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July 13, 2004

Bush’s Judges: Right-Wing Ideologues

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 4, 2004

The Reincarnation of Saddam Hussein

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 30, 2004

Supreme Court: War No Blank Check for Bush

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is indeed a victory for the rule of law.

June 28, 2004

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 18, 2004

The Torturer-in-Chief

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Try as they might, the lawyers commissioned by Donald Rumsfeld and presidential counsel Alberto R. Gonzales were unable to find a loophole in the Torture Convention’s absolute proscription on torture. “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture,” according to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These accounts do not describe conduct befitting a civilized country.

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

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

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

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

June 11, 2004

John Danforth—Bad Choice for U.N. Ambassador

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 9, 2004

Bush the Would-Be Torturer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 5, 2004

Giving Iraqis What Is Rightly Theirs—Sovereignty

George W. Bush pledged last week that on June 30, “our government and our coalition will transfer full sovereignty – complete and full sovereignty” to the new Iraqi government. With such bold assurances, why then the heartburn among Iraqis and Europeans?

Sovereignty has traditionally described a state that has a territory, a government, a population, and formal judicial autonomy. In the international legal arena, a sovereign state is entitled to territorial integrity, political independence, and exclusive jurisdiction and control within its territory.

Yet the Bush administration has danced around the notion of how much power the Iraqis will actually have over the 138,000 U.S. troops that inhabit their soil. And the U.S. is insisting that its troops enjoy immunity (it can’t say “sovereign immunity,” since it will not technically be sovereign over Iraq come June 30) from criminal or civil prosecution in Iraqi courts. This means impunity for the torture perpetrated on Iraqi prisoners.

It defies logic to assume Bush will make good on his promise to grant Iraqis full sovereignty. He went out on a limb by invading a sovereign country which posed no threat to the United States, suffering the loss of more than 800 American troops, at a cost so far of $149 billion to U.S. taxpayers. After taking such a formidable risk, Bush is unlikely to throw in the towel now and give the Iraqis complete authority to kick out his troops and control their own valuable oil resources.

Indeed, the United States plans to build the largest CIA station in the world in Baghdad and locate permanent U.S. military bases in Iraq. This presence in a country with a more U.S.-friendly government will ensure greater receptivity to foreign investment and maintain U.S. hegemony over the strategically important Persian Gulf region.

As the U.S. election approaches, Bush has held fast to the June 30 date for the “transfer of sovereignty” to Iraqis. He knows that come November, Americans, who are becoming increasingly weary of troop casualties and a failing wartime economy, will demand a way out of the quagmire.

So Bush wants to have it both ways: transfer sovereignty, but keep 138,000 pairs of feet in the door, to protect U.S. “interests.” The U.S. would, in the words of Marc Grossman, under secretary of state for political affairs, “do our very best to consult with that interim government and take their views into account” about whether our troops would remain in Iraq. But bottom line, according to Grossman, is that “American commanders will have the right, and the obligation” to decide whether our GIs stay or go.

Back in April, Grossman accurately described what the Iraqis will gain on June 30 as “limited sovereignty.” In the face of eyebrows raised all around, however, the Bush administration has backed away from that phrase, instead speaking of “complete and full sovereignty.”

Semantics, to be sure. After marginalizing U.N. special envoy Lakhdar Brahimi, Ambassador L. Paul Bremer, head of the Coalition Provisional Authority, engineered the selection of the new Iraqi Prime Minister Iyad Allawi, a man with close ties to the CIA. Allawi was responsible for the sensational claim that Iraq’s weapons of mass destruction could be deployed in 45 minutes.

In a moment of uncommon candor, Brahimi affectionately referred to Bremer as “the dictator of Iraq.” After all, said Brahimi, Bremer “has the money. He has the signature. Nothing happens without his agreement in this country.”

But Bush maintains, “I had no role” in selection of the new Iraqi leaders. Likewise, U.S. National Security Advisor Condoleezza Rice said, “These are not America’s puppets.” Coalition spokesman Dan Senor agreed. “We have not been leaning on anybody to support one president over another.” Like Donald Rumsfeld, who said on CBS News in November 2002, that the U.S. conflict in Iraq has “nothing to do with oil, literally nothing to do with oil,” the lady Condi – and Senor/Bush – doth protest too much.

Allawi is off to a good start. He said Iraqis “don’t want to continue to be under occupation.” But he pledged support for the continued presence of U.S. forces “to help in defeating the enemies of Iraq.” One wonders who these “enemies” might be. Al Qaeda was not operating in Iraq before Operation “Iraqi Freedom.” Many Iraqis see the occupiers as the enemy.

The purported transfer of sovereignty from the occupiers to the Iraqi people on June 30 will be justified by the Bush administration as consensual. The consent defense, which contends the conquered are not subjugated because they have accepted the conquest, is used by the U.S. to rationalize its possession of Puerto Rico and its other post-colonial endeavors. This defense has been challenged by Antonio Gramsci, who wrote that the consent of the conquered cannot justify the colonial relationship because the consent is a byproduct of psychological domination.

The United States and the United Kingdom are angling for agreement on a Security Council resolution that would legitimize the new Iraqi government while protecting strategic U.S.-U.K. political, economic and military interests.

The Council’s resolution is bound to include rhetoric about “full sovereignty” for Iraq, just as its resolution – also strong-armed by the U.S. – which ended the NATO bombing of Yugoslavia. It recognized the sovereignty of Yugoslavia, a country that disappeared from the map shortly thereafter.

And the United States will maintain the right to locate its military bases in the territory of Iraq, just as we retained exclusive control over the 38 U.S. bases on Okinawa after returning its sovereignty to Japan in 1972.

It is tempting to speculate about what should happen in Iraq – what do we think would be best for the Iraqis? What form should the new Iraqi government take? Can the diverse peoples that make up Iraq create a government where power is effectively shared? Will the Sunnis and Shi’a remain unified or attack each other in the event they succeed in repelling the invaders? Should the Kurds be given their own sovereign state? What will be the fate of the oil-rich Kirkuk? Will Turkey intervene with military force in the event Kirkuk’s large Turcomen population is threatened?

The people of Iraq have the right to self-determination. They have suffered an unlawful regime change that has killed thousands of them and destabilized their country. It is up to the people of Iraq – without the interference of foreigners – to determine their own form of government.

May 20, 2004

Coup d’Etat – This Time in Haiti

In 1953, the CIA overthrew Iran’s democratically elected government. It took 47 years to report that coup d’etat to the American public. Twenty-seven years after the CIA engineered the coup that ousted Chile’s democratically elected president, the agency’s report finally saw the light of day. How long will it take for the United States government to admit its role in forcibly removing the Haitian President Jean-Bertrand Aristide, whose people had elected him with 80% of the vote?

Colin Powell, now denying Bob Woodward’s explosive report about the Iraqi debacle, also denies the U.S. did anything untoward when the Marines put the Aristides on a plane to the Central African Republic on February 29. Yet the Bush Administration adamantly opposes an independent investigation of the Aristides’ departure and the quick installment of a de facto government in Haiti.

If it has nothing to hide, why did the U.S. State Department threaten the Caribbean Countries (CARICOM), who called for the United Nations to investigate the situation in Haiti? Indeed, the Bush Administration has made a habit of resisting independent investigations – of the Cheney energy task force, the 911 Commission, and the lead-up to the Iraq war.

The irony of George W. Bush’s claim that he invaded Iraq to bring democracy to the Iraqi people was not lost on President Aristide and his wife, whom I visited in Jamaica last month. President Aristide is grieving not just for himself, but also for the millions of Haitians, many of whom are in hiding from the notorious criminals who are the power behind Haiti’s de facto government.

President Aristide told us the coup was not just about 8 million people and democracy in Haiti. It is also, he said, about the right of the African people to reparations for the bitter legacy of slavery in Haiti. When threatened with a French invasion and the restoration of slavery in 1825, the Haitian government agreed to pay France 150 million francs in return for recognition as a sovereign state. France insisted upon restitution for its loss of slave “property.”

That debt has crippled Haiti ever since. It took 100 years to repay, and in the process, Haiti’s education, healthcare system, and infrastructure were eviscerated. President Aristide incurred France’s wrath by demanding the French pay restitution to Haiti, $21 billion in today’s currency, for the unjust debt. France joined the United States in engineering the removal of President Aristide from Haiti.

What did President Aristide do to offend the United States enough to remove him from power? During his first term, President Aristide had resisted privatization. The U.S. feared this threat to globalization would spread to other parts of the Caribbean and Latin America – the old domino theory. Since President Aristide’s election in 2000, the U.S. tried to sabotage Haiti’s fledgling democracy by imposing a crippling economic aid embargo, which prevented $550 million in promised international aid from reaching Haiti.

The coup in Haiti was executed through surrogates in the Dominican Republic, as well as members of the dissolved Haitian army and former paramilitary organizations. U.S. diplomats told the Aristides they would be killed if President Aristide did not sign a resignation letter. Under extreme duress, he signed a letter, which the State Department-hired interpreter would not characterize as a resignation. The Aristides were held incommunicado for 20 hours as they were flown to the Central African Republic. The U.S. had refused to send troops to protect the Aristide government. Yet one hour after he left Haiti, the U.S. ordered troops to Haiti.

The National Lawyers Guild delegations to Haiti verified brutal and indiscriminate repression against the civilian population since the coup. It is incumbent upon the United Nations to immediately address this emergency. The forcible removal of the Aristides from Haiti violates the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, a treaty ratified by the U.S.

Since March 15, the Aristides have been in Jamaica, where they were granted temporary asylum. The United States has exerted intense pressure on Jamaica and the other CARICOM countries to recognize the de facto government in Haiti. As a result, the Aristides must leave Jamaica and travel to South Africa, which has granted them asylum until the situation in Haiti stabilizes and they can return. Spokesman Joel Netshitenzhe said the South African government supports the call for an investigation into President Aristide’s removal from Haiti and seeks to build an international consensus against unilateral regime changes.

As we took leave of the Aristides in Jamaica, President Aristide quoted the slave general Toussaint l’Ouverture, who led the successful rebellion that ousted the French from Haiti in 1804: “In overthrowing me, you have cut down in San Domingo [Haiti] only the trunk of the tree of black liberty. It will spring up again by the roots for they are numerous and deep.” The Haitian people, who have endured insufferable hardships at the hands of colonial powers, hold the roots of liberty within themselves.

May 14, 2004

War Crimes

Trying to quell the growing firestorm last week, Defense Secretary Donald Rumsfeld told reporters, “My impression is that what has been charged thus far is abuse, which I believe, technically, is different from torture.” Rumsfeld said he hadn’t had a chance to finish reading Army Major General Antonio Taguba’s report, which was completed two and a half months ago.

Torture at Abu Ghraib

Rumsfeld apparently hadn’t gotten to the part of the report that described the “sodomizing of a detainee with a chemical light and perhaps a broomstick,” as well as “positioning a naked detainee on a box with a sandbag on his head, and attaching wires to his fingers, toes and penis to simulate electric torture,” and “using military working dogs (without muzzles) … biting and severely injuring a detainee.”

This conduct does amount to torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which occurs when a public official or one acting in an official capacity intentionally inflicts, instigates or consents to the infliction of severe pain or suffering on a person for the purpose of obtaining information or a confession. Torture is never permitted, even in times of war.

Evidently Rumsfeld also hasn’t had time to read this treaty, which the United States has ratified and thus is part of the law of the land under our Constitution.

When Rumsfeld parsed his technical distinction between abuse and torture, he probably hadn’t yet seen the videotapes, which purportedly show U.S. soldiers having [presumably nonconsensual] sex with an Iraqi woman prisoner, troops nearly beating a prisoner to death, and rapes of young boys by Iraqi guards at Abu Ghraib prison. These would also qualify as torture.

Torture is a crime under federal law. When a U.S. national conspires, attempts, or commits torture outside of the United States, he can be sentenced to 20 years in prison. If his victim dies, the perpetrator can receive life in prison or the death penalty.

Other acts chronicled in the Taguba report, such as forcing groups of male detainees to masturbate themselves while being filmed, and holding a naked detainee by a dog chain or strap around his neck, would, at a minimum, amount to inhuman treatment. While testifying before the Senate Armed Services Committee on Friday, Rumsfeld admitted that some of the photographs that hadn’t been made public depicted “sadistic, cruel and inhuman” behavior.

Many of the findings in the Taguba report are confirmed in the newly released report of the International Committee of the Red Cross, which also found systemic abuse of security detainees at Abu Ghraib. Shockingly, the Red Cross reports that 70 to 90 percent of detainees in Iraq were arrested by mistake. The Red Cross characterized some of the interrogation tactics as “tantamount to torture.”

Torture and Inhuman Treatment are War Crimes

Both torture and inhuman treatment are considered war crimes under the Geneva Convention, another treaty the United States has ratified. The War Crimes Act of 1996 provides that military or civilian U.S. nationals could receive life in prison, or the death penalty if a victim dies. There is evidence that at least one Iraqi died while being interrogated at Abu Ghraib.

These atrocities are not, as the Bush administration would like us to believe, confined to the Abu Ghraib prison or even to Iraq. According to the Taguba report, Major General Geoffrey D. Miller, the Commander at the Guantanamo prison, was sent to Iraq late last year “to review current Iraqi Theater ability to rapidly exploit internees for actionable intelligence.” Miller used Guantanamo interrogation procedures as baselines.

A prisoner released from Guantanamo told Amnesty International that the interrogations there “were like torture.” Australian lawyer Richard Bourke reported on ABC Radio that one of the Guantanamo detainees “had described being taken out and tied to a post and having rubber bullets fired at them. They were being made to kneel cruciform in the sun until they collapsed.”

Torture has also been used in Afghanistan. In December 2002, the documentary “Massacre in Afghanistan” was broadcast on German television. An Afghan soldier recounted being ordered by an American commander to fire shots into the closed containers which transported prisoners. Some died from suffocation; others were dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers watched.

A week after the documentary aired, the Washington Post reported that “stress and duress” tactics were used on prisoners interrogated at the U.S.-occupied Bagram air base in Afghanistan. The U.S. military admitted that two prisoners were victims of homicide.

Rumsfeld Pans Geneva

When Rumsfeld decided the Third Geneva Convention didn’t apply to the prisoners at Guantanamo or Afghanistan, after unilaterally declaring they weren’t prisoners of war, he sent an implicit message to future American interrogators in Iraq that detainees need not be treated humanely.

Rumsfeld presumably overlooked the Fourth Geneva Convention, which protects civilians in time of war. It prohibits the use of physical or moral coercion to obtain information from them.

War Crimes Up the Chain of Command

Only seven U.S. soldiers have been charged with crimes at Abu Ghraib under the Uniform Code of Military Justice. None of the military or civilian (i.e., mercenary) personnel has yet been charged with war crimes under U.S. civilian law.

The influential Army Times implicates both Gen. Richard Myers, chairman of the joint Chiefs, and Rumsfeld in the Iraqi prison scandal. It states that the responsibility “extends all the way up the chain of command to the highest reaches of the military hierarchy and its civilian leadership.”

In its report, the Red Cross described physical and psychological coercion by interrogators which “appeared to be part of the standard operating procedures used by military intelligence personnel.” The myriad photographs confirm that the perpetrators felt they had nothing to hide from their superiors.

Even though Taguba and Stephen A. Cambone, undersecretary of defense for intelligence, disagree about whether military intelligence or military police were in charge of interrogations at the Abu Ghraib prison, the well-established doctrine of command responsibility supports criminal liability for those who knew or should have known of the misconduct, yet failed to stop or prevent it.

Rumsfeld’s involvement in setting policy for Guantanamo Bay is instructive here. Twenty of the most egregious interrogation techniques used at Guantanamo, which Human Rights Watch describes as “cruel and inhumane,” were “approved at the highest levels of the Pentagon and the Justice Department,” including Rumsfeld, according to the Washington Post.

In the words of the Army Times, “This was not just a failure of leadership at the local command level. This was a failure that ran straight to the top. Accountability here is essential – even if it means relieving top leaders from duty in a time of war.”

Policymakers must be held accountable. All those in the chain of command should be investigated, and war crimes prosecutions initiated of the responsible military and civilian personnel.

Donald Rumsfeld should not only be relieved of his duties as Secretary of Defense. He must also be investigated for war crimes.

blog

Bush’s Judges: Right-Wing Ideologues

The Reincarnation of Saddam Hussein

Supreme Court: War No Blank Check for Bush

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

The Torturer-in-Chief

John Danforth—Bad Choice for U.N. Ambassador

Bush the Would-Be Torturer

Giving Iraqis What Is Rightly Theirs—Sovereignty

Coup d’Etat – This Time in Haiti

War Crimes

Research

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