you refused to tell the Senate Judiciary Committee that the President is not above the law. You think the President has the power to declare an act of Congress unconstitutional. You would rationalize the torture of prisoners.

Where even the strident John Ashcroft thought prisoners in United States custody are entitled to due process, you designed the military tribunals to deny it to them.

As counsel to Texas Governor George W. Bush, you wrote abbreviated clemency memos in capital cases omitting crucial defenses such as ineffective assistance of counsel, even evidence of factual innocence. Your counsel led Bush to deny pardons in 56 of 57 death penalty cases.

You sat before the Senate Judiciary Committee and the American people for seven hours with a smug grin on your face, lying to us, knowing you will be confirmed.

Your testimony led the New York Times to opine, “Mr. Bush had made the wrong choice when he rewarded Mr. Gonzales for his loyalty,” and the conservative Washington Post to say, “The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world.” The Post concluded, “Those senators who are able to reach clear conclusions about torture and whether the United States should engage in it have reason for grave reservations about Mr. Gonzales.”

You will have the distinction of being the first Latino Attorney General of the United States. You come from humble roots in Humble, Texas. You should understand the struggles of people of color, yet you have turned your back on them. As overseer of the policies that led to the torture of myriad people of color in Iraq, Afghanistan and Guantánamo Bay, you have betrayed your roots.

Your actions have shamed us in the eyes of the world and endangered our fighting men and women.

You do not deserve to be our country’s top prosecutor, head of the Department of Justice, charged with protecting our civil rights.

Mr. Gonzales, you should be ashamed.

January 3, 2005

Redefining Torture

The election’s over, but the Bush spin machine goes on. In anticipation of hard questions Alberto Gonzales will face at his attorney general confirmation hearing in the Senate Judiciary Committee this week, Bush’s lawyers are seeking to minimize the damage from the release of the torture memos in which Gonzales concurred.

Gonzales wrote a memo in January 2002 that proposed for the first time, “The war against terrorism is a new kind of war” and “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” Gonzales also designed the military commissions to deny due process to those who will face trials in them. (See my editorial, The Quaint Mr. Gonzales).

An August 2002 memo leaked during 2004 set the stage for the torture of prisoners in Iraq and Guantánamo Bay. It “helped provide an after-the-fact legal basis for harsh procedures used by the CIA on high-level leaders of Al Qaeda,” according to the New York Times. In it, Bush’s legal eagles defined torture so narrowly, the torturer would have to nearly kill the torturee in order to run afoul of the legal prohibition against torture. It said that to constitute torture, the pain caused by an interrogation must include injury such as death, organ failure, or serious impairment of body functions.

That memo also set forth the opinion that the laws prohibiting torture do “not apply to the President’s detention and interrogation of enemy combatants,” because he is Commander-in-Chief of the United States. And it posited various defenses to shield the President and his men from prosecution under the federal torture statute. The release of this memo, coupled with the repulsive torture photographs, launched a firestorm of criticism at the Bush administration.

The White House quickly disavowed the memo as the work of a small group of Justice Department lawyers. But the Washington Post reported that “administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel’s office and Vice President Cheney’s office.” According to Newsweek, the memo “was drafted after White House meetings convened by George W. Bush’s chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and [Cheney counsel] David Addington.” Haynes is one of Bush’s judicial nominees who was not approved by the Senate; Bush, however, has resubmitted Haynes’ name to the Senate, hoping Republican senators will engage in the unprecedented destruction of the filibuster.

Now, on the threshold of Senate hearings to confirm Alberto Gonzales as Attorney General, Justice Department lawyers have redefined torture in a new memo meant to supersede the embarrassing August 2002 memo.

The new memo, dated December 30, 2004, begins with the admirable statement: “Torture is abhorrent both to American law and values and to international norms.” Although undoubtedly aware of the abhorrent nature of torture back in 2002, the old memo’s authors launched right into narrowing the definition of torture in its first paragraph. They didn’t bother to mention that it is repulsive to the people.

In the fourth paragraph of the 17-page December memo, its authors say: “This memorandum supersedes the August 2002 Memorandum in its entirety.”

When the August 2002 memo came to light, it provoked such an outcry, Gonzales stepped up to the political damage control plate, and dubbed the Commander-in-Chief section “unnecessary.” Gonzales’ damage control statement has now been codified in the December memo. It says: “Because the discussion in that [August 2002] memorandum concerning the President’s Commander-in-Chief power and the potential defenses to liability was – and remains – unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds of any such authority would be inconsistent with the President’s unequivocal directive that United States personnel not engage in torture.”

What a relief! But wait. The new memo doesn’t actually say the President doesn’t have unlimited power to defy our torture laws. It begs the question by saying it’s “unnecessary” to deal with the broader legal issue because Bush has commendably declared that U.S. personnel should not commit torture.

The myriad reports, photographs, and testimonials that document widespread torture by U.S. personnel, however, show that Bush’s directive has been ignored. So the scope of possible defenses to torture prosecutions would indeed be relevant.

What the new memo does do is modify the definition of torture. “We disagree with statements in the August 2002 Memorandum,” writes Daniel Levin, Acting Assistant Attorney General and lead author of the December memo, “limiting ‘severe’ pain under the [federal torture] statute to ‘excruciating and agonizing’ pain, or to pain ‘equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'”

The new definition of torture is much broader, making it easier to maintain a criminal prosecution under the torture statute. In fact, it says “great care must be taken to avoid approving as lawful any conduct that might constitute torture.”

Acknowledging that “despite extensive efforts to develop objective criteria for measuring pain, there is no clear, objective, consistent measurement,” the new memo, contrary to the August 2002 memo, concludes that “severe physical suffering” may sometimes constitute torture even if it does not involve “severe physical pain.” But to constitute torture, writes Levin, “‘severe physical suffering’ would have to be a condition of some extended duration or persistence as well as intensity.”

The August 2002 memo, consistent with the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, required that the act actually result in the infliction of severe physical or mental pain or suffering, in order to amount to torture. The new memo, citing the federal torture statute, denies it is necessary to show actual infliction; an act committed with the specific intent to inflict severe pain or suffering is sufficient to sustain a criminal prosecution for torture.

Finally, the new memo admits that a defendant’s motive to protect national security will not shield him from a torture prosecution. This directly contradicts the August 2002 memo’s analysis of the necessity defense, which, it said, could defeat a torture charge if the defendant’s acts constituted a lesser evil than the evil of terrorism.

Michael Ratner, president of the Center for Constitutional Rights, which represents some of the detainees, said the repudiation of the earlier memo confirms that the Gonzales nomination should be withdrawn.

“The first [August 2002] memo took us back to the Middle Ages and so it first makes you say, what are we doing putting this guy in as attorney general of the United States,” Ratner said.

John Ashcroft was widely criticized for his attacks on civil liberties. Democratic senators will challenge Alberto Gonzales on his apologies for torture and other repressive policies. One would hope they do not see Gonzales as a lesser evil than the harsh Mr. Ashcroft.

December 27, 2004

The Emperor-in-Chief

Rumor has it that George W. Bush’s tailor is busily stitching a royal blue cloak to go with the gold crown that will adorn the president as he takes the oath of office on January 20. Now that Bush has secured a second term, it is no longer necessary to hide behind the subtle flight suit that bedecked him on the deck of the aircraft carrier declaring “Mission Accomplished” in May 2003. He can now come out of the closet as full-fledged Emperor of the World.

Notwithstanding the United States Constitution and the United Nations Charter, Bush nicely qualifies as “the male sovereign or supreme ruler of an empire,” as required by Webster’s New Universal Unabridged Dictionary.

Bush wasn’t always riding high. Shortly before 9/11, his ratings were falling. It was a mere two weeks after the September 11 attacks that a secret memo prepared for Alberto Gonzales’s office concluded Bush had the power to use military force “preemptively” against any terrorist organizations or countries that supported them. Any link to the attacks on the World Trade Center or the Pentagon was unnecessary, said the memo, even though Congress had so limited its license for the president to use force.

Treaties ratified by the United States, such as the Charter of the United Nations, are the Supreme law of the land under our Constitution. The U.N. Charter forbids the use of armed force against another State unless undertaken in self-defense or authorized by the Security Council. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation,” according to the leading Caroline Case of 1841.

The Charter’s prohibition on the use of force has not prevented prior presidents from acting unilaterally. Ronald Reagan invaded Grenada, George H.W. Bush invaded Panama, and Bill Clinton bombed Yugoslavia in 1999, the year after he bombed Afghanistan and the Sudan. Before invading Iraq, George W. Bush made war on Afghanistan to retaliate against the Taliban for harboring Osama bin Laden. None of these interventions was an exercise of self-defense; none was approved by the Council. All were illegal.

George W. Bush, however, has taken chutzpah to a higher level with his new doctrine of “preemptive war.” It was first elaborated in the secret September 25, 2001 memo from Justice Department lawyer John Yoo to Tim Flanigan, Gonzales’s chief deputy. Near the top of the 15-page memo is the following language:

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

Nowhere does the U.N. Charter permit the use of force to “retaliate” against anyone or any State. Nowhere does the Charter allow military force to be used “preemptively” against any organization. Yet nowhere did John Yoo mention the United Nations Charter.

Nevertheless, George W. Bush adopted the Yoo theory as his own, publicly proclaiming in a June 2002 speech at the West Point Military Academy graduation, “If we wait for threats to fully materialize we will have waited too long.” He added, “Our security will require all Americans to be forward looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.”

The new Bush Doctrine was again set forth three months later in the “National Security Strategy of the United States.” It said: “America will act against such emerging threats before they are fully formed.” This does not meet the Caroline test.

And in his March 17, 2003 speech that launched Operation “Iraqi Freedom” Bush maintained, “We choose to meet that threat now where it arises, before it can appear suddenly in our skies and cities,” in spite of the fact that Iraq had not attacked any country for 12 years, and posed no threat to any other country.

When Bush’s lawyers tried to defend the indefinite detentions of 600 men held incommunicado at the U.S. prison at Guantánamo Bay, Cuba, and of U.S. citizen Yasser Hamdi in the United States, the Supreme Court scolded them, saying war in not a “blank check” for the president. The due process the Court required the Bush administration to provide these men has been slow in coming, however; six months after the Court’s ruling in the Guantánamo case, very few have been afforded hearings.

Flush from their election “victory,” Bush’s men are hunkering down to remake the country in their own image. In the last Congress, the Senate Democrats worked with Bush to approve 204 judicial nominees, “rejecting only 10 of the most extreme,” according to incoming Senate Minority Leader Harry Reid (D-Nev.).

Nonetheless, Bush has re-nominated several candidates who failed to win Senate approval during his first term. He is hoping the Republicans will destroy the filibuster, a time-honored procedure that keeps the majority from tyrannizing the minority.

Many of the names Bush is resubmitting to the Senate are right-wing ideologues, who oppose abortion. (See my editorial, Bush’s Judges: Right-Wing Ideologues). Bush, empowered by the “mandate” he has secured, is gunning for Roe v. Wade. With the illness of Chief Justice William Rehnquist, it is likely Bush will have one to four Supreme Court appointments in his second term. We can expect to see abortion opponents nominated to the Court.

One of Bush’s re-nominees is William J. Haynes II, who, as general counsel to the Defense Department, oversaw the preparation of a memo that argued Bush may not be bound by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention, a treaty ratified by the United States, specifies that torture is never permitted, even in time of war. This memo is regarded as having set the tone for the widespread torture in Afghanistan, Iraq and Guantánamo Bay.

Although the torture was revealed with the pornographic photographs in April, no high level officials have been brought to justice. Even the conservative Washington Post said in an editorial Thursday, “The record of the past few months suggests that the administration will neither hold any senior official accountable nor change the policies that have produced this shameful record.”

Emperor George W. Bush will continue to consolidate his empire. For the people of Iraq, our soldiers who are there, and our sons and daughters who will likely be drafted into that quagmire, the price is dear.