Tuesday, July 25, 2006

THE LIMITS OF PRESIDENTIAL POWER

By William Fisher

President George W. Bush's widespread use of so-called "signing statements" to unilaterally decide which parts of acts passed by Congress he will enforce continues to face mounting opposition as the practice came under sharp criticism from a blue-ribbon task force assembled by the nation's premier legal organization and a powerful member of the president's own party announced he will soon introduce legislation authorizing Congress to sue him in Federal Court.

"We will submit legislation to the United States Senate which will...authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional," said Senator Arlen Specter, a Pennsylvania Republican and chairman of the powerful Senate Judiciary Committee.

Specter's announcement on the Senate floor coincided with the conclusion of a task force organized by the American Bar Association (ABA) that by attaching conditions to legislation, the president has sidestepped his constitutional duty to either sign a bill, veto it, or take no action.

In issuing a signing statement, "a sitting president reserves the right to revise, interpret or disregard laws on grounds of national security or the "inherent powers" the Constitution grants the chief executive in wartime. The statements are customarily issued - usually with little or no public disclosure -- immediately after a president has signed into law an act passed by Congress.

Specter's committee estimates the president has challenged some 750 statutes passed by Congress. The ABA estimates Bush has issued signing statements on more than 800 statutes, more than the combined number issued by all presidents in U.S. history.

But some critics say the lax oversight exercised by Congress is equally responsible for the breakdown in the separation of powers between the three co-equal branches of government. Brian J. Foley, a professor at Florida Coastal School of Law, told us, "Let's hope that Senator Specter's move represents an awakening Congress. Our legislators have been asleep on the job while the Executive has expanded its powers -- they are in a sense equally culpable for the reckless policies sent forth from Washington."

And Peter M. Shane, a professor at the University of Ohio Law School and a specialist in separation of powers, told us, "Because President Bush entertains the most radically expansive theory of presidential power in history, it is no accident that he has identified an unprecedented number of occasions on which he imagines Congress is threatening his prerogatives. Many of these are simply instances of routine congressional oversight. It is as if his copy of the Constitution somehow omitted the clause that explicitly authorizes Congress to issue laws that are 'necessary and proper' for carrying into execution even the constitutional authorities of the executive branch." Prof. Shane is co-author with Harold H. Bruff of "Separation of Powers Law: Cases and Materials" (Carolina Academic Press, 2005).

ABA President Michael Greco characterized signing statements as "non-vetoes" and charged that the practice "hamstrings Congress because Congress cannot respond to a signing statement." The practice, he added, "is harming the separation of powers."

Under the US Constitution, Congress alone is authorized to enact laws and the president is mandated to enforce them without change or modification. The current signing statement controversy erupted into public and congressional consciousness earlier this tear after Congress passed an extension of the USA Patriot Act and another measure forbidding the US from inflicting cruel, inhuman and degrading treatment to people detained in the "war on terror."

President Bush signed the acts into law, but then issued statements saying in effect he would not enforce the laws when doing so might jeopardize national security.

Signing statements are not new, having been used by many previous presidents. But past use has typically been for purposes such as congratulating congress on enacting measures or instructing agencies on how to execute new laws.

While the White House maintains that President Bush's signing statements are not intended to allow the administration to ignore the law, many of his statements declare his belief that parts of bills he is signing are unconstitutional.

The ABA panel described the practice as "a serious threat to the Constitution's system of checks and balances," and urged Congress to pass legislation permitting court review of such statements.

"The president is indicating that he will not either enforce part or the entirety of congressional bills," said ABA president Michael S. Greco, a Massachusetts attorney. "We will be close to a constitutional crisis if this issue, the president's use of signing statements, is left unchecked."

The 10-member ABA panel, chaired by prominent Miami attorney Neil Sonnett, includes at least three well-known conservatives or Republicans: former congressman Mickey Edwards, a Republican from Oklahoma, former director of the Federal Bureau of Investigation (FBI) William S. Sessions, and a former Justice Department lawyer, Bruce Fein, who was appointed by Republican President Ronald Reagan. It also includes former appellate judge Patricia M. Wald, former Stanford Law School dean Kathleen M. Sullivan and Harvard law professor Charles J. Ogletree Jr. Their report will be considered by the full ABA next month.

Task Force members contend that President Bush has changed the nature of signing statements. It said that many of his objections are based on the idea that congressional checks on the presidential power are limited.

They said that if the president has constitutional problems with a bill, he should make his concern known to Congress before it enacts the legislation. Signing statements should not be a substitute for vetoing bills the president considers unconstitutional, the panel said.

"The President's constitutional duty is to enforce laws he has signed into being unless and until they are held unconstitutional by the Supreme Court or a subordinate tribunal," panel members wrote. "The Constitution is not what the President says it is."

Appearing before the Senate Judiciary Committee last month to articulate the administration's position, Deputy Assistant Attorney General Michelle E. Boardman denied that the president was trying to "cherry-pick" among the parts of a duly enacted law. "Presidential signing statements are, rather, a statement by the president explaining his interpretation of and responsibilities under the law," she said.

Whether the ABA report will influence the Bush administration is unclear, since many conservatives in the administration and in Congress believe that the ABA has a "liberal bias." In the early days of the Bush Administration, it ended the organization's role in evaluating judicial nominees.

Moreover, Bush has a number of conservative congressional allies in the signing statement issue. For example, Sen. John Cornyn, a Texas Republican and former judge, has said that signing statements are merely expressions of presidential opinion that carry no legal weight because federal courts are unlikely to consider them when deciding cases that challenge the same laws.

But Mary Shaw of Amnesty International USA summed up the feelings of human rights advocates. She told us, "Signing statements must not be used to skirt the President's responsibilities under international law. Amnesty International was pleased with the passage of the anti-torture bill through Congress in December. However, that victory came with a new challenge, as President Bush, in signing the bill, issued a "signing statement" in which he asserted that he could waive the ban on torture and inhumane treatment when he deemed it necessary. Torture is never necessary. It is absolutely prohibited through international law and human rights standards, as well as the Eighth Amendment of the U.S. Bill of Rights. The President of the United States is not above the law."

That may come as something of a shock to Mr. Bush.

Saturday, July 22, 2006

WHILE BEIRUT BURNS

By William Fisher

As rockets rain down on Lebanon and Israel, and the world stares into the abyss of a catastrophic Middle East conflagration, it was comforting to note last week that members of Congress refused to get depressed about the scary state of world affairs.

Instead, they busied themselves by concentrating their attention on some of the really crucial domestic issues facing our nation.

Like a Constitutional Amendment banning same-sex marriage. Even though the Senate resoundingly rejected action on this dangerous “values issue” – and even President Bush couldn’t really work up much public enthusiasm for it – the House of Representatives persevered.

Or at least the God Squad wing of the Republican Party persevered.

"It's part of God's plan for the future of mankind," explained Rep. John Carter of Texas, while Rep. Bob Beauprez of Colorado found "the very hand of God" at work, adding, "We best not be messing with His plan." Rep. Mike Pence of Indiana weighed in with "It wasn't our idea, it was God's."

And Rep. Phil Gingrey of Georgia, apparently fresh from a personal conversation with The Higher Power, told his colleagues, “I think God has spoken very clearly on this issue." The gynecologist-legislator referred critics to the Holy Scriptures.

But other House members evidently weren’t connected to Gingrey’s conference call. They defeated the measure, 236 to 187.

The truly religious were more successful in their effort to strip those pesky activist federal judges from ever hearing cases challenging the constitutionality of the phrase “under God” in the Pledge of Allegiance. These so-called social conservatives approved the measure, 260 to167. It now faces an uncertain future in the Senate.

"We should not and cannot rewrite history to ignore our spiritual heritage,"
intoned Rep. Zach Wamp, a Tennessee Republican. "It surrounds us. It
cries out for our country to honor God."

Supporters argued that the "under God" phrase, added to the pledge in 1954, was intrinsic to the nation's heritage and traditions and must be shielded from
unelected judges. "This is an issue that clearly resonates to what we are about
as a country," said House Republican Whip Roy Blunt of Missouri.

Rep. Todd Akin, another Missourian and sponsor of the measure, said that denying a child the right to recite the pledge was a form of censorship. "We believe that there is a God who gives basic rights to all people and it is the job of the government to protect those rights."

Never mind those quaint notions of judicial independence and the rights of religious minorities.

From among the many ironies in the “under-God” debate came a cautionary note from conservative Republican Rep. Dana Rohrabacher of California. He said the effort to strip courts of authority could come back to haunt his fellow conservatives if liberals gain control of Congress in the future. Congress, for example, could then prevent the Supreme Court from ruling on a state's decision to ban guns.

Then there was the Mt. Soledad cross issue, to which learned authorities on foreign policy and geopolitics have devoted many hours.

The cross at issue is a concrete edifice that has stood on public land at the center of San Diego's Mt. Soledad Veterans Memorial for more than 50 years. The American Civil Liberties Union, nemesis of social conservatism, has been challenging the constitutionality of the cross for more than twenty years.

In May, a US District Judge ordered San Diego to remove the cross by Aug. 2 or face fines of $5,000 a day. But Rep. Duncan Hunter of California – the chairman of the House Armed Services Committee who seems to moonlight as a spokesman for the haute cuisine and luxurious accommodations at Guantanamo Bay – came up with a solution. Congress would enact legislation transferring the cross from city management to the Federal government, which would designate it a Federal war memorial and thus prevent it from being removed.

"Removing this landmark would send a message to our nation's veterans that their service and sacrifice has gone unnoticed," Hunter said. "This is the wrong message, especially when so many of our brave men and women are committed to the operational theaters of the global war on terror."

What a no-brainer for Congress in an election year – an issue that wrapped religion inside patriotism inside the Global War on Terror.

Dutifully, 379 courageous members of the US House voted to approve Hunter’s legislation. Only 74 demurred.

Richard Thompson, president of the Thomas More Law Center, one of the groups that has defended the cross in court, said the overwhelming support for Hunter's bill demonstrates that "the liberal judges who support the ACLU’s anti-Christian agenda" are out of touch with America.

"No doubt, the ACLU will return to its liberal judges to try to undo, once again, the democratic process and the will of the people," Thompson said. "However, an effective coalition of veterans groups, political leaders and public-interest organizations is developing to stop them."

An identical bill has been introduced in the Senate by that stalwart champion of the Constitution, Sen. Jeff Sessions of Alabama, whose aim is to bring it to the Senate floor before the Congressional summer recess.

Needless to say, the White House strongly endorses Hunter’s legislation.

Meanwhile, over at the White House, President Bush followed through with his threat to issue the first veto of his administration: The stem cell bill passed by Congress to expand Federal funding for research on a greatly enlarged community of embryonic stem cells – cells due to be destroyed by fertility clinics as “medical waste.”

Self-styled religious conservatives pulled out all the stops to defeat this legislation before it got to Mr. Bush’s desk, but were defeated not so much by an agitated pro-choice lobby but by most of our most distinguished scientists and physicians.

When the religious right-wing is in full-throated opposition, it is highly effective in conveying the impression that it speaks for every religious soul. The white noise of its rhetoric tends to drown out all other points of view and maintains that other points of view don’t exist at all.

Not so. Thankfully, there are thousands of religious leaders who believe that it is right-wing fundamentalism that dishonors God and science. They are still less visible and a lot less well-funded than the James Dobsons and Tony Perkins’s of the world. But the more the Bush Administration continues to pander to what it still calls its base, the more these other voices grow both in numbers and in influence.

One of the most articulate of these voices is Rev. Tim Simpson, who heads a relatively new organization known as The Christian Alliance. What he had to say about President Bush’s stem cell veto is worth our attention.

The president’s use of his veto authority, Rev. Simpson said, “will result in the early deaths and unnecessary suffering of millions of Americans. It is one of the most stunning, irrational decisions of an administration with a reputation for such and the most telling piece of evidence yet that America is under the sway of theocrats whose obsession for ideological purity outweighs their concern for America's, and the world's, sick and dying.”

He continues: “The most illogical aspect of this debate is that the embryos which were to be used had the legislation passed will be thrown away! The twisted moral framework that would allow the embryos to be discarded rather than used to heal and save lives goes hand in glove with the pseudoscience that has become the hallmark of the Religious Right, to which this administration gives its highest loyalty.”

And he asks, “How long will Christians in this country stand for such outrages?”

Rev. Simpson tells the story of Jesus the Healer in Mark 6. “The text says that Jesus had compassion for the crowd because they were ‘like sheep without a shepherd’. Into the midst of the chaos of the people's lives, Jesus' compassion manifested itself in the healing of their bodies, as the crowds brought the sick to him to make them whole. Tens of thousands of American churches whose pastors follow the lectionary will hear this text this Lord's Day in congregations all across the country. How sad that this is to be the text in so-called Christian America, on the Sunday after the Christian President of the United States threw the sick under the bus. Talk about sheep without a shepherd.”

Rev. Simpson assures us, “This is not a partisan issue. There isn't a Democrat, Republican or Independent who doesn't know someone who is suffering from diabetes, Alzheimer's, Parkinson's, cancer, paralysis or a host of other diseases and ailments that could be ameliorated or cured through the use of stem cell therapies. Forget the Red State-Blue State clash. Polls indicate that better than 7 out of 10 Americans approve of federal funding for stem cell research. Even someone as conservative as Bill Frist, anxious to help mainstream America forget his embarrassing role in the Terri Schiavo affair, demonstrated that even he had not taken complete leave of his senses by supporting the bill. But the President threw a sop to the radical fringe in his party, so the entire nation has to suffer.”

Throwing the sick under the bus is likely to be a big part of the “compassionate conservative” legacy of George W. Bush. And we will probably never know whether his veto was borne of genuine conviction, however misguided, or of Karl Rove’s need to mobilize his flock to get to the polls in November.

But November is not an opportunity only for Mr. Rove. It is a chance for the nation’s flock to show that it’s a lot smarter than our president and our craven Congress thinks it is.

Let us pray.

Wednesday, July 19, 2006

OF PITBULLS AND LAPDOGS

By William Fisher

The recent Supreme Court decision that U.S. President George W. Bush does not have the authority to try suspected terrorist detainees without statutory approval – and must adhere to the Geneva Convention’s prohibitions against torture – has opened a widening chasm among members of the president’s own party.

Pitted against one another in what is already shaping up as an increasingly contentious and bloody battle are Republicans who would like to see the Congress simply affirm what the president has been doing since the terrorist attacks of September 11th 2001, and other Republicans who are pushing for a set of clearer and fairer rules governing detention and interrogation.

Republicans who favor a change in the Administration’s policies and procedures are being joined by most Democrats. But neither political party is eager to take on this battle in an election year. Republicans fear the electoral impact of a public split in their ranks. And Democrats fear that voters will equate granting more due process and more humane treatment to alleged terrorists with “being soft on terror.”

But the poorly concealed back-story of this battle is a struggle for power between the President and the Executive Branch of Government on one hand and, on the other, the two houses of Congress that represent the Legislative Branch. The U.S. Constitution specifies that these two branches of government – along with a third branch, the Judiciary – are co-equals.

But many Congressional Republicans feel they have been systematically ignored by the White House since the beginning of the Bush Administration in 2000, and are determined to regain their power.

This determination is likely to affect not only prisoner detention and treatment, but also a number of other Administration programs that have been implemented by the President without approval by – or, in some cases, even knowledge of – Congress.

These include the National Security Agency’s (NSA) widespread wiretapping of American citizens allegedly speaking with members of Al Quaida overseas, and the NSA’s collection of millions of American citizens’ telephone records.

The Constitution specifies that searches of American citizens and seizure of their property cannot be carried out without a court finding of “probable cause” and a court-issued warrant. In 1978, Congress passed the Foreign Intelligence Surveillance Act, known as FISA, and established a special court to issue warrants for searches involving American citizens. In carrying out the NSA programs, the President publicly declared that no wiretaps were ever conducted without warrants, but in fact he ignored the FISA law, claiming “inherent authority” under the Constitution to protect the nation’s citizens in time of war. Many Constitutional scholars have questioned that authority.

The issue of prisoner detention and treatment was triggered by a Supreme Court decision late last month in a suit brought by a Guantanamo Bay detainee, Salim Ahmed Hamdan against Donald Rumsfeld, U.S. Secretary of Defense. The Court ruled 5-3 that the Yemeni detainee could not be tried by a special military commission established by the Administration without Congressional authorization. The court also held that the commissions violate the Geneva Conventions, especially the conventions' Common Article 3, which prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."

A preview of the coming clash among Republicans, and between Republicans in the House of Representatives and the Senate was previewed during separate committee hearings last week.

Republicans on the powerful House Armed Service Committee indicated they were inclined to give the Bush administration largely what it wants in the
conduct of terrorism trials.

"This could be easy," said Rep. Candice S. Miller, a Michigan Republican, who proudly announced she has neither a law degree nor a college degree as she denounced the high court's 5 to 3 decision against the tribunals as "incredibly counterintuitive." "We could just ratify what the executive branch and the
[Department of Defense] have done and move on."

"That would be a very desirable way to proceed," said Daniel J. Dell'Orto, the
Pentagon's principal deputy general counsel, who set out the president’s position.

Rep. Duncan Hunter, a California Republican who chairs the House Committee has long been an advocate of the Bush administration's handling of detainees. He believes that the Pentagon has been too lenient with terror suspects, and has said, in "some cases we erred on the side of letting people go who we should not have let go." Hunter was referring to detainees released from the Guantanamo Bay military prison, which currently holds about 450 suspected terrorists.

Hunter said, "We have to give the executive the tools to fight this war. This is not a separation of powers issue. It is an issue of how to defeat the enemy."


The tone at this first House hearing was distinctly different from the next day’s hearing by the Senate Judiciary Committee, where lawmakers from both parties said they wanted to make significant changes to the White House's plans.

Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican who has made what he sees as excessive Executive Branch power a cause celebre, set off the fireworks by telling Dell'Orto and acting Assistant Attorney General Steven G. Bradbury, "I doubt very much that Congress is going to be disposed to leave these issues to the Department of Defense."

Key Senate Republicans -- including Specter, Armed Services Committee Chairman John W. Warner of Virginia, Lindsey O. Graham of South Carolina, and John McCain of Arizona -- believe Congress should use the existing Uniform Code of Military Justice as a starting point and then adapt the rules that govern courts-martial to the war on terrorism.

But Dell'Orto told Senators that to do that and meet national security needs, 73 military rules of evidence and 145 to 150 articles of the Uniform Code of Military Justice would have to be amended, effectively "gutting" the military legal code.

However, there soon were signs that the administration was climbing down from its position. Sen. McCain announced that during a White House meeting involving Graham – who is a reserve military lawyer-- and national security adviser Stephen J. Hadley, an agreement was reached that legislation would use the military code -- not the administration's plan -- as the framework, and a final bill would adhere to Common Article 3 of the Geneva Conventions.

The bill could be based on a measure crafted by McCain last year to ban torture at U.S. detention facilities. While some minor changes might be required to conform to Common Article 3 of the Geneva Conventions, McCain said the legislation would remain faithful to the Conventions.

The McCain legislation was enacted last year after fierce opposition from the White House, led by Vice President Dick Cheney. President Bush signed it into law, but appended a “signing statement” essentially saying he would disregard the law when national security was at stake.

While Dell'Orto and Bradbury had quietly accepted the skepticism expressed in the Senate hearing, they let loose a salvo of their own in their appearance before the friendlier House Committee.

"I don't want a soldier when he kicks down a door in a hut in Afghanistan
searching for Osama bin Laden to have to worry about . . . whether he's got to
advise them of some rights before he takes a statement," Dell'Orto said. "I
don't want him to have to worry about filling out some form that is going to
support the chain of custody when he picks up a laptop computer that has the
contact information for all manner of cells around the world, while he's still
looking over his shoulder to see whether there's not an enemy coming in after
him."

Democrats dismissed his statement as a hyperbolic red herring.

Meanwhile, Newsweek Magazine revealed that in 2002 a group of State Department lawyers warned that the Bush administration was inviting an enormous backlash, both from U.S. Courts and foreign allies, by denying terror suspects rights commonly given under U.S. law or the Geneva Conventions.

Newsweek wrote, "Even those terrorists captured in Afghanistan ... are entitled to the fundamental humane treatment standards of ... the Geneva Conventions," William Howard Taft IV, the State Department legal counselor wrote in a January 23, 2002 memo obtained by Newsweek. In particular, Taft argued, the United States has always followed one provision of the Geneva Conventions-known as Common Article 3, which "provides the minimal standards" of treatment that even "terrorists captured in Afghanistan" deserve.

As the week came to a close, Attorney General Alberto Gonzales told the Senate Judiciary Committee that the Defense Department had already issued a memorandum to the military requiring them to adhere to Common Article 3 of the Geneva Convention. He said he did not know whether the Central Intelligence Agency (CIA) – whose usually-secret detention facilities are also covered by the Supreme Court decision – had issued its own instructions.

Monday, July 17, 2006

‘BRING IT ON’ STILL ALIVE AND WELL

By William Fisher

The punditocracy has lately been waxing eloquent about President Bush’s softer, more conciliatory tone and less hysterical, more humble rhetoric, which many have trumpeted as ‘the end of cowboy diplomacy’.

Not on your Nellie. If you believe our cowboy in the White House has somehow morphed into world statesman, have a look at Dubya’s two most recent choices for big promotions.

They are William Haynes II, the Pentagon’s general counsel, tapped to be a Federal Judge, and Gen. Bantz Craddock, who currently oversees "war on terror" detention operations at Guantanamo Bay, to be commander of US forces in Europe, as well as NATO.

Mr. Haynes has been a key player in shaping some of the Bush Administration’s most legally and morally reprehensible policies, notably on the use of torture. He is one of a small group of insiders who have developed the Bush administration’s policies on questioning detainees and declaring American citizens to be “enemy combatants.” The twisted legal reasoning of this group opened the door to the abusive treatment of US detainees at Guantanamo Bay and helped create the environment that led to the Abu Ghraib scandal. The Supreme Court has repeatedly had to step in to rein them in.

If confirmed by the Senate, Haynes would have lifetime tenure on the
United States Court of Appeals for the Fourth Circuit, based in Richmond, Va. It is this court that has heard some of the most important cases about the constitutional limits on the war on terror. By what stretch of the imagination could anyone see Mr. Haynes as an impartial voice on these issues?

Of course, the Administration lawyers who crafted the Bush ‘torture policy’ and described the Geneva Conventions as ‘quaint’ have a rich history of being rewarded.

In 2002, then-White House Counsel Alberto Gonzales asked the Justice Department’s Office of Legal Counsel to prepare a memo dealing with limits on “standards of permissible conduct” for interrogations conducted “abroad” as found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

The memo concluded that the restrictions were limited only to acts inflicting and “specifically intended to inflict severe pain or suffering,” whether mental or physical. It said it was OK to allow severe mental pain not intended to have lasting effects and physical pain less than that which accompanies “serious physical injury such as death or organ failure.”

The author of that infamous – and now rescinded -- memo was the head of the Office of Legal Counsel, one Jay Bybee. President Bush rewarded him with a lifetime appointment to the Ninth Circuit Court of Appeals.

And the man who requested that memo – and recommended it to the President – was then White House Counsel Alberto Gonzales, who was then elevated to Attorney General of the United States – the “people’s lawyer.”

And it may be worth recalling that the Bybee memo was rescinded by the Justice Department virtually on the eve of Mr. Gonzales’s confirmation hearing in the US Senate.

But take heart – all may not be lost. As a New York Times editorial reminds us, “The administration likes to blame opposition to its judicial nominees on “liberal activists,” but Mr. Haynes’s most high-profile opposition comes from the military itself.

Twenty retired military officers, including a retired Army colonel who served as chief of staff to Secretary of State Colin Powell, wrote to the Senate to express their concern that the policies Mr. Haynes helped develop “compromised military values, ignored federal and international law and damaged America’s reputation and world leadership.” The officers expressed their “deep concern” about his fitness for the court.

And during Mr. Haynes’s confirmation hearing, some of the most pointed questioning came from Republican Senator Lindsey Graham of South Carolina, a former military lawyer who takes the law of combat seriously.

So Democrats may not have to worry about filibustering this grotesque nomination. Enough Republicans in Congress may join with Democrats to actually take their “advise and consent” role seriously.

Then there’s General Craddock. In a White House with a sterling record of PR over substance, only an extreme lack of oxygen inside the bubble can explain the special kind of chutzpah the President showed by nominating the current commander of GITMO to be our Supreme Allied Commander of anything.

As one of Defense Secretary Rumsfeld’s most trusted aides, Gen. Craddock has ordered investigations into allegations of abuse at the camp but has generally defended it against critics.

Last year, a team of military investigators looked into allegations by agents of the Federal Bureau of Investigation (FBI), who said they witnessed abusive interrogation techniques at Guantanamo. The FBI allegations were contained in documents obtained by the American Civil Liberties Union through the Freedom of Information Act.

The chief investigator into Guantanamo practices, Air Force Lt. Gen. Randall M. Schmidt, told a Senate panel of the interrogation techniques used on Mohamed al-Qahtani, a Saudi who was captured in December 2001 along the Afghanistan-Pakistan border. Al-Qahtani was thought to be “the 20th hijacker” in the attacks of September 11, 2001.

Schmidt said interrogators told him his mother and sisters were whores, forced him to wear a bra and wear a thong on his head, told him he was a homosexual and said that other prisoners knew it. They also forced him to dance with a male interrogator and subjected him to strip searches with no security value, threatened him with dogs, forced him to stand naked in front of women, and to wear a leash and act like a dog.

These techniques were reportedly approved by Defense Secretary Donald H. Rumsfeld for use on al-Qahtani, and were used at Guantanamo in late 2002 as part of a special interrogation plan aimed at breaking him down.

Members of the military team that conducted the three-month investigation told the Senate Armed Services Committee they recommended a reprimand for Gen. Geoffrey Miller, the officer widely reported to have been sent from Guantanamo to Iraq to “GITMO-ize” Abu Ghraib and other US detention facilities.

The Miller inquiry strongly supported the contention that Gen. Miller was the constant in the prisoner treatment equation, first at Guantanamo, and later at military prisons in Iraq and Afghanistan, where similar interrogation techniques were employed.

Their recommendation for a Miller reprimand, however, was overruled by Gen. Miller’s superior, the very same Gen. Craddock now about to be rewarded with yet another Bush promotion.

Gen. Craddock acknowledged that Gen. Miller had used “creative” and “aggressive” tactics, but did not practice torture or violate law or Pentagon policy. He concluded that Miller’s techniques did not rise to the level of torture, and referred the matter to the Army’s Inspector General. From whom, as far as we know, nothing has been heard since.

It might be reasonable to expect that, in light of the Supreme Court’s recent Hamdan decision reining in the unfettered power of the President to ignore Congress and make his own law, that a chastened White House might have given a tad of consideration to the public perception of these two nominations, even if it could care less about the Supreme Court’s ruling.

But that would require some kind of major epiphany from our cowboy president.

Instead, we get more bring-it-on!

Monday, July 10, 2006

THE END OF DEMOCRACY PROMOTION IN IRAQ?

By William Fisher

"America, in this young century, proclaims liberty throughout all the world, and to all the inhabitants thereof."

So spoke President George W. Bush in his second inaugural address last January, vowing to help build democratic institutions and strengthen civil society in Iraq and elsewhere in the Middle East.

Yet today, the Bush administration is substantially reducing funding for the organizations that are traditionally mandated to transform the president's vision into reality.

In budget requests to Congress, funding for democracy promotion in Iraq has been limited. Some organizations ran out of funds in April; others are trying to make their resources last through the summer.

At risk are projects to teach Iraqis how to create and manage political parties, organize and run think tanks, human rights organizations, a free press, and trade unions.

The decline in funding is being attributed to ballooning security costs, which have already caused the Bush Administration to scale back its ambitious reconstruction programs designed to restore Iraq's infrastructure.

Administration officials admit they are requesting fewer dollars for traditional democracy-building programs, but contend that their efforts to help Iraqis to run more effective ministries also contribute to democracy.

At the beginning of the Iraq war, money was not a problem for the organizations traditionally involved in promoting democracy.

For example, soon after the fall of Baghdad, the National Endowment for Democracy (NED), received $25 million to expand its Iraq programs, and eventually received a total of $71 million.

It distributed some of these funds to the National Democratic Institute for International Affairs (NDI), and its sister organization, the International Republican Institute (IRI), both affiliated with America's two main political parties.

Now the funding for both organizations has dried up. Their sole source of finance are special funds earmarked by Congress last year, as the result of an effort spearheaded by Sen. Edward M. Kennedy, a Massachusetts Democrat. The funds will be exhausted later this year.

"The solution to Iraq lies in the political process, and it's reckless for the White House to cut funds to strengthen democracy in Iraq at this time," Kennedy said.

The NED has received its final $3 million, but no further funding source has been identified. "It does feel like everybody's getting squeezed in this area," Barbara Haig, the endowment's vice president, told The Washington Post, adding, "There probably is a commitment to these programs in principle. I don't know how much commitment there is in specificity."

The Bush administration has included only $15 million for the two party institutes in next year's budget. The total for democracy promotion in Iraq for 2007 is $63 million, which would mean that most programs would have to be cut. Another $10 million for democracy promotion was included in the president's supplemental request to Congress. This is a tiny fraction of the ten of millions the US spends in Iraq each day.

Jennifer Windsor, executive director of Freedom House, an advocacy group, called the situation "a travesty" and said she is "appalled" that more is not being done.

"This is the time to show that democracy promotion is more than holding an election. The US will be making a mistake if it "can't see fit to fund follow-up democracy promotion at this time," she said.

Mary Shaw of Amnesty International USA agrees. She told us, "U.S. support for democratic institutions in Iraq is crucial to the future of human rights in that country. More than three years after the US-led invasion of Iraq, conditions in that country are at a critical juncture, and the security of the Iraqi people hangs in the balance. The US owes it to the Iraqi people to provide the means to rebuild and strengthen not only their civil infrastructure but their societal infrastructure as well. Only then will Iraq be truly liberated."

But another view is expressed by Christopher J. Roederer, Associate Professor at the Florida Coastal School of Law. Prof. Roederer told us, "It is not wholly surprising that funding for democracy promotion in Iraq is dwindling. Democracy promotion was not the reason for invading Iraq, not even the stated reason for going into Iraq. Democracy promotion only came to the fore as a reason for invading Iraq after the invasion and after the 'weapons of mass destruction' justification and the 'connections to Al-Qaeda' justification had been discredited."

The White House and US aid agencies have declined to discuss the budget cuts.

However, the dramatic drop in support for democracy-building programs in Iraq may well signal a quiet Bush Administration decision that these types of programs cannot succeed given Iraq's current state of chaos.

Brian J. Foley, a professor at Florida Coastal School of Law, sums up the situation this way: "It looks as if the Administration has 'cut and run' on its alleged effort to bring democracy to Iraq -- though I don't think the Administration was ever serious about giving freedom to regular Iraqis. If so, there would be a referendum for Iraqis to vote on whether U.S. troops should leave -- the debate would not be limited to discussion among U.S. leaders. Creating a government would be an Iraqi initiative, not a US-controlled one. Unfortunately, after the unnecessary invasion and all of the unnecessary death, destruction, and disorder, and the failure to provide services such as electricity and water in a timely manner, U.S. leaders are probably now afraid to let the Iraqi people have any real control over their own country and destiny."

Sunday, July 09, 2006

A.U.S. REDUX

By William Fisher

“My name is Duffy. Sergeant Duffy to you. I’m going to be your drill sergeant. My job here is to make you college types and Jewboys into real soldiers.”

Such was my introduction to the army and to the man who would supervise my basic training after I was drafted into military service the Korean War in 1950.

The differences between Sergeant Duffy and me are too numerous to enumerate here. But one of them was that the Sergeant was drunk most of the time. Another was that, like all draftees during this period, I was a member of something called the Army of the U.S. – the A.U.S. The A.U.S. consisted of temporary soldiers – draftees like me -- while Duffy belonged to the U.S. Army, otherwise known as the Regular Army.

As we were to learn, Duffy was not some aberration. In the years between the two Great Wars, the regular army was filled with racists and bigots. They were mostly non-commissioned officers, but their views were known to many and shared by some officers all the way to the top of the chain of command.

The couple of hundred men drafted with me somehow included a disproportionate number of people with college degrees and about a dozen Jews. But we came from lots of different places, backgrounds, and religions – and we were virtually unanimous in our view that Sergeant Duffy was in the regular Army because he’d be unable to make it in the world outside the military.

Over the next two years, my fellow draftees and I served as members of a military police company at Governors Island, New York, the headquarters of the First Army. One of the saddest things we learned there was just how ubiquitous the Sergeant Duffys were.

President Truman had only recently desegregated the U.S. Armed Forces, and we felt the intense resentment of that action in our MP station. There still weren’t many African-American soldiers stationed on Governors Island, but there were some. And our Desk Sergeant could always be counted on to single them out for arrest and extended detention for even the smallest infraction.

But that was then and now is now. After the Korean War, my fellow draftees and I were discharged, and most of us wanted to forget our military service as quickly as possible. And I think most of us came to believe that, while in the period between the two Great Wars, the military may have been filled with racists, anti-Semites and other miscreants, today’s military would simply not allow the uniform to be dishonored by allowing the Sergeant Duffys of the world to wear it.

Now, thanks to a report from the Southern Poverty Law Center (SPLC), we learn how wrong we were.

SPLC’s David Holthouse reminds us that ten years ago the Pentagon toughened policies on extremist activities by active duty personnel, a move that came in the wake of the Oklahoma City bombing by decorated Gulf War combat veteran Timothy McVeigh and the murder of a black couple by members of a skinhead gang in the elite 82nd Airborne Division.

Today, he reports, “large numbers of neo-Nazis and skinhead extremists continue to infiltrate the ranks of the world's best-trained, best-equipped fighting force. Military recruiters and base commanders, under intense pressure from the war in Iraq to fill the ranks, often look the other way.”

According to Department of Defense investigator Scott Barfield, neo-Nazis "stretch across all branches of service, they are linking up across the branches once they're inside, and they are hard-core. We've got Aryan Nations graffiti in Baghdad," he added. "That's a problem."

Under pressure to meet wartime manpower goals, the U.S. military has relaxed standards designed to weed out racist extremists. Large numbers of potentially violent neo-Nazis, skinheads, and other white supremacists are now learning the art of warfare in the armed forces, Holthouse reports.

He reminds us that back in 1996, following a decade-long rash of cases where extremists in the military were caught diverting huge arsenals of stolen firearms and explosives to neo-Nazi and white supremacist organizations, conducting guerilla training for paramilitary racist militias, and murdering non-white civilians, the Pentagon finally launched a massive investigation and crackdown. One general ordered all 19,000 soldiers at Fort Lewis, Wash., strip-searched for extremist tattoos.

Now, with the country at war in Iraq and Afghanistan, and the military under increasingly intense pressure to maintain enlistment numbers, weeding out extremists is less of a priority.

"Recruiters are knowingly allowing neo-Nazis and white supremacists to join the armed forces, and commanders don't remove them from the military even after we positively identify them as extremists or gang members," said Barfield.

"Last year, for the first time, they didn't make their recruiting goals. They don't want to start making a big deal again about neo-Nazis in the military, because then parents who are already worried about their kids signing up and dying in Iraq are going to be even more reluctant about their kids enlisting if they feel they'll be exposed to gangs and white supremacists."

Barfield, who is based at Fort Lewis, said he has identified and submitted evidence on 320 extremists there in the past year. "Only two have been discharged," he said.

Barfield and other Department of Defense investigators said they recently uncovered an online network of 57 neo-Nazis who are active duty Army and Marines personnel spread across five military installations in five states -- Fort Lewis; Fort Bragg, N.C.; Fort Hood, Texas; Fort Stewart, Ga.; and Camp Pendleton, Calif. "They're communicating with each other about weapons, about recruiting, about keeping their identities secret, about organizing within the military," Barfield said. "Several of these individuals have since been deployed to combat missions in Iraq."

Every year, the Army's Criminal Investigation Division conducts a threat assessment of extremist and gang activity among army personnel. "Every year, they come back with 'minimal activity,' which is inaccurate," said Barfield. "It's not epidemic, but there's plenty of evidence we're talking numbers well into the thousands, just in the Army."

Last July, the white supremacist website “Stormfront” hosted a discussion on "Joining the Military."

In a letter to Defense Secretary Donald Rumsfeld, SPLC President Richard Cohen urged DOD to adopt a zero-tolerance policy regarding racist extremism among members of the U.S. military.

"Because hate group membership and extremist activity are antithetical to the values and mission of our armed forces, we urge you to adopt a zero-tolerance policy when it comes to white supremacy in the military and to take all necessary steps to ensure that the policy is rigorously enforced," Cohen wrote.

"Neo-Nazi groups and other extremists are joining the military in large numbers so they can get the best training in the world on weapons, combat tactics and explosives," said Mark Potok, director of SPLC's Intelligence Project.

"We should consider this a major security threat, because these people are motivated by an ideology that calls for race war and revolution,” he said, adding. “Any one of them could turn out to be the next Timothy McVeigh."

Or Sergeant Duffy.

Friday, July 07, 2006

THE NEXT GITMO?

By William Fisher

In the aftermath of the Supreme Court decision canceling the blank check President Bush gave himself, the Bush Administration may finally forced into trying to get Congress to pass legislation establishing a Constitutional way to bring Guantanamo Bay detainees to trial – or free them.

But it may also find itself having to deal with another huge headache: the prisoners we don’t know about.

These are the people held at Bagram airbase in Afghanistan, and in the CIA’s so-called “black sites” in Eastern Europe and elsewhere.

The Pentagon chose Guantanamo because they thought it was a law-free zone beyond the reach of the US justice system, and they now know that is unacceptable. And that, according to the Court’s decision, means they were also wrong about prisoners they now hold in other overseas locations.

As long as prisoners are under US control, they are subject to the same protections as the Supreme Court has now said must be afforded to those at GITMO.

The Supreme Court ruled that the military tribunals set up by President Bush were unlawful because Congress hadn't expressly authorized the Administration to establish them. The justices also said the tribunals violate the 1949 Geneva Conventions governing the treatment of war prisoners and the Uniform Code of Military Justice, which guarantees such protections as the right to be present at trial. Lawyers for detainees said this may allow all of the 450 inmates held at Guantanamo access to federal courts, which until now have refused to hear their cases.

But the Supreme Court has now made the issue a lot broader than Guantanamo. US military and intelligence services continue to carry out interrogations in other locations, including at the US base at Bagram, Afghanistan, where, according to news sources, "interrogators are sometimes able to use more aggressive and creative tactics in questioning detainees than their counterparts at Guantanamo Bay can employ."

If human rights groups can be believed, there are some 500 people held at Bagram alone. As far as we know, these prisoners have been designated as “enemy combatants” and some have been held for as long as three or four years without access to lawyers, no information about the charges against them, and only hit-and-miss reviews of their status.

Even after New York Times reporters Tim Golden and Eric Schmitt first exposed Bagram, the subject has received virtually no public attention.

Golden and Schmitt wrote, ““Some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guant√°namo to challenge their detention in United States courts.”

They added, “Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the international Red Cross and refuses to make public the names of those held there…From the accounts of former detainees, military officials and soldiers who served there, a picture emerges of a place that is in many ways rougher and more bleak than its Cuban counterpart. Men are held by the dozen in large wire cages, the detainees and military sources said, sleeping on the floor on foam mats and, until about a year ago, often using plastic buckets for latrines. Before recent renovations, they rarely saw daylight except for brief visits to a small exercise yard.”

The Times reported that the detainee population at Bagram rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures. The increase was in part the result of a Bush administration decision to shut off the flow of detainees into Guant√°namo after the Supreme Court ruled that those prisoners had some basic due-process rights under United States law.

A number of detainees are known to have died in US custody in Afghanistan. American military investigations have determined that homicide was the cause of death in four of them. The cause of death of the others remains undetermined. Nor is it known how many others may have died in US-controlled military camps in other Afghan areas where conflict was taking place, known as Forward Operating Bases.

Bagram has often been described by the US military as a temporary “screening center” from which some detainees would be released and others transferred to Guantanamo. But as Guantanamo. became a lightning rod for worldwide criticism of Bush Administration detention policies, transfers to Cuba were cancelled.

In recent months, there have been increasing press reports describing physical and psychological mistreatment of those who are being interrogated.

In contrast to the detention center at Guantanamo Bay, where military lawyers, news reporters and the Red Cross received occasional access to monitor prisoner conditions and treatment, the CIA's overseas interrogation facilities are off-limits to outsiders, and often even to other government agencies.

In addition to Bagram, prisoners from Afghanistan and other countries were believed to be detained at two other facilities in Afghanistan -- "the Salt Pit" in Kabul and "the Discotheque," north of Kabul. With these two facilities now closed, Bagram has become the main detention site.

In addition, the US is believed to house detainees in what Dana Priest of The Washington Post described as the CIA’s “black sites,” and on Diego Garcia, an Indian Ocean island leased by the US from Britain.

The hundreds of detainees currently held in these US-controlled facilities have no recourse to human rights safeguards such as the right to challenge their arrest or detention. Some have been detained without charge or trial for extended periods, without access to lawyers or relatives.

The International Committee of the Red Cross has been able to visit detainees in Bagram, but not in other unacknowledged places of detention.

US military commanders in Afghanistan have also refused to let a United Nations’ human rights investigator visit ‘secret’ American prisons there or interview detainees, despite widespread reports of abusive practices, including torture.

The Egyptian-born UN official, Cherif Bassiouni, issued a report critical of US and other Coalition human rights abuses. Shortly after that, the UN eliminated his position, reportedly under pressure from Washington to change his mandate to remove investigation of the US military.

The indefinite, incommunicado or virtually incommunicado, and arbitrary detention of these people may in itself amount to cruel, inhuman or degrading treatment and leaves them at risk of further ill-treatment and torture during interrogations.

In all these locations, the CIA and its intelligence service allies are free from the scrutiny of military lawyers steeped in the international laws of war, and thus have the leeway to exert physically and psychologically aggressive techniques, according to national security officials and US and European intelligence officers.

"Stress and duress" techniques reportedly described by US national security officers include keeping prisoners standing or kneeling for hours in black hoods; binding them in awkward, painful positions; depriving them of sleep with 24-hour lights; subjecting them to loud noises; "softening up" by beating; throwing them blindfolded into walls; and depriving wounded prisoners of adequate pain control
medicines.

Brad Adams, Asia Director for Human Rights Watch, says, the US “appears to want to sweep human rights problems in Afghanistan under the carpet." The Supreme Court has now ruled that unacceptable.

In the Supreme Court decision, one of the justices in the majority, Stephen Breyer, said, "Nothing prevents the president from returning to Congress to seek the authority he believes necessary.''

So the Administration and Congress will have to act, though precisely how they will act is unclear. There is always a possibility that the White House may persuade Congress to craft a law that makes just enough changes in US detention policies to satisfy the Supreme Court’s decision, but which largely endorses what the President has been doing all along.

That is also how Congress may deal with the “warrantless wiretaps” carried out by the National Security Agency. It may simply change FISA, the Foreign Intelligence Surveillance Act, to legalize what the Administration is already doing.

This approach may allow an election-year Congress to crow about reclaiming its rightful power as one of the three coequal branches of our Government, and restored the checks and balances the framers of the Constitution considered so important.

But it will do nothing to force Congress to exercise the rigorous oversight the framers had in mind. Bashing “activist judges” is a lot easier.

We can live in hope, but meaningful oversight is unlikely to happen as long as one political party controls the White House and both houses of Congress.

WHERE’S MY MONEY, MOHAMMED?

By William Fisher

President Bush and Vice President Cheney were apoplectic. Publication of the details of U.S. Government surveillance of the SWIFT money-transfer program were “disgraceful,” a threat to national security.

Congressman Peter King suggested that The New York Times – though it was only one of the newspapers to run this story – be charged with treason. Oh, my!

Facts did nothing to quell this press-bashing frenzy. The facts are that the SWIFT program has been reported by numerous media outlets for the past several years.

According to Roger Cressey, a senior White House counter-terrorism official until 2003, “There have been public references to SWIFT before. The White House is overreaching," Cressey told the Boston Globe, when the administration suggests the Times committed ``a crime against the war on terror. It has been in the public domain before."

And if the terrorists were clever enough to hijack four airplanes, surely they would have long since figured out that their money trails were being watched. And would have found less formal financial laundries to carry out their evil venture capitalism.

But for the Bush Administration, the SWIFT story presented a wonderful way to change the subject. From Iraq, where things aren’t going so well. From the Supreme Court, which cancelled the President’s blank check. From immigration, where the President’s tanking poll numbers finally gave our supine House of Representatives the spine to resist the more comprehensive approach proposed by their own party’s Senate colleagues. From rising gasoline prices. From post-Katrina chaos. From our problems with Iran and North Korea, and the Administration’s continuing failure to devote serious resources to the never-ending Israeli-Palestinian issue.

Attacking the messenger is a tried and true Washington tactic. Especially when the messenger is the press.

Democrats didn’t exactly call for Bill Keller’s head, but neither did they distinguish themselves for the political courage to defend the First Amendment.

But the money trail story apparently has legs. Comes now news from the AP that money transfer agencies like Western Union have delayed or blocked thousands of cash deliveries on suspicion of terrorist connections simply because senders or recipients have names like Mohammed or Ahmed.

The AP reports that Western Union Financial Services, Inc., an American company based in Colorado, said its clerks simply are following U.S. Treasury Department guidelines that aim to scrutinize cash flows for terrorist links. Most of the flagged transactions are delayed a few hours. Some are blocked entirely.

"The Treasury program interferes with even the most innocent transactions," said the Council on American-Islamic Relations, CAIR, in Washington. "Just because Ahmed is a common name on (the government’s) list, everyone with that name is suddenly stuck."

CAIR spokesman Corey Saylor said Treasury needs to reform its rules.

Treasury’s aggressive approach dates from 9/11, and Western Union's caution is not surprising. September 11th hijacker Mohammed Atta sent money from two Western Union agencies in Maryland before boarding the plane he helped crash into New York's World Trade Center.

But a Western Union branch manager told the AP he was forced to obey U.S. rules that he and others consider too broad.

"Mohammed and Ahmed have become problematic names because they are so common on the list of terrorists," said Nixon Baby, who runs a Western Union franchise in a Dubai neighborhood packed with South Asian businesses.

"These are regulations that Western Union is required to obey. We do not have any control," he added.

But critics of the program say it is far too broad, the AP reports. “The number of people inconvenienced in the United Arab Emirates alone, which closely cooperates with U.S. counter-terror operations, is thought to be significant. One Western Union clerk said about 300 money transfers from a single Dubai franchise were blocked or delayed each day — none of which ever turned up a terrorist link.”

In Washington, a U.S. Treasury spokeswoman said foreign banks have used the department's list of terrorist names to freeze $150 million in assets since it was released after Sept. 11. The terrorist list, which is available on the Treasury's Office of Foreign Assets Control Website, contains hundreds of people named Mohammed.

"Every Mohammed is a terrorist now?" asked a Western Union customer whose money transfer was blocked.

Critics of the Treasury guidelines say they are sending more people to informal money transfer networks called "hundis" or "hawalas" that circumvent government and bank scrutiny, the AP reports. Hawala networks are known to have been used by gangsters and terrorists.

The Administration cannot be faulted for trying to follow the financial trails of people bent on destroying us, whether they are charitable organizations or money transfer companies like SWIFT and Western Union.

The question is whether broad-brush surveillance cloaked in secrecy is the most effective way to achieve this goal without writing the government another blank check.

We know the government’s counter-terrorism people are working hard. But are they working smart?